The Volokh Conspiracy
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During oral arguments in SFFA v. Harvard, Justice Kagan tried to broaden the case beyond higher education. She explained that many "institutions" need to rely on racial preferences to achieve their diversity goals. (Notice how the word "institution" presumptively refers to an organization that pursues progressive goals, for an entity that leans conservative is no longer behaving like an "institution.") During a colloquy with Cam Norris, Justice Kagan asked about judges who hire law clerks based, at least in part of race:
JUSTICE KAGAN: Do you think that if you're a law firm or if you're a judge, if you're a judge and you want to have a diverse set of clerks, do you think a judge can't think about that in making clerkship decisions?
Norris responded that judges can be aware of a prospective clerk's race, but cannot use race to distinguish between candidates.
MR. NORRIS: Absolutely can think about it. The Court's decision in Feeney says knowledge of race is not the violation. It is using it as a factor to distinguish -
But that wasn't what Kagan was asking about. Instead, Kagan was asking if a judge could hire a minority law clerk as a way to signal to the broader public that minority attorneys can succeed as federal law clerk.
JUSTICE KAGAN: I'm using --let's say a judge says I want a diverse set of clerks. That's --you know, I want clerks who would -you know, great on any number of criteria, but I also want a diverse set of clerks. So, over the years, people will look at that and they'll say: There are Asian Americans there, there are Hispanics there, there are African Americans there, as well as there are whites there. Can a judge not do that?
The key phrase is "people will look at that." That is, the public will perceive that the judge is hiring minority law clerks.
I'll come back to Norris's answer in a few moments, but I'll take a brief detour to an argument made by one of Justice Kagan's actual law clerks, Solicitor General Elizabeth Prelogar. During Prelogar's argument as amicus, she lamented the fact that very few women argue before the Supreme Court. She worried that the lack of female advocates could "cause people to wonder whether the path to leadership is open." That is, people will look at the Supreme Court oral argument calendar, and see women are not adequately represented. She offered this "common sense example." In other words, if there aren't women arguing before the Court, fewer women may strive to become Supreme Court advocates:
GENERAL PRELOGAR: And if I could, maybe I could just give a, I think, a common sense example of that that I would hope would resonate with this Court. The Court is going to hear from advocates in this sitting of the oral argument calendar, and two are women, even though women today are 50 percent or more of law school graduates. And I think it would be reasonable for a woman to look at that and wonder, is that a path that's open to me, to be a Supreme Court advocate? Are private clients willing to hire women to argue their Supreme Court cases? When there is that kind of gross disparity in representation, it can matter and it's common sense.
If I may modify Justice Kagan's hypothetical question, could the Supreme Court, when appointing attorneys to argue as amicus curiae, "think about" race and gender? Could the Circuit Justice who makes that appointment select a minority advocate so the "people will look at that decision," and think that minority lawyers can argue before the Supreme Court? This hypothetical is not so fanciful. In Martin v. Blessing (2013), Justice Alito observed that district court judges "ensure that the lawyers staffed on [class action] case[s] fairly reflect the class composition in terms of relevant race and gender metrics." This practice is extremely common.
To extend the analogy, how many of President Biden's judicial nominees were race conscious? I've lost count of how many "firsts" have been trumpeted in the press releases. The first nominee of X race in this District. The first nominee of Y sexual orientation in that District. And so on. Now I think the constraints on executive-branch appointments are quite different, but the rationales are similar: these appointments are made, at least in large part, to signal that paths to leadership are open to under-represented minorities.
Back to Cam Norris's answer to Justice Kagan.
MR. NORRIS: I mean, I think that's a --that's a --that is a admirable goal. I don't think a judge could implement that goal by putting a thumb on the scale against Asian applicants or giving a big preference to black and Hispanic applicants. I think you need to treat people equally based on race just as you're not going to hold my race against me in judging the quality of my arguments. I think race --racial diversity is important because it's a good metric to make sure our --our --our institutions are equally open. You can certainly be concerned about that. But the question is using racial classification, telling people that you didn't get the clerkship because of your race.
