Federalist Society judges are acting badly, again

Editor’s note: The following first appeared in Dorf on Law.

Many of the judges selected by Leonard Leo and Don McGahn during the Trump years have been acting very badly. A little over a year ago, I documented this terrible behavior by discussing many different judges. For example, Justin Walker was only 37 when he was nominated to be a federal trial judge despite absolutely no trial experience. What Walker possessed were ties to conservative groups, including the Federalist Society. Less than one year later, he was confirmed as a judge for the United States Court of Appeals for the District of Columbia Circuit.

In his brief time as a district court judge, Walker issued a decision in a case involving covid restrictions and prayers on Easter Sunday that reads "less like a judicial decision and more like a screed against Democrats published in an outlet like Breitbart." The first seven pages of the opinion rant about Christians and other religious groups suffering major persecution throughout the ages. The last lines of his opinion speak for themselves: "Christ’s sacrifice isn’t about the logic of this world. Nor is their Easter Sunday celebration. The reason they will be there for each other and their Lord is the reason they believe He was and is there for us. For them, for all believers, it isn’t a matter of reason; finally, it’s a matter of love."

In between these odes to religion, Walker decided to name a bunch of prominent Democrats who long ago belonged to the KKK. There is no connection between that list and any issue in the case. Walker's reward for all this religious and political posturing, as mentioned above, was a promotion to the Court of Appeals.

In that post from a year ago, I also discussed Judge James Ho's decision not to hire graduates of Yale Law School as his clerks. His reasons were quite obscure, centering around, I really don't know, maybe Yale is just too liberal a place for him. I summarized that incident as follows:

Ho was under no obligation to hire Yale clerks in the first place, so why make such a public fuss and call for other federal judges to join the "boycott?" One theory is that he is auditioning for the Supreme Court. Another theory is that he just likes publicity. But the theory does not matter. Except to the extent that actual cases before him sometimes call for judgments that are as much political as legal--which is substantially less frequently for a lower court judge than for the Supreme Court--Judge Ho has no business getting involved in culture wars and taking obvious political sides. To do so is inappropriate for a sitting federal judge.

Well, Judge Ho is back at it again. On Monday, he and 12 other Trump/Leo/McGahn Federalist Society judges sent a letter to the president of Columbia University saying they will no longer hire law clerks who attend Columbia either as an undergraduate or a law student. Again, the reasoning of the boycott is quite obscure but has something to do with vague and unsubstantiated charges of viewpoint discrimination (totally undocumented) and other aspects of how Columbia has handled the student protests over Gaza.

As an aside, it's worth noting that the letter makes various factual assertions, some of which are highly contestable and others which are flatly wrong. For example, the letter concludes by citing a supposed precedent, stating that "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." But that's nonsense, as Judge Ho and his buddies could have discovered by looking at a list of Justice Brennan's clerks. They would have then realized that from 1956 to 1965, Justice Brennan hired clerks only from Harvard; thereafter, he hired from a variety of schools, including from Harvard in most years. The tiny kernel of truth in this mostly false retelling is that for a short period of time Justice Brennan apparently was angry at Harvard over personal matters, but he nevertheless consistently hired Harvard graduates throughout his career. But why let facts get in the way of a good rant?

As for the letter's announcement of the boycott itself, again, these judges do not have to hire any Columbia graduates or any other graduates and probably can choose clerks based on viewpoint discrimination. Therefore, the judges' desire to go public must be for some reason separate from their hiring practices. That being the case, it is obvious that federal judges should not involve themselves in social, cultural and political disputes separate from their case-deciding function. If you want to publicly speak and rant about the pressing and controversial issues of the day, which is all this letter was, do not accept a federal judgeship. It really is that simple.

Additionally, the public airing of this grievance by judges is terrible on its own terms, but you do not have to believe me. That bleeding heart liberal Eugene Volokh said that:

We shouldn't threaten innocent neutrals as a means of influencing the culpable. Columbia students aren't the ones who set Columbia policy. They may disagree with that policy, or they may not know enough about the subject to have a view ... They shouldn't be held responsible for what Columbia does, and they shouldn't be retaliated against as a means of trying to pressure Columbia to change.

Eugene also makes the point that we normally reject guilt by association: "We may refuse to hire people who do various bad things, but we shouldn't refuse to hire people who are friends with those people, or who belong to the same groups as those people."

Imagine blaming a lone undergrad or law student for the policies implemented by university officials the students have absolutely no control over. Such a "guilt by association" tactic would be terrible if implemented by a private firm, much less by federal judges.

But maybe guilt by association is exactly the point that these Federalist Society Judges are trying to make by this and the other political stunts I documented in my blog post a year ago. It appears that many (certainly not all) of the judges appointed during the Trump Administration believe that all things secular and liberal are bad, and these judges want the whole world to know that either because they, like Judge Walker, want promotions or they simply want to "own the libs." Both of those reasons are, of course, unseemly and just plain wrong.

It is terrible that federal judges have life tenure and can only be impeached for committing high crimes and misdemeanors. But at least for most of our history, they stayed out of the political wars occurring outside their judicial jurisdictions. But, and this really is not a surprise, these Federalist Society judges feel license to stir up trouble, make controversial public statements, and most recently get in the middle of the terrifyingly hard issues raised by the campus protests relating to the Middle East crisis.

These thirteen judges are acting like immature and hormonal teenagers believing that the world does and should revolve around them and their daily need to unleash terror on those they dislike. Most teens grow out of that particular mindset, but not so for these and many other Federalist Society federal judges. For them, public outbursts of anger and bitterness towards the left are more than fair game; they lead to rewards and promotions. And that is what happens when the leaders of the Federalist Society get to choose our nation's judges.