Fifth Circuit Judge James Ho appears before the Senate Judiciary Committee on Nov 20, 2017.
Two federal judges have publicly said they will boycott Yale law graduates when it comes to hiring law clerks – but several more have been highly critical of the idea advanced by Fifth Circuit Judge James Ho in response to student protests on the New Haven, Connecticut campus.
Last month, Ho denounced a protest against an anti-LGBTQ lawyer during a speech before the Federalist Society. During that speech, he staked out his desire to punish “entities that practice cancel culture.”
“I wonder how a law school would feel, if my fellow federal judges and I stopped being its customers,” the Donald Trump-appointed judge said in comments originally reported by National Review. “Instead of millions of customers, there are only 179 authorized federal circuit judgeships, and 677 authorized federal district judgeships.”
An additional 12 judges reportedly told The Washington Free Beacon, they would join Ho’s boycott but those judges are not named. Last week, the first judge publicly joined the boycott – Eleventh Circuit Judge Elizabeth Branch, a fellow Trump appointee who said there were “legitimate concerns” with “the lack of free speech on law school campuses, Yale in particular.”
Far more judges, however, are publicly criticizing Ho’s idea.
“With all respect, I do not agree with Judge Ho’s proposal, and I will not be joining a boycott of Yale Law School students,” Ronald Reagan-appointed Judge J. Harvie Wilkinson said in comments reported by Law.com. “While I find myself in disagreement with many institutional decisions, I do not think it right or fair to penalize individual students for an ill-advised institutional policy. Many of those students do not themselves agree with the decisions of the schools which they attend. Many of those students are also seeking clerkships in order to contribute their gifts to judges of many different persuasions. My hope is that the institutions will themselves become open to a robust diversity of views and treat textualist and originalist perspectives on the law with the great respect that they deserve.”
Bill Clinton-appointed Judge Diane Wood, who took senior status in the Seventh Circuit in 2020, also told Law.com she opposed the idea:
I would never delete students from a particular law school from the pool of people I consider for clerkships. In fact, I normally don’t worry too much about a student’s ideological persuasion. I trust my law clerks to be professionals, to understand that I am the judge and they are the assistants, and to challenge me whenever they do not find my reasoning persuasive. Clerkship applicants wind up at different law schools for many reasons. Nothing but case-by-case consideration suffices.
Additionally, Law.com reported that Ronald Reagan-appointed Ninth Circuit Judge Diarmuid O’Scannlain will continue to welcome applications from Yale Law students – but stopped short of denouncing the boycott directly.
The outlet additionally cited a judge “appointed by a Republican president,” who shared Ho’s concerns about the culture at Yale but said they disagreed with the blanket boycott of the school’s students.
Other judges have recently gone on record against Ho’s cause.
“It’s ugly, it’s nasty, and I guess it just goes to show you the weakness of merit selection—that everybody who gets selected isn’t meritorious of the selection,” Clinton-appointed Judge Theodore McKee, who assumed senior status on the Third Circuit earlier this year said in comments reported by Bloomberg.
Opposition is even coming from the conservative judge’s immediate colleagues on the court based in New Orleans.
According to Reuters, Reagan-appointed Fifth Circuit Judge Jerry Smith called the decision “regrettable” in a post on, OSCAR, an online system where law students apply for clerkships.
“I regularly (and recently) have had Yale clerks who, consistently, are extremely talented and performed spectacularly in upholding the rule of law and supporting toleration for diverse viewpoints,” Smith wrote. “Instead of boycotting, I hope to receive even more Yale applications from qualified men and women, not only this year but in future years.”
[image via screengrab/Sen. Sheldon Whitehouse (D-R.I.)/YouTube]