Why don’t some judges hire clerks from Yale Law School? | Opinion

What should we think of judges who boycott Yale Law School?

Before answering, a little background.

If you had asked me 12 years ago, I would have said that American lawyers almost universally support free speech. Today, if I look beyond all the controversies, I still think it’s most true.

But controversies are bad: speakers are shouted at at law school events; suspended or dismissed academics; groups of Berkeley Law students announcing that they will no longer welcome speakers who support the existence of Israel; etc

And there was a parade of mind-boggling scandals at my own alma mater, Yale Law School: police called to escort speakers out of building to protect them from student protesters; considering denying student financial aid who work in allegedly discriminatory religious non-profit organizations; administrators persecuting a group of conservative students and threaten a student’s career over the allegedly offensive words “trap house”. (I had to look it up too.)

Judge James Ho of the 5th Circuit Court of Appeals has had enough and announced last month that he would no longer hire Yale clerks. He was soon joined by 11th Circuit Judge Lisa Branch and a dozen unnamed judges who believe Yale law no longer protects free speech.

Aren’t these judges fighting against the cancellation of culture by canceling a law school?

Good kind of. And if I was a federal judge, I doubt I’d join them. But before we get too critical, we need to understand the problem the boycotters are trying to solve.

Here’s a fun fact, at least if you’ve been to Harvard or Yale: From 1972 to 2016, not a single presidential election went without a Yale or Harvard alumnus being named to a party slate. majors. (The list: Sargent Shriver, Gerald Ford, George HW Bush, Michael Dukakis, Bill Clinton, George W. Bush, Al Gore, Joe Lieberman, John Kerry, Barack Obama, Mitt Romney, Hillary Clinton.) Joe Biden is not went to Yale Law School, but his son Hunter did.

The Supreme Court is also a Yale-Harvard case; currently, the two law schools each claim four judges. In the past 40 years, only one judge has been appointed who never attended Harvard or Yale. (It’s Amy Coney Barrett.)

And celebrities are just the tip of the iceberg. Look below the waterline and you’ll see half of the Supreme Court’s clerks hailing from Yale and Harvard Law Schools, and a third of American law professors.

The judiciary, the White House Office of General Counsel, legal advisers to executive departments and congressional committees, legal thinkers from think tanks, blawgers, top lawyers from the biggest firms – these people form a elite layer of legal minds who collectively produce the dominant power. legal culture, deciding what is thinkable and sayable at the highest levels of legal controversy.

Almost all of them were shaped by Harvard and Yale, either attending Harvard or Yale themselves, or having mentors and peers who did, or at least studying ideas that Yale and Harvard played an important role in developing.

Originalism? First articulated by Yale law professor Robert Bork and disseminated by the Federalist Society, which held its inaugural conference in 1982 at Yale.

Critical Race Theory? An offspring of the most famous critical legal studies movement associated with Harvard.

When institutions like these go wrong, sooner or later we all feel the consequences.

So if you’re a judge alarmed by the intolerance and bigotry at the heart of the legal academy, what can you do?

The response of the boycotters: ostracize!

Condemn, call out the bad press, and use your little market power to punish Yale law students for their association with the school that did the wrong things.

After all, every time judges hire a Yale clerk, they’re confirming the school’s prestige and helping it attract students. If Yale is trying to put the entire legal profession in an ideological straitjacket, shouldn’t judges withdraw their support and tell students to do the same?

If this answer sounds familiar, it’s because we’ve heard something similar from the cancel culture providers themselves.

You can’t stop people from doing bad things, says the nullifier, but you don’t have to associate with those who do. And if enough of you call them out, you might deny them a platform. You could separate them from the powerful institutions that allow their bad behavior. You might hurt them enough to discourage others from following their example. In a nutshell, you could hold them accountable.

It works sometimes. It may have even worked at Yale, slightly, despite the small number of judges involved. After Ho’s boycott made headlines, Yale released A declaration touting his commitment to free speech, and some progressives are not happy on this subject.

So canceling the culture gives you influence. But at what cost ?

While everyone in the legal elite is influenced to some degree by Yale and Harvard, the reverse is not true – not everyone who goes to Yale or Harvard is a world-shaping elite. Most of them are fair, people who will spend their careers in a public defender’s office or advising big corporations on the finer points of securities law.

And during a judicial internship, you don’t spend a lot of time on hot political topics. For the most part, court clerks are just court clerks: they research case law, review evidence, consider whether a drug dealer’s sentence should be 60 months or 48 months.

But now these would-be righteous clerks and righteous lawyers are being asked to take sides. By going to Yale Law School, future students will take sides for Yale and against the judge boycott – even though there are a hundred good reasons to go to Yale that have nothing to do with controversy.

By being a clerk for Ho or Branch, even if the job has nothing to do with the boycott, the students will associate themselves with the judges’ criticism of Yale.

Either decision will be on their permanent record, something they could be overturned for if they come to the wrong person’s attention. I’ve seen conservative websites announce plans to ostracize any lawyer who enrolls at Yale after this year.

I suspect this particular ostracism won’t hold up, but still, normal people looking for a normal life want nothing to do with this stuff. How many will simply wash their hands of it and leave the profession to the militants?

How many law students of differing opinions will fail to be friends for fear of being guilty by association? Or because, thanks to ideological segregation, they simply never meet?

As for the judges themselves, their impartiality will be questioned. I don’t believe the doubts will be warranted, but even so, how many progressive appellants, when Ho or Branch rules against them, will question whether this publicly conservative judge gave them a fair appeal?

These are the costs of canceling culture, even canceling genteel culture like the judge boycott, even canceling culture for a good cause like free speech. It leads to division, mistrust and the politicization of institutions that have important apolitical work to do.

Maybe sometimes it’s worth it — maybe sometimes society can afford it. But in our divided, distrustful and hyperpoliticized age, I have my doubts.

Alan Hurst is a lawyer in Salt Lake City. His opinions are his own and do not represent the views of his firm or his clients.

Jon J. Epps