Judiciary Whiffs Opportunity To Dispel Appearance of Bias
Last Thursday, the 8th Circuit Judicial Council affirmed the Chief Judge's dismissal of a complaint filed against Judge Daniel Traynor. The order marked the resolution of the last of a flurry of complaints filed in the wake of a letter sent by thirteen federal judges to the president of Columbia University. Fourteen complaints. Five jurisdictions. All dismissed.
The campus protests that erupted in spring of 2024 challenged many universities to respond. Those at Columbia University, in the melting pot of New York City, were among the most contentious. The university quickly became a political punching bag, attracting attention from numerous lawmakers on Capitol Hill, including Speaker Mike Johnson, who in April blamed the university for not cracking down on the protests.
Not long after, a group of judges, led by culture warrior James Ho and the 11th Circuit's Elizabeth Branch, hopped on the bandwagon, sending an incendiary letter to Columbia University's president and the dean of the law school. In the letter, released publicly, the judges castigated Columbia as “an incubator of bigotry” and, curiously decried what they labeled Columbia’s “ideological homogeneity”. They then declared “we will not hire anyone who joins the Columbia University community—whether as undergraduates or law students—beginning with the entering class of 2024”.
It was an extraordinary and very public attack on a private institution by lifetime appointed members of the federal judiciary. Although the judges insisted that their decision was based on the university’s failure to strictly enforce campus speech and safety policies, a cursory reading of the letter is enough to establish the partisan and ideological underpinnings motivating this radical declaration. In addition to complaints about ideology, the letter pressured the administration to change its hiring and admissions practices to achieve “viewpoint-diversity” in faculty, administration—and in admissions. In other words, every facet of the university. What “viewpoint diversity" meant was left unstated but given the lack of diversity represented by the judges—all of whom were appointed by Donald Trump—the gist was clear: Hire more conservative faculty. Appoint more conservative leadership. Admit more conservatives. Tilt the ideological makeup of your institution in our preferred direction.
The New York City Bar Association issued a statement responding: “Whatever the merits of [the judges'] criticisms, it is not the business of federal judges—government actors with particularly stringent duties of impartiality—to police the political views of school administrators and faculty.” Nor to change it, one might add.
One might be tempted to see this as silly. The judiciary is made up of hundreds of judges. What power do thirteen have? But for an Ivy League university that is steeped in reputation as currency—to attract students, faculty, and donors—a letter like this would be hard to ignore. Reputations are built in no small part on the ability of students to secure coveted positions upon graduation. A high-profile letter targeting that ability would deserve serious attention. And an administration already embroiled in nationwide controversy might well fear that for every judge who signed there would be another, perhaps several, who did not but nevertheless privately agreed with the letter and resolved to do likewise. (One of the judges suggested as much in an interview.) This is to say nothing of the student body. For students spending hundreds of thousands of dollars on an education, such a letter would undoubtedly have a tremendous and viewpoint-specific chilling effect on speech.
In threatening an entire university, the judges demonstrated a lack of both judicial temperament and the discernment needed to adjudicate reasonably and fairly. Even as he affirmed a right of judges to hire ideologically, Eugene Volokh objected, writing: “we shouldn't threaten innocent neutrals as a means of influencing the culpable.” For a group of judges to engage in just such threats calls their judgment sharply into question.
The judges have defended themselves by claiming that it is not because of the viewpoint of protests but because of the university’s failure to enforce policies that they are taking this step. But it is no more reasonable to punish the student body for the perceived failures of the administration than it is to punish the entire institution for the perceived violations of a vocal minority of students. Leadership within the judiciary was given an opportunity to make this clear when the complaints were filed. Though some apparently wrestled with a response to the episode, in the end, they all failed to recognize the extent to which the letter violated accepted norms. We expect judges to be, well, judicious. The core use of the judicial office is the fair and impartial adjudication of issues brought before it. Instead, in the midst of this charged situation, these thirteen judges weaponized their office, indiscriminately tossing a bomb amidst a politically charged situation. And with barely a nod to the above, five separate judicial councils gave their blessing to the bomb-throwers.
Chief Judges William H. Pryor of the 11th Circuit (who is not exactly above reproach himself when it comes to criteria for hiring law clerks) and Priscilla Richman of the 5th Circuit dismissed them almost immediately, with seemingly little reflection. These were followed by the Court of Federal Claims in the fall, and finally the 7th and 8th Circuits just this spring. The dismissal orders were a comedy of jazz hands and word salad.
Judge Richman, in defending the 8 signatories in her circuit, listed various criteria that judges often use to whittle down the applicant pool for clerkships—all of them viewpoint neutral: criminal background checks, minimum GPA, attendance at a Top 10 law school and so on. Not so the letter, which could make no pretense of viewpoint neutrality, signed as it was by a cluster of Trump-appointed justices, involving a highly partisan issue, and explicitly making an issue out of ideology. Chief Judge Richman’s error was a common one, however, as none of the various orders recognized the viewpoint bias inherent in the judges’ boycott letter.
To be fair, it seems the complaint itself was poorly argued. It made thin claims that the judges were using their office “to obtain special treatment for friends” and made vague and unsubstantiated allegations of collaboration with foreign or outside organizations. It likely did not help that, according to one dismissal, the complainant was in a state prison, convicted of “firebombing and vandalizing Jewish houses of worship.” Although the complainant is not identified (I have an inkling), clearly they are not someone who merits a sympathetic reading.
But we can recognize bias in the complaint and still understand that the judges’ actions do not meet the standards we should expect of a federal judge.
This is not to say that the letter should have resulted in harsh punishment, much less impeachment. Judges are human, after all, with thoughts and opinions and a (limited) right to participate in the public debate. But this was an opportunity for the judicial conduct oversight bodies to state clearly the expectation that judges should avoid partisan and viewpoint-based entanglement as a critical element in maintaining confidence in the judiciary. And they failed miserably.
Had these thirteen judges made a private determination not to entertain candidates from Columbia University, as Justice Brennan once reputedly did regarding Harvard University, that would be perhaps unduly broad, but not misconduct. Had they written a letter expressing general concern for academic safety and freedom of speech, but without threats to enforce ideological diversity, it might have been unusual, but not worth a reprimand. However, to make such a threat and to use it to push for viewpoint-based changes in an academic institution is an act that has no place in the federal (or any) judiciary. Judicial oversight bodies should have said so in no uncertain terms. But as has happened so many times before, judicial overseers put the protection of judges above the integrity of the institution and whiffed mightily at the task of policing its own.