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.