The Volokh Conspiracy
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Thoughts On Judge Ho's Clerkship Boycott
[This is a guest post by Prof. Jack Goldsmith of the Harvard Law School.]
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.
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Ho’s announcement showed that being performative is not solely the province of the left.
His whole judicial career has been performative.
haha yeah, no one thinks liberal federal judges are political… haha yeah.
I’m sure that’s the intended inference from noted liberal lion Jack Goldsmith.
What do you mean by “top” federal judges? Do you expect that “lesser” federal judges *will* join in Ho’s boycott?
I think he’s counting on conservative dominance of the judiciary for the next several decades. Therefore if Yale wants to maintain its prestigious reputation through the placement of federal clerks it needs to bend towards his whims.
This is a stupid theory of course. Because it’s not actually going to diminish Yale’s prestige and they’ll “lose out” on a handful of clerkships a year to some insufferable judges. Many more judges won’t care about this at all (particularly district judges) and big law will care even less. Indeed they know that it doesn’t matter how many ACS, SJP meetings a student attends because at the end of the day they’ll still go to Sullivan and Cromwell or wherever to defend the next Triangle Shirtwaist Factory.
Plus student life will in fact improve because no one at Yale will be subjected to someone whose dream as an undergrad is to clerk for James Ho. Win-win for Yale all around.
What will likely happen is that the conservative student on the margin will go to some other institution. This will deprive the left-wing activists at Yale of targets, so they’ll just shift their targeting criteria, and go after marginally more left-wing students. Life will improve for the students who avoided Yale, but for nobody else.
No. It absolutely will improve for Yale. No one wants to go to law school with a current undergrad who not only knows what judge he (it’s definitely a he btw) wants to clerk for, is so sure of his ability to get that clerkship that he’s purposely not applying to a highly competitive T-14, AND the judge he wants to clerk for is known for being an insufferable and tedious firebrand who practicing lawyers regard as a joke.
That kind of person would be an insufferable asshole and everyone knows it. Even the Yale federalist society is going to improve without that kind of person around.
Tell me you don’t move in these circles without telling me you don’t move in these circles.
You’re right. I don’t spend my time with a bunch of insufferable elitists at T-14s whining about cancel culture. Thanks for picking up on that.
“Tell me you don’t move in these circles ”
Give him a break, online law school is fine.
I actually went to a conspirator-associated school (not South Texas obviously).
” Plus student life will in fact improve because no one at Yale will be subjected to someone whose dream as an undergrad is to clerk for James Ho. Win-win for Yale all around. ”
I agree. Schools with more conservative students tend to be shittier schools, much as schools with more conservative faculties tend to be shittier schools. (They also tend to be censorship-shackled, nonsense,-teaching, bigotry-infused, academic freedom-flouting institutions, because that is what conservatives do to just about every campus they get control of.)
Let conservatives have Regent, Biola, Bob Jones, Liberty, Ave Maria, Hillsdale, Ouachita Baptist (and fill-in-the-blank Baptist), Franciscan, Cedarbrook, Ozarks, Oral Roberts, and dozens like them. Those schools should continue to be operated by and for superstitious, bigoted, obsolete culture war casualties.
Better Americans will make do with Yale, Harvard, Berkeley, Williams, Michigan, Michigan State, Columbia, New York University, Princeton, and nearly every other top fifty (and top hundred) teaching and research institution.
Yale no longer deserves its prestigious reputation. It has changed from a law school to an indoctrination factory.
All law schools are indoctrination factories. They indoctrinate students into this idea that law is somehow distinct from politics and the exercise of power. They pretend it is a completely logical and self-contained system that makes sense. That with the perfect argument and the right authority They instill this idea that arguments, representations, and judicial decisions are morally neutral products of logic that are disconnected from their effects on real humans. That representing a company that uses child slavery in Africa is equally as praiseworthy as trying to stop a wrongful execution.
Whatever passing cultural and social fads you consider “indoctrination” pale in comparison to the bigger picture.
Yale is now teaching the opposite of all that.
Hahahaha, it’s cute that you think that.
You can say with a straight face that YLS is teaching that the law is distinct from politics? Lol.
Yes. Absolutely. Otherwise lawyers wouldn’t be a “special” profession and anyone with the ability to read and write could do it without any additional training.
