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Is a Judge Using Cancel Culture to Boycott Cancel Culture?
When I first heard that Judge James Ho publicly criticized Yale Law School for its practice of cancel culture, I was delighted. Not only did he criticize the school, but he said he would no longer hire clerks who graduated from Yale. I called out a raucous cheer, so delighted was I to hear that someone of note was finally attacking the cancel culture disease:
The judge, who sits on the US Court of Appeals for the 5th Circuit, cited a number of incidents at schools in which prominent figures had faced ‘campus vitriol.’
He singled out Yale – consistently ranked as the top law school in the US – for particular criticism, saying the institution ‘not only tolerates the cancellation of views, it actively practices it.’
In an apparent attempt to pre-empt accusations of hypocrisy, he added: ‘I don’t want to cancel Yale. I want Yale to stop cancelling people like me.’ He urged other judges to follow suit.
In response, 12 other federal judges declared they would no longer hire Yale graduates, although they signed up anonymously. While citing other incidents at Yale, they described an event that featured lawyer Kristen Waggoner, who defended Jack Phillips, the Christian baker who refused to create a cake for the wedding of a gay couple. The protest went so out of control that the police were called. Others have criticized these protests:
U.S. Circuit Judge Laurence Silberman of the U.S. Court of Appeals for the District of Columbia Circuit, who died on Sunday, had called on judges to think twice about bringing on Yale students who disrupted it after that event in March.
Yale Law Dean Heather Gerken has called the behavior of some students at that event ‘unacceptable.’
Since Judge Ho made his statement, another judge, Elizabeth Branch, a federal judge serving on the U.S. Court of Appeals for the Eleventh Circuit, has publicly joined the protest.
And yet, perhaps we should look at the situation more closely.
First, there are the students who will be impacted by this decision. When they originally applied to Yale Law School, they may not have known about the school’s reputation for supporting cancel culture. Should they have checked out this possibility before they applied? Should they have done the same for any schools they applied to? Should a school’s reputation for the support of free speech be a consideration for a potential law student? Or should we just consider these students collateral damage in this effort to speak up against cancel culture and condemn schools that are prepared to accept this woke agenda?
Second, perhaps other prestigious schools that support cancel culture should be called out. Why should they be considered acceptable when their attacks on free speech are likely just as egregious?
Third, will this decision by Judge Ho meet his intended goal? Will Yale reconsider its allowance of cancel culture? Will students decide that they will apply to Yale anyway, since there are other valued and prestigious clerk positions to which they could apply?
One lawyer made the following observation:
Notably, one initial criticism leveled at Judge Ho’s speech was that Ho alone would not have the clout to affect Yale Law by withholding clerkships. ‘Perhaps I’m underestimating Ho’s clout, but I can’t imagine students turning down coveted seats at the nation’s most prestigious law school because he put it on his personal blacklist,’ the lawyer Vivia Chen wrote in Bloomberg Law earlier this week. ‘And what are the odds that other federal judges, even unabashed conservative ones, will trash the resumes of awesome Yalies because of the school’s woke reputation?’
Finally, it might be worthwhile asking whether this was an appropriate use of criticism:
These tools are neither good nor bad. Their aims can be noble (the Montgomery bus boycott or the #MeToo movement) or shameful (the Hollywood blacklists or the Scarlet Letter). They are used (and complained about) by both the left and right. But they can be misused. We should boycott, shame, and shun people who commit terrible acts: racists in the Jim Crow south, the South African apartheid regime, or Harvey Weinstein. In these cases, the tools of cancel culture served good ends with appropriate means.
We should not use them against innocent people whose actions we dislike but who pursue reasonable (if mistaken) goals. Targeting people with opposing political views has become too common on both the left and right — for example, boycotts of Target for allowing customers to use bathrooms matching their gender identities and companies with ties to the NRA. Using social sanctions to punish political opponents produces mistrust and cycles of retaliation, where we boycott people for boycotting or (like Judge Ho) for not boycotting those we revile.
The authors of this article added the following:
We should reserve boycotts, shaming, and shunning for intolerable behavior. Judge Ho points us in the opposite direction, into a world where we punish everyone whose views offend us, including those who will not join our boycotts. Strategies like these are the cause of our cancel culture problems, not the solution.
I’m torn. On balance, I am glad that Judge Ho took this unpopular position and therefore risked being the target of disapproval. He has put other law schools on notice that their practice of cancel culture is not acceptable. The students who may be affected will learn that real life is difficult, and that our expectations may need to change based on changing circumstances. They may also learn that going to one of the most prestigious universities doesn’t guarantee the perfect appointment. Choosing a school based on other criteria, such as truth and virtue, may be more important.
I support Judge Ho. What about you?
Published in Law
I am 100% behind their effort, and think it wholly justified.
There is a difference between “cancel culture” and what they’re doing. “Cancel culture” refers to the punishment of people for expressing viewpoints that are heterodox or otherwise deemed unacceptable. That isn’t what’s going on here.
