Judge Ho Strikes Again! Is His Yale Law School Ban Unfair Discrimination Or Justly Utilitarian?

I could have easily made Judge James Ho of the Fifth Circuit Court of Appeals an Ethics Hero for the second time in 2022, and maybe I should. (The first time was in February, when he tossed his planned speech at Georgetown University Law Center to chastise the school for its treatment of Professor Illya Shapiro, who dared to utter an opinion that was insufficiently supportive of “diversity” as greater value to the Supreme Court than actual legal acumen. This time his principled stand has more metaphorical teeth, but we should at least consider its ethical validity.

In Judge Ho’s keynote address to the Kentucky Chapters Conference of the Federalist Society—you know, the fascists—- the judge deplored speakers being shouted down and censored at law schools across the country. Then, after singling out Yale Law School as being particularly hostile to non-compliant viewpoints and determined to engage in ideological indoctrination rather than legal education, he announced that he would no longer be hiring law clerks with Yale Law degrees, saying, “Starting today, I will no longer hire law clerks from Yale Law School. And I hope that other judges will join me as well. I certainly reserve the right to add other schools in the future. But my sincere hope is that I won’t have to.”

Oh, he’ll have to, at least if Ho doesn’t want to appear to be discriminating against Yale  for being—maybe–a teeny-weeny bit more hostile to non-woke sensibilities than, just to pick a name out of the air, Georgetown University Law School. Moreover, if other judges of all political and ideological bents, don’t follow Ho’s lead, then he’ll just be known as the Nazi Judge.

I am troubled by any such blanket punishment based on a single connection. Ho’s new rule would also eliminate conservative, outspoken and consequently shunned and harassed graduates of Yale Law School as well. In his speech, he covered that seeming injustice by arguing that if Yale law students “want the closed and intolerant environment that Yale embraces today, that’s their call,” Ho said. “I want nothing to do with it…” But not all students at Yale could have known what a single-minded, one-way indoctrination factory Yale has become without experiencing it first hand. Doesn’t Ho’s ban make them victims?

The hope is, in taking such a measure, that the victims will apply effective pressure on the school to change its ways. Yale Law, however, had been heading to this point for decades. So has Harvard Law, Columbia Law, Berkeley Law, and many others. If Ho’s response to indoctrination is going to be anything but symbolic, arbitrary and futile, his drastic remedy must be followed by many judges and aimed at many schools.

As Jeremy Bentham might have said if he liked breakfast analogies, you have to break some eggs to make a good omelette, and Judge Ho’s omelette is important not only to the future of the legal profession but to legal education, the rule of law, freedom of speech and democracy as well. I agree that it is an example of utilitarian ethics properly applied.

Still, a lot more law schools need to be targeted than just Yale.

11 thoughts on “Judge Ho Strikes Again! Is His Yale Law School Ban Unfair Discrimination Or Justly Utilitarian?

  1. Isn’t a clerkship in the lowly Fifth Circuit beneath a Yale Law School grad? You’d have to move to Louisiana? And actually live there? For like a year or two? Pulease!

  2. No, although he probably has good intentions, the logical end of this action is only a further divided country.

    You’d have judges who will hire graduates from only the woke universities and judges who would ban those universities. Those universities would double down, rather than engage in some introspection, because they now have a clear path to clerkship for the types of students likely to attend anyway.

    No more cross pollination (note I’m unaware of how common this might be today) of ostensibly liberal graduates clerking with conservative judges and vice versa; we’d have two separate systems of education and career building.

    • Valid…BUT: if students are going to use diplomas a validation of knowledge, wisdom and virtue, employers have every reason to assess what those diplomas actually signify. If they signify maleducation and indoctrination, why pretend otherwise?

      • A comment on the National Review article suggested filtering for Yale’s wokeness at the interview level: “Have you ever supported shouting down any speaker on campus? Do you believe that the concept of merit is a fiction? Do you believe in affirmative action?”

        • A district court judge married to a distant cousin of mine (sitting in New Haven, Connecticut, no less!) openly states she only hires Ivy League grads for clerks. Even though she’s a BU law school graduate! What a stupidly blinkered policy. Maybe I’m just saying Judge Ho’s policy “is not the worst thing,” but clearly the current day Yales and Harvards and Chicagos and all the rest are “problematic,” as Prof. Turley would say.

  3. So Ho hires a “conservative” for a clerk. (Good luck finding one- my YLS class included two). Yale gets credit in clerkship stats. I side with Ho on this one. Smart, conservative students might start think about attending other law schools.

  4. I tend to side with Judge Ho here, but I was also reading about this issue on Turley’s column. Basically he doesn’t disparage the idea, but he believe it will be ineffective — it’s the professors who have taken their schools in this direction and they are not going to be affected or dissuaded by something like this.

    What Turley suggests is that the only thing that will affect these schools is money. If the alumni stop leaving their money to Yale, even their endowment will eventually feel the pinch. I’ve read about that in connection with the University of Texas and some other schools, and I think it can have an impact, albeit the ones I’ve seen aren’t as far tilted to the left as the Ivy League.

    Still, money will talk. I presume you no longer contemplate donating to your alma mater — despite the current faculty tilt, there may be enough alums from Yale and the like who do not like the direction their schools have taken to make a difference.

    My money is never going to make any university lose an iota of sleep, but I am nonetheless unhappy enough with what I’ve seen Michigan State do that I will not be sending them any money. On the other hand, Wayland Baptist — the school where I actually finished my degree — does not appear to have succumbed (or maybe they’re better at hiding it), and I have sent them a donation or two.

  5. It’s not just Yale. Any student who is part of a group that practices methods like shouting down opponents and shutting down debate should be blackballed from practicing law in any state.

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