The wrong way to combat cancel culture

Judge James Ho created quite a stir when he delivered the keynote address at a Federalist Society conference last month in Kentucky. His condemnation of “cancel culture” was standard fare for the conservative legal organization that supplied so many Trump administration judicial nominees — including Ho, for the Fifth Circuit Court of Appeals. But the big moment came when he castigated Yale Law School for teaching students “that there are no consequences for their intolerance” of conservative speakers. Citing two notorious incidents in which Yale students faced no disciplinary action for disrupting presentations by conservatives, Ho announced that “starting today, I will no longer hire law clerks from Yale Law School. And I hope that other judges will join me as well.” That was an unprecedented public pledge from a federal judge. It was also seriously unethical.

Ho stressed that his boycott had nothing to do with the intellectual quality or other attributes of Yale graduates. “I’ve hired from Yale,” he said, “and they’re great kids.” Rather, his stated intention was to pressure Yale into changing its disciplinary practices, becoming more welcoming to conservatives.

Federal court clerkships are status markers for law schools. The widespread rejection of any school’s graduates would eventually have negative reputational effects, even at Yale. Worse, Ho hoped to dissuade “thousands of young people” from applying to Yale, due to the “closed and intolerant environment that Yale embraces today.”

Such a coercive boycott violates two provisions of the Code of Conduct for United States Judges, adopted by the United States Judicial Conference and binding on all federal judges below the Supreme Court.

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.

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.

Ho acknowledged the clerkship potential of Yale students. “I’m not talking about students who are currently at Yale,” he said, “or who have already graduated,” thus emphasizing his threat to reject future alumni, no matter how well qualified, as a way of compelling the administration to pursue his social policy goals. “I don’t want to cancel Yale,” he told the Reuters news service. “I want Yale to stop canceling people like me.”

At least 13 federal judges have followed Ho’s lead, some sitting on courts of appeal, one step below the Supreme Court, and others on district courts. Twelve have remained anonymous, “in order to speak freely,” even though they enjoy life tenure. One anonymous boycotter – said to be a prominent appellate court judge whose clerks have gone on to the Supreme Court – violated the Code of Judicial Conduct by warning that “Students should be mindful that they will face diminished opportunities if they go to Yale.”

Only one other judge has publicly embraced the boycott. Judge Elizabeth Branch – a Trump-nominated appellate court judge – told National Review that she would decline ”to consider students from Yale Law School for clerkships” due to her “legitimate concerns about the lack of free speech” on campus.

According to National Review, the odds are increasing that other federal judges “will trash the resumes of awesome Yalies because of the school’s woke reputation.” An article in the Washington Free Beacon observed that a boycott by “right-leaning judges” could “deal a serious blow to Yale Law School,” where many students expect “the best shot of clerking for prominent judges.”

Yale Law School’s Dean Heather Gerken recently released a statement detailing “concrete steps to reaffirm our enduring commitment to the free and unfettered exchange of ideas.” Gerken outlined five measures, including a disciplinary code revision, making it “unequivocally clear” that speaker disruptions will not be tolerated.

Some observers have interpreted Gerken’s message as a “victory for Judge Ho,” but that is not so. Every reform listed by Gerken was in place before Ho announced his campaign. Ho evidently failed to conduct due diligence before launching his unethical threats and pointlessly demanding changes that had already been made.

Some federal judges and academics have criticized Ho’s boycott (calling it “regrettable,” a “bad decision,” unjustified and “inappropriate”) without mentioning the Code of Judicial Conduct violations. It is understandable that judges would hesitate to reproach a colleague for misconduct, and that law professors would be wary of offending an influential judge who has already shown retributive inclinations. Ho’s defenders have been less reserved, praising him for imposing consequences on Yale, noting that his boycott “punishes the school” and referring to it as a “call to arms.”

The inescapable fact is that Judge Ho abused his office by using clerkship hiring to bully a law school into compliance with his non-judicial agenda.

Yale Law School is a private institution, but Ho holds a public trust. Although Yale administrators may have acted badly, Ho has done worse.

Steven Lubet is Williams Memorial Professor Emeritus at the Northwestern University Pritzker School of Law. He is coauthor of “Judicial Conduct and Ethics” (5^th edition) and many other books, including two published by Yale University Press. His daughter is a graduate of Yale Law School.