The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.