Judge James Ho, of the U.S. Fifth Circuit Court of Appeals, has announced that he will no longer hire clerks from Yale Law School. Judge Ho’s boycott, which has been joined by at least 13 other federal judges, is in response to Yale’s perceived failure to adequately protect conservative speakers and students.
Whatever the merits of Ho’s complaints against Yale, the boycott is not merely wrong, it violates two provisions of the Code of Conduct for United States Judges, as I explain in my new column at The Hill. Here is the gist:
October 19, 2022
The wrong way to combat cancel culture
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.
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.” 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 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.
You can read the entire essay, including a further explanation of how Ho’s boycott violates the Judicial Conduct Code, at The Hill (not paywalled).
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