Judges' boycott of Columbia students is 'guilt by association'

Law school faculty in California argue that a recent announcement by a group of conservative federal judges that they will refuse to hire graduates of Columbia University because of protest activity there unfairly punishes students for the actions of others and further threatens the diversity of the judiciary.

The commitment was made in a May 6 letter addressed to Columbia President Minouche Shafik, authored by Judge James C. Ho of the Fifth Circuit, Judge Elizabeth L. Branch of the Eleventh Circuit and Judge Matthew H. Solomson of the Court of Federal Claims - all appointees of President Donald J. Trump - and signed by 10 other judges.

The letter claims that the judges have "lost confidence in Columbia as an institution of higher education," describing it as an "incubator of bigotry" in reference to recent unrest following the October 7 terrorist attacks in Israel. It accuses faculty and administrators of applying double standards when it comes to free speech and student misconduct.

The letter states that signatories are committed to not hiring Columbia undergraduates or graduates, beginning with the entering class of 2024.

Vikram D. Amar, distinguished professor of law at UC Davis and former dean of the University of Illinois Urbana-Champaign College of Law, said it was important to note that it was not the first time that Ho and Branch have instituted a hiring boycott targeted at specific law schools, the pair having previously ruled out hiring clerks from Yale and Stanford due to those schools' "cancel culture."

"I had the same reaction yesterday that I had back then: that is, at a minimum, it's not well thought through on the part of the judges," he said.

He added "I understand where its coming from, I understand the motivation, I understand the desire to send signals to effect social change," but said that the policy, as described in the letter, "imposes guilt by association."

"For them to say they're not going to consider anyone from this school is basically to punish hundreds, if not thousands, of students for the actions of administrators," he said.

He said that the judges' letter would be less problematic overall if they had directly questioned the quality of education at Columbia or said something to the effect of "We don't have the confidence that they [students] have been exposed to a diverse range of thoughts."

Instead, the letter, particularly the last paragraph, had the effect of stating "We are going to punish the institution by punishing students who are associated with it."

He added that the boycott may also raise constitutional questions. While clerks often acted as "confidantes" for federal judges, and it was important that judges be comfortable with their hires, ruling out entire classes of prospective employees could be problematic.

Dean of UC Berkeley School of Law, Erwin Chemerinsky, wrote that the judges' policy punished students for actions that were outside of their control.

"I find it outrageous that judges would punish students for the choices of their university presidents or administrators. Students should be considered on their merits, not what administrators or faculty or peers have done," Chemerinsky wrote in an email.

The letter authors claim that Justice William Brennan, a Harvard graduate, and liberal justice who served on the Supreme Court from 1956 to 1990, refused to hire law clerks from Harvard Law School because he disliked criticisms of the court by some of its faculty. Chemerinsky said that this statement was false.

"In fact, the announcement falsely said that Justice Brennan had refused to hire Harvard Law students when, in fact, he continued to do so," he wrote.

Chemerinsky and his wife, Catherine Fisk, were previously confronted by pro-Palestinian protestors during a dinner they held for law students at their private residence.

Darby Dickerson, dean and president of Southwestern Law School, said that the judges' boycott undermined broader principles of law.

"Although federal judges have discretion about who to hire, stating that they will not consider any clerkship candidates from a particular school undermines the principles of fairness and justice upon which the judiciary is built. I hope they will reconsider and assess individual applicants on their own merits," Dickerson wrote in an email.

She added that the prospective nature of the boycott seemed particularly unfair.

"The fact that the current boycott is prospective and impact only those who will enter Columbia as an undergraduate or law student starting in Fall 2024 demonstrates that those future students are being excluded from a prestigious opportunity based on something other than their own achievements, talents, and experience," Dickerson wrote.

However, Amar argued that the decision to restrict the policy to future students was one of the more rational aspects of the letter, given that students would have the choice of whether they wanted to associate with the school, knowing it could preclude future employment opportunities.

Even so, this ignored the reality that students may choose Columbia not for its association with a certain political standpoint but for something as simple as scholarship availability or its location, he said.

Some have claimed that the boycott is more likely to affect conservative students more than those with liberal political tendencies. Amar said that this was a misreading of the clerkship process.

The Code of Conduct for United States Judges does not directly address the issue of hiring clerks, although it does, in general terms, seek to limit judges from engaging in political activity. Amar said that judges have a "lot of leeway" when it comes to selecting clerks.

"It's generally good when judges have clerks who differ from their ideological priors: that fosters intellectual debate," he said.

"I clerked for a judge who was in line with my general politics, Harry Blackmun. I applied to Scalia, I applied to Rehnquist," he said, adding that he had a friend whose politics were to the left who had applied to clerk for all the conservative justices.

If judges committed to only hiring clerks who were "member of organizations they like" it would "breed more siloing" in the judiciary, he added.