Campus Protests Lead To A New Clerkship Boycott

And what about the protests more generally—do you support them?

A pro-Palestinian encampment in front of the George Washington University Law School complex (photo by Kent Nishimura / Getty Images).

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Yesterday, campus protests at Columbia University produced additional fallout (besides the newest Lawsuit of the Week, C.S. v. The Trustees of Columbia University).

First, the pro-Palestinian protests resulted in the cancellation of Columbia’s commencement. Second, in news that’s more relevant to readers of Original Jurisdiction, they gave rise to another clerkship hiring boycott.

In a letter to Minouche Shafik, president of Columbia University, and Gillian Lester, dean of Columbia Law School, thirteen federal judges wrote as follows:

Since the October 7 terrorist attacks by Hamas, Columbia University has become ground zero for the explosion of student disruptions, antisemitism, and hatred for diverse viewpoints on campuses across the Nation. Disruptors have threatened violence, committed assaults, and destroyed property.

As judges who hire law clerks every year to serve in the federal judiciary, we have lost confidence in Columbia as an institution of higher education. Columbia has instead become an incubator of bigotry. As a result, Columbia has disqualified itself from educating the future leaders of our country.

….

Considering recent events, and absent extraordinary change, we will not hire anyone who joins the Columbia University community—whether as undergraduates or law students—beginning with the entering class of 2024.

The lead signatories are Judges Elizabeth “Lisa” Branch (11th Cir.), James Ho (5th Cir.), and Matthew Solomson (Fed. Cl.). Judges Ho and Branch previously announced that they would not hire clerks from Yale Law School and Stanford Law School, in the wake of the disruptive protests of conservative litigator Kristen Waggoner, who spoke at YLS in March 2022, and Fifth Circuit Judge Kyle Duncan, who spoke (or attempted to speak) at SLS in March 2023.¹

(By the way, I reached out yesterday to Judge Ho’s chambers, which confirmed that the YLS and SLS boycotts remain in effect—and his chambers has informed inquiring applicants accordingly. So if you’re a current student at either Yale or Stanford Law, I’ve saved you the trouble of an inquiry or application. You’re welcome.)

The new boycott is clearly aimed at getting Columbia to change its ways. The judges outlined three policies for Columbia to adopt, “at a minimum,” if it wants to “reclaim[] its once-distinguished reputation”:

1. “Serious consequences for students and faculty who have participated in campus disruptions”;

2. “Neutrality and nondiscrimination in the protection of freedom of speech and the enforcement of rules of campus conduct”; and

3. “Viewpoint diversity on the faculty and across the administration—including the admissions office.”

Spokespersons for Columbia University and Columbia Law School did not immediately respond to inquiries from the Washington Free Beacon and Reuters.

So what should we make of the boycott? John K. Wilson—a contributing author to Academe Blog, a publication of the American Association of University Professors (AAUP)—wrote as follows to me:

This is truly awful unprofessional behavior by federal judges who ought to know better. No one should ever be banned from a job because they attended a college you dislike.

That’s true if it’s a conservative college that discriminates against gay students, or a liberal college (like Columbia) where students have engaged in protests, or a conservative college (like Columbia) where the administration has violated student rights by punishing protesters without due process. Job candidates should always be judged as individuals, and we should condemn ideological boycotts aimed at punishing innocent individuals for the alleged misconduct of others.

To those of you who might view the AAUP as left-leaning or insufficiently strong in opposing antisemitism, I’d point out that some conservative scholars—who share some of Judge Ho’s concerns—have weighed in against the boycotts as well. See, e.g., Professor Orin Kerr (who confirmed, in a tweet yesterday, that his previously expressed opposition applies to the new Columbia boycott).

Or consider these arguments from Professor Jack Goldsmith (directed at the YLS boycott, but the reasoning applies to Columbia as well—just replace “conservative students” with “students opposed to antisemitism” in the excerpt below):

[I]f the boycott succeeded in driving conservative students from Yale, that would not make one of the nation's top law schools a better place for the values Ho cares about. It would have the opposite impact. It seems bizarre to discourage young conservatives who want to attend Yale from doing so, since Yale is so much better for their presence.

[And Judge] Ho’s boycott, if successful, will unfairly hurt conservative students at Yale even though it only applies prospectively. The idea behind prospective application apparently is that students attending Yale starting next year will be on notice of the boycott. But the proposal would still punish conservative students who attend Yale but who were not aware before choosing a law school about the adverse implications for a clerkship years later. It would also punish those students who come to law school without well-formed views about judicial philosophy and over the course of law school develop a conservative judicial disposition.

And note that the Columbia boycott includes graduates of Columbia College as well as Columbia Law School—a choice that Alison Somin of the libertarian-leaning Pacific Legal Foundation questioned in a tweet:

Wondering about the decision to include undergrads: I had no idea what a judicial clerkship was when I was 17 or 18, and my parents would probably have been horrified at the idea of taking low pay to be a judge’s secretary when Biglaw could be on the table.

So those are some arguments against the boycott. What about the case in favor?

