Fifth Circuit Court of Appeals Judge James Ho Says He Will No Longer Hire Yale Law Students

 

James Ho Cancel Cultures Yale Law FedSoc Because Other Students Are Mean To Yale Law FedSoc Students

Avalon Zoppo Brad Kutner Christine Charnosky
Law.com, September 29, 2022

A federal judge who said he will no longer hire clerks from Yale Law School garnered criticism from the legal community, one of whom said his comments could create ethics problems.

Legal ethics adviser and University of Miami Law professor Jan Jacobowitz said comments from Judge James Ho of the U.S. Court of Appeals for the Fifth Circuit criticizing Yale could create recusal problems in the future.

At a speech Ho gave Thursday to the Kentucky Chapters Conference of the Federalist Society, he pledged not to hire students who “want the closed and intolerant environment that Yale embraces today,” referencing a March event hosted by Yale’s Federalist Society chapter that featured Kristen Waggoner of the Alliance Defending Freedom. Conservative outlets claimed protestors, who opposed Waggoner for her anti-LGBTQ views, were so loud and violent that police needed to be called. Other reports suggest the scene was less dramatic.

Calling Ho’s refusal to work with Yale grads because of the incident “irony 2.0,” Jacobowitz said future Yale Law graduates who go before Ho for hearings could fear the judge is biased against them.

“Any party who retains a Yale law school graduate or happens to be a Yale graduate might reasonably believe that they would get a fair trial in the judge’s courtroom,” she explained.

Ho’s talk about resisting cancel culture accused Yale of tolerating and actively practicing the cancellation of opposing views. The judge has himself hired at least two clerks who graduated from Yale Law School in the past, according to a LinkedIn search and a Claremont Institute announcement. In his speech, Ho said his pledge wouldn’t apply to current Yale students.

Former U.S. District Judge Jeremy Fogel of the Northern District of California, who is the executive director of Berkeley Judicial Institute, said that while there are issues that need to be addressed on civility, Ho’s efforts will be viewed as partisan.

“The speakers to whom Judge Ho refers are identified with conservative or libertarian viewpoints, and he singles out Yale Law School as a particularly intolerant environment with respect to those views,” Fogel said. “In that context, the boycott he proposes inevitably will be seen as partisan.”

“At the same time, there is an underlying reality that our law schools and society generally need to address, which is our growing inability to deal civilly with deeply-felt differences,” Fogel said. “Law schools can be leaders in making a serious commitment to inclusion and respect for differences of all kinds and in helping students to develop the concrete communication skills that can make that possible.”

“Sometimes that means being able to listen to things that are upsetting, and sometimes it means making a genuine, thoughtful effort to understand why people are upset,” Fogel added.

Yale Law declined to comment.

In his speech, Ho said his refusal to hire Yale clerks is no different from standing orders that some judges have issued stating they will give more oral argument time to younger lawyers, or a push from jurists to appoint diverse attorneys for lead counsel in class action litigation. Ho also appeared to reference a “statement” from Justice Samuel Alito in the denial of review in the 2013 case Martin v. Blessing, where the justice criticized a trial judge’s “highly unusual” practice of using race and sex when picking class counsel.

“If judges can tell litigants which lawyers they should hire—and presidents which judges they should appoint—then surely I can say whose graduates I will hire as law clerks in my own chambers,” Ho said Thursday.

But those who would be impacted by Ho’s threat were unimpressed by his musing.

“Judge Ho has always been free to make hiring decisions as he sees fit,” a Yale law student, who wished to remain anonymous, said. “I very much doubt that any liberal-leaning students had any desire to clerk for him, so his decision ironically only adversely impacts conservative-leaning Federalist Society members who agree with him ideologically.”

“Yale Law School is still the No. 1 ranked law school in the country and I fully expect that my peers and I will have no trouble finding prestigious clerkships and high-paying jobs,” they said.

Ho is not the first judge to criticize Yale. Senior Judge Laurence Silberman of the U.S. Court of Appeals for the D.C. Circuit sent an email in March to all Article III judges suggesting that student-protestors who interrupted an on-campus Federalist Society event should be identified and disqualified from federal clerkship positions.

Also among those to criticize Ho for his comments was Georgia State University law professor Eric Segall. He called the jurist’s comments “insanity” before suggesting Ho failed to realize that cancel culture impacts both sides of the political spectrum.

“His arrogant view that this decision will somehow hurt Yale Law School is as unpersuasive as his judicial opinions,” Segall said.

Some questioned the irony of Ho’s comments, saying he is canceling Yale at the same time he condemns cancel culture. But the judge said in his speech that such observations miss the point.

“I would say that I’m doing the exact opposite of what Yale is doing. Cancel culture is about excluding people. I want institutions of higher learning to include people,” he said.

“I don’t want to cancel Yale. I want Yale to stop canceling people like me,” Ho added a short time later.

Ho was appointed to the bench in 2018 by former President Donald Trump, and is known for writing some fiery writing, including one concurrence last year where he accused his colleagues of applying a “woke Constitution.” Some ethics experts criticized a speech he gave earlier this year in which he said affirmative action policies that aren’t color-blind are “offensive and un-American.”

But he isn’t without supporters. Among those who lauded a Yale boycott is South Texas College of Law professor Josh Blackman.

“One judge cannot make a difference, but a critical mass of judges could force Yale to change its ways,” he said. “That school (Yale) lives on the prestige of federal clerkships, and will only respond when there is a threat to that prestige.”

Among those Ho lauded during his speech was Ilya Shapiro, senior fellow and director of constitutional studies at the Manhattan Institute.

“Ilya is not the only legal scholar to face campus vitriol, for doing nothing more than standing up for mainstream principles,” the jurist said of the conservative commentator who was embroiled in a hiring controversy with Georgetown Law before taking a job with the institute.

Shapiro called Ho “brave” after the speech was made public.

“Something has to be done to disrupt the toxic atmosphere polluting too many law schools,” he added.

Supreme Court reporter Marcia Coyle contributed to this report.