The federal clerkship position is highly desirable. Judges wield vast amounts of power in selecting their clerks–so vast that fear of reprisals have forced many clerks to stay quiet in the face of abuse. To eliminate this power imbalance, I proposed that clerkships be abolished. As long as the federal clerkships are still in place, judges have almost unrestricted discretion regarding who they hire.
Clerk candidates must have certain legal skills, including careful reading and clear writing. The decision to hire one person over the other will usually come down to these criteria. Get fit–the fit between the judge and the candidate; the fit between the candidate and other clerks in chambers; the fit between the candidate and clerks in other chambers (inter-chamber shuttle diplomacy is an undervalued attribute of clerking); and so on. Each judge understands “fit” in a different way.
Judges will hire candidates based on their future success. The so-called “feeder judges” are known for hiring clerks in hopes of recommending them to the Supreme Court. A Justice will hire a superstar if they are a “feeder” judge. So “feeder” judges have every incentive to identify clerks–who often only finished 1 or 2 semesters of law school!–with the potential to go upstairs.
One First Street isn’t the only avenue that holds promise for success. Non-elect clerks can pursue distinguished careers in many different areas, including big law, criminal defense and academia. It is not unusual for judges to favor candidates who are interested in a particular area of work. For example, some judges are well-known for feeding academy clerks. Candidates who are published and interested in teaching may find them more favorable. Candidates who are interested in using their law degree to improve the world may benefit from the experience of other judges in the area of public interest litigation. Candidates who seek to earn big money in law could be rejected. Let’s not forget the ideological screens. Some Democratic-appointed judges only will hire liberal clerks. Republican judges may only employ conservative clerks. Many judges, including my own, have hired an ideologically diverse group of clerks. But many do not–and with the abolition of the filibuster, I suspect the number of ideologically-homogenous chambers will increase.
In short, judges evaluate a candidate based on a host of personal factors–dare one call it Integrative. Which of the following has the candidate done before? And what might the candidate do in the future–or more precisely, what CouldWhat did the clerkship make the candidate successful? The key to a candidate’s success is a clerkship. The clerkship opens doors to many possibilities, such as the ability to connect with an alumni network.
This brings me to Judge Ho’s proposal to stop Yale Law School graduate hires. Judge Ho gave a variety of reasons to support his decision. I will not go into detail here. I will instead offer another approach to understanding the boycott.
As a senior at college, imagine that you’re a student. Yale Law School and several top-tier schools were among the places you were offered. Mazal tov! You now have the option to choose. You now have a choice between Yale, Harvard and Columbia. Perhaps there are financial constraints–some schools may give more aid than others. Personal constraints may be present, like the desire to be near family members. Yale is more likely to be favorably impacted by none of these factors. Although YLS offers a more extensive financial aid package, New Haven can be difficult to reach. Yale is more popular than any other school. Yale Law School is number one in the rankings. This school looks just like Hogwarts. The top scholars are there. The company produces high-quality circuit and SCOTUS clerks. A lot of applicants can take a path to academia. Many of your peers will rise to the highest levels of government. The list goes on.
Imagine you’re a senior at college, right-of center. Most likely, you’re familiar with the recent episodes of campus television, such as “Traphouse.” You will learn even if this is something that you don’t know. How? How? Similar messages are being sent by others, even outside Yale:
Three Yale Law School grads who were conservative attorneys, I had a conversation with them the other day. All three agreed they would advise conservative students to not go to Yale. The decline is dramatic. https://t.co/6YXipPh9KW
— Ed Whelan (@EdWhelanEPPC) September 29, 2022
Given Yale’s inhospitable reputation, how can a Yale applicant choose Yale over more accepting places? Again, the answer is prestige. The desire for prestige is more important than a dedication to principles like academic freedom and free speech.
So, how should a judge evaluate a conservative applicant to Yale? Intentionally, this person entered the traphouse to obtain an elite degree. It is fair for a judge that the applicant displayed poor professional judgement. A judge could not rely upon someone willing to sacrifice their principles for fame. The Judge may not choose to hire conservative YLS graduates as they can be unreliable and even questionable. These graduates already gave up on their core values in order to attend YLS. They will most likely continue to sell out in similar fashions in the future. This view shows that choosing Yale without full information is an act of demoralization. They are unnecessary. Judge Ho’s banning directly punishes students for making bad choices and indirect punishes school officials for not addressing their deficiencies.
Judge Ho’s idea of a “Trap House” isn’t new. I had a similar idea during the scandal at Trap House last year. It was my writing:
At this point there is one option to cause YLS pain: Deny it the status it craves. To ensure other schools have credit for the appellate clerkships, libertarian and conservative 1Ls and 2-Ls must be transferred out in large numbers. It is difficult to place clerks in the Federal Judiciary with three out of nine Justices. As a plus, students who transfer out may actually learn something about the law–a useful skill for any clerkship.
I don’t know if any YLS student actually graduated. I’ll shake hands with them if they did. Perhaps Yale was chosen by some students to be part of a reform effort. All the best to them. Perhaps some students couldn’t transfer because of personal reasons. I understand. Some students, however, said that although things were terrible here they are not impossible. ThisIt is very close to Yale JD, and I won’t throw it away.” Judge Ho would never hire such people. Future graduates should not choose Yale or Chicago if they are conscious.
Will Judge Ho’s boycott catch on? For the boycott to work, it must have a sufficient number of federal judges participating. According to my reliable information, some federal judges participate. quietlyYale Law School has stopped hiring. They don’t want to be as loud as Judge Ho. You can contact me if you have a judge who has decided to stop hiring students from YLS. As an anonymous clearinghouse, I am available.
My view is that the threat of boycotting the judiciary does not end there. A Republican future administration will be able to label all YLS grads as squishy. The President DeSantis is a HLS grad and could easily boycott Yale grads who matriculated in 2021. It’s possible to justify why you decided to stay at YLS so that some Chicago grad can get the nomination.
At some point Dean Gerken will have to take note when the annual clerkship statistics tank–especially those coveted SCOTUS slots. She will eventually have to discipline students who violate the rules of law school. This is not a slap on your wrist. The message would be sent by expulsion. Law school students and federal judges can now take a second glance at Hogwarts.