Twixt Gentleman and Brigand

 

Our own Susan Quinn recently wrote an interesting post exploring the wisdom of Judge James Ho’s recent decision to disfavor Yale Law School graduates when seeking judicial clerks. In Should a Judge Use Cancel Culture to Boycott Cancel Culture?, Susan presents arguments for and against Judge Ho’s position (which echoes that of the late Judge Laurence Silberman).

Judge Ho’s position has been mischaracterized by some on both the left and right as a form of viewpoint discrimination: what the judge is doing, given this understanding, is rejecting a particularly left-leaning law school because it is particularly left-leaning. I disagree. What the judge is doing is, as I tried to make clear in my comments to Susan’s post, objecting to Yale’s institutional intolerance to diversity of thought. That’s a very different thing: the judge rejects a process that betrays our civilizational norms of open discourse and free expression. And well he should.

I also took minor issue with Susan’s title phrasing: I don’t believe that what Judge Ho is doing is an example of cancel culture. Cancel culture should best be understood as punishment for expressing ideas that conflict with the dominant social narrative as promulgated by major media and the opinion-shaping elite. Judge Ho is not punishing Yale for expressing ideas, but rather for suppressing the expression of ideas. Cancel culture is a form of censorship; what Judge Ho is doing is opposing censorship by refusing to hire from an institution that engages in it.

Despite that truly minor quibble with Susan’s piece, I reach the same conclusion, and stand with her in support of Judge Ho and with those other judges who have embraced, albeit anonymously, his position.


But that’s all just context. Susan’s post prompted comments about a “tit-for-tat” response to the left, and it’s that comment and others like it that prompted me to write this post.

I have long argued that there is a line we conservatives must not cross — at least, not so long as we have institutional remedies available to us, in the ballot box, the soap box, and the courts. I continue to believe that, in our efforts to defend and strengthen the Constitutional and legal principles we hold dear, we should not betray those principles in our own conduct. That has always seemed to me a fundamentally self-destructive strategy, and one that risks leaving no one in a position to credibly assert the political sanctity of the Constitution and the rule of law. We should remain on the correct side of that line, and not join the radicals who would savage the Constitution to further their passion of the moment.

But there are other lines that we can and should cross.

The left has a particular tactic of adopting a position and then establishing it, in the popular culture, as the morally correct — indeed, the only morally correct — position for right-thinking people. They do this through their domination of mass media, public institutions, education, and an intellectually and socially accredited opinion-shaping elite. This strategy is effective, in that it leaves normal people, people not consumed with issues of politics and culture, simply assuming that the mainstream narrative is the one decent people embrace, and so reluctant to express an opposing viewpoint even if they’re deeply skeptical of the official narrative.

Those are the lines we must cross, often and boldly. We must be willing to violate norms of etiquette and sensitivity, norms to which many of us on the right reflexively conform. We must be vocal in our opposition to the prevailing narrative.

The Emperor is buck naked and most Americans will see that when they bother to look. We have to point that out to them, and give them the courage to say it themselves. That means we have to be reasonably well informed, and we have to be willing to be “that guy” or “that gal,” the one who says what right-thinking people aren’t supposed to say, the things that get you thought of as perhaps a bit of a crank or rebel.

Want some low-hanging fruit? Call out the trans movement. It’s destructive of young people, bad for women, built on an anti-science foundation of lies, and deeply entrenched among the opinion-shaping elite. Follow that with a general critique of phony diversity, of this toxic idea that skin color and ersatz victimhood status, rather than thoughts and values and character, are what matter in others.

I applaud Judge Ho for speaking out against censorship. I also believe that the most pernicious and effective “censorship” is that which we impose on ourselves in order not to be seen as difficult, not to be an embarrassment for someone, not to be thought of as insensitive.

Speak up and speak plainly. Be brave. Make sense. Rock the boat.

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There are 15 comments.

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  1. Nohaaj Coolidge
    Nohaaj
    @Nohaaj

    Pitch perfect.  Henry,  perhaps your best post.  

    Thank you for clarifying and expanding on your comments.  

    In honor of El Rushbo, and your post…

    Ditto.

    • #1
  2. navyjag Coolidge
    navyjag
    @navyjag

    Good one Henry. As a lawyer who has done some, but not that much, appeal work, maybe 25 arguments, to me it is  much simpler: is “misinformation” stuff that must be repressed? In instead of offering a different view? I think we know which way Google, Twitter and its clan are going. Maybe Musk can help. 

    • #2
  3. EODmom Coolidge
    EODmom
    @EODmom

    It seems to me that Judge Ho made a reasonable consideration about the caliber of candidates and the quality of the analytic skills of graduates of a particular institution. He could equally have said that the curriculum of the institution was inadequate to the demands of his work environment.  His clerks’  positions  are not for those who need remedial reading comprehension. 

    It would be a waste of his time interviewing people who cannot analyze factual data and interpret written material and then write undistorted and coherent precis for his use.  

    It strikes me that this current (the last 20 years or so?) crop of college and professional school residents never learned to cope with frustration and to struggle to achieve some goal. I’ll bet they never learned that if you forget your pads (or have a backup set of goggles) you don’t skate in the game (or swim in the meet.)

    And yes – it’s well past time to reject blatant and destructive falsehoods like corrupt and destructive sexualization and bankrupt intellectual masquerades. 

    • #3
  4. Dr. Bastiat Member
    Dr. Bastiat
    @drbastiat

    Outstanding essay. 

    • #4
  5. Henry Racette Member
    Henry Racette
    @HenryRacette

    navyjag (View Comment):

    Good one Henry. As a lawyer who has done some, but not that much, appeal work, maybe 25 arguments, to me it is much simpler: is “misinformation” stuff that must be repressed? In instead of offering a different view? I think we know which way Google, Twitter and its clan are going. Maybe Musk can help.