I don’t need to be a current Yale student to know that their contracts, torts, property and corporations professors (among others) are teaching them to “think like a lawyer” and that Benjamin Cardozo and Learned Hand (and even Antonin Scalia) were “brilliant” “jurists” in the same way that someone is a brilliant scientist using logic and reason to come to compelling and just conclusions about what rules govern society.
I thought they taught that the trial was HOW you determined if the execution was wrongful, or that the company was using slave labor, and that effective representation was necessary so that the trial would actually function to that end. You mean trials are wasted effort, because lawyers know and agree on who’s guilty and innocent in advance of them?
Well one other myth law school instills in students, and lawyers instill in society (which you appear to believe), is that the adversarial system is designed to find the truth instead of a system of gamesmanship, power, and luck that has little relationship to what is and isn’t true.
But more to your point, the law never lets most things get to the adversarial system anyway, and it treats attempts to keep horrible actors from accountability as equally morally worthy as attempts to get someone int the system at all. Lawyers claiming that Nestle can NEVER be liable under the ATS are treated as just as indispensable to society and morally praiseworthy as the lawyers trying to overcome artificial procedural barriers to simply present evidence of actual innocence in capital cases. And the Court that issues decisions saying it doesn’t matter whether any child slavery allegations are true and it doesn’t matter whether anyone is actually innocent is treated as morally neutral at worst and morally good in these judgments.
That’s the true indoctrination of law school.
I’m aware that the people with law degrees in the legal system have been moving Heaven and Earth to reduce how much influence the people without them, (The jury.) have over outcomes. And going to great lengths to avoid jury trials is part of that.
None the less, a trial IS how you find out, for legal purposes, if somebody actually IS a horrible actor, or is just wrongly accused of being one.
LTG prefers his “system[s] of gamesmanship, power, and luck that has little relationship to what is and isn’t true” to take place in back rooms, where the public cannot see the sausage being made.
“law is somehow distinct from politics and the exercise of power.”
That is the opposite of what Critical Legal Studies (popular at Yale) teaches. Critical Legal Studies teaches that law is politics, that it is a social and cultural system for protecting the interests and perpetuating the rule of the powerful, and that law students learn, and judges and practitioners utilize, a specialized rhetorical style (what intellectuals often call a “grammar”) in order to operate this system in a manner that mystifies the powerless and obscures what the law is doing. I suspect the big difference is that Law Talking Guy has a different idea from the CLS devotees about who the powerful are in our society, or whether YLS professors are well-qualified to serve as tribunes of the powerless.
Critical legal studies aren’t a major part of any law school curriculum. Most law professors aren’t critical theorists. For every CLS professor or seminar or unit that exists, it’s going to be dwarfed by traditional classes on traditional topics.
If the caricatures of Yale were true Big Law wouldn’t hire Yale grads….but they’re not boycotting the school, because that would be incredibly bad for business. Only the most deeply buffoonish judges and professors are all in on this in the country are into this because they have tenure and zero accountability to anyone for their positions. Serious people doing serious work don’t have time for nonsense.
What is your evidence for this claim, bevis?
If you can do a better one-sentence summary of CLS than mine, please do. Then explain why it somehow does the opposite of what I said (or else that it isn’t popular at elite law schools, though that will be very difficult).
Let’s pretend CLS is some complete legal theory, and not meant as a supplement to other jurisprudential systems.
Is CLS mandatory at Yale? Is Yale somehow extra into CLS compared to other places?
LTG…conservative dominance of the judiciary? The numbers simply don’t support that = dominance.
I don’t see this as a good development.
Maybe the conservatives have already quit going to Yale.
That would explain Yale’s position atop the rankings. Superstitious, bigoted yokels do nothing to improve an institution.
Yes, since no conservatives are involved in making the rankings.
Josh Hawley, for one.
People can look these things up and not just claim whatever they want,
I find it highly unlikely that this boycott will have a big impact on student decision-making. That being said, I find the idea of a bunch of Scalia Law grads who claim they didn’t apply to Yale because of wokeness then getting locked out of clerkships in favor of Chicago, Harvard, and Stanford grads pretty amusing.
“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.”
Prof. Goldsmith, can you provide any evidence that Yale has or will do this?
