A Prominent Federal Judge Declares He Will No Longer Hire Clerks From Yale Law School

And he's hoping other judges will join him in boycotting YLS clerks—will they?

The Yale Law School, at 127 Wall Street in New Haven, Connecticut (photo by David Lat).

Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking on the button below. Thanks!

Actions have consequences. And the problematic actions of Yale Law School when it comes to free speech, chronicled ad nauseam in these pages, could have consequences for YLS and its graduates—at least if one high-profile federal judge has his way.

This afternoon, at the Kentucky Chapters Conference of the Federalist Society, Judge James Ho of the Fifth Circuit delivered remarks about cancel culture, free speech, and intellectual diversity. After he discussed a series of distressing developments for free expression at several law schools, including but not limited to Yale Law—developments I won’t rehash here, having previously covered most of them in great detail—Judge Ho asked the audience: if cancel culture is a problem, then what can we do about it?

Judge Ho offered a few ideas. First, we should speak out against cancel culture and threats to free speech when we see them. Second, we should stop censoring ourselves, which is how cancel culture takes hold. Third, we can boycott institutions that engage in cancel culture.

To kick things off, Judge Ho announced a bold boycott of his own: starting today, he will no longer hire clerks from Yale Law School. And he explicitly invited his fellow federal judges to join him in adopting this policy. (News of Judge Ho’s boycott of YLS clerks was first reported by Nate Hochman of the National Review.)

Judge Ho’s not-so-modest proposal reminded me of Judge Laurence Silberman’s call this past spring for his colleagues to “carefully consider” whether to hire YLS students involved in the disruption of a March 10 free-speech event sponsored by the Yale Federalist Society, in which students enraged by the presence of Kristen Waggoner, then-general counsel of the socially conservative Alliance Defending Freedom, attempted to shout her down. But Judge Ho goes a step farther, including not just students involved in that disruption but all Yale law students.

Judge Silberman’s call covered only “bad actors,” while Judge Ho’s policy sweeps more broadly. Is that fair to the many YLS students who respect free speech and oppose cancel culture? To avoid potential unfairness, Judge Ho explained that he’s applying this policy prospectively, i.e., only on a going-forward basis, starting with students who decide to matriculate at YLS after today. Students who are currently at Yale Law—who matriculated at YLS without any notice of potentially impaired clerkship prospects—are not subject to Judge Ho’s ban.

Judge Ho explicitly stated that he wants prospective law students to think twice before attending YLS. As he put it, he wants 0Ls “to think about the kind of legal education they want—and the kind of academic environment that will help them grow.” And he submits that the environment of YLS today, where even progressive students feel the need to self-censor, is not such an environment.

Could this boycott affect the actions of Yale Law School—or more specifically, the actions of Dean Heather Gerken and her fellow administrators—and make YLS a more welcoming place for free speech and free thought? If Judge Ho can get even a small number of other judges to join him, I think it’s quite possible, given the importance that Yale places on clerkships. And I think it could also serve as a warning sign to other law schools: protect the free-speech rights of your students and faculty members zealously—or face the consequences.

As one of just 179 active federal circuit judges, Judge Ho is a powerful “consumer,” i.e., an employer, of law clerks. Clerkships with federal judges are coveted career opportunities for young lawyers. And they’re also important to law schools, which boast of their strong track records of funneling their graduates into clerkships. Sending a high proportion of students into clerkships helps burnish a law school’s prestige and improves its standing in the all-important rankings (including Above the Law’s rankings, which include SCOTUS clerkship placement as a factor).

Clerkships are especially valued at Yale Law School, which is generally the #1 law school when it comes to the percentage of its graduates who land federal clerkships—especially Supreme Court clerkships, the most prestigious prizes of all. And despite YLS’s leftward lurch, especially in the wake of the 2018 protests against Justice Brett Kavanaugh’s SCOTUS nomination, Yale grads have continued to land plum positions as law clerks—including many with conservative judges and justices.

But if Judge Ho can get a critical mass of fellow judges to join him, right-of-center prospective law students could start turning away from Yale Law. This could affect such things as the number of students who apply to YLS, the number of accepted students who choose to matriculate, and the law school’s overall prestige. And these factors ultimately find their way into the all-powerful U.S. News rankings—where Yale has held the #1 spot for years, even though many rivals would love to see it knocked out of that perch.

In his remarks, Judge Ho preemptively addressed four possible criticisms of his boycott:

1. To those who’d say he’s hypocritical in condemning cancel culture while canceling Yale, he’d argue that cancel culture is about excluding, while he wants institutions of higher education to include more people—especially people with views outside liberal or progressive orthodoxy.

2. To those who’d say he should “stay in his lane” and stop telling law schools (and law school deans) how to go about their business, he’d argue that judges are already expressing preferences of all sorts—e.g., judges who promise oral argument if litigants let younger lawyers do the arguing, judges who take race and sex into account when appointing class-action or multi-district litigation counsel, etc.

3. To those who’d argue that he shouldn’t just single out Yale, considering how many other law schools have had cancel-culture controversies, he’d argue that Yale, as the #1 school (or self-proclaimed #1 school), sets the tone for legal education and the profession at large. (And he also reserved the right to add other law schools in the future—an incentive for rival institutions to not act like Yale, lest they suffer in clerkship placement.)

4. To those who’d argue that he can’t change Yale all by himself, he’d agree—which is why he’s inviting all of his fellow judges to join him.

