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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’m wondering how they “chose badly” by attending the top ranked law school in the nation. Should they personally have known that they would be punished because there are jerks in the administration and among some of their colleagues?
I am far more concerned about the suppression of dissent and debate at America’s “top law school” than I am about some of its graduates being bumped from the best possible career path in law in America to one of the best possible career paths in law in America. Seeing a few
future blood-sucking lawyersidealistic young scholars in the legal field reduced to opportunities no better than essentially every other law student in America for a worthy cause truly doesn’t bother me at all.I regret not having been more convincing. Other than sticking up for individual merit, which I regard as something of a cornerstone of belief, I don’t have much more to say. Thus far, the conservative jurists on SCOTUS appear to be in my corner, which I can certainly live with.
Have you seen comments from SCOTUS conservatives?
No. I would think that they would avoid being this overtly political, in addition to rejecting a pool of qualified applicants.
Why not. The leftie is prejudiced against Hillsdale students.
Do you condone that?
No, but then we have a culture war going on and we must use Alinsky’s rules against them.
But should we assume that Yale graduates are “qualified applicants,” given that Yale has fostered a law school environment within which open discussion and debate is suppressed?
I don’t make that assumption.
I don’t want to be “them.”
My reading of most of the comments here is that it’s fine to punish these students because they went to “elitist” Yale Law. It doesn’t really matter what they did or condoned. Their “privilege” justifies punishing them. Where have I heard that before?
I wouldn’t, no. I don’t think Hillsdale has a law school, nor do I think Hillsdale suppresses ideas that faculty and students find objectionable, so it doesn’t seem like a particularly significant comparison.
But I think Red’s comment misses the point. The objection to Yale is not that it is a liberal (left-leaning) institution. Rather, it’s that it is antagonistic to any challenges to its dogmatic embrace of a progressive ideology, to the point of suppressing free speech.
Any institution, left right or center, that did that should, in my opinion, be shunned by those who value or require employees who respect rational and open discourse — as, for example, should any judge.
No, it is like college accreditation… even students who weren’t the cause of the loss of it are impacted. It serves notice to students that what they are being taught doesn’t sit well with some judges. Since the judiciary leans left, the students will find jobs. Judges need clerks they can trust.
When I looked into getting a master’s degree is CSC, the college I was looking at was going to make me retake some of my bachelor’s classes because they didn’t think the school I got the bachelor’s did a good enough job. They weren’t willing to recognize the credits.
It wasn’t my fault, it wasn’t the master’s program’s fault. If it was anyone’s fault, it was my undergraduate college.
There is nothing all that different from this.
Yale is running on the fumes of its prestige. As are dozens of universities running on the fumes of their authority to divvy out credentials. This is just the end result of decades of politicization of universities.
This has nothing to do with the students. Just with a recognition that the school itself is losing influence because of the manner of education they choose to embrace.
Right. Rather than “I went to Yale” being a ticket to success, it is now viewed with suspicion. This is on Yale, not the students.
Um . . . yes. That was kind of the point of the Farmer and the Stork story. You are responsible for your choices, and Yale has been known for this for several years.
Do they interview their clerks ahead of time? (That’s a serious question.)
First of all, I doubt Yale is the only law school that turns out lots of woke graduates.
Second, I doubt EVERYONE at Yale is woke.
Third, if the judge can’t come up with a line of interrogation that can elicit whether someone is woke or not and do a bit of poking around in social media these days, then I really question his ability to be a judge of much of anything.
I understand the judge’s position (and share it). But blanket statements are rather idiotic and I’d be surprised if he doesn’t get himself into a hell of a lot of litigation.
There are a lot of questions an employer is not allowed to ask in interviews these days. And the issue, as I understand it, is not eliminating woke candidates but
eliminating those that didn’t get an education in how to handle diversity of viewpoints.
I’m having some difficulty finding Judge Ho’s actual speech, rather than pundits reacting to what he said, but here’s a quote which I picked up at Powerline:
On that basis any student who still applies to Yale Law is at least warned about what he’s getting in to.