Here are thoughts from Judge Lee Rudofsky (E.D. Ark.), who previously asked clerkship applicants to confirm that neither they nor any organizations they belong to had done anything that could be construed as “celebrating or condoning the 10/7 massacre perpetrated by Hamas in Israel.” Judge Rudofsky is still weighing whether to join the boycott, but he definitely sees some value to it:

Regardless of whether I join or not, I generally (and mournfully) agree that Columbia University has become an incubator of antisemitism and anti-Americanism. And I do think that, at some point, judges must step up to the plate as leaders of the bar to help stop the spread of the virulent Jew hatred that is being normalized on college campuses and elsewhere across the country.

Judges have an important role to play in our society beyond the work we do in the courtroom or in chambers. We have a special responsibility to stand up for the rule of law and to stand against mob violence, especially where such violence echoes an age-old evil that once led to the murder of 6,000,000 Jews and millions of other innocents.    

And here’s another argument in favor of the boycott: results. As noted by Aaron Sibarium of the Free Beacon, “While it’s hard to measure the success of past boycotts, Yale Law School made a number of reforms in the years following Ho and Branch’s pressure campaign.” For example, it strengthened its policy against disruptive protests, added discussion of free speech and civil discourse to the 1L orientation, and hired two right-of-center professors, Keith Whittington and Garrett West.

And while multiple factors contributed to the progress at YLS—perhaps most importantly, alumni and donor pressure on Dean Heather Gerken—it’s possible the boycott helped. It focused the attention of the public, including alumni and donors, on problems at Yale Law. But because it involved only two judges (at least publicly), it didn’t impose too heavy a cost upon non-disruptive students at YLS, who still had many judges willing to hire them.

So how can you focus public attention on a problem in a productive way, i.e., a way that leads to concrete change? This leads us to the broader issue of the pro-Palestine protests sweeping the nation’s universities. Based on their results so far, have the protesters succeeded? As I wondered in my UVA Law v. Berkeley Law post, are disruptive protests, including lawbreaking ones, the best way to bring about social change?

Are the protests producing tangible results—like raising awareness of the crisis in Gaza, or persuading Americans who are on the fence about the Israel-Palestine conflict to side with Palestine? Or are the achievements—which include, most notably, commitments by universities to consider or discuss divestment from Israel—outweighed by millions of dollars in property damage, terrified Jewish students, and canceled graduations?

Or maybe social change and tangible results are beside the point, and we shouldn’t look at the protests through a utilitarian lens. I previously suggested the protests might be less about persuasion and more about performance, but here’s a point that a reader raised with me:

Calling it “performance” is dismissive and trivializing. It’s about symbolic action and taking a stand.

Regardless of the practical fallout, let the record reflect that we spoke out against injustice. And when—years in the future, but hopefully not too many years—Americans look at Israel the way we look back on apartheid-era South Africa, we’ll be proud to say we were on the right side of history.

Readers, I welcome your views—on the clerkship boycott specifically, or the campus protests generally—in the comments to this post. As usual for Notice and Comment posts, the comments are open to all readers, not just paid subscribers. Thank you, as always, for your thoughtful and civil engagement.

UPDATES:

• 3:13 p.m.: See also this Volokh Conspiracy post by Professor Eugene Volokh, who opposes the boycott because “we shouldn't threaten innocent neutrals as a means of influencing the culpable. The post is based on a piece he wrote in October 2022 about the Yale protest, but updated and customized to address the Columbia situation.

• 5/8/2024, 8:25 a.m.: This Washington Post piece raises the issue of judicial ethics. Former federal judge Jeremy Fogel said, “Why do we have [ethics] rules in the first place? One of the reasons we have the rules is to convey the idea that the judiciary is impartial and independent, and they’re going to decide cases based on the law. So when judges weigh in on controversial issues, it’s an indication that they have a certain orientation or a certain philosophical outlook that could cause people to think that they’re not going to be open to things as you want judges to be.”

• 5/8/2024, 10:52 a.m.: Speaking to Reuters, former judge Fogel said that in his view, the judges’ boycott letter does not violate their code of conduct. “That said, reasonable minds may differ as to whether statements of this nature are consistent with the dignity of the judges’ office and the obligation of judges to be impartial.”

• 5/15/2024, 9:34 a.m.: In The Hill, Professor Steven Lubet argues that the boycott is “irrational,” “self-defeating,” and “unethical.”

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1. In case you’re curious, the other signatories—all Trump appointees, like the three lead signatories—are Judges Alan Albright (W.D. Tex.), best known for at one point having 25 percent of the nation’s patent docket; David Counts (W.D. Tex.); James W. Hendrix (N.D. Tex.); Matthew J. Kacsmaryk (N.D. Tex.), best known for overseeing the mifepristone now before the Supreme Court; Jeremy D. Kernodle (E.D. Tex.); Tilman E. Self, III(M.D. Ga.); Brantley Starr (N.D. Tex.); Drew B. Tipton (S.D. Tex.); Daniel M. Traynor (D.N.D.); and Stephen Alexander Vaden (Ct. Intl. Trade), whom I interviewed on the Original Jurisdiction podcast.