Will other judges, most likely fellow conservative or Republican-appointed judges, join Judge Ho? I think it’s quite possible—because this is actually not the first time I’ve heard the idea floated. Judge Ho is the first judge to announce the anti-YLS policy publicly and to encourage others to join him. But I do know that other judges have already quietly adopted such a policy—and even privately encouraged others to join them.

Earlier this year, I spoke with a top feeder judge who told me that even though Yalies are still welcome in his chambers, other judges feel differently—and have even been pressuring him to stop hiring from Yale. This judge hasn’t yet stopped hiring Yalies—in large part because the justices still love to hire Yale Law grads, and he wants to remain a feeder. But if even one or two justices joins Judge Ho—perhaps his former boss Justice Thomas, who has a famously complicated relationship with his alma mater YLS—things could change very quickly.

As a YLS grad who clerked for a prominent conservative judge myself, how do I feel about Judge Ho’s proposal? I would be troubled if he hadn’t excluded current students and past graduates, since they went to Yale without any idea that it could harm their clerkship prospects. But since his proposal addresses this by limiting itself to future YLS students, I can understand where he’s coming from, and I guess my main reaction is sadness that we’ve reached such a state of affairs.

I’m also worried that moderate and conservative students will self-select away from Yale, which would only make the intellectual intolerance at Yale get worse. So here’s my next question: what can Yale Law School and Dean Heather Gerken do to get YLS out of the doghouse?

Judge Ho didn’t identify any specific changes he would like to see from Yale Law before he’d return to hiring its graduates. But I assume his ban isn’t intended to be indefinite, and if YLS can mend its ways, presumably he would end his boycott. I have some ideas of steps the law school can take:

1. YLS should get rid of all the administrators involved in some of the most infamous incidents of intolerance, such as Trap House-gate. Dean Ellen Cosgrove left a few weeks ago, but the fate of DEI director Yaseen Eldik remains unclear. (I’ve heard conflicting reports; if you have solid information, please email me.)

2. If YLS is going to subject new students to antiracism training—training that, at least in past years, some viewed as itself racist—it should teach students at orientation about free speech, intellectual diversity, and how to disagree without being disagreeable.

3. To get out from under this “monitorship,” YLS should do something to show that it is indeed a changed place. For example, it could invite back Kristen Waggoner, who’s now the incoming CEO of the Alliance Defending Freedom, and instead of shouting her down, it could give her a civil reception. If Waggoner could return to 127 Wall Street and not have to leave the building with a police escort—or even leave having had a pleasant experience—that would go a long way toward showing an improved intellectual environment at Yale.

How will this all play out? I have no idea—but as usual, I’m happy to do my part in keeping my readers abreast of developments.

Specifically, I’m happy to maintain a running list of judges who have signed on to Judge Ho’s boycott of hiring Yale Law School graduates as law clerks. I will publish an initial list of judges as an update to the version of this post on the web, and I will update and mention it again from time to time. If you are a judge or know of a judge who has committed to the YLS boycott, please email me.

In concluding his remarks today, Judge Ho cited Russian dissident Aleksandr Solzhenitsyn’s famous essay, Live Not by Lies. The judge noted that Yale filed an amicus brief in Grutter v. Bollinger, the 2003 affirmative-action case, in which it told the Supreme Court that it wants “a diverse and inclusive educational experience, teaching students to view issues from multiple perspectives.” But according to Judge Ho, recent events at YLS have made clear that that was a lie.

“Any school that refuses to stand up against cancel culture—and instead caters to it, and even engages in it—is not a school that is interested in educational diversity,” Ho said. “And it’s not a school I want to have anything to do with.”

“I hope others will join me. But I will not live by the lie.”

UPDATE (9/30/2022, 11:13 a.m.): In other YLS news, Judge Sarah Merriam—now on the Second Circuit, but sitting by designation in her former District of Connecticut—dismissed all the plaintiffs’ claims in Stubbs v. Gerken, the lawsuit that arose out of Dinner Party-gate, except for “Count Three, alleging intentional interference as it relates to lost clerkship opportunities.” This is overall good news for YLS and Dean Gerken—but because one count remains standing, it does mean the plaintiffs will get discovery (unless the case settles first).

UPDATE (9/30/2022, 2:30 p.m.): Here’s a statement from John Balestriere, counsel to the plaintiffs in Stubbs v. Gerken: “We are pleased with Judge Merriam's decision, recognizing that the Defendants, including Yale and members of its staff, wrongly interfered with our client's professional futures. We look forward to continuing forward with the case into discovery.” (What I wonder: might YLS want to settle now, to avoid discovery?)

UPDATE (9/30/2022, 3:18 p.m.): Here’s a statement from Karen Peart, Director of University Media Relations for Yale: “Yale is gratified that the court dismissed so many of the plaintiff's claims. The single remaining claim is legally and factually baseless, and Yale will offer a vigorous defense.”

UPDATE (10/7/2022, 3:02 p.m.): As I noted on Twitter, Judge Lisa Branch (11th Cir.) has joined the boycott.

UPDATE (10/8/2022, 6:38 p.m.): For some updates and additional reflections on the YLS boycott, see this post.

UPDATE (10/21/2022: 12:37 p.m.): I definitely didn’t see this coming: Judge Ho will be speaking at Yale Law School, at the invitation of Dean Heather Gerken. Wow!

---

Thanks for reading Original Jurisdiction, and thanks to my paid subscribers for making this publication possible. Subscribers get (1) access to Judicial Notice, my time-saving weekly roundup of the most notable news in the legal world; (2) additional stories reserved for paid subscribers; and (3) the ability to comment on posts. You can email me at davidlat@substack.com with questions or comments, and you can share this post or subscribe using the buttons below.