What Judge Ho and others are responding to is not a viewpoint, but rather a practice of suppressing free expression. They aren’t punishing institutions for teaching leftist cant, nor for subscribing to viewpoints that are idiotic and un-American (though they are those things). Rather, they’re objecting to a fraud, to the false claim that these institutions foster and tolerate diverse viewpoints when in fact they actively suppress diversity of thought in favor of a narrow orthodoxy that will happily justify violence as an alternative to reasoned debate.
What the judges are doing is not “cancel culture.” It is putting Yale on notice that a degree from its law school must be more than a rubber stamp on a piece of paper: that it has to represent knowledge gained in an environment that respects and encourages debate, not violence and suppression of thought.
I’m sorry for the handful of law students at Yale who actually believe in free speech and who object to what’s going on at their institution. They made a bad college pick. They should speak up.
Great comment, Hank, and I agree with all of it. I’m becoming a bit cynical, though, when I look at the judges who supported Judge Ho–anonymously. I couldn’t help wondering if they did it to avoid criticism, or if that would give them an “out” to being held responsible for such views. Either way, I’m glad they joined in, and I hope more join them!
Susan, I always prefer that people speak up in their own names. At the same time, I recognize that some people fear for their livelihood or their and their family’s safety. I’m glad others are joining Ho, even anonymously; I hope we reach a point soon where people can do it with greater security.
We have a growing list of persistently outspoken well-known people — Jay Bhattacharya, JK Rowling, Bari Weiss, Bjorn Lomborg, Ayaan Hirsi Ali, etc. — whom I believe are making a difference. I’ll happily add Ho to that, and hope others come out of the free speech closet to join him.
I believe Saul Alinsky said, “Make your opponents live up to their standards.” Our opponents have set this standard. Let’s make them live up to it.
I also believe that “tit-for-tat” is one of the most effective ways to force a change in behavior.
Faster, please.
Yes.
If this occurs briefly in order to call attention to a significant issue at Yale Law, fine.
However, I do not support punishing the whole for the sins of some. As a conservative, I fully support hiring based on individual merit—merit encompassing any number of things in this instance, including ideological compatibility with a judge. It seems very likely that a blanket no- hire across several judges may result in someone at Yale who deserves a clerkship not getting one. That’s wrong.
Maybe it’s just that I see the world through the lens of parenting — that I self-identify as “Dad” before anything else — but I can’t embrace the “tit-for-tat” approach.
What Judge Ho is doing is imposing a natural consequence. I think that’s the best form of discipline: bring about the response that the behavior will naturally engender in reasonable, well-behaving people. In this case the misbehavior of Yale is that it is creating an environment that will produce lawyers who don’t value free expression and who have never been asked to engage in real debate. Such people make better barristas than barristers, and have no business clerking for federal judges. So tell Yale you don’t want them.
What Yale is doing is tolerating the suppression of ideas. We should never embrace that strategy, even in response to it.
The Farmer & the Stork
A Stork of a very simple and trusting nature had been asked by a gay party of Cranes to visit a field that had been newly planted. But the party ended dismally with all the birds entangled in the meshes of the Farmer’s net.
The Stork begged the Farmer to spare him.
“Please let me go,” he pleaded. “I belong to the Stork family who you know are honest and birds of good character. Besides, I did not know the Cranes were going to steal.”
“You may be a very good bird,” answered the Farmer, “but I caught you with the thieving Cranes and you will have to share the same punishment with them.”
Aesop’s Fables
Who would we entrust with determining that fine line? Professor Altman?
Yes.
And more prosaically: Yale doesn’t have a lock (see what I did there?) on high-quality education. It isn’t part of the name, but rather a matter of history based on the way Yale educated law students. If the unambiguous evidence now shows that Yale no longer educates students that way — that, in fact, it has adopted a shoddy educational methodology — then even the best Yale law students, even those storks among the cranes, will receive a shoddy education.
However they went in, they will come out having had a narrow and censorious education — an education which they chose to tolerate, even if they didn’t take part in the oppression themselves.
Sorry, but this is way off base. An education at Yale Law is what one chooses to make of it, as is the case at most institutions. There is a qualitative reason it is the law school of choice for many of considerable academic stature and a blanket condemnation of everyone who goes there due to the actions of others is simply not reasonable. Perhaps the next Justice Alito would be surprised to know that he/she is being barred from a clerkship based on “you should be judged by the company you keep regardless of who you are.”
It isn’t the same school that Alito attended, even though it has the same name.
Similarly, I cannot recommend anyone attend my alma mater, the University of Michigan-Ann Arbor, because it lacks the quality of education it had back in the 1970s when I attended.
What we also don’t know is what kind of education the Yale students are actually getting. The degradation of the curriculum at many universities may not align with their longstanding reputations.
I’m not sure I’d go along with this, Hoyacon. As a student (back in the old days), I was subject to the curriculum that the professor presented. I was busy enough completing that agenda without “choosing to make more of it” than I already was. In addition, at 18 I wouldn’t have known how to go about supplementing my education. I was fortunate back then not to have political professors who promoted their ideas in the classroom. But I don’t know what I would have done otherwise.
