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Judge Not

The Right-Wing Judges’ Ban on Columbia Students Is Wildly Unethical

Thirteen conservative judges say they won’t hire from the university—a blatant abuse of their judicial office.

the "Gaza Solidarity Encampment" at Columbia University
Selcuk Acar/Anadolu/Getty Images
Pro-Palestinian protesters at the “Gaza Solidarity Encampment” at Columbia University on April 19

Judges do not comment on politics. This principle is so fundamental to the American legal system that writing it out feels like writing that “doctors treat patients” or “pilots fly planes.” When judges take political stances or opine on political disputes, it undermines the integrity of the federal courts and the confidence that Americans have in the judicial system’s fairness and impartiality.

The overwhelming majority of state and federal judges accept that sacrifice in exchange for the prestige and public service that comes with judicial life. Some, apparently, do not: A group of conservative federal judges demanded on Monday that Columbia University make “significant and dramatic change” on Friday to ensure “viewpoint diversity” and announced a boycott on hiring Columbia students—both undergraduates and law students—until it does.

In a two-page letter, the judges said their demands were in response to protests at the university over Israel, Palestine, and U.S. foreign policy in the region. “As judges who hire law clerks every year to serve in the federal judiciary, we have lost confidence in Columbia as an institution of higher education,” they wrote. “Columbia has instead become an incubator of bigotry. As a result, Columbia has disqualified itself from educating the future leaders of our country.”

The letter lobs a number of other hyperbolic accusations at Columbia, and browbeats the university for not being strict enough with student protesters (hundreds of police in riot gear were not sufficient, apparently). But what stands out is that a group of federal judges is using law-clerk hiring practices as a vehicle to opine on political matters. By using their government jobs to make ideological demands of private entities, they are blatantly abusing their judicial office.

The letter was written by Judges Elizabeth Branch, James Ho, and Matthew Solomson. They and 10 other federal judges signed it. Nine of the judges, including Ho, are based in Texas. They include some of the most ideologically driven federal judges in that state, such as Judge Matthew Kacsmaryk, who tried to ban the most commonly used abortion pill, and Judge Brantley Starr, who ordered three Southwest Airlines lawyers to undergo “religious liberty training” with a conservative Christian legal group last year.

The others serve on the Eleventh Circuit Court of Appeals, on federal district courts in Georgia and North Dakota, the Court of Federal Claims, and the U.S. Court of International Trade. What all 13 judges have in common is how they got their current jobs: They were appointed by then-President Donald Trump.

It is strange and extraordinary for a group of federal judges to weigh in on an active political dispute like this. The Code of Conduct for United States Judges, which serves as the federal judiciary’s ethics code, instructs sitting federal judges to “refrain from political activity.” While the canons focus specifically on running for office, serving on political committees, and fundraising for candidates, they also generally admonish judges to interpret the instruction broadly. “A judge should not engage in any other political activity,” the code states.

Some federal judges have publicly announced boycotts of certain universities in recent years, including some signatories of this letter. Ho, one of the letter’s main authors, famously said two years ago that he would not hire clerks from Yale University because of “cancel culture” on the school’s campus. Judges later announced similar boycotts against schools like Stanford University and others for similar reasons.

Those boycotts, whatever their faults, at least came in response to activities at law schools. Some of the boycotts came after disruptive protests against conservative federal judges who spoke at the law schools or against campus Federalist Society groups. I wrote back in 2022 that the boycotts should prompt Congress and the courts to reconsider letting federal judges treat clerkships as ideologically driven patronage.

This time, however, the judges have no connection to anything that happened on Columbia’s campus. None of them are stationed in New York, where Columbia is located. None of them were present for the demonstrations. What happened at Columbia had nothing to do with law school policies or legal doctrines or anything about the law itself, except that some students broke it. Framing it in terms of law-clerk hiring practices appears to be a convenient excuse to make inappropriate political demands.

One reason why the clerk-hiring boycott seems pretextual is that it does not make sense on its own terms. For one thing, the judges said they would only apply it prospectively. “Considering recent events, and absent extraordinary change, we will not hire anyone who joins the Columbia University community—whether as undergraduates or law students—beginning with the entering class of 2024,” they wrote.

That means that not a single student who was on Columbia’s campus for the past month would be excluded under its terms. Nor is the boycott even targeted at any specific wrongdoers. The judges did not announce, for example, that they would refuse to hire students who made antisemitic remarks or engaged in criminal acts. Instead, they said that they would refuse to hire any Columbia students at all. The judges also made clear that its indiscriminate nature was intentional.

“Universities should also identify students who engage in such conduct so that future employers can avoid hiring them,” the judges wrote. “If not, employers are forced to assume the risk that anyone they hire from Columbia may be one of these disruptive and hateful students.”

That approach to collective punishment is anathema to the Anglo-American legal tradition. It is disturbing to see a group of federal judges endorse punishment for innocent people in any context. And it is nonsensical on its own terms. Excluding all Columbia students because of a few “disruptive and hateful” ones would logically exclude the students to whom those few were allegedly being disruptive and hateful. In the name of combating antisemitism, the judges are refusing to hire from a university where one in five students is Jewish.