They got rid of Cosgrove, so that’s something. But Eldik is still there, so far as I know. I guess Prof. Goldsmith doesn’t see a problem with administrators who describe Federalist Society membership as “triggering.”
I suspect Yale Law will survive, and will still send its graduates into the world to govern the rest of us – and to stomp us into submission as some truth-serumed progressives put it.
The role of the plebians is to fix Yale law grads’ leaky pipes, to perform maintenance on their BMWs, and to yield to the graduates’ social and political demands.
The entire clerk system is corrupt and needs scrapped and replaced.
Civil service type criteria. Central hiring authority and assignment to judge/justice. Ban on Big Law “signing bonus” to ex- clerks, which is just a form of influence peddling. Maybe caps on number of clerks from a particular school.
It already partly exists for less glamourous work. Courts of appeals have staff attorneys who deal with motion practice, habeas petitions, social security appeals, 1983s, mediations, etc.
And while hiring and firing is still to the discretion of the judge, a lot of district judges, and particularly magistrate judges have a long-term career clerk on their staff.
According to the Washington Free Beacon, a number of other judges have joined the boycott, but have chosen to do so anonymously.
Does anyone want to take a stab at explaining that?
Clingers gonna cling.
Until replacement, which they are powerless to avoid.
“Ho can of course hire law clerks from whatever law school he wants, using whatever criteria he wants.”
I’m not sure this is true. One hopes that federal judiciary employees are supposed to use their hiring discretion to advance the goals of the federal judiciary, and not their personal goals about how law schools should be run.
But it would be perfectly reasonable to determine that Yale candidates get low priority consideration because they are likely poor candidates due to the lack of diversity of thought at their school.
I mean, one can make that kind of blanket stereotype,
One would be doing a collective guilt thought, so one would suck.
Conservative judges are welcome to refrain from hiring Yale graduates . . . and to continue making federal clerkships a taxpayer-funded affirmative action program for students on the losing end of the culture war and the wrong side of history.
Better Americans should respond by refusing accreditation to every nonsense-teaching school, which tend to be fourth-tier (or worse), censorship-shackled, conservative-controlled campuses. People should be free to teach, study, and donate where and as they wish, but the liberal-libertarian mainstream made a grave error when it began to recognize degrees from nonsense-teaching schools (Biblical creationism as anything other than a silly fairy tale for the gullible and half-educated, for example). That mistake should be corrected without delay.
Carry on, clingers . . . so far as stale, ugly, bigoted thinking can carry anyone is modern, improving-against-your-wishes America.
The best scientists the world has ever known believed in what you’re describing as a “silly fairy tale”. Are you of the opinion that Isaac Newton was gullible and half-educated? Anyway, have fun with your side of history!
Who would want to clerk for this this guy after this sort of childish decree? I would have more respect for him if he would have just declared ” I see London, I see France, I see someone’s underpants”.
Not suppressing though, as it fits the modern trend to escalate everything until we hit a M.A.D. threshold. After all, if this were to become the trend, who could blame the liberal judges from announcing a ban on clerkships from schools who don’t meet some sort of a minimum “woke” threshold?
Offers no ideas himself but thinks Judge Ho’s idea’s won’t work.
Everything Prof. Goldsmith says is perfectly reasonable if Yale were just left of center and had a few mild controversies. But they have gone batshit crazy progressive, so I don’t think it is reasonable for the conservative world to just shrug and go about business as usual. “You guys are too crazy for me to do business with” seems like a fair response.
Hiring a law clerk who went to Yale is not “doing business with” Yale.
Goldsmith is a Pet Conservative. Given a spot at Harvard for just these kind of posts.
Ho is the future, dinosaurs like Goldsmith are the past.
Judge Ho is the future to the precise degree that superstitious bigots are the future in America, or that desolate, emptying, hopeless, backwater Ohio is the future of America.
Bob from Ohio lives in a town whose best restaurant is a Hardee’s whose population peaked 20 or 30 years ago, and whose best students — all of the smart, ambitious young people — leave at high school graduation, never to return.
You’d be disaffected and bitter, too.
Yeah, anybody who wants to try to get along and maybe compromise a little and understand the other side’s viewpoint is a dinosaur. A thing of the past.
The future is ripping your opponent’s guts out and eating them raw.
Geez, I wonder why our politics is so fucked up.