Broadly disagree, Hoy. Yale is an educational institution. If it has a lousy process — if it quietly endorses speech suppression, if it imposes thought control on its students — then it’s a poor educational institution.
Judges hire clerks from prestigious schools in part because they believe the education there lives up to the school’s reputation. That’s a factor in their consideration. When a school blatantly rejects core principles of civil discourse and rational debate, as I believe Yale has done, declaring the school an unfit educational institution for this particularly demanding profession seems wholly justified to me.
Every law school that suppresses speech should be excluded from hiring, in my opinion. We don’t need future lawyers and judges who have been educated in such environments.
Nothing is the same now as it once was. That neither means that the next Alito is not present, nor that any individual should be denied an opportunity based on anything other than an individualized assessment.
Well said!
I will add that I have no problem with an assessment of whether clerkships should be made more available to those who attended schools other than the usual suspects. But that is a different issue than blackballing those who went to a specific school.
I am happy to say, I don’t think tit for tat is the way to go.
I think you visit on them 10 x what they do to you. That is the only way to get them to stop. Utter and complete destruction.
It should be, I am not going to accept them now, I will fire any I have, I will never accept them again as long as I live, and I will work hard as I can against them to render them persona no gratas.
I would agree with that if we were talking about nothing more than, say, a mediocre law school. The excellent students who come from that environment should be considered, to the extent that employers have the time and skill to make that assessment, despite the less than stellar credentials of their institutions.
This is different. What Yale is doing is allowing a fundamental perversion of essential aspects of not just a legal education but of our western tradition. Potential employers must assess not merely the educational quality but the degree of indoctrination as well: to hire from Yale is to hire from an institution that has embraced a subversive doctrine that undermines the basis of just and fair debate, in and out of the courtroom.
I would very much object to judges announcing a boycott of mediocre and unprestigious law schools. I applaud a boycott of schools that have created a toxic educational environment that rejects core principles of free and open debate — principles essential in the application of, among other things, the law.
The judges could have used a different justification (although I have no problem with them stating outright that the no- hire policy is due to the Yale cancel culture).
Since Yale now expends so much effort on ensuring that all of their students, faculty, and admins are toeing the line, they obviously are not expending sufficient effort in educating their students. Therefore the product is inferior. And I agree with Hank – every law school that suppresses speech should be excluded from hiring.
Yale Law graduates about 200 students a year. Somewhere in there are an undetermined number of students who attended Yale for career purposes because it is considered, by most academic measures, to be the top law school in the country, not because they endorse or even sympathize with the tactics of some administrators. I am unable to applaud the exclusion of these students, some of whom are undoubtedly conservative, from career altering opportunities because of the actions of others.
Like it or not, it works. Consider the “Share” or “Steal” set-up.
It isn’t because of the “actions of others.” It’s because of the actions of their law school — of that “top law school” that has chosen to pursue a path of censorship and ideological purity.
Yale graduates — every Yale graduate — have enjoyed the advantages that Yale diploma brought. Now their school has betrayed the core principle of liberal education, and it is finally, and correctly, costing Yale’s students some of that cachet.
Let them practice law, and let them clerk for judges who don’t care about free speech. I’m sure there are such men and women.
This ultimately punishes Yale. Serious students will take their money elsewhere and it costs the PROFESSORS and the Yale Institution the influence it held.
We are talking about courts that have been highly selective in schools the accept candidates from. That’s why these places tend to only come from Harvard and Yale – because those are the only schools that those jobs are open to.
Was it cancel culture to deny applicants from FSU Law School? Or was it always about influence.
That’s why the schools are picked by these students – for their influence, not their academics.
How good is a lawyer going to be if while being trained, he or she was not exposed to opposing views?
“Your honor, I object to this line of questioning because I find it triggering.”
You’d best get back to your safe space and break out the crayons then, Buttercup.
This is partially true, but not very. “Influence” is largely a product of academics, and the Yale Law faculty is littered with experts in their fields. The vast majority of the students are careerists who did very well in college and who bust their butts in law school. They are attractive to hire because they have what is desirable in most firms and clerkships—ambition and (excessively) hard work in a highly competitive environment.
Yale Law will continue to live on and live well, with some modest PR tweaks. Many of those who are truly punished did nothing wrong other than choose to attend a top academic school that we apparently disapprove of. Let’s stop pretending that there are not individual students who do not deserve this.
You might not have seen my comment about “collateral damage.” In real life, and we all must face it at some point, life deals us disappointments. Requirements change. Expectations are modified. Frustrations occur. Students should not consider themselves invulnerable to these occurrences. The students will learn that life doesn’t provide guarantees, and that there are ways to deal with the unexpected in productive ways. It isn’t as if they will be shut out of law school or the only law clerk position around.
[Pompous duplicate deleted.]
Can’t say I am moved by this. Those attending law school are adults. They make adult choices and experience adult consequences from those choices. If they choose badly . . . that is on them.