It’s worth noting that the average member of Students for Justice in Palestine probably won’t leap at the opportunity to serve as a clerk for Ho or Kacsmaryk. So to the extent that the impact of a boycott would be felt by students, it would be felt almost entirely by conservative law students at Columbia who might otherwise seek out a job with these judges. And if the boycott disincentivizes conservative law students from attending Columbia in the long term, then the result will be less “viewpoint diversity” at the school, not more of it.

The indiscriminate and counterproductive nature of the boycott only makes sense if there are ulterior motives. The judges themselves suggest as much when listing their three demands. The first, as previously noted, was “serious consequences” for anyone who “participated in campus disruptions.” The second was “neutrality and nondiscrimination in the protection of free speech and the enforcement of rules of campus conduct.”

“If Columbia had been faced with a campus uprising of religious conservatives upset because they view abortion as a tragic genocide, we have no doubt that the university’s response would have been profoundly different,” they wrote. “By favoring certain viewpoints over others based on their popularity and acceptance in certain circles, Columbia has failed as a legitimate, never mind elite, institution of higher education.”

Two things stand out here. First, it is telling that the judges’ example of “viewpoint discrimination” against conservatives is an entirely hypothetical one. Second, the judges appear to be unaware that Columbia President Minouche Shafik called in the NYPD last month to clear the encampment and the occupied campus buildings. Some participants have been suspended, threatened with expulsion, and kicked out of student housing.

What more could the judges want? They go on to answer that question in their third demand: They want less “viewpoint discrimination” on campus, which they hope to achieve with a purge of the university’s faculty on ideological grounds and, presumably, their replacement with faculty with whom they agree. The irony of this demand seems to have eluded them.

“Recent events demonstrate that ideological homogeneity throughout the entire institution of Columbia has destroyed its ability to train future leaders of a pluralistic and intellectually diverse country,” the judges wrote. “Both professors and administrators are on the front lines of the campus disruptions, encouraging the virulent spread of antisemitism and bigotry. Significant and dramatic change in the composition of its faculty and administration is required to restore confidence in Columbia.”

For federal judges to demand sweeping changes under the aegis of their official position is far afield of anything resembling judicial norms and ethics. They appeared to recognize this and anticipate some of the criticism they would receive. “Justice William Brennan refused to hire law clerks from Harvard Law School because he disliked criticisms of the Supreme Court by some of its faculty,” they noted in conclusion. “The objective of our boycott is different—it is not to hamper academic freedom, but to restore it at Columbia University.”

Brennan was perhaps the preeminent liberal justice to ever serve on the Supreme Court, so invoking him is best seen as a thumb in the eye of their critics. But the example is also instructive because of its differences. It is true that, between 1966 and 1969, Brennan did not hire any clerks from Harvard Law School. It is also true that he did it at least in part because of criticism of the court that was made at Harvard, including some criticism about the court’s 1957 ruling in Brown v. Board of Education.

But the clique also omitted important context about Brennan’s actions: Prior to 1966, he had hired law clerks exclusively from Harvard. Brennan biographer Stephen Wermiel recounted in a 2014 law review article how Brennan outsourced his clerk hiring process to Harvard law professor Paul Freund, following a recommendation made by Justice Felix Frankfurter to Brennan when he joined the court. For his first eight terms, Brennan exclusively hired based on Freund’s suggestions.

In this sense, Brennan was not singling out Harvard for punishment—criticism of the Warren court was hardly uncommon in that era, after all—but retracting an existing, undeserved privilege that he apparently thought could no longer be justified. Wermiel recounted that Brennan had already received pressure from other law school deans and from federal judges in the lower courts to consider other applicants. He ultimately resumed hiring Harvard graduates in the 1969 term and continued to hire them until he retired in 1990.

Another instructive difference is that Brennan’s brief boycott of Harvard was not public knowledge when it occurred. It was one thing to quietly stop giving preferential treatment to Harvard graduates after eight years of hiring exclusively from that school. It would be another if Brennan had publicly demanded that Harvard stop criticizing the Supreme Court and change its academic policies to fit his own ideological preferences.

While the judges implied Brennan’s objective was “to hamper academic freedom,” the historical evidence does not support that claim. If anything, it’s the judges who are demanding “significant and dramatic change” in the “composition of [Columbia’s] faculty and administration” on ideological grounds who are threatening academic freedom.

The letter is also stunning because the judges may yet be called upon to decide cases related to these protests. None of these judges are based in New York, of course. But most of the letter’s signatories are based in Texas, where police last month violently suppressed a pro-Palestianian protest on the University of Texas at Austin campus. The Travis County district attorney dropped most of the charges against the protesters, noting that there could be First Amendment issues with pursuing them. It is not hard to imagine that further litigation might take place and come before some of these judges’ courts.

No one can be faulted for having a strong emotional and moral response to the war in Gaza and the campus protests against it. The problem is how the judges expressed it. Judges see and hear things in their courtrooms every day that must anger and outrage them. They suppress those sentiments to serve the higher interest of a fair and impartial judiciary. By not doing so here, the judges have validated every complaint that they are ideologues first and jurists second. If they want to write op-eds for a living on the hot-button issues of the day, they are free to resign.