Judicial Notice (10.01.22): Ho No He Didn't!

Pundits react to Judge Jim Ho's Yale Law boycott, Latham raids yet another rival, and other legal news from the week that was.

Judge James C. Ho of the U.S. Court of Appeals for the Fifth Circuit (photo via the U.S. Senate).

My week was hectic, but fun. I spent Tuesday and Wednesday down in Jackson, Mississippi, where I spoke at the University of Mississippi School of Law (aka Ole Miss Law) about free speech and cancel culture at U.S. law schools. Upon my return, I threw myself into planning Harlan’s fifth birthday party, which we hosted yesterday—and which went well, to my relief. I shouldn’t have worried so much; all a five-year-old wants is gifts and cake, and Harlan got both in copious amounts.

In terms of media appearances, I was quoted in Ryan Barber’s great article for Insider about the aging of the federal judiciary and the challenges it presents for the administration of justice. I also participated in a Twitter Spaces panel hosted by Neysun Mahboubi of Law & Governance that previewed the upcoming Supreme Court Term, which starts tomorrow.

Now, on to the news.

Lawyer of the Week: Christopher Kise.

The Mar-a-Lago drama grinds on, with two noteworthy developments. First, Judge Aileen Cannon (S.D. Fla.) overruled Judge Raymond Dearie (E.D.N.Y.), the special master she appointed to review the documents seized in the August 8 search, issuing an order that former President Donald Trump doesn’t have to verify the accuracy of the FBI document inventory (which would have forced him to put up or shut up about his claims of planted evidence). Second, siding again with Team Trump, Judge Cannon slowed down Judge Dearie’s aggressive timetable for completing his review, setting December 16 as the deadline for completion of his work.

Second, the U.S. Department of Justice asked the Eleventh Circuit to expedite its review of Judge Cannon’s decision to appoint a special master at all. The DOJ previously obtained emergency relief from the Eleventh Circuit that exempted around 100 documents marked as classified from the special-master process, but the government is still moving forward with an appeal of Judge Cannon’s entire order, as it applies to all 11,000 documents.

The future course of this litigation will depend in part on whether Trump listens to the newest lawyer to join his team, former Florida solicitor general Chris Kise. According to the Washington Post, Kise is (wisely) urging Trump to take a more conciliatory tack with the government and reach some kind of settlement.

Alas, he doesn’t seem to succeeding so far—perhaps because, as reported by CNN, he has been “sidelined” from the Mar-a-Lago matter. Although a Trump spokesperson denied this, a Wednesday night filing from Trump embodied the combative approach Kise has counseled against—and conspicuously lacked his signature, even though his name has generally appeared on filings over the past few weeks.

What has Chris Kise gotten himself into? As Professor Aubrey Jewett told Tiana Headley of Bloomberg Law, he’s in “a big risk, big reward” situation. If he can extricate Trump from the Mar-a-Lago mess relatively unscathed, he will further burnish his reputation. But if he fails, he may join the long line of lawyers who were taken down by touching Trump.

In memoriam:

• Former New Jersey Governor Jim Florio, who graduated from Rutgers Law School and practiced law in South Jersey, passed away at 85.

• Marybeth Peters, who led the U.S. Copyright Office from 1994 to 2010, passed away at 83.

• Professor Lloyd Cohen of George Mason aka Scalia Law—who made significant contributions to law and economics, as noted by his longtime colleague Ilya Somin—passed away at 75.

May they rest in peace.

Judge of the Week: Judge James C. Ho.

Besides Judge Cannon, the judge everyone is talking about this week is Judge James Ho (5th Cir.). As I reported on Thursday, Judge Ho announced at a Federalist Society conference that in order to combat cancel culture at Yale Law School, he will no longer hire YLS graduates as clerks—and he called upon other federal judges to join him. His apparent goal is to get the Yale Law administration to become more supportive of free speech by hitting YLS where it hurts: clerkship placement. [UPDATE (2:38 p.m.): Perhaps “called upon” is a little strong; these were Judge Ho’s exact words: “Starting today, I will no longer hire law clerks from Yale Law School. And I hope that other judges will join me as well.”]

In my original story on this news, I waxed ambivalent; a good summary of my post would be, “Le sigh.” But I seem to be the only legal commentator without a strong view on Judge Ho’s move, whether pro or con.

In the “you go, Ho!” camp:

• Sen. Ted Cruz (R-Tex.): Judge Ho has taken “a courageous and important stand.”

• Professor Josh Blackman: “How, then, should a judge assess a conservative applicant who chooses to go to Yale? This person knowingly walked into the traphouse for the sake of an elite degree. I think it is reasonable for a judge to conclude that the applicant exercised poor professional judgment.”

• Manhattan Institute fellow Ilya Shapiro: “Something has to be done to disrupt the toxic atmosphere polluting too many law schools.”

[UPDATE (10/7/2022, 3:02 p.m.): Also in the pro-Ho camp is Judge Lisa Branch (11th Cir.), who has joined the boycott.]

And in the “Ho no he didn’t!” camp:

• Professor Orin Kerr: “This ‘boycott’ crosses an important line. It’s the line between judges expressing their personal views in an effort to persuade (which is fine), and judges harnessing their power as government officials to create pressure on private institutions to further their personal agendas (which is not fine, in my view).”

• National Review writer Isaac Schorr: “It’s worth considering in the abstract whether a federal judge using the blameless as pawns in an effort to change the behavior of an institution to which they are connected—but whose malfeasance they are not responsible for—is a practice that conservatives should endorse.”

• Professor Eric Segall: “His arrogant view that this decision will somehow hurt Yale Law School is as unpersuasive as his judicial opinions.”

• Professor Rory Little: “It’s absurd to retaliate against cancel culture by canceling somebody.”

After reading these commentaries, I think I’m more troubled than I was initially. I understand and share Judge Ho’s cancel-culture concerns, but worry that “fighting cancellation with cancellation” just pours gasoline on the proverbial fire.

Since Thursday, I have also heard from conservatives currently at Yale Law who are fighting the good fight for free speech, trying to improve the intellectual climate at my alma mater, and they’re worried about Judge Ho’s proposal. They argue it will only hurt conservatives at YLS—who have to be part of the solution in terms of fixing the place, and who already face enough challenges as it is—and it won’t affect the conduct of intolerant progressives at Yale Law, who would be fine with fewer Yalies clerking for conservative judges and justices.