Fifth Circuit Judge James Ho gave the keynote address at the Federalist Society’s Sixth Annual Kentucky Chapters Conference last week. Judge Ho gave his talk the title “Agreeing to Disagree—Restoring America by Resisting Cancel Culture.” Nate Hochman obtained a copy of the text and broke its most newsworthy aspect in “Federal Judge Vows to Stop Hiring Law Clerks from Yale Law School.” We followed Hochman’s account in “Bravo, Judge Ho.”
I followed up and obtained a copy of the text myself. It is an excellent talk that assesses the somewhat shocking deterioration of the legal profession at the highest levels of practice. Toward the end of his talk Judge Ho offers this advice to conservatives:
So if you’re conservative, you should engage regularly with liberals—and if you’re liberal, you should engage regularly with conservatives. Because that’s the only way you can improve and strengthen your ideas—to adjust when you’re proven wrong, and to bolster when you’re not.
You should be constantly testing and challenging your principles and your priors. That’s true throughout life—but it’s especially true when you’re in school. Iron sharpens iron.
It reminds me of Fred Shero, the head coach of the Philadelphia Flyers during the 1970s, who said that his favorite game was not an NHL game, but an exhibition game, of all things, against the Soviet Union’s Red Army team. As he put it, “if you haven’t played the Russians, how do you know you’re the best?”
I saw Fred Shero coaching the minor league St. Paul Saints many times when I was a young hockey nut who loved real fights. Shero took his brawling style of hockey to the Flyers for all to see, but we saw an early version in action with the Saints. There is probably a lesson for conservatives there too.
Judge Ho further reflects:
[I]f cancel culture is antithetical to the academy, then it’s especially antithetical to legal education. After all, the whole point of a legal education is to train the next generation of lawyers—and to train them in our highest legal traditions.
Our adversarial system of justice is premised on the fact that everyone deserves zealous representation. We believe that’s the best way to ensure that we discover the truth—only after everyone has had full and fair opportunity to engage in robust dialogue and debate, with zealous advocates on all sides.
Our Founders understood this well. John Adams represented the British soldiers who were accused of taking part in the Boston Massacre. It was a deeply controversial representation. But Adams later called it “one of the best pieces of service I ever rendered to my country.”
What is to be done? Judge Ho counsels us:
So if we believe that cancel culture is the cancellation of the American spirit, what should we do about it? What can we do about it?
As citizens, it’s incumbent upon each of us to speak out against cancel culture. We can stand up for free speech, for open and rigorous debate, and for tolerance of opposing viewpoints. So let’s start there.
Moreover, as citizens, we can also stop censoring ourselves. Because that’s how cancel culture wins. If we have views we’d otherwise express, we should try not to be afraid to express them. I know it’s hard. Most people don’t have life tenure. I’m especially sensitive to the students just starting out, not wanting to end their careers before they even begin. It’s okay to be careful. But also know this: There may be others who share your views, who you can embolden with your voice. Silence is contagious. But so is courage.
And if you can’t be the first voice, at least try to be the second. One of my favorite movie speeches comes from the food critic at the end of Ratatouille. As he puts it: “The new needs friends.”
Judge Ho then came to the newsworthy part of his talk, announcing what he himself would do. “I refuse to do nothing,” he says toward the end:
So here’s what I’m going to do. Starting today, I will no longer hire law clerks from Yale Law School. And I hope that other judges will join me as well.
To be clear, I’m not talking about students who are currently at Yale, or who have already graduated. I’ve hired from Yale myself, and they’re great kids.
I’m talking about going forward only. Across the country, there are thousands of young people who are about to apply to law school. I would encourage them to think about the kind of legal education they want—and the kind of academic environment that will help them grow.
If they want the closed and intolerant environment that Yale embraces today, that’s their call. But I want nothing to do with it.
In the final section of his speech Judge Ho addressed four objections to his plan of action. I enjoyed his discussion of the first objection — that he’s engaged in cancelation akin to Yale’s:
Well, I would say that I’m doing the exact opposite of what Yale is doing.
Cancel culture is about excluding people. I want institutions of higher learning to include people.
It reminds me of what Bill Buckley said, when someone argued that the U.S. invasion of Grenada was the moral equivalent of the Soviet invasion of Afghanistan: “That’s like saying that the man who pushes a little old lady into the path of a bus is morally equivalent to the man who pushes her out of its path—because they both push little old ladies around.”
I don’t want to cancel Yale. I want Yale to stop cancelling people like me.
Why pick on Yale? He takes this up in the third objection he considers:
[W]hy Yale? And why only Yale?
Simple: Yale presents itself as the best, most elite institution of legal education. Yet it’s the worst when it comes to legal cancellation. As one of its own professors admits, it’s in “crisis.”
Moreover, Yale sets the tone for other law schools, and for the legal profession at large.
I certainly reserve the right to add other schools in the future. But my sincere hope is that I won’t have to. My sincere hope is that, if nothing else, my colleagues and I will at least send the message that other schools should not follow in Yale’s footsteps.
Judge Ho concludes with a citation of Solzhenitsyn:
In this job, I often find myself inspired by the Russian novelist and dissident Aleksandr Solzhenitsyn, and his famous essay, Live Not by Lies.
I mentioned the Grutter case earlier. Well, Yale joined an amicus brief in that case.
Yale told the Supreme Court that it wants, and I quote, “a diverse and inclusive educational experience, teaching students to view issues from multiple perspectives,” and “preparing a generation of public and private leaders for an increasingly pluralistic national and global economy.”
Well, it turns out that’s a lie. Any school that refuses to stand up against cancel culture—and instead caters to it, and even engages in it—that’s not a school that is interested in educational diversity. And it’s not a school I want to have anything to do with….I will not live by the lie.
I take up Judge Ho’s statement of “what is to be done” to dispel the misunderstanding that it applies to current students, as in Brit Hume’s tweet below. If Brit misunderstands, the misunderstanding is not limited to him.
Seems a bit unfair to bar those now at Yale Law. Perhaps he could start with next fall's incoming class, thus creating a deterrent to those thinking about going there. https://t.co/PdXc4wO1nu
— Brit Hume (@brithume) October 2, 2022