    “Misinformation” is a sinister term. I watched it creep into my discussions with well-educated young Silicon Valley technocrats, offered more and more as a self-evident problem that justified Orwellian (my sense, not theirs) algorithmic suppression.

    There’s such a thing as misinformation: the internet is full of absurd, sometimes harmful, crackpot ideas. (So is academia, of course.) But, as you suggest, the best response to wrong ideas is a better argument, not a censorious algorithm that seeks to push wrong-think into the dark.

    • #5
  6. RushBabe49 Thatcher
    RushBabe49
    @RushBabe49

    What Judge Ho called out is not “viewpoint” but Behavior.  The Yale law students engaged in physical behavior that called into question the sanity of themselves and their institution.  An institution that not only tolerates, but promotes that type of behavior might be assumed to be a “bully”, and students who engage in that behavior should be shunned, not rewarded with prestigious positions in the working world of law and justice.

    • #6
  7. Susan Quinn Contributor
    Susan Quinn
    @SusanQuinn

    Thanks for your kind words about my post, Hank. I wonder if my title is alienating people; I only asked the question and wasn’t accusing Judge Ho of using cancel culture. It stimulated a lot of discussion, though, so I won’t second guess myself.

    I’ve never been a believer in tit-for-tat. It strikes me as vengeful and isn’t my nature to act in that way. There are other ways to seek justice. Thanks for your very good post!

    • #7
  8. TBA Coolidge
    TBA
    @RobtGilsdorf

    Henry Racette: I have long argued that there is a line we conservatives must not cross — at least, not so long as we have institutional remedies available to us, in the ballot box, the soap box, and the courts.

    I wonder sometimes if we do have the courts and the boxes soap and ballot. I am fairly sure that the courts aren’t lib-biased in toto and that some are conservative-biased. Which is the best you could expect of people whose job it is to judge. 

    But our vote counters are suspect and our speech is curtailed where it matters. 

    • #8
  9. TBA Coolidge
    TBA
    @RobtGilsdorf

    RushBabe49 (View Comment):

    What Judge Ho called out is not “viewpoint” but Behavior. The Yale law students engaged in physical behavior that called into question the sanity of themselves and their institution. An institution that not only tolerates, but promotes that type of behavior might be assumed to be a “bully”, and students who engage in that behavior should be shunned, not rewarded with prestigious positions in the working world of law and justice.

    I would add that Yale graduates have likely been given preferential treatment over the years and that our legal system ought not be a caste system, particularly since the caliber of Yale students, once a near certainty, is much in doubt. 

    • #9
  10. navyjag Coolidge
    navyjag
    @navyjag

    TBA (View Comment):

    RushBabe49 (View Comment):

    What Judge Ho called out is not “viewpoint” but Behavior. The Yale law students engaged in physical behavior that called into question the sanity of themselves and their institution. An institution that not only tolerates, but promotes that type of behavior might be assumed to be a “bully”, and students who engage in that behavior should be shunned, not rewarded with prestigious positions in the working world of law and justice.

    I would add that Yale graduates have likely been given preferential treatment over the years and that our legal system ought not be a caste system, particularly since the caliber of Yale students, once a near certainty, is much in doubt.

    Since the Asian smart HS kids were rejected.  Good job Yale overseeres. 

    • #10
  11. Hoyacon Member
    Hoyacon
    @Hoyacon

    I applaud Judge Ho for speaking out against censorship. 

    Yes, censorship is bad.  Those who speak out against it are good.  Unfortunately, as I’d hoped to make clear in the other thread, his action goes beyond “speaking out.”  

    • #11
  12. Henry Racette Member
    Henry Racette
    @HenryRacette

    Hoyacon (View Comment):

    I applaud Judge Ho for speaking out against censorship.

    Yes, censorship is bad. Those who speak out against it are good. Unfortunately, as I’d hoped to make clear in the other thread, his action goes beyond “speaking out.”

    Yes. But they stay well within his authority — and I suspect they will have a positive effect.

    Most of us have no option other than speaking out and voting. Those of us who do have an option should exercise it. Free speech is essential: no policy, idea, viewpoint, or topic should be off-limits for discussion.

    • #12
  13. TBA Coolidge
    TBA
    @RobtGilsdorf

    Ho’s writing is a rebuke to Yale and to those who misteach students everywhere. 

    Them things need a good rebukin’. 

     

    • #13
  14. MarciN Member
    MarciN
    @MarciN

    Henry Racette:

    Speak up and speak plainly. Be brave. Make sense. Rock the boat.

    Exactly so. And Judge Ho has just made that a lot more possible.

    What a great country we are. We have so many people willing to take a stand against the strong prevailing winds: Elon Musk, Alan Dershowitz, Judge Ho, and Dr. Joseph Ladapo, the surgeon general in Florida, to name a few.

    A really great post, Henry. :-)

    • #14
  15. Justin Other Lawyer Coolidge
    Justin Other Lawyer
    @DouglasMyers

    EODmom (View Comment):

    It seems to me that Judge Ho made a reasonable consideration about the caliber of candidates and the quality of the analytic skills of graduates of a particular institution.

    Not exactly on point, but it relates to Yale Law School.  I had a prof at a different law school in the early 2000s, who prior to teaching had been a partner at a fairly prestigious IP law firm in the northern midwest.  IIRC, he would not consider Yale grads to hire as young associates.  They had tried one, who needed his mother to assist him with onboarding at the firm.  The kid couldn’t write a check and was overall fairly useless.  My prof discerned a culture at Yale that was entitled, but generally not terribly competent. 

    • #15
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