Press Releases

Statement of Concern Regarding Improper Use of Judicial Offices in Relation to Law Clerk Hiring and Refusal to Hire

On May 6, 2024, U.S. Federal Judges Albright, Branch, Counts, Hendrix, Ho, Kacsmaryk, Kernodle, Self, Starr, Tipton, Traynor, and Vaden[1] wrote a letter to Dr. Nemat “Minouche” Shafik, the President of Columbia University, copying Gillian Lester, the Dean of Columbia Law School (the “May 6 Letter”).[2]  In the May 6 Letter, the judges announced their shared intention not to hire “anyone who joins the Columbia University community—whether as undergraduates or law students—beginning with the entering class of 2024” and broadly accusing Columbia of being “an incubator of bigotry” that “has disqualified itself from educating the future leaders of our country.”

The May 6 Letter raises serious questions that require the sustained attention of the legal profession—lawyers, judges, law schools, law students, and court leaders.  In short, the May 6 Letter improperly penalizes Columbia University’s students and intervenes in a highly politicized public controversy brandishing the institutional heft of federal judicial offices.  Whether such letter possibly constitutes a violation of the Code of Conduct for United States Judges (the “Canons”) is for the relevant chief judges of the districts and circuits to determine, if they choose to do so.  Nonetheless, the May 6 Letter provides an important inflection point, an opportunity for the bench and bar to engage in serious reflection and discussion concerning the point at which judges cross a line that should not be crossed.  We recognize the wide discretion that judges enjoy when it comes to hiring law clerks.  However, the May 6 Letter represents something far different, and its norm-shattering quality should concern us all.

The May 6 Letter

The May 6 Letter demands that Columbia impose “serious consequences” on, and identify, students who participate in campus disruptions or violate rules concerning use of facilities and threats against other members of the university community.  The May 6 Letter also states that “[i]t has become clear that Columbia applies double standards when it comes to free speech and student misconduct,” asserting that the signatories “have no doubt” that Columbia’s response would have been “profoundly different” had it been faced with “a campus uprising of religious conservatives upset because they view abortion as a tragic genocide.”  The May 6 Letter also states that Columbia’s “ideological homogeneity throughout the entire institution” has destroyed its ability to train the country’s leaders, and that “[b]oth professors and administrators are on the front lines of the campus disruptions, encouraging the virulent spread of antisemitism and bigotry.”  The May 6 Letter demands “significant and dramatic change in the composition of [Columbia’s] faculty and administration.”

We are deeply concerned that the signatories to the May 6 Letter have seen fit to use their judicial offices to intervene in a highly charged political controversy.  We are further concerned that they have done so in an effort to pressure Columbia to more harshly punish student protesters and police the ideological composition of its faculty—goals that implicate the free speech rights of members of the Columbia community and of the university itself.  Compounding the problem, the judges have targeted Columbia students in an indiscriminate manner that holds every Columbia student collectively responsible for the alleged misdeeds of Columbia’s administration.

Moreover, the May 6 Letter leaves the public at large with the impression that the purpose of the letter’s self-declared “boycott” is to change the composition of Columbia University’s faculty and administration to one more suiting the judges’ social and political preferences.  Indeed, the May 6 Letter objects specifically to the “ideological homogeneity” it attributes to Columbia’s faculty and administration and insists that the boycott will continue until there is “[v]iewpoint diversity on the faculty and across the administration—including the admissions office.”  Whatever the merits of these criticisms, it is not the business of federal judges—government actors with particularly stringent duties of impartiality—to police the political views of school administrators and faculty.

The May 6 Letter purports to justify its demands with