Don’t boycott conservative YLS students because they aren’t ideologues.
In a recent post on the Volokh Conspiracy blog, Professor Josh Blackman defended Fifth Circuit Judge James Ho’s plan to stop hiring law clerks who had attended Yale Law School. Judge Ho announced the plan in remarks he gave—somewhat ironically titled “Agreeing to Disagree — Restoring America by Resisting Cancel Culture”—decrying speakers being censored or shouted down at law school campuses. Judge Ho deemed YLS a particularly egregious participant in cancel culture (a position that is not without evidence) and explained to his audience “when elite institutions make clear that people who think like you and me shouldn’t even exist, we return the favor.” He expressed his “sincere hope” that his refusal to hire YLS grads would “at least send the message that other schools should not follow in Yale’s footsteps.” There is a great deal that one could say about Judge Ho’s plan (with which I have profound disagreement), but I wish to devote my attention to Professor Blackman’s provocative defense of it, which comparatively flew under the radar.
In his post, Professor Blackman explains that he wishes to supplement Judge Ho’s reasons for the boycott with a justification of his own. He begins the post by explaining why clerkships are coveted positions among law students and lawyers, and by identifying some of the factors judges consider when making hiring decisions: ability, potential, career plans, and, of course, “the ideological screen.” Professor Blackman then turns to the meat of his argument. He posits that law students choose to attend Yale—consistently the top-ranked law school in the country—over other top law schools primarily “because of prestige.” He asserts that this reason for attendance applies doubly to conservative law students, who must choose Yale because their “desire to obtain that prestige trumps a commitment to values like free speech and academic openness.”
Judges looking to hire conservative law clerks should be skeptical of conservatives who elected to attend Yale, Professor Blackman says, because they prioritized pedigree and connections over ideological commitment. His thesis is worth quoting at length:
How, then, should a judge assess a conservative applicant who chooses to go to Yale? This person knowingly walked into the traphouse for the sake of an elite degree. I think it is reasonable for a judge to conclude that the applicant exercised poor professional judgment. Indeed, the judge may not want to rely on someone who would sacrifice their principles for prestige. In this regard, the Judge would choose to not hire any conservative YLS graduates because they are unreliable, and maybe even untrustworthy. They have already sold out on their values to go to YLS, and will likely sell out in similar ways in the future. In this view, choosing to go to Yale, with full information, is a failure of moral character. Who needs them? Judge Ho’s boycott directly punishes the students for the choices they made, and indirectly punishes the school for failing to address its deficiencies.
In theorizing about a potential boycott of YLS graduates by a future Republican administration, Professor Blackman returns to the notion that so-called “conservatives” who attended YLS aren’t really, explaining that such an administration “can categorically label every YLS grad a squish.” (It is slightly unclear whether Professor Blackman is advocating for such a policy, or merely predicting it.) For these reasons, Professor Blackman argues that federal judges seeking to hire conservative law clerks should take them from the ranks of other elite law schools, where students have not sacrificed fealty to conservative values for the sake of “prestige.” YLS students should be punished because they have not demonstrated sufficient commitment to conservatism.
I am willing to accept, at least for the sake of argument, that YLS is a hostile environment for conservatives. I am also willing to accept that YLS is a uniquely hostile environment for conservatives among elite law schools. I am willing to accept that demonstrated commitment to particular political views is a valid criterion for judges making law clerk hiring decisions—though I would implore them not to consider it. And I am even willing to accept—again, for the sake of argument—that “free speech and academic openness” are conservative values. (This is transparently not true of all conservatives, but given that Professor Blackman was making his argument in a blog post, we can forgive a certain degree of looseness.) In other words, I am willing to accept Professor Blackman’s argument on his terms. Even by those terms, it does not follow.
To begin with, Professor Blackman does not convincingly explain why judges interested in hiring conservative clerks should demand ideological purity of job candidates. Judges are at least in some senses political creatures, but they are engaged in rendering legal decisions, which generally have precious little to do with politics. Judges interpret legal documents and sources of legal authority, apply precedent, and attempt to render justice. Ideology may impact how they set about accomplishing those tasks—and in certain cases may impact their substantive decisions—but it is not the determining factor for all or even most of what judges do. There are profoundly conservative jurists whose decisions regularly reflect non-ideological (and indeed, at times, pragmatic) considerations.
If conservative students attending YLS have truly chosen to prioritize chasing the “shiny brass ring” over their principles, as Professor Blackman asserts, they have demonstrated that they are more than mere ideologues. They are able to set goals and do what it takes to achieve them, even if it requires a measure of personal sacrifice. They understand that their beliefs can’t always control their decisions, that sometimes other factors matter more. For judges interested in doing more than practicing petty politics, clerks who prioritize their ideology over all other considerations are an impediment, whereas clerks that recognize that life—and the practice of law—is about more than politics can be useful partners (albeit rather junior ones).
Moreover, it is not clear why anyone would conclude that conservative YLS students are “unreliable,” “untrustworthy” squishes. Professor Blackman asserts that they must be so, because they chose to attend a school they have reason to know is hostile to conservatives for the sake of prestige. Maybe so, but why does this mean they are not committed to conservative values? It requires a certain bravery to walk into a place you know will be hostile to your beliefs, particularly if you don’t intend to keep quiet about them. Given the number of so-called “cancellations” and free speech incidents that have taken place on the YLS campus related to conservatives, why should we assume that all conservative students have been cowed into silence?
Indeed, conservatives choosing to attend YLS might be more ideologically committed than their contemporaries who choose to attend schools that appear friendlier to their politics. Despite knowing that they could face hostility, they choose to attend the school anyways. Perhaps because of the prestige, yes, but does anyone truly believe that Harvard or Stanford law schools are meaningfully less prestigious than Yale merely because Yale slightly edges them in the U.S. News rankings? One way of understanding conservative YLS attendees, then, is as people who have chosen to fight back against an environment that is hostile to them. They rejected more welcoming environments in favor of one they knew would be challenging. To the extent one cares about ideological purity (and one should do some serious soul-searching if that extent is anything more than “not at all”), why can’t that purity be forged in the fire of opposition?
Too, there is value in having one’s views challenged, over and over again. It sharpens one’s defense of those views and gives one the opportunity to change the minds of one’s interlocutors. Conservative students who seek out such opportunities do their ideological fellow travelers a service. (Professor Blackman acknowledges, but does not meaningfully address, this argument: “Perhaps some [conservative] students cho[o]se to stay at Yale as a way to reform the institution from the inside. Good luck to them.”)
There are a great many reasons not to hire law clerks from YLS. The legal profession rewards pedigree to a baffling degree. It is rankings-obsessed, driven by connections, and hidebound in archaism. The fact is that the vast majority of talented law students and attorneys are not affiliated with YLS or one of the other elite law schools. (Professor Blackman, a prolific and influential scholar, is testament to this: He is a graduate of George Mason’s law school and teaches at the South Texas College of Law.) That YLS graduates often get a leg up solely because they are YLS graduates is a travesty. But the notion that one shouldn’t hire conservative YLS grads because they are not politically reliable doesn’t wash.
My project is not Professor Blackman’s project, and I suspect that he and I disagree about a great deal more than whether conservative judges should boycott Yale when hiring law clerks. But even if one shares Professor Blackman’s aims, boycotting YLS is not the right means of achieving them. Expressing banal conservative opinions shouldn’t require bravery of law students. We should all lament that it sometimes does, and do what we can to engender change. What we should not do is punish students who exhibit such bravery. Treating conservative law students’ decision to attend Yale as kompromat is intellectually dubious and a moral obscenity.
Chauvinisms 