(via YouTube)
Yesterday, 13 Trump-appointed federal judges took a break from their busy schedule of adjudicating cases and controversies on the taxpayer’s dime to write a snarling letter to Columbia University declaring that they would no longer hire any graduate of either the law school or the undergraduate institution until the judges’ demands are met.
Social media critics are roasting the logic of punishing Columbia FedSoc members to own the libs. We had a similar reaction when Judge Ho first pulled this stunt almost a year and a half ago. But what we’ve learned since then is that this is mostly a ruse designed to boost publicity for thirsty culture warrior judges with the welcome side effect of convincing spineless administrators to freak out and bow to the judges’ requests: harsher rules to chill protest speech and affirmative action for otherwise unqualified conservative professors.
In an effort to justify this inappropriate abuse of federal office, the judges included a bizarre throwaway line at the end of their letter:
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. The objective of our boycott is different—it is not to hamper academic freedom, but to restore it at Columbia University.
See, even the left-leaning Justice Brennan used his office to boycott clerks from schools he didn’t like, so SUCK IT, LIBS! There’s a whole scholarly article to be written about the weird conservative article of faith that “well, you kinda sorta did it too!” amounts to not only a good argument but a foundational requirement of any debate. But for today’s purposes we need only evaluate the Brennan claim on its own merits and, um…
IT’S ENTIRELY UNTRUE!!!
As it happens, Professor Stephen Wermiel wrote the definitive history on the subject in Justice Brennan and His Law Clerks. Had the judges intended to act in good faith or even understand how basic research works (and might not actually understand that task), it wouldn’t be hard to discover that Justice Brennan did not engage in a boycott of any kind.
For years, Justice Brennan farmed out his clerkship hiring to Harvard Law’s Paul Freund. Professor Freund would select clerks for Brennan, and the justice would hire them mostly sight unseen straight out of law school. Unsurprisingly, this practice irked rival law school deans:
It was not long before Justice Brennan began getting pressure from the deans of other law schools to consider their students. Eugene Rostow, the dean of Yale Law School, wrote Justice Brennan in June 1957 asking when Justice Brennan would like law clerk suggestions from Yale and what criteria should be considered. A few months later, Rostow wrote again, asking whether the “men” he proposed to recommend should have a circuit court clerkship first. Freund was in England for the academic year, and Justice Brennan wrote to complain that he was “being bombarded with letters from many schools suggesting interviews with nominees for clerkships next year.” Justice Brennan then wrote back to Rostow, “You are not going to like me for this, but I have decided that I will continue to take advantage of Paul Freund’s generosity in assisting me in the selection of law clerks.” Justice Brennan added that he knew there were other qualified applicants from other law schools but that “it is a great comfort to have the help of someone like Paul whose judgment for this purpose necessarily commands [his] full respect.
Eventually, Brennan would open up his hiring process to include applicants from other schools. The judges authoring this letter seem to have seized upon one line in Professor Wermiel’s article, “But in 1963, Justice Brennan became somewhat disillusioned with his alma mater, where his Court decisions were sometimes not well-received….”
What they MISS because they appear pathologically incapable of anything but bad faith cherry-picking is what comes next:
By October 1965, he had made commitments to fill the next three years with clerks from schools that included the University of Pennsylvania, Notre Dame, Stanford, Michigan, and Yale. During the ten Terms from 1965 through 1974, Justice Brennan took five clerks from Yale; four from Harvard; two from each of Pennsylvania, New York University, and Berkeley; and one from each of Stanford, Virginia, Michigan, Chicago, Boston College, Notre Dame, and the University of Detroit Law School.
There was no boycott! Justice Brennan stopped exclusively hiring from Harvard, but not only continued taking Harvard clerks, the school still produced the second-most clerks for the justice.
The example that Judge Ho and his merry band chose as the historical precedent and ethical justification for their boycott is an out-and-out falsehood.
It’s a lie, but are the judges putting their names on this letter actually liars? It’s a subtle distinction but an important one as crossing that threshold would require some degree of intentionality on the part of the judges. And which judges would deserve that branding even if there was genuine ill-intent? Even if some of the judges were aware that the letter grossly misstated the record, should this be imputed to the other signatories, or should they be excused for attaching the weight of their office to a letter based on their own bottomless laziness in checking its citations? One of the judges signing the letter is Brantley Starr, who tried to gin up some free publicity by raging against ChatGPT for hallucinating cases — should he be held accountable for his letter hallucinating facts?
Should we assume malice where incompetence is an option? A burning question!
Either way, the Columbia students seem to be better off missing out on tying their careers to these judges.
Earlier: Federal Judges Say They Won’t Hire From Columbia, Leveraging Their Public Offices To Bully An Institution They Don’t Like
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.
