Judges' Boycott of Columbia in Clerk Hiring Is Permissible Under Judicial Ethics Rules (II)

From an order by Eleventh Circuit Judge William Pryor, affirmed by the Eleventh Circuit Judicial Council Aug. 12 but apparently just recently made public (see also this similar Fifth Circuit decision):

The Complaint stems from a letter from multiple federal judges, including the Subject Judges, addressed to the president of a university and copied to the dean of the university's law school. The letter … states:

Since the October 7 terrorist attacks by Hamas, [] University has become ground zero for the explosion of student disruptions, anti-semitism, and hatred for diverse viewpoints on campuses across the Nation. Disruptors have threatened violence, committed assaults, and destroyed property. As judges who hire law clerks every year to serve in the federal judiciary, we have lost confidence in [the university] as an institution of higher education. [The university] has instead become an incubator of bigotry. As a result, [the university] has disqualified itself from educating the future leaders of our country.

The letter sets out the following three steps the university would take if it was "serious about reclaiming its once-distinguished reputation": (1) "Serious consequences for students and faculty who have participated in campus disruptions and violated established rules concerning the use of university facilities and public spaces and threats against fellow members of the university community"; (2) "Neutrality and nondiscrimination in the protection of freedom of speech and the enforcement of rules of campus conduct"; and (3) "Viewpoint diversity on the faculty and across the administration—including the admissions office."

In discussing item 1, the letter states that universities should identify students who violate established rules or threaten others, and that, "If not, employers are forced to assume the risk that anyone they hire from [the university] may be one of these disruptive and hateful students."

In discussing item 2, the letter states, "It has become clear that [the university] applies double standards when it comes to free speech and student misconduct. If [the university] had been faced with a campus uprising of religious conservatives upset because they view abortion as a tragic genocide, we have no doubt that the university's response would have been profoundly different. By favoring certain viewpoints over others based on their popularity and acceptance in certain circles, [the university] has failed as a legitimate, never mind elite, institution of higher education."

As to item 3, the letter states, "Recent events demonstrate that ideological homogeneity throughout the entire institution [] has destroyed its ability to train future leaders of a pluralistic and intellectually diverse country. Both professors and administrators are on the front lines of the campus disruptions, encouraging the virulent spread of antisemitism and bigotry."

The letter then states, "Considering recent events, and absent extraordinary change, we will not hire anyone who joins the [] University community—whether as undergraduates or law students—beginning with the entering class of 2024." Finally, the letter states the objective of the boycott is to restore academic freedom at the university.

Complainant states, "If [the Subject Judges] are willing to openly and collectively punish a university and its students and graduates, a reasonable person has every reason to believe [the Subject Judges] will skew their judicial rulings in a similar manner." Complainant continues, "[The Subject Judges] have attributed their perceived misconduct by a few protesters to an entire institution and explicitly stated that they will punish an entire community in order to cause it to change course. It is no stretch of the imagination to conceive they presently are and will in the future attempt to discern the political views of the parties and counsel before them and discriminate and retaliate against them."

Complainant alleges the Subject Judges used their office to obtain special treatment for friends; engaged in partisan political activity or made inappropriate partisan statements; engaged in abusive behavior "in that their statements demonstrate that they presently are and will be treating litigants, attorneys, judicial employees, or others in a demonstrably egregious and hostile manner"; "used the '[] University Community' as a proxy to discriminate against various races, religions, and national origins that may share in the views of their targeted community"; and engaged in conduct outside the performance of official duties that was reasonably likely to have a prejudicial effect on the administration of the business of the courts, including a substantial and widespread lowering of public confidence in the courts among reasonable people.

Complainant states, "Initially, investigators should determine whether any outside organizations or foreign governments orchestrated the judges' letter to [the] University," and that, "[g]iven the geographical diversity of the judges, it is highly likely that the very same partisan and political organizations that lobbied for their appointment to the bench prompted them to submit the letter at issue." He asserts that evidence that the Subject Judges "collaborated in these extrajudicial activities during their working hours would serve as proof of crime."

Next, Complainant contends that letter's assertion that the university applies double standards is a "fabrication" because the authors only provided only a hypothetical scenario in support of the assertion. Complainant states the Subject Judges "have effectively disqualified themselves" from hearing any cases in which a litigant or attorney had publicly taken a position on the Israeli-Palestinian conflict, as a reasonable person would believe the Subject Judges would be biased against those supporting Palestinians and biased in favor of those supporting Israelis. Complainant also states that the Subject Judges have disqualified themselves from cases involving members of the university community, as well as graduates from any other university where protests have occurred.

In conclusion, Complainant states that the Subject Judges "represent a threat to the Constitution and must be removed from judicial office. Their conduct has made it apparent that they are politicians and possibly foreign agents masquerading as federal judges. The judges' resort to collective punishment is an affront to this nation's core principles of individuality and individual rights." He asserts the Subject Judges are "anti-American," that their "unprecedented an explicit declaration of partiality has eroded the public's trust in the independence of the judiciary," and that their conduct "violated fundamental standards for judicial conduct and requires their removal from office."

