I posted the eighth episode of my podcast "Strangers on the Internet" (the direct link for Apple Podcasts is here). In this installment, my co-host, psychologist Michelle Lange and I pick apart dating advice from the Interwebs, (in)famous listicles, and popular tropes such as Hollywood's dating plot lines from the last two decades.

One of the recent reads about online dating worth checking out is the NY Times' retrospective on 10 years of Tinder.

At Slate, Mark Joseph Stern writes that constitutional law professors are "giving up on the Supreme Court:"

The problem, it's worth emphasizing, is not that the Supreme Court is issuing decisions with which left-leaning professors disagree. It's that the court seems to be reaching many of these conclusions in defiance of centuries of standards, rejecting precedent and moderation in favor of aggressive, partisan-tinged motivated reasoning. Plenty of progressive professors have long viewed the court with skepticism, and many professors, right- and left-leaning, have criticized the reasoning behind certain opinions for decades. But it's only in recent years—with the manipulation of the justice selection process combined with clear, results-oriented cynicism in decisions—that the problem has seemed so acute that they feel it affects their ability to teach constitutional law.

Actually, the fact that the Court is solidly conservative, and the constitutional law professoriate overwhelming liberal or further left, is exactly the problem. In the past, the left could count on the Court for sporadic big victories: same-sex marriage, affirmative action, abortion. Now they can't, so they have turned against the Court. We all know that left-learning lawprofs would be dancing in the streets if SCOTUS were equally aggressive to the left. And indeed, while Stern portrays discontent with the Court as a question of professional standards rather than ideology, he does not manage to find a single right-leaning professor to quote in his article.

[Cross-posted at Instapundit]

Judge Laurence Silberman of the D.C. Circuit Court of Appeals died on Sunday. The Wall Street Journal has full coverage, including an obituary, house editorial, and op-ed by Paul Clement. (Indeed, I suspected something was up when the WSJ published Judge Silberman's Constitution Day address at Dartmouth.) He was a legal giant. Few today could ever scale to his height and influence. Here, I will include a short anecdote about my experiences with Judge Silberman.

In November 2021, I wrote about an unusual judicial misconduct issue. Judge Silberman alleged that Judge Sullivan (D.D.C.) should not be able to sit on the District of Columbia's judicial selection committee. Silberman's complaint was grounded in the separation of powers, as well as the code of conduct. Eventually, my post came across Judge Silberman's radar. In April 2022, his law clerk contacted me, and said that the Judge would be happy to chat with me about the matter. By chance, I was scheduled to be in D.C., and asked if we could meet in person. Judge Silberman obliged.

My brief hour with Judge Silberman is a time I will never forget. He explained why he was motivated to bring this complaint. There was noting personal against Judge Sullivan. Rather, he did not want judges getting involved in the political process. Judge Sullivan told me that when President George W. Bush asked him to co-chair the commission on the intelligence failures leading up to the Iraq War, Silberman considered resigning from the bench. However, he learned that he could simply stop all judicial business while performing his role for the executive branch. And so he did. For a period, Judge Silberman did not decide any cases or participate in any court business. Silberman couldn't even use his judicial clerks and staff during that time. Silberman explained that if Judge Sullivan really wanted to serve on this judicial selection committee, he could put on hold all of his court business.

Judge Silberman was also bothered by the fact that Congress drafted a statute that required a federal judge to serve on this commission. Now, that problem could be mitigated by having a senior judge who no longer hears cases to serve in that role. But in Silberman's view, it was troubling that Congress seemed to approve a clear violation of the Code of Conduct. And the various apparatchiks within the Judicial Conference seemed to defer to Congress's finding that this practice was valid. Silberman asserted that Congress could not deem unethical conduct as ethical. And he worried about what kind of precedent that could set. I asked him to spell out his thinking a bit more, because I didn't see the slippery slope here. He looked pensive, and said he would think about it. (More on this argument later.)

Then, Judge Silberman took me down a tour of memory lane. He talked about his work on In Re Sealed Case, which became Morrison v. Olson. Justice Scalia's famous dissent largely tracked Silberman's lead. He reminded me that he was the person who began the litigation that challenged Congress's denial of cost-of-living adjustments for federal judges. After he prevailed in that case, Judge Silberman emailed every federal judge in the country to let them know. There was no massive mailing list. His secretary simply compiled every individual address. Of course, Silberman decided Parker v. D.C., which became Heller. And he wrote the principled decision in Seven-Sky v. Holder, which upheld the Affordable Care Act as a valid exercise Congress's commerce powers. (Like Bruno, we do not talk about Justice Kavanaugh's "dissent" in that case.) I agree with WSJ that Silberman was more consequential than most Supreme Court justices.

