This week 13 conservative judges, all of whom were appointed by former President Donald Trump, told the president of Columbia University in a letter that they won’t hire as judicial law clerks future graduates of Columbia Law School (or even those who went to Columbia University as undergraduates). In a letter that was also sent to the law school’s dean, the judges say they won’t change their minds unless the school acquiesces to their demands for more conservative faculty and staff members, punishment for students who broke the school’s rules and an end to what they believe are enforcement policies that are biased against conservatives.
The judges, who are wrongly using their positions of power in an attempt to extort change at a private institution, claim that Columbia has “become an incubator of bigotry.”
The judges, who are wrongly using their positions of power in an attempt to extort change at a private institution, claim that Columbia has “become an incubator of bigotry,” and they profess to have “no doubt that the university’s response would have been profoundly different” if the protestors were “religious conservatives” who “view abortion as a tragic genocide.”
If judges don’t want to hire applicants who protested for one side of an issue, they are free to do so. In fact, this is a fair consequence for a student’s action. But penalizing future students for an administration’s alleged failures doesn’t serve that purpose. And so openly engaging in political advocacy is a bad look for the federal judiciary, which is supposed to be politically impartial.
Judges aren’t obligated to hire law clerks from any particular schools or geographic areas or those who have any specific type of legal experience. Judges are free to say “no one from Columbia shall work for me.” But it’s more than a bad look when judges say such a thing in the attempt to force a law school to change the composition of its faculty and staff to fit their ideological views. Besides, theirs is a list of demands for school administrators, not clerkship applicants.
A judicial law clerk is a recent law school graduate who works side by side with a federal judge for up to two years. It’s hard to emphasize how coveted and competitive these positions are. About 3% of law school graduates clerk after graduation. Almost half of recent judicial clerks attended one of 15 schools. Columbia isn’t one of those 15, even though it is listed eighth on U.S. News & World Report’s most recent ranking of law schools. As Reuters notes in a Tuesday report, Columbia “is not a major feeder into federal clerkships, with the vast majority of its graduates going into associate jobs at large law firms.” Only 21 of Columbia’s 427 juris doctorate graduates last year got clerkships. In contrast, Reuters reports, “University of Chicago Law School, Yale Law School, and Stanford Law School each sent 20% or more of their 2023 graduates into federal clerkships.”
Judges James Ho of the 5th U.S. Circuit Court of Appeals and Elizabeth Branch of the 11th Circuit, signatories on the letter to Columbia University President Minouche Shafik and Law Dean Gillian Lester, previously swore off hiring clerks from Yale’s or Stanford’s law schools, ironically to register their disapproval of “cancel culture.”
A judicial clerkship is a stamp of approval on one’s résumé like no other. Former judicial clerks are highly sought-after in legal job markets, including at large law firms, government agencies and nonprofit organizations. If I hadn’t had the honor of serving as a judicial law clerk, I’m not certain I’d have ever been hired as a law professor. But clerkships also bestow bragging rights on the law schools the clerks attended and raise those schools’ profiles in the legal community.
All of this is to say that if a federal judge, or a group of federal judges, announces a refusal to hire graduates of a single school, it matters. And the judges know it matters.
It is entirely fair for federal judges to exercise their discretion in determining which judicial clerk applicants to hire. The bond between judges and former clerks often continues for years, as judges serve as valuable mentors and confidants. Judges want to make sure they pick applicants who are not only up to the job, but who are also good fits for their chambers. And law clerks, fairly or not, can affect judges’ reputations with their own behavior.
A guilt-by-association hiring ban does little other than hurt students and young lawyers, and it reflects poorly on the judges who issue it.
But it makes little sense for judges to exercise their hiring discretion by simply eliminating candidates based on the school they attend. A guilt-by-association hiring ban does little other than hurt students and young lawyers, and it reflects poorly on the judges who issue it.
There’s no doubt about what the judges mean by “viewpoint diversity.” They wrote, “Significant and dramatic change in the composition of its faculty and administration is required to restore confidence in Columbia.” This is an ever-so-thinly-veiled directive to hire more conservative faculty and staff members. The judges didn’t, of course, send a similar letter demanding “viewpoint diversity” to law schools perceived as having conservative leanings.
As an initial matter, the judges put too much faith in the power of law professors to force or encourage their students to espouse specific views. My hope as a law professor is that I teach my students how to think through complicated legal issues, not what to think about those issues.
But perhaps most important, what we have with this letter is members of our judiciary using their federal posts to all but blackmail a private university to bend to their political will. This is political activism unbecoming of any member of our federal judiciary. Let’s remember that these are judges who received lifetime appointments because they’re supposed to stay outside of politics.
