The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Fifth Circuit Judge James Ho recently announced that he will be taking on cancel culture through his law clerk hiring practices. Judge Ho believes that the most significant cancel culture problems in legal education today are at Yale Law School. He has therefore decided that, in his capacity as a United States judge, he will no longer hire any Yale Law graduates as law clerks. And he is encouraging other judges to join him.
As I understand things from David Lat's useful coverage, Judge Ho's goal is to change the culture of law schools. By imposing a boycott, and by getting as many other conservative judges as he can to join him, he might discourage conservative applicants from enrolling at Yale Law School. That might pressure Yale Law School to change its culture. And that in turn might cause a shift in the culture at other schools.
This a bad idea, and I hope other judges do not adopt it. Given our blog's traditional readership among conservative judges and clerks, I thought I would take a minute here to say why.
First, some context. I think it's fine if federal judges want to express their personal opinions about law school cultures. Judges can give public talks in their personal capacity, and they can write op-eds in their personal capacity. They can write books, go on podcasts, upload TikTok videos, or whatever. We all have opinions, and judges do, too. If they want to express them, I don't have a problem with that.
I also think it's fine for judges to decide not to hire graduates from a particular law school because they don't expect clerks from that school to work out well. Federal judges pretty much have their choice of clerks. In choosing which applicants to hire, it's natural for judges to favor some schools, and to disfavor others, because the judges think they're likely to have better or worse experiences hiring clerks from there. That's all fine, too.
What Judge Ho is doing seems different, though. He is trying to use his position as a government official, and the accompanying power to direct taxpayer dollars to employ staff, in a way that maximizes his personal agenda outside of his government work.
Some will agree with that agenda, and others won't. But whatever your views on that, I think this 'boycott' crosses an important line. It's the line between judges expressing their personal views in an effort to persuade (which is fine), and judges harnessing their power as government officials to create pressure on private institutions to further their personal agendas (which is not fine, in my view).
Judge Ho has anticipated at least part of this objection. David Lat reports:
To those who'd say he should "stay in his lane" and stop telling law schools (and law school deans) how to go about their business, [Judge Ho would] argue that judges are already expressing preferences of all sorts—e.g., judges who promise oral argument if litigants let younger lawyers do the arguing, judges who take race and sex into account when appointing class-action or multi-district litigation counsel, etc.
That doesn't seem like much of a justification to me. Two wrongs don't make a right. That is, Judge Ho presumably disagrees with those other judges who have tried to use their official powers to advance their personal agendas as it relates to law firm staffing. I disagree with the decisions of those judges, too, for the same reason I disagree with Judge Ho's plan. But the fact that some judges are "already" doing something does not justify doing a lot more of it. Some judges wrongly crossing a line does not remove that line for everyone else.