Judge Ho Risks Recusal Calls from Yale Graduates Over Boycott

Welcome back to Opening Argument, a reported column where I dig into interesting legal questions and controversies. Today: a look at Judge James Ho’s decision to boycott Yale Law graduates when hiring law clerks.

Federal appeals court Judge James Ho’s decision to boycott recent graduates from Yale Law School when hiring clerks could complicate matters when its alumni show up before him in court.

To push back against what he called a “cancel culture” at the school against conservatives, the Trump appointee on the US Court of Appeals for the Fifth Circuit said he will no longer hire law clerks from Yale and encouraged other judges to join him. But in doing so, he may have just given litigants an opening to ask for someone else to hear their case.

Russell Wheeler, who served as deputy director of the Federal Judicial Center, said you could make a pretty good case from Ho’s public statements that his impartiality can reasonably be questioned if you’re a brand new Yale Law student who has to argue before him.

“Ho having said what he did, ‘I don’t want anything to do with people from Yale Law School as clerks,’ it’s not so much of a leap to say, ‘Well, you probably don’t want anything to do with people who are lawyers and might not take their arguments seriously because you have a bias against people who went to Yale,’” Wheeler said.

South Texas College of Law Professor Josh Blackman, who wrote a blog post defending Ho, doubts that theory. “I said for conservative students to go to Yale Law shows a weakness of character. I don’t think he’s made that argument,” Blackman said. “He didn’t say Yale Law grads are deficient in any way.”

Blackman had his own run-in with students who disrupted a speech he gave at another law school. The experience was one example Ho listed in arguing that cancel culture is plaguing America and its institutions. The problem with Yale Law, Ho argued in his speech at a Federalist Society event in Kentucky, is that it’s teaching students that there are no consequences to their intolerance of opposing viewpoints, according to prepared remarks reviewed by Bloomberg Law.

Both Ho and Yale Law School declined to comment.

Yale Law Dean Heather Gerken posted a message to alumni on the school’s website Wednesday mapping out steps the school has taken in the past six months to reaffirm its commitment to a free exchange of ideas. Those steps included revising the school’s disciplinary code and welcoming a new dean of students who’s “focused on ensuring students learn to resolve disagreements among themselves whenever possible rather than reflexively looking to the institution to serve as a referee.”

Judges have full discretion to choose who they hire to clerk for them and Blackman said Ho just said out loud what many already do—show preference for certain candidates.

“Maybe it’s the sin of saying it out loud,” he said.

Other judges have publicly stated they have certain proclivities when hiring clerks. While speaking at the University of Florida in 2010, Supreme Court Justice Clarence Thomas said he has “a preference for non-Ivy League law clerks.” Thomas said he believes that “clerks should come from a wide-range of backgrounds” even though he graduated from Yale Law in 1974.

The difference, legal scholars say, is Ho’s boycott of Yale Law grads rather than giving preference to students from other schools, and he’s enlisting others to join him in this public snub.

Charles Geyh, an Indiana University Maurer School of Law professor, said that violates the judicial code of conduct, which says judges have an ethical obligation to make appointments fairly on the basis of merit and should avoid using the prestige of their office to advance a private interest.

“This is essentially an unvarnished act of politicizing the position in a way to score points in a public debate,” he said.

Anyone can file a complaint against a judge who violates this code of ethics but there are limits to what the judiciary can do to punish a judge who flouts the rules. Though it would be rare, the Fifth Circuit Judicial Council could publicly reprimand Ho if a complaint is filed.

That would cast him as an outlier among his peers.

Geyh said judges depend on the respect and integrity that they’re afforded by their colleagues. But maybe being an outlier is just what Ho is going for.

— With assistance from Madison Alder.

Know of a case or legal controversy that’s worth writing about? Email me at lwheeler@bloombergindustry.com. To read more Opening Argument, sign up for our newsletter The Brief. You’ll get Bloomberg Law’s top stories delivered free to your Inbox every weekday afternoon and you’ll catch this column when it runs.