Silberman told me some great stories about his time in the executive branch. One story stuck out, which he recounted in a 2012 Green Bag essay:

The group approved our proposal and Ehrlichman arranged a meeting with the President. That session in early 1970, according to one of the participants, was one of a very few meetings, perhaps the only one, the President had with an interdepartmental working group to discuss a domestic policy issue. As the accompanying picture shows, I am presenting the proposal to the President with the rest of the working group, as well as Ehrlichman and his deputy, Ken Cole, sitting around the table in the Cabinet Room. You will note that sitting next to the President is a white-haired older gentleman. It was apparent from the discussions that he was an ex-Congressman who had served with Nixon in the House when Taft-Hartley was passed in 1947. The President, after rather careful probing, enthusiastically endorsed the initiative. As I was walking out of the room, I asked Ed Morgan, one of Ehrlichman's assistants, "Who was the white-haired gentleman sitting on the President's side of the table?" Morgan replied, "George MacKinnon." I was taken aback: "You don't mean Judge MacKinnon." Morgan said, "Yes," at which point I pointed out that it was quite inappropriate to have a federal judge sitting in on a White House policy discussion. Morgan asked why, and I explained the judicial canon. I reminded him of what Abe Fortas had done during the prior administration and the ensuing brouhaha when he was nominated as Chief Justice. Late that day or the next, Morgan called me to say that it would never happen again, but he sent me the picture.

Judge Silberman mentioned a tidbit that did not make it into the Green Bag. Apparently Judge MacKinnon said that he would have recused from any case involving the new legislation, so there was no problem. No harm, no foul, right? Judge Silberman vigorously disagreed. Judges should not get involved with politics, even if there is some way to rationalize it.

Eventually, my session wrapped up with Judge Silberman. I told him I would likely write more his complaint. (I did; he emailed me right away to point out some typos.) I then left Judge Silberman's chambers, and went to visit another judge in the building. About five minutes later, Judge Silberman barreled into chambers. The judge I was visiting thought Silberman was there to see him. No, Silberman was there to see me! Silberman said that he had figured out the slippery slope issue. If Congress could deem unethical conduct as ethical, then Congress could also deem ethical conduct as unethical. In other words, if Congress intervenes, even slightly, to give its imprimatur to dubious judicial behavior, then Congress could intervene to prohibit otherwise proper judicial behavior. He was exactly right.

What struck me was that a man of 86 years, a legend, thought enough to answer my question right away, and storm into another judicial chamber to tell me. I was in awe of how much care and attention he gave to this matter. But this is how Judge Silberman approached every facet of his life.

A few months later, I invited Judge Silberman to moderate a panel at the Federalist Society National Lawyers Convention. The theme was judges picking other judges. He immediately agreed. I regret that he will not be able to share his wisdom with us, one last time. Our panel will now be in his memory, which will be a blessing.

A federal clerkship is a coveted position. Judges wield vast amounts of power in selecting their clerks–so vast that fear of reprisals have forced many clerks to stay quiet in the face of abuse. I even proposed eliminating clerkships as a way to eliminate this imbalance of power. But so long as federal clerkships remain, judges will still exercise nearly-unfettered discretion over who they hire.

At a minimum, clerk candidates should meet certain legal competencies: careful reading, clear writing, and sharp acumen. Beyond these checkboxes, the decision to hire one candidate over another will often come down to fit–the fit between the judge and the candidate; the fit between the candidate and other clerks in chambers; the fit between the candidate and clerks in other chambers (inter-chamber shuttle diplomacy is an undervalued attribute of clerking); and so on. Every judge will understand "fit" differently.

Some judges will also hire based on a candidate's potential for success in the future. We know all about the so-called "feeder" judges who hire clerks with an eye towards recommending them for the Supreme Court. When a Justice hires such a super-star, the "feeder" judge looks good! So "feeder" judges have every incentive to identify clerks–who often only finished 1 or 2 semesters of law school!–with the potential to go upstairs.

Fortunately, potential for success is not limited to One First Street. Many non-elect clerks will pursue distinguished careers in different fields: big law, public interest, criminal defense, academia, government, etc. I think it is very common for judges to give preferences to candidates who seek to enter one field over another. Some judges, for example, are known to feed clerks to the academy. So they may favor candidates who have published, and want to go into teaching. Other judges may have experience in public interest litigation, and provide a benefit to candidates who want to use the law degree to make the world a better place; those candidates who want to cash out in big law may be disfavored. And let's not be blind to the ideological screen. Some Democratic-appointed judges will only hire liberal clerks. Some Republican-appointed judges will only hire conservative clerks. Of course many judges (including my own) hired an ideologically heterogenous cohort. But many do not–and with the abolition of the filibuster, I suspect the number of ideologically-homogenous chambers will increase.

