It’s been three weeks since 5th Circuit Judge James Ho fired his shot heard ’round the legal world — and the reverberations continue.
Ho announced that he would no longer hire clerks from Yale, which many consider the nation’s preeminent law school, because of its unwillingness to promote freedom of speech, its enabling of mobs who shout down speakers, and its hiring of deans who punish those who deviate from ever-leftward-shifting progressive orthodoxy. (The speech in which Judge Ho presented his bill of indictment and issued his edict has now been published by the Texas Review of Law and Politics.)
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At least 13 federal judges have joined Ho’s call to arms— with one appellate judge, the 11th Circuit’s Lisa Branch, going on record to say she, too, will stop hiring Yale clerks — while others have offered rhetorical support, and still more have adopted the policy (or already practiced it) without going public. Other jurists have offered critiques, and there’s a lively academic debate about the merits of the #NeverYale position. Josh Blackman and Josh Hammer have nicely summarized the lay of the land.
Although I ultimately support Judge Ho’s bold action, criticisms of it deserve consideration.
The first criticism is that blocking Yale students entirely from consideration will hurt only students, and pro-free-speech students at that. Even though Ho’s policy is prospective — contrary to arguments from those who either can’t read or willfully misread, current students are unaffected — why punish even future matriculants who are “on notice”? They’re just innocents or “neutrals,” collateral damage in the culture wars.
This is almost certainly the strongest argument against the boycott: Why engage in collective punishment for the sins of the administration and other students?
The thing is, it’s not like academic superstars have no other options or that their career prospects will be hurt by going elsewhere. Apparently, Harvard’s Federalist Society chapter is already trying to recruit would-be Yalies — and I’d hope that my alma mater, the University of Chicago, does the same, perhaps offering scholarship incentives to compete for these in-demand, principled students. Those who choose to attend Yale regardless send the signal that they care more about its supposed “prestige” advantage over other elite schools than they do about truth, justice, and the American way. It makes them less sympathetic victims.
Moreover, students are already being hurt by the cancel culture Yale foments, which is a problem Judge Ho is trying to address. All Yale has to do to end his boycott is stop undermining the civil discourse that it purports to value.
The second criticism is that #NeverYale won’t actually change anything. What if Yale ignores the boycott or doubles down? Well, then Judge Ho’s attempt to change the culture at Yale, and by proxy across legal academia, will have failed — but that’s not an argument for not trying. Indeed, just last week, Dean Heather Gerken felt compelled to issue a statement that detailed what Yale has done “to reaffirm our enduring commitment to the free and unfettered exchange of ideas.” Time will tell whether these measures are more than window dressing, but this step could be evidence that Ho’s gambit is already working. Imagine what would happen if more than 15 judges (out of 870 Article III judgeships) publicly joined in. If any Supreme Court justice did so, especially one of the four who graduated from Yale Law, it would be game over.
The third criticism is that it’s not appropriate for a federal judge to condemn a school and its students openly. Judges shouldn’t use public threats to achieve political goals, especially at a time when too many people see judges as politicians in robes. Judges appointed by former President Donald Trump, as Ho was, in particular have been attacked, fairly or not, for partisan motives.
But if those with lifetime tenure can’t take stands against injustices that directly affect their applicant pool and the future of the legal profession, who can? Would it have been appropriate for judges during Jim Crow not to hire from law schools that racially discriminated? If the Yale situation isn’t as bad — I agree — then this is an argument about the merits, not the method. And remember that Judge Ho isn’t even trying to impose some external political agenda — like, say, hiring more conservative faculty — but a principle of neutrality and free speech that Yale itself says it supports.
The fourth criticism is that Ho is just seeking attention. Judge Ho is known for his sharp pen and has made national waves before. Isn’t this just shameless self-promotion? Well, the maneuver certainly does keep Ho in the news and may put judges who publicly join the boycott on future Supreme Court shortlists. But can anyone seriously argue that Ho, who’s written fervently in defense of free speech regardless of viewpoint, isn’t sincerely concerned about the state of the academy and wants to use the tools at his disposal to change it? Judges often write provocative opinions in hopes of shifting legal culture, and this is just an example of that trend.
It would be even more effective if presidential contenders announced that they wouldn’t hire from Yale. Judge Ho could then go back to applying abstruse legal theory to obscure statutes.
The fifth and final criticism is that Ho’s boycott is hypocritical, using cancel culture to go after cancel culture. Conservatives often criticize “ends justify the means” reasoning and attack liberal jurists for being purely results-oriented. Isn’t canceling an entire law school unprincipled speech suppression?
That kind of argumentation rings hollow. As William F. Buckley would say, it’s hardly fair to denounce both those who push old ladies into the path of a bus and those who push them out of the way for pushing old ladies around. Judge Ho isn’t trying to shut down anyone’s speech; he’s trying to facilitate a free exchange of ideas.
So spare me the sanctimony. Yale’s campus climate has only gotten worse in recent years, but are those who believe in civil discourse simply supposed to accept this state of affairs and the downward spiral of the legal profession that it represents? Do those who agree with Judge Ho’s diagnosis but disagree with his prescription have any better ideas?
Legal education is in crisis — a microcosm of societal problems, but also a critical venue for them, given that lawyers become policymakers. Heterodox problems require novel solutions.
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Mr. Ilya Shapiro is the director of constitutional studies at the Manhattan Institute, author of Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court, and writes the Shapiro’s Gavel newsletter on Substack.com.
