Friday, October 07, 2022

Republican-Appointed Judges Try to Punish Yale for ... Something

by Neil H. Buchanan

Given the target audience of Dorf on Law, the odds are that a relatively large number of our readers are former judicial clerks.  Another group of readers includes lawyers whose friends and associates have held clerkships, while some readers might not be familiar with the phenomenon of clerking at all.  A recent kerfuffle coming out of right-wing judicial circles offers interesting tidbits for everyone, no matter which group one happens to be in.

The short version of the story is that some Republican-appointed federal judges have decided to punish Yale Law School's students because of "cancel culture," or something.  It is surely a classic example of group blame, but it is also a reminder that having the word "Judge" in front of a conservative lawyer's name does not stop them from spending all of their time in the fever swamps.

To be sure, the now-infamous Judge Aileen Cannon has -- entirely on her own -- made it clear just how ridiculously partisan a Trump-appointed judge can be.  Every step she has taken in the Mar-a-Lago search warrant case has been mocked mercilessly (with "deeply problematic" being the kindest description that I have seen of her poor reasoning), while a screw-up that was reported yesterday makes her look even more ridiculous.  The Eleventh Circuit panel's unanimous rebuke of her original ruling in Donald Trump's favor made it clear that what she is doing is beyond the pale, even for a panel that included two other Trump appointees.

Even so, the very fact that those Trump appointees were not in the tank for their political patron suggests that there might still be some non-partisanship and integrity left in our judicial system (at least below the Supreme Court).  Still, judges are people, and it very much matters where they get their information.  Unfortunately, too many Republican judges appear to be listening to people on Fox News who most definitely are not journalists.  What could go wrong?

Before getting into the details of this latest example of judicial humanness (and the erring that such humanness can cause), I will remind readers of a long-forgotten example of motivated reasoning from Chief Justice Roberts.  Almost ten years ago, in "A Senator and the Chief Justice Prove That It Is Better to Remain Silent," I wrote here on Dorf on Law about a truly weird argument that Roberts included in his annual year-end report on the state of the judiciary.  The details are not important, but the essence of the situation is that he steered way, WAY out of his lane to opine about the federal debt and deficit.  After explaining just how silly the Chief's arguments were, I wrote:

Obviously, the Chief Justice is simply out of his comfort zone, merely repeating the cant that he hears at Republican fundraisers and from reading the Wall Street Journal's editorial page.  At least, however, he could defend himself (if he even knew that he needed to do so) by pointing out that he is not a part of the political branches of government.  Economic policy is simply not his job.  In any event, he certainly makes it clear why we should be glad that there is a "political question doctrine," by which judges defer to elected officials on matters of policy.

As it happens, I was too kind in offering that exculpatory explanation, because much of my critique of Roberts's claims was based on legal errors, not economic foolishness.  Even so, the larger point is that he was demonstrating that he had mainlined too much right-wing dogma about the federal budget, and it did not even occur to him that he was making a fool of himself.  And because Supreme Court justices never face any consequences (including when, to mention another Republican politician in robes, a jurist fails to recuse himself from a case implicating his wife), I am probably the only person who remembers what should have been a shameful moment for Mr. Roberts.

In any event, it should not be surprising that judges not only bring their priors with them but that they view the world through whatever filters they choose to use.  And this is where we can turn our attention to judicial clerkships.  Yesterday, The New Republic's legal reporter (Matt Ford) wrote a piece describing a recent move among some right-wing federal judges to stop hiring Yale Law grads as clerks.  What in the world is happening?

My apologies to the many readers who already know the basics here, but I offer a quick summary for the sake of completeness.  A judicial clerkship, notwithstanding the unimpressive (almost demeaning) job title, is one of the most important jobs in law.  The federal system provides a budget allowing every judge -- Magistrate judges, District Court judges, Court of Appeals judges, and Supreme Court justices -- to hire what amounts to small teams of research lawyers to assist in making decisions and writing opinions.  Although there are some "career clerks" who serve a judge for multiple years, and some clerkships are explicitly two-year gigs, the vast majority are one-year deals.

Like a decidedly large majority of law professors in the country, I clerked.  My appointment was with then-Judge Robert Harlan Henry on the Tenth Circuit.  Because I was already a middle-aged person, changing my field from economics to law, I frequently found it frustrating to be a clerk.  (I am, however, grateful and happy that I did it.)  The power dynamic is simple: the judge has it, and the clerks do not -- at least de jure.

The de facto reality, however, is that clerks have enormous power, simply because they are necessarily filtering what the judge hears and sees and thus inevitably shaping his opinions.  Some judges are micromanagers and possibly are not in any way influenced by what their clerks do, but even the most bombastic and arrogant among Judge Henry's colleagues were, as far as I could tell, almost certainly being influenced by their clerks' work.  (Happily, neither Judge Henry nor about half of his colleagues were bombastic or arrogant.  The others, however, more than filled the void.)

And clerks should influence what a judge decides.  After all, why have highly trained legal assistants if they do not assist?  Judges, unsurprisingly, therefore choose their clerks to a large extent ideologically, because they understand that it is important to trust that the person who is deciding which cases to cite in the "bench memos" that prepare a judge to decide cases -- to say nothing of draft opinions, which (depending on the judge) can become final opinions with only a few tweaks -- is coming from roughly the same intellectual and ideological starting point as the judge.

