Tuesday Talk*: Are The Judges Wrong To Add Stanford To The List?

In reaction to the Duncan debacle at Stanford, Judges Ho and Branch have announced that they are adding Stanford law school to the “do not hire” list.

James Ho and Elizabeth Branch, the circuit court judges who announced last year that they would no longer hire clerks from Yale Law School, are adding Stanford to the boycott.

“We will not hire any student who chooses to attend Stanford Law School in the future,” Ho, who sits on the Fifth Circuit Court of Appeals, said Saturday evening in a speech to the Texas Review of Law and Politics, a transcript of which was reviewed by the Washington Free Beacon. The clerkship moratorium, like the one on Yale, will exempt current law students.

The issue isn’t whether they will choose to hire or not to hire students from those schools. They can choose not to hire student from any school they like. The issue is whether announcing it in order to urge other judges to do the same, and to use their clout as federal judges to influence schools to be less accommodating of students who behave this way toward judges, in particular, or speakers, in general, with whom they disagree.

“Imagine that every judge who says they’re opposed to discrimination at Yale and Stanford takes the same path,” Ho said. “Imagine they decide that, until the discrimination stops, they will no longer hire from those schools in the future. How quickly do we think those schools would stop discriminating then?”

While some lawprofs of extremely dubious competence have come out in support for DEI dean Tirien Steinbach, these are judges using their offices and their hiring practices to influence speech and law schools. There’s a difference.

Article III judges are public officers. The clerks they hire are public employees, paid with U.S. tax $$. Beyond the unseemly, highly inappropriate nature of this ban, that federal judges can legally announce a categorical ban on employees from accredited law schools. https://t.co/MTL9HjJ0Vn

— Sherrilyn Ifill (@SIfill_) April 2, 2023

Are Judges Ho and Branch right to use their offices for this purpose? Are they right to publicly announce that they’re doing so, and imploring other judges to do the same? As noted, they are public officials, and the clerks they hire will be public employees paid with public monies. But then these are clerks, exempt positions left entirely to the judges’ discretion. Is this a proper exercise of discretion or an abuse?

The question is not whether you find the conduct of the students at Stanford acceptable or reprehensible. The question is solely about whether these judges’ reactions to it are a permissible use of their good offices to influence, or perhaps manipulate, law schools into ending their acquiescence in the silencing and deplatforming of conservative judges and speakers.

*Tuesday Talk rules apply, within reason.