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Late last month at the sixth annual Kentucky Chapters Conference of the Federalist Society, Judge James C. Ho of the U.S. Court of Appeals for the 5th Circuit (disclosure: my former boss) issued a call to arms.
Ho—who earlier this year ruffled feathers at Georgetown University Law Center by using the occasion of his own talk at Georgetown to defend then-embattled Georgetown scholar Ilya Shapiro from the school’s own pusillanimous dean—announced in the Bluegrass State that “starting today,” he would not hire future law clerks who matriculate at Yale Law School. (Current Yale Law students and Yale Law alumni are unaffected.)
The reasons for the law clerk hiring moratorium are fairly straightforward: “Cancel culture” and, more specifically, a hostility to religious and conservative viewpoints and a demonstrated willingness to “shout down” such speakers, are disproportionately pervasive at Yale Law; Yale Law consistently ranks as, and holds itself as, the single preeminent institution of legal education in America; because of that perceived perch, Yale Law is more capable of influencing other legal institutions to denounce “cancel culture” and make itself genuinely open to “dissident” speech from the “deplorable” half of the American citizenry.
Ho’s critics immediately swarmed from every possible direction. The Left was, of course, predictably apoplectic. On the Right, some, such as the purportedly right-of-center Dispatch podcaster Sarah Isgur, have complained that it’s not clear what Yale could actually do to effectuate meaningful change.
Such defeatism is unwarranted. One clear first step would be for Yale to embrace the Chicago Principles, a product of the University of Chicago, which would have the effect of protecting conservative students, conservative speech, and conservative programming.
Some—seemingly including fellow 5th Circuit Judge Jerry E. Smith, who took time away from defending corporate vaccine mandates in the Federal Reporter to condemn Ho’s stance as “regrettable”—suggest that a boycott of Yale Law is counterproductive and bad for Yale students.
But the hard truth is that, right now, conservative law school matriculants should simply not go to Yale—period. Yale does not want them, and their peers will do their best to stymie their careers, and they will be supported by the Yale Law School administration in those efforts. An investigation last year by The Washington Free Beacon’s Aaron Sibarium, covered by this column at the time, powerfully highlighted the point.
The reality is that, if Yale Law School were openly discriminatory against blacks and/or Hispanics, not a single person would object to a boycott; on the contrary, all decent people would join it. The fact that Ho’s speech in Kentucky elicited as much scorn and dismissiveness as it did thus demonstrates something that we conservatives already knew to be the case, but which can still be galling to internalize: Anti-conservative, anti-religious and anti-traditionalist discrimination does not attain anywhere remotely near the same cultural clout as does opposition to racial discrimination.
Fortunately, there has been some recent momentum against Yale. Last week, Sibarium reported at the Free Beacon that 12 federal judges, spanning both the trial and appellate levels, had confirmed to him that they would also no longer hire clerks from Yale Law School. And last Friday, Nate Hochman of National Review reported that conservative stalwart Judge Lisa Branch of the U.S. Court of Appeals for the 11th Circuit would join Ho. In her statement, Branch cited the “legitimate concerns” that had been “recently raised … about the lack of free speech on law school campuses, Yale in particular.”
Other judges, while stopping short of an on-record law clerk hiring boycott, have offered rhetorical support. Ho and Smith’s 5th Circuit colleague, Judge Edith H. Jones, told Reuters earlier that she is “very worried” about cancellation-style tactics in the legal profession, “and to the extent such exclusionary tactics are encouraged by the law schools, shame on them.”
Much as we might say, then, that there are some conservative politicians and intellectuals who are pushing the Right to move beyond the dog-eared “zombie Reaganism” playbook and embrace some newer tactics, so too do we see such a divide emerging in the judicial arena. Much as in politics, the judicial “zombie Reaganites,” such as Smith, are misguided.
Notably, with a mere two on-record boycotting federal judges as of this writing, Yale Law has already been pressured enough where it felt the need to respond. On Oct. 12, it issued a missive titled “A Message to Our Alumni on Free Speech at Yale Law School,” which brought Yale incrementally closer to the Chicago Principles. The steps announced in the brief post are far from perfect; indeed, in what can only be described as an epic self-own evincing the pampered nature of its own student body, Yale Law “welcomed a new Dean of Students who is focused on ensuring students learn to resolve disagreements among themselves whenever possible, rather than reflexively looking to the institution to serve as a referee.”
Imagine that—the nation’s putatively best institution of legal education forced to hire a dean simply to help students get along. Perhaps those students forgot that the practice of law itself is inherently adversarial by nature.
Still, though, if only two federal appellate judges can lead to meaningful action by Yale Law, then what might a broader boycott accomplish? Judges who have privately pledged to not hire future law clerks from Yale should now go on-record in order to help generate momentum and, ultimately, better protect conservative law students, conservative lawyers, and conservative speech. And those judges should go on-record posthaste.
Nor is there any reason why future tactics in “canceling the cancelers” must be cabined solely to the realm of the judicial branch. As law professor Josh Blackman blogged shortly after Ho’s speech in Kentucky: “A future Republican administration can categorically label every [Yale Law] grad a squish. It is quite feasible for President [Ron] DeSantis [a Harvard Law grad] to simply boycott all Yale grads who matriculated after 2021. Good luck with explaining why you chose to stay at [Yale)] for that shiny brass ring as some Chicago grad gets the [nomination].”
More generally, conservatives must be willing to prudentially engage in escalatory tit-for-tat tactics across all areas of our republican life—to merely rebalance our wildly off-kilter status quo that favors progressives over conservatives across all of society, if nothing else.
If the notion of “knowing what time it is” means anything, surely it means that. Now, with a small victory at Yale Law under our belts, let’s keep it up.
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