Now, would it be ethical for a judge to hire a minority law clerk to signal that the pathways to leadership are open to minorities? Or could a Justice appoint an attorney as amicus curiae to signal that pathways to leadership are open to minorities? Or could a judge require that minority attorneys serve as class counsel to signal that pathways to leadership are open to minorities? Notice I did not say that these decisions were made because of the benefits that derive from having diverse attorneys. Justice Kagan and General Prelogar's hypotheticals were expressly framed in terms of sending a signal to the public–something for "the people to look at." To be sure judges, like everyone else, can have mixed motives. They can act from a multitude of reasons. But I will not fight the hypothetical. What if a Judge announced that he will hire a diverse group of law clerks to show that minority law clerks can thrive at the highest levels of the profession. Just like Justice Kagan asked:
JUSTICE KAGAN: I'm using –let's say a judge says I want a diverse set of clerks. That's –you know, I want clerks who would -you know, great on any number of criteria, but I also want a diverse set of clerks. So, over the years, people will look at that and they'll say: There are Asian Americans there, there are Hispanics there, there are African Americans there, as well as there are whites there. Can a judge not do that?
The perceptive reader by now should see where I'm headed with this post: can a federal judge use his hiring of law clerks to promote some broader societal goal? Hello Judge Ho.
Steve Lubet wrote a column at The Hill suggesting that Judge Ho's boycott was unethical.
Canon 2B provides that a judge must not "lend the prestige of the judicial office to advance the private interests of the judge." Ho has attempted to do just that, dangling the possibility of prestigious clerkships before future students who abjure Yale, and withholding it from those who disregard his admonition. The Code makes no exception for a presumably admirable personal mission, like combating cancel culture. Judicial ethics prohibit using the powers of office to enforce non-judicial ends.
Would Justice Kagan's hypothetical "advance the private interests of the judge"? Does the hypo pursue a non-judicial end? Is it within the judicial function to hire minority law clerks to signal that pathways are open to minority law students? You might reply, of course! Judges can use their official power to promote broad values like diversity, equity, and inclusion. A similar argument could be made about the freedom of speech and expression. Judge Ho's hiring policy seeks to promote free speech, while Justice Kagan's hypothetical promotes DEIdeology, as I call it. Now you might reply that Ho's policy includes, while Kagan's hypo excludes. Nonsense. Hiring, like university admission, is a zero sum game. Every applicant who is hired means another applicant is not hired. The power to include embraces the power to exclude.
If Lubet is correct that "Judicial ethics prohibit using the powers of office to enforce non-judicial ends," then many judges will need to revisit their clerk-hiring practice. And their requirement to appoint minority counsel. And so on. Fortunately for the judiciary, I do not agree with Lubet's reading of Canon 2B. I think the phrase "private interest" should be read as an interest private to the judge. That is, something that would personally advantage him. Actions that are designed to advance the "law, the legal system, and the administration of justice"–as Canon 4.A.1 frames it–should not be read to promote a judge's "private interests."
Lubet also raised another critique of Ho's policy:
Under Canon 3B(3), a judge must "exercise the power of appointment fairly and only on the basis of merit." This provision specifically applies to law clerks, and it is surely unfair to refuse to consider admittedly "great kids" in an effort to intimidate law school administrators. Hiring "on the basis of merit" should mean evaluating the abilities of individual applicants, unrelated to Ho's disapproval of law school deans or his desire to force changes in the school's operations.
This position doesn't work. Implicit in Ho's policy is a judgment: students who knowingly choose to go to Yale, in light of its failure to protect free speech, lack merit. They made a decision, and that decision reflects poorly on who they are, and how they would perform as a clerk. You may disagree with that judgment, but it is unquestionably on the "basis of merit." There is no ethical violation to see here.
I know Judge Ho has received much criticism. Truly, the boycott has not advanced Judge Ho's private interests–if anything, it has harmed him! It is always easier for a judge to keep his mouth shut. But Judge Ho should be commended for saying the quiet part out loud. How many federal judges hire law clerks to signal that pathways to leadership are open? How many federal judges hire law clerks to virtue signal that they have diverse chambers–especially when they've been accused of being insensitive to minorities? Slogging through the five hours of the oral arguments has reinforced how right Chief Justice Roberts was (for once): "it is a sordid thing, this divvying us up by race." Better to be done with it now, and not in 25 years.
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