Complainant attached documents to his Complaint, including a newspaper editorial written by one of the judges whose name was on the letter (not one of the Subject Judges). Complainant asserts the judge who authored the editorial stated that he and the other judges, including the Subject Judges, were justified in using tools at their disposal "to impose their will and their partisan views on an entire community based upon unsupported and baseless allegations of 'anti-American and antisemitic radicalism.'" …

Judicial-Conduct Rule 4(a)(7) states, "Cognizable misconduct includes conduct occurring outside the performance of official duties if the conduct is reasonably likely to have a prejudicial effect on the administration of the business of the courts, including a substantial and widespread lowering of public confidence in the courts among reasonable people."

Canon 2A of the Code of Conduct for United States Judges states, "A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." Canon 2B states in part, "A judge should neither lend the prestige of the judicial office to advance the private interests of the judge or others nor convey or permit others to convey the impression that they are in a special position to influence the judge."

Canon 4 of the Code of Conduct for United States Judges provides that "[a] judge may engage in extrajudicial activities, including law-related pursuits and civic, charitable, educational, religious, social, financial, fiduciary, and governmental activities, and may speak, write, lecture, and teach on both law-related and nonlegal subjects." However, a judge should not participate in extrajudicial activities that, among other things, "detract from the dignity of the judge's office," "reflect adversely on the judge's impartiality," or "lead to frequent disqualification."

The commentary to Canon 4 provides that "[c]omplete separation of a judge from extrajudicial activities is neither possible nor wise; a judge should not become isolated from the society in which the judge lives." It makes clear that "judges may also engage in a wide range of non-law-related activities." Canon 5 provides that judges must refrain from political activity, but it uses the term "political" to mean activities related to the election of candidates for public office and supporting organizations. The commentary provides, "The term 'political organization' refers to a political party, a group affiliated with a political party or candidate for public office, or an entity whose principal purpose is to advocate for or against political candidates or parties in connection with elections for public office." Subject to limited exceptions provided by the Code, federal judges—like other persons—enjoy the freedom of speech and the press guaranteed by the First Amendment to the Constitution of the United States.

Canon 3B(3) of the Code of Conduct for United States Judges states, "A judge should exercise the power of appointment fairly and only on the basis of merit, avoiding unnecessary appointments, nepotism, and favoritism." The commentary to Canon 3B(3) states that "A judge's appointees include … personnel such as law clerks  …."

The Complaint fails to present a basis for a finding of misconduct. Federal judges routinely hire law clerks and must consider applicants' educational backgrounds in determining whether an applicant is qualified for, and will succeed in, the job. As part of that consideration, judges are permitted to make reasonable conclusions regarding the value and quality of a school's educational program.

Complainant's claims are based on allegations lacking sufficient evidence to raise an inference that the Subject Judges used their office to obtain special treatment for friends, engaged in partisan political activity or made inappropriate partisan statements, treated or will treat individuals in a demonstrably egregious and hostile manner, discriminated against individuals, violated the Code of Conduct for United States Judges, or otherwise engaged in misconduct. Judicial-Conduct Rule 11(c)(1)(D). For that reason, this Complaint is DISMISSED.

Note that I have criticized the boycott on the merits, but without claiming it violated any ethical rules.

Thanks to Howard Bashman (How Appealing) for the pointer.

Comments

[loki13]

Well ... I think it's a close call, but I don't disagree with the ethics opinion by Pryor.

The reason I think it's in that gray zone is this-

1. A judge can have internal criteria regarding clerks. And ... some are weird. I know some federal judges that prefer to hire from state schools, except a certain rival school. Which is weird! But also allowed. Some prefer clerks that are aligned ... let's say jurisprudentially, and some like clerks that will expose them to other points of view. None of this is an ethical issue.

2. However, judges don't announce these preferences! And they don't use their hiring preferences to try and pressure institutions. I mean, it would be weird if Judge Learned Smackdown Hand announced, "I will only hire clerks from State A&M in years that their football team loses to State U. So ... want a job? Make sure your football team sucks."

That's a joke, but you can see it getting weird, quickly. "I won't hire clerks from Baylor until they renounce any and all ties to Christianity and the Baptists!" That would be messed up, right?

3. So I am uncomfortable with judges publicly leveraging their hiring decisions in a public way. I don't know that it is an ethical violation, but I don't think it should happen.

[Estragon]

Re: 1)

“None of this is an ethical issue.”

I am taking “ethical” here to mean “not against the code of ethics as currently interpreted.”

“ Ajudge can have internal criteria regarding clerks. And … some are weird.”

But why? I mean— these are federal employees hiring other federal employees, are they not? As you allude to, some judges seem to have rather idiosyncratic qualifications in mind, especially those which would seem to not be “qualifications” as such, but might be more accurately described as “connections” or political qualifications. I would point to Amy Chua’s daughter getting a clerkship with Kavanaugh as only one recent of many examples, I’m certain there are others. (Maybe the daughter is the most brilliant mind since Hand himself and was hired 100% on merit… but you get my point.)

