(Photo by Selcuk Acar/Anadolu via Getty Images)
It must be hard out there for a federal judge. Having to go into work every day and adjudicate actual cases and controversies based upon the rule of law? BORING! Sure, sometimes you can nod-and-wink collude with litigants to legislate from the bench or collect high-priced vacations from wealthy benefactors and fail to disclose them, but too much of a judge’s time is spent actually serving the public. Why can’t judges be cable news characters themselves so everyone can talk about how edgy they are?!?
A clutch of the least committed public servants in America have wondered just that and decided to blow off the role of dedicated jurist that taxpayers fund them to perform to instead write an angry letter to the manager complaining about the campus protests they keep seeing on TV. Or, more accurately “a desperate request for media attention posing as an angry letter to the manager.”
And oh, look! The open letter is helpfully disseminated to public through National Review editor Ramesh Ponnuru. What a coincidence!
Who are these grumpy judges?
I’m sorry but Branch, Ho, and Solomson giving themselves top billing over everyone else like they’re RDJ, Evans, and Hemsworth of the Campus Crybaby Avengers is too funny.
Also… Solomson? Who invited the junior varsity squad? How much did the rest of the judges bitch about being repertory players to a judge on the Court of Federal Claims? An Article I judge?
But they headlined the last superficial campus stunt when they bemoaned Yale law students for protesting a hate group, so now they’re stars!
There are over 100 campuses with ongoing protests right now. Ask yourself, why are these judges specifically writing Columbia? In part, because they realize shutting off hiring from every school with students protesting the mounting humanitarian crisis would leave their clerking cupboard almost completely bare, but more because “Columbia” will get their performative stunt noticed in ways that boycotting the University of New Mexico will not.
Campus protests against the ongoing Gaza war raise important issues for a lot of stakeholders. Exactly zero of those people are federal judges. Indeed, to the extent the protests and related police action against them could land in court, a responsible and ethically conscious jurist would be mindful to remain detached from the policy squabbles that could land before them. If they want to run for Congress or join academia, they are free to resign.
If these judges just said they didn’t approve of protests it would be merely imprudent. Attempting to use their offices to influence policy is so much more disgusting.
Anyway, the judges have a list of demands because — apparently — holding a university hostage with a list of demands is acceptable for powerful people to casually play with the careers of young people but not for a bunch of students with no hope of access to such a platform. Again, the sliver of this that’s not just a public relations ploy for judges looking to boost their Q score with the QAnon set is about rewriting free speech as a top-down right to be imposed by the powerful upon the weak.
But I digress.
Anyway… the demands:
1. Serious consequences for students and faculty who have participated in campus disruptions and violated established rules concerning the use of university facilities and public spaces and threats against fellow members of the university community…. Universities should also identify students who engage in such conduct so that future employers can avoid hiring them. If not, employers are forced to assume the risk that anyone they hire from Columbia may be one of these disruptive and hateful students.
Doxxing over free expression is entirely in line with the conservative legal movement’s recent program. On the other hand, this is a welcome effort on the part of these judges to provide at least some kind of explanation for collectively punishing the whole school. It’s not that they’re too dumb to make a distinction between a Columbia student involved in the protest and one who wasn’t, it’s that they just can’t tell who to trust unless the school marks the students with a Scarlet P. After all, what if some hardcore Trotskyist protestor is hoping to someday clerk for Matthew freakin’ Kacsmaryk?
Obviously this whole letter is in the utmost bad faith, but their proposal would blackball a student protestor with Black Power leanings who organized a walkout and participated in violent riots on an Ivy League campus… like Clarence Thomas.
The judges also ask for “neutrality and nondiscrimination.”
It has become clear that Columbia applies double standards when it comes to free speech and student misconduct. 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.
Yeah, Columbia wouldn’t have done anything.
White nationalists marched on UVA literally chanting “Jews will not replace us” and the school kept its distance. And these judges stood by and shrugged. Now that some Columbia kids are saying “maybe don’t bomb Rafah” suddenly these jurists have found “antisemitism” on their Word-of-the-Day calendars. That the judges’ intended audience for this very letter responded to the UVA march by calling them “very fine people” might give you a sense of why they didn’t rush to their typewriters back then. Every time you see these judges on some hyped-up faux outrage, be sure that the intent is to get their names printed out by that woman who sits behind Trump and hands him fawning news articles all day.
3. Viewpoint diversity on the faculty and across the administration—including the admissions office.
There it is!
Up until here, the judges could try to drape their remarks as some sort of vague legal advice. But we’re past implementing proper balancing of free speech and onto affirmative action — except the “good” kind that advances the discrete and insular minority who think voting rights are overrated. “Viewpoint diversity” hijacks the language of civil rights to advance bad scholars. It turns the classic formulation of being judged not on the color of your skin but the content of your character on its head and demands protection solely based on the utterly lacking content of one’s character.
Now the judges are nakedly leveraging their office to demand a university bend its hiring policy to their whim.
While conservatives usually whine about boycotts, they are perfectly legal forms of private protest. But the judges are not acting as private protesters. They are using their constitutional office to bully institutions that they don’t like.
It is an abuse of the public trust. They’ll argue that clerkship hiring is their own affair, and if we all only slap on our blinders and pretend the power of their office isn’t what’s giving their hiring decisions their taxpayer-funded gravity then it’s perfectly acceptable under the rules.
But that doesn’t make it any less of a stain upon the office.
Earlier: James Ho Cancel Cultures Yale Law FedSoc Because Other Students Are Mean To Yale Law FedSoc Students
Federal Judges All But Admit Yale Law School Boycott Was A Ruse And The School Fell For It Hard
Free Speech Is The Freedom To Shut Up And Listen To Your Betters, Trump Judge Explains
Columbia Law Review Asks To Cancel Exams Amid Administrative Grading Confusion, General Absolute Chaos
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