If you were at YLS you’d be behaving no differently than the current administration.
“future is ripping your opponent’s guts out and eating them raw”
Yes. As was the past for the winners.
Goldsmith is of a generation of conservatives who conserved nothing.
It’s getting rough out there for obsolete, bigoted, disaffected, movement conservative Republicans.
Which is great!
bevis, Bobs politics are fucked up, dint generalize based in him.
Bob is an asshole who finds all non-assholes to be house negroes basically,
Why are lefties so unrepentantly racist?
Nice knee jerk. Read what Bob said. He is invoking that same trope. That’s on Bob, not in me.
I am genuinely amazed that anyone other than extremists on either side think it is a good idea for a top law school to actively participate in today’s cancel culture. Judge Ho simply shined a light on the problem. And, if Yale still can’t indoctrinate their students without canceling others with different viewpoints, then Yale’s preferred viewpoints must lack any value.
Yale is filled with leftist professors who advocate for things like due process abortion, equal protection gay marriage, equal protection “restructuring the political process,” race based affirmative action, and other evil policies.
” Yale is filled with leftist professors who advocate for things like due process abortion, equal protection gay marriage, equal protection “restructuring the political process,” race based affirmative action, and other evil policies. ”
Yes, and the Fifth Circuit consists mostly of bigoted, superstitious, can’t-keep-up, half-educated states, while the Fifth Circuit bench is populated mostly by obsolete, bigoted, clingers and superstitious, disaffected culture war casualties.
Where is the hope for America?
(reposting from a week ago)
Imagine a private business that’s explicitly hostile to . . . let’s say blacks. Being a private business, they are (or at least should be) completely free to continue in their bigoted ways. However, the rest of society, for its part, is also free to boycott such a bigoted business.
Yale is a private school. If they want to engage in open bigotry against conservatives — more power to them. But the rest of of society ought to respond in a fashion similar to that described above — to disassociate itself from Yale as much as possible. I don’t see anything wrong with Judge Ho’s proposed boycott.
Ho’s boycott is interesting because it demonstrates two things:
(1) For all their whining about cancel culture, conservatives are again and again entirely willing to engage in it themselves. It’s hard to see any meaningful difference between this action and the cancel culture that Ho is purportedly pushing back against other than the political valence of whatever is being cancelled.
2) It also demonstrates that when you have a huge number of highly qualified candidates for a given job, it’s entirely possible to pick someone who is well-qualified (likely indistinguishably well-qualified) for the job despite filtering on some arbitrary criteria that has nothing to do with whether or not that individual candidate would be good along some particular meritocratic criteria. Just as Ho will have plenty of other solid candidates for his clerkship despite arbitrarily filtering out YLS alums, Biden had plenty of great candidates to choose from for the last Supreme Court seat despite seeking a black woman.
I appreciate Judge Ho doing such an effective job of illustrating points liberals have been making for some time.
It’s the paradox of tolerance, dude. Intolerant leftists have left only one viable response: barring them from society.
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.
Why would Prof Jack imagine that Judge Ho’s objective is to improve Yale Law School ? It seems much more likely that he has concluded that it has passed the point of no return and that he should discourage conservatively minded law students from attending Yale Law School, in their own interest and in the interests of the legal education pipeline serving the federal court system.
So a perfectly reasonable estimate of the end game for Ho, would be Yale sinking to the bottom of the sea, and bright conservatively minded students escaping the bullying attempts at woke indoctrination and studying law elsewhere. The elsewhere then accumulating some of the prestige currently enjoyed (on a legacy basis) by Yale.
You dumbasses genuinely believe Yale would be hurt by having fewer superstitious gay-bashers, Confederacy-hugging racists, obsolete misogynists, backwater immigrant-haters, Federalist Society members, deplorable culture war casualties, registered Republicans, and disaffected clingers on campus?
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.
Not sure I grasp the logic here. Is the last sentence intended to identify students who apply to Yale post the Ho announcement, but are nevertheless unaware of it ? Are these the sort of students whose research competence federal judges are going to rely on in their clerks ? Really ?
Moreover is not Prof Jack the fellow who is OK with unannounced law school boycotts, but sniffy about announced ones :
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
How would having a policy of boycotting Yale grads, but keeping quiet about it, solve the problem of students not knowing about a boycott of Yale ?