Judges also want to believe that they are working with the best young legal minds in the country.  What counts as "best"?  Again unsurprisingly, there are shortcuts by which we all effectively outsource assessments of quality.  (How do we know who is "the best doctor in town," without teaching ourselves enough about medicine to make such an assessment on our own?  And no, "doing my own research" does not automatically qualify people to make complicated judgments.)  Who is "a top candidate" for a clerkship?  Like everyone else, judges in large part are going to believe what the most seemingly trustworthy sources tell them.

Enter Yale Law School.  I am absolutely not here to defend Yale's longstanding top spot in almost every supposedly neutral rankings system.  (My JD is from Michigan, so I carry no water for Yale.)  I could spend the rest of the month writing about why Yale's law faculty is taken too seriously (especially by themselves), but even at my most cynical, I would never doubt that the people graduating from Yale Law School each year are very smart and can produce very good legal work.  (They are also fully capable of producing crap, but so is everyone.)

The belief that Yale's recent alums are likely among the top legal minds in the world -- along with, I should add, an aggressive assembly-line-like promotional campaign that the school has put in place over the years to place students in clerkships -- has led to judges at the top echelons hiring loads of Yale grads as judicial clerks.  And because "the top echelons" means not merely appellate court judges in general but more specifically the "feeder judges" who can then place their clerks in large numbers in Supreme Court clerkships, Yalies are also more likely than other law schools' graduates to clerk for the Supremes.

What has happened that became newsworthy?  The New Republic's Ford reports that some Republican-appointed judges want to punish Yale for being too left-wing.  One Fifth Circuit judge, complaining about student protests at Yale Law against conservative speakers, harrumphed: "Yale presents itself as the best, most elite institution of legal education.  Yet it's the worst when it comes to legal cancellation."  Did anyone think we could talk about conservatives and higher education without talking about "cancel culture"?  Get real.

This enraged arch-conservative judge (and to be clear, "arch-conservative" is redundant when applied to a judge on the Fifth Circuit) is reportedly not alone.  Ford reports that "at least a dozen other federal judges had decided to stop hiring clerks from Yale for similar reasons."  An unnamed feeder judge said that "[s]tudents should be mindful that they will face diminished opportunities if they go to Yale.  I have no confidence that they're being taught anything."

On one level, it is a perfectly fine thing to ask whether the top-ranked law school in the country deserves its ranking, and even to ask if its students are "being taught anything."  One of the oldest anti-Yale (and partially anti-Harvard) jokes going has as its punchline a Yale grad asking: "What's a tort?"  The idea is that they are so busy learning about theories of jurisprudence that they do not learn "real law."  But that is precisely because Yale knows that so many of its graduates will clerk for (and ultimately become) appellate judges.  They do not need to know how to file a slip-and-fall claim, but they do need to know, say, the difference between flavors of originalism.

More to the point, all of this has been true forever.  The judges in question are just noticing any such problem now?  Of course not.  They are upset by the flood of lurid reports on Fox News that hype the non-problem of cancel culture, so much so that they are willing to convince themselves that the existence of Yale students who protest conservative provocateurs means that no Yale Law student is "being taught anything."  Quoting liberally (pun intended) from a story in The Washington Free Beacon, Ford writes:

Another unnamed judge described by the news outlet as a top "feeder" judge ... said that while they had "hired a bunch of great Yale Law clerks" in the past, they felt that at a certain point an institution like Yale "becomes so worthless and degenerate that you wonder what conservative would want to be a part of it."

And what is the evidence that Yale has become "worthless and degenerate" (as opposed to having been those things -- or worse -- all along)?  Well, again: cancel culture.  Is any evidence offered that the things reported in Republican-loving news outlets have made it even a little bit more difficult to find a worthy clerkship candidate (or ten) from Yale?  Of course not.  And even if the purpose is to "punish" Yale for "perceived missteps by the law school’s administrators," this is an odd way to do it.  It is not as though Yale's graduates will have a hard time getting clerkships elsewhere, and even if they do, why is a conservative Yale Law alum to be punished for the supposed sins of the Associate Dean for Diversity Affairs (a position that might or might not exist)?

If this is a long game, trying to discourage talented young people from going to Yale Law, I suppose it is ultimately an empirical question as to whether this will work.  I suspect that the Yale administration is currently in damage-control mode and will probably overreact in the other direction whenever the opportunity arises.  Administrators are, if nothing else, risk averse and responsive to this kind of noise; but they are also notably good at not in fact changing anything, even when they claim to be changing something big.

In the end, however, I have no doubt that I am taking this entire little affair far too seriously.  Some very privileged arch-conservative politicians who have been appointed to be judicial activists have gotten themselves into a lather, because they have heard via their preferred media (and probably some friends) that some Yale students have been oh-so-very-rude to people who are accustomed to receiving reverential treatment from groveling, careerist law students.

No worries.  The underlying model is no more broken than it used to be, and this will soon enough be merely another blip in the culture wars, notable only because it has something to do with elite legal education.