Because of the nature of the work and the imperiousness of it all, these positions are extremely coveted and handed out completely at the personal whim of these judges. How many of us would be comfortable with other federal jobs being awarded in such a manner? Oh right— the project 2025 people.

And frankly, if judges have a problem with clerks who aren’t entirely sympatico with their own political beliefs to the point that they’re unable to function at the job they’re being paid by taxpayers to do— it sounds like a professionalism problem on their part. I would welcome more objectivity in hiring in this area, and it just might lead to judges behaving a little better.

I agree with 2 and 3.

[Dr. Ed 2]

OK.

Let's say that the ABA discredites (or whatever "no longer accredits" is called) Acme Law School. At least in Massachusetts, Acme grads would be eligible to take the Mass Bar Exam because the Commonwealth would (absent independent action) still accredit Acme, and state accreditation is enough to take the MA Bar.

By your standard, would it be wrong for a Federal judge (OK, say a Massachusetts District Judge) to say that he wasn't going to hire any Acme Law grads until after the ABA had re-accredited Acme? Or perhaps, until Acme grads had spent all three years of their law school career in an ABA-accredited Acme?

Remember that Acme grads are members of the Mass Bar, so what right does he have not to hire them?

OK, it's a moot question, but what if these judges had instead called on the ABA to discredit (unaccredit?) Columbia because of all the reasons they stated. Maybe even called on the ABA to mandate that other law schools not admit Columbia undergrads.

How is what they did any different?

[Dr. Ed 2]

For all you know, Amy Chua’s daughter may be someone whom Kavanaugh has known from childhood and hence he personally wants to have as a clerk.

This is nepotism too, but at least the daughter earned the job on her own merits and not her mother's.

[loki13]

Well, as I wrote, I think that Pryor's not wrong (supra), but it's also closer than the opinion indicates. I also think that there is a difference between what is allowable under specific ethical rules, and what is "right" (or, um, ethical in the more common usage).

As long as we do clerkships the way we do, it will always be a person decision of the judge. Now, if you are advocating that all aspiring clerks go into a pool and are selected on "merit" and then assigned to judges - I mean, why not? But that's not what we do now.

[Dr. Ed 2]

The judges were trying to give a message to aspiring lawyers not to attend Columbia.

Let's say they did it a different way -- "We, the undersigned judges, thinks that Columbia sucks and its graduates are too politically radicalized to practice law."

And then Ye Olde Columbia Grad comes before them as counsel....

[Martinned2]

I'm more confused about how "an individual" (not being someone who currently has a case before the judge) has standing to complain about a judge's hiring practices. To echo the hypo above, it would make sense for a litigant to ask the judge to recuse because the judge has a hiring policy that de facto amounts to a ban on hiring Christians, at least in a case where religion was relevant. But I don't think that's remotely what happened here. How can the Judicial Conduct and Disability Act get around the constitutional requirement of "case or controversy" by calling a suit a "complaint"?

[Chesterton Orwell]

Columbia Law grad here. I'm glad these judges are boycotting the place. If some law school was letting KKK types run wild and harass black students, pretty much everyone here would applaud a similar boycott by judges. "Get yourself into shape and behave like a real institution of higher learning and a school that believes in the rule of law and equal rights." Obviously.
It's no different when the creeps are harassing Jews. Using "Zionist" as a figleaf doesn't change things. Putting red paint on a Jewish student's door, with impunity, is plain old bigotry and we have to call it out for what it is.

[SimonP]

Like the Fifth Circuit’s opinion – to the effect of, “we investigated ourselves and found nothing out of order” – Pryor’s “analysis” (if we want to call it that) largely misses the point.

This complaint doesn’t help itself by asserting the existence of wide, bizarre conspiracies, and so many of the factual allegations made can be dismissed out of hand. But the basic problem with these boycotts is not with how judges exercise their hiring discretion, nor with their involvement in public activities and speech protected by the First Amendment. Rather, it is in their making use of a valuable, special, and public resource within their sole discretionary purview – i.e., handing out clerkships to law students – in order to compel law schools to change policies to match those of their liking. This is a misuse of their position and authority that arguably violates at least a couple of the judicial canons cited here.

And there’s really no end to it. If this is permissible, then judges could use this power to dictate any number of policy changes at law schools. Affirmative action for conservative law professors. Ending course offerings in critical and feminist legal theory. Firing outspoken liberal law professors. Providing more financial support to law school applicants from underrepresented backgrounds.

And there’s no apparent reason why these actions need to be limited to judges’ interactions with law schools. Judges are toying with clerkships because clerkship hiring is such a valuable factor for law schools looking to differentiate themselves from one another and build their reputation as “elite” institutions. But they could do this with any other power or resource within their control, in order to compel lawyers, law firms, law enforcement officers, etc., to do their bidding.

It’s a nasty precedent to set, and nasty too that it’s coming from this group of tinpot tyrants. If only we could count on conservative jurists to be intellectually honest.