Also from Judge Ho via Powerline:
Perhaps other schools should be boycotted as well. That doesn’t preclude starting with Yale.
It’s not within Judge Ho’s power to reform Yale Law. It’s only within his power to do what he can, which he is. I might as well let him have the last word:
I am pro-Ho.
And yes, that was fun to type.
Thanks for locating more of the speech, Hank. I had the same difficulty. These quotes do help clarify his perspective.
For Judge Ho, it’s a troubling problem. He has to work closely with his clerks, and he must realize he can’t trust these Yale students who might “inform” on him. Also, he cannot trust them to bring him all of the evidence in a case if that evidence goes against their biases. He also can’t be sure that they would not use their privileged (meaning private) position in his office to search his papers for evidence of politically incorrect sentences.
He can’t work that way. If these kids have been taught and encouraged to “cancel” people, he could never have a decent working relationship with them. And he can’t teach closed minds. Perhaps those are the issues beneath his frustration right now.
The Hippocratic Oath contained this first paragraph (I don’t know if it still does, but the one my daughter recited when she became a doctor of veterinary medicine did):
The professions take the relationship between teacher and student seriously. Candor is essential to that relationship.
Judge Ho cannot teach someone he is afraid of. And, yes, Yale is to blame. The judge is not singling out a student. He’s taking the entire university to task for aiding and abetting the Democrats turning us into a totalitarian state. This is Yale’s mess to fix. Furthermore, to Judge Ho, a Yale Law School student is someone who went along with this practice willingly. The injustice is so blatant that the student should have left the school. And if a student stayed even though that student disagreed with it, it says that he or she will do anything no matter how immoral to achieve his or her ends.
Judge Ho is standing up for himself and for the soul of our nation. It has always been our character to be honest, and honesty can be had only in an atmosphere of trust and freedom from fear of repercussions. No one knows that better than American professionals. Honesty is the cornerstone of all of them.
The legal field has become very corrupt. Just ask Alan Dershowitz. I applaud Judge Ho. He is a truly great man. If we are able to find a decent lawyer someday, we may have him to thank.
Cancel cancel culture? Sure! Those who live by the sword die by the sword.
They started it!
From most of the comments, Roderic, many of us agree with you.
It comes to this; at the beginning of a boxing match the ref asks for a good clean fight. There are rules, written and tacit, that grow up to govern any normal conflict.
When one side of that conflict cheats egregiously, he resets those rules.
And I have little pity for those who did the initial cheating – understanding that it must be significant cheating – when the cheated side nukes them. Figuratively and literally.
Perhaps we should give thanks for nuclear weapons.
There is no higher authority to appeal to on this earth.
The Yale Law students who do not approve of the behavior of their peers should say so loudly or transfer. If they remain silent, then they are not collateral damage.
I mean, am I supposed to feel sorry for people who went to Yale? (Or any of the Ivies?) Because I am having difficultly feeling sympathetic.
Yes. Silence is violence.
You’re being straight and honest, per usual. That’s good. It strikes me that your perspective underlies a lot of the comments here that do not come right out and say it.
I don’t automatically hate you if you went to Yale. But I think the Ivies have wrecked their own reputations. Once upon a time, going to the Ivies was aspirational, and I think a degree from one of the Ivies might have meant something. That you were well educated. Now it seems to means that . . . you went to an Ivy League school. It’s about credentials. Family status. Old money. You buy your way in. And you become part of an in-group that is set against the out-group. The products of the Ivy League today are not very impressive. (Or maybe it’s that the ones who are impressive are quietly so. The ones who are an embarrassment are loud about it.)
Yeah that’s not underlying my reaction to this. I had high enough SAT scores on my first pass to at least qualify to apply to ivies and I didn’t want to. I lack the ambition for it.
But I do know that I’ve been saying for some time now that the people that do the hiring need to start making changes in how they approach college degrees because the colleges aren’t backing what they are selling.
Finally, a very public and influential example is being made.
This is Yale’s fault. And if it serves as a catalyst for Yale to go back to its foundations, then it will be a victory. That’s a far cry from calling for its demise.