In short, judges evaluate a candidate based on a host of personal factors–dare one call it holistic. What has the candidate already done? And what might the candidate do in the future–or more precisely, what could the candidate accomplish if the clerkship is now on his/her resume? Yes, bestowing a clerkship on a candidate can be the key or his or her success. It opens up so many doors, including access to a clerk alumni network.

This background brings me to Judge Ho's plan to stop hiring graduates from Yale Law School. Judge Ho offered a host of reasons that support his decision, which I won't address here. Rather, I will offer another way of understanding this boycott.

Imagine you are a senior in college. You were accepted to Yale Law School, as well as several other top-tier schools. Mazal tov! Now you have a choice. How do you choose between Yale, Harvard, Columbia, Stanford, Chicago, and Virginia? Perhaps there are financial constraints–some schools may give more aid than others. There may also be personal constraints, such as the need to be close to family. More likely than not, neither of these factors would tip in favor of Yale. I doubt that YLS gives substantially more generous financial aid packages, and New Haven is a pain to get to. Instead, I think an applicant would choose Yale over those other schools because of prestige. Yale is the number-one ranked law school. It looks like Hogwarts. It has the top-ranked scholars. It pumps out circuit and SCOTUS clerks at a really high rate. Many applicants have a glide-path into academia. Your classmates will go on the highest ranks of government. And so on.

Now, imagine you are a right-of-center senior in college. More likely than not, you are familiar with recent episodes on campus, including the "Traphouse" imbroglio. And even if you are not familiar with it, you will find out. How? I am reliably informed that the Harvard Law School admissions office is working with the HLS FedSoc chapter to identify conservative applicants, and persuade them to choose Harvard over Yale. And others outside of Yale are giving similar messages:

I spoke the other day with three conservative lawyers who are recent Yale law school grads. They all agreed that they would tell conservative students not to go to Yale. They see sharp decline there. https://t.co/6YXipPh9KW

— Ed Whelan (@EdWhelanEPPC) September 29, 2022

Knowing how inhospitable Yale is to conservatives, why would an applicant still pick Yale over other more tolerant places? The answer, again, is prestige. And the desire to obtain that prestige trumps a commitment to values like free speech and academic openness.

How, then, should a judge assess a conservative applicant who chooses to go to Yale? This person knowingly walked into the traphouse for the sake of an elite degree. I think it is reasonable for a judge to conclude that the applicant exercised poor professional judgment. Indeed, the judge may not want to rely on someone who would sacrifice their principles for prestige. In this regard, the Judge would choose to not hire any conservative YLS graduates because they are unreliable, and maybe even untrustworthy. They have already sold out on their values to go to YLS, and will likely sell out in similar ways in the future. In this view, choosing to go to Yale, with full information, is a failure of moral character. Who needs them? Judge Ho's boycott directly punishes the students for the choices they made, and indirectly punishes the school for failing to address its deficiencies.

Judge Ho's idea isn't entirely new. I proposed a variant of it last year during the "Trap House" scandal. I wrote:

At this point, there is only one way to make YLS suffer: deny it the prestige it so desperately seeks. Specifically, conservative and libertarian 1Ls and 2Ls should transfer out en masse to ensure that other schools can take credit for their appellate and SCOTUS clerkships. Good luck placing clerks with only three of the nine Justices and half the federal judiciary. As a plus, students who transfer out may actually learn something about the law–a useful skill for any clerkship.

I do not know if any YLS students actually transferred out. If they did, I will shake their hands. Perhaps some students chose to stay at Yale as a way to reform the institution from the inside. Good luck to them. Maybe some students were unable to transfer for a host of personal reasons. I understand. But there is some sliver of students who said, "yeah, things are awful here, but I am this closes to a Yale JD and I am not going to throw it away." These are precisely the type people who Judge Ho would not want to hire. Ditto for future graduates who knowingly choose Yale over Harvard or Chicago.

Will Judge Ho's boycott catch on? To be effective, there must be a critical mass of federal judges who participate. I am reliably informed that some judges have quietly stopped hiring from Yale Law School. They are not willing to be as vocal as Judge Ho is. If you are a judge who stopped hiring those students who willfully go to YLS, and sacrificed principles for prestige, contact me. I can serve as an anonymous clearinghouse.

I don't think the risk of a boycott is limited to the judiciary. A future Republican administration can categorically label every YLS grad a squish. It is quite feasible for President DeSantis (a HLS grad) to simply boycott all Yale grads who matriculated after 2021. Good luck with explaining why you chose to stay at YLS for that shiny brass ring as some Chicago grad gets the nom.

At some point Dean Gerken will have to take note when the annual clerkship statistics tank–especially those coveted SCOTUS slots. Eventually, she will actually have to discipline those students who break the law school's rules. And I don't mean some slap on the wrist. Expulsion would get the message across. Then, law school applicants, and federal judges, can take a second look at Hogwarts.