The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
My friend Judge James Ho recently announced that he is boycotting the hiring of law clerks from my alma mater, Yale Law School, because it "tolerates the cancellation of views" and "actively practices it." I think this is a bad decision, and I hope it might be useful to say why.
I agree with Ho's criticisms about the unfortunate free speech incidents at Yale in recent years. I hope that Yale hears such criticisms and takes steps to fix the problems. For what it is worth, I believe that it has, and will.
Ho can of course hire law clerks from whatever law school he wants, using whatever criteria he wants. I have known many judges who have declined to hire from particular law schools for various reasons. The question for me is whether it is prudent for Ho to announce and encourage a federal judicial boycott of Yale in order to punish it for its "cancel culture" and "send the message" that other law schools should not be like Yale. I think not.
First, I think it is bad for the federal judiciary when a federal judge tries through public threats about clerkship hiring to influence where students choose to go to law school, based on a desire to change a law school's culture. Ho's announcement was a self-consciously political act that was designed to garner the national attention it received. This is unfortunate in an era when many forces are succeeding in creating the impression that judges are politicians in robes. Ho's announcement in particular feeds the erroneous perception of many that conservative federal judges are unduly political.
Second, if the boycott succeeded in driving conservative students from Yale, that would not make one of the nation's top law schools a better place for the values Ho cares about. It would have the opposite impact. It seems bizarre to discourage young conservatives who want to attend Yale from doing so, since Yale is so much better for their presence.
Third, Ho's boycott, if successful, will unfairly hurt conservative students at Yale even though it only applies prospectively. The idea behind prospective application apparently is that students attending Yale starting next year will be on notice of the boycott. But the proposal would still punish conservative students who attend Yale but who were not aware before choosing a law school about the adverse implications for a clerkship years later. It would also punish those students who come to law school without well-formed views about judicial philosophy and over the course of law school develop a conservative judicial disposition.
Fourth, I seriously doubt that Ho's boycott will temper the hiring of Yale law students by top conservative judges. I know that many judges across the spectrum are distressed by speech intolerance at Yale and at other law schools in recent years. But I also know that judges hire based on quality—intelligence, analytical depth, A+ writing skills, fierce work habits, good judgment, and the like. Yale has, and will continue to have, very high-quality students. And that is why top federal judges will continue to hire them.
In sum, I don't understand how a clerkship boycott of Yale students by conservative federal judges helps anyone or any institution—not the judiciary, not Yale Law School, not Yale Law School students, and not the legal profession. But I doubt that top federal judges will join it in any event.