I have a long-form essay in The Daily Beast about the unethical judicial boycott of Yale Law School (written before Yale announced that it would no longer cooperate with the U.S. New rankings).
Here is the gist:
Yale Law School Needs to Stand Up to This Bullying Judge
Nov. 19, 2022
This is a story about a confrontation between a prominent federal judge and the nation’s top-ranked law school. Neither comes away looking very good.
The judge has unethically attempted to bully the school into tightening its control over student protests in conformity with his own policy views, and the law school meekly moved to placate the judge, without objecting to (or even mentioning) his blatant abuse of judicial power.
Far from resisting the boycott, or even criticizing the violation of the Code of Judicial Conduct, Gerken rewarded Ho and Branch with an invitation to speak at the law school, implicitly committing to keep student protests at a level acceptable to the judges.
There is little reason to think that Gerken or other faculty members will address the looming ethics issue, but it might well arise if the judges agree to take questions from students. If so, it is likely that Ho will resort to an argument that he raised in the published version of his Federalist Society lecture.
“Suppose a law school discriminates on the basis of race,” he posited. “Could a judge publicly refuse to hire from that school, in hopes of spurring a change? Surely a judge could do so.” The analogy seems compelling, but it is ultimately misplaced. The Code of Judicial Conduct does not make exceptions for honorable intentions, and it is easy to understand why.
Ho’s comparator to promoting non-discrimination is “freedom of speech,” but other judges might have different priorities. Under Ho’s theory, a judge could ethically boycott clerks from Liberty University to coerce a change in its policy of punishing students who engage in “sexual relations outside of a biblically-ordained marriage between a natural-born man and a natural-born woman.” Likewise, a judge could refuse to hire clerks from Brigham Young University until the Mormon school agrees to serve alcohol. As conservative judges are fond of complaining about liberal initiatives, there is no limiting principle.
Someone among the deans and faculty at Yale must surely understand that federal court clerkships were designed to help judges decide cases, not for use as collateral in the culture wars. The administration’s inexplicable silence, however, confers legitimacy on Ho and Branch’s unethical boycott.
You can read the entire essay at The Daily Beast.
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