Yale’s perplexing invitation to judicial bullies

How is Yale Law School like the University of Alabama football team? The obvious response is that both are widely considered to be the best at what they do. But there is another answer. They are both apparently willing to do what it takes to stay at the top, even if that requires compromising essential principles.

Coach Nick Saban of the Alabama Crimson Tide, owner of seven national championships, recently demonstrated his commitment to winning when he chose not to suspend a player who had been caught on video hitting a fan. The event occurred following his loss to the University of Tennessee Volunteers, a team that Alabama had previously defeated 15 times in a row. As Tennessee’s home team fans rushed the field in celebration, Jermaine Burton, an Alabama wide receiver, reached out and struck a passing female student on the head. Although not on video, there is a report that Burton also hit a second fan.

Saban declined to suspend Burton for the next game or deprive him of his starting position. “I didn’t think it was necessary,” he said, adding that “I talked to him. He was scared.” The decision paid off. In a 30-6 victory, Burton was Alabama’s second leading receiver.

In Burton’s defense, he is a 21-year-old undergraduate whose misbehavior was in the heat of the moment. The same cannot be said for U.S. Circuit Court Judge James Ho, who recently announced in prepared remarks that he would “no longer hire clerks from Yale Law School” because of the school’s poor treatment of conservative students and disruption of conservative speakers. “Yale not only tolerates the cancellation of views — it practices it,” Ho said, explaining that his boycott would continue until the school “restore[s] order.”

Ho’s boycott constitutes judicial misconduct, dangling the prospect of clerkships before some students and withholding them from others to coerce Yale’s administrators into changing their practices. He was explicit that the exclusion of Yale graduates from consideration would be unrelated to their individual qualifications. “I’ve hired from Yale myself,” he said, “and they’re great kids.” Worse, he urged other judges to “join me as well,” in the hope that “thousands” of prospective students might be discouraged from even applying to Yale.

Subsequently joined by U.S. Circuit Judge Elizabeth Branch, the boycott violates two provisions of the Code of Conduct for United States Judges, adopted by the U.S. Judicial Conference and binding on all federal judges other than Supreme Court justices. Under Canon 3B(3), which applies specifically to law clerks, a judge must “exercise the power of appointment fairly and only on the basis of merit.” Likewise, Canon 2B provides that a judge must not “lend the prestige of the judicial office to advance the private interests of the judge.”

There is no exception for ostensibly virtuous goals such as reversing “cancel culture.” Ho and Branch have nonetheless declared that they will use their control over government employment for leverage against Yale – even acknowledging that it will “hurt future Yale students” – as a means of advancing their non-judicial public policy objective.

You might think that Yale’s dean, Heather Gerkin, would loudly object to the victimization of her students through an unethical judicial boycott, but only if you don’t understand how law school rankings work. Judicial clerkships are in some ways as important to leading law schools as football games are to athletic departments. A golden ticket for law students, clerkships open the door to successful careers, often leading to substantial bonuses from major law firms or tenure track appointments in academia. Deans are as reluctant to endanger clerkships as coaches are to jeopardize games.

Yale maintains its top status, in part, by enrolling the best students, who are, in turn, attracted by the promise of high-prestige clerkships with federal appeals judges such as Ho and Branch. But as another federal appeals judge anonymously opined, a widespread boycott could “deal a serious blow to Yale Law School” if students no longer get “the best shot of clerking for prominent judges.”

Far from criticizing Ho and Branch for threatening to depress Yale’s applicant pool, and weaken the career prospects of future students, Gerken has rewarded them with a speaking invitation, presumably to demonstrate Yale’s compliance with their demands.

Ho and Branch were ungracious in return, using their acceptance letter to further condemn Yale’s culture as “among the worst when it comes to legal cancelation,” while adding that the law school’s recent reforms may be “nothing more than parchment promises.”

For the record, I agree with many of Ho and Branch’s criticisms of Yale, about which I have written in the past. But valid complaints must not be pursued through unethical means. Ho says that he seeks only to teach Yale’s students to “respect . . . the rigorous exchange of ideas,” but he would do well to begin by respecting the Code of Judicial Conduct.

Gerken’s silence on the Code violations has regrettably enabled the judges’ misconduct by providing them with a platform to expand their campaign. That is how intimidation often works; acquiescence leads to escalation.

There is a certain symmetry: Saban responded to Burton’s brutality by talking to him; Gerken responded to Ho and Branch’s bullying by inviting them to talk. Saban at least claims to have referred his player to a “counseling program [addressing] the proper respect for other people,” while Gerken has said nothing about her guests’ continuing abuse of the judicial office. (She did not respond to my request for comment.)

Ho and Branch should certainly be able to speak without disruption at Yale, or any law school, if invited by a student group, and Yale’s plan for an “ongoing lecture series that models engaging across divides” is a great idea. But it is disappointing to see the dean’s unqualified imprimatur on an event featuring Ho and Branch, which will be counted as a victory for judicial strong-arming.

When it comes to remaining number one, it turns out that legal education is more like big-time football than most academics would care to admit. Star receivers get to play no matter whom they hit; prominent judges are invited to hold forth, no matter how many Code provisions they trash.

Steven Lubet is Williams Memorial Professor Emeritus at the Northwestern University Pritzker School of Law. He is coauthor of “Judicial Conduct and Ethics” (5^th edition) and many other books, including two published by the Yale University Press. His daughter is a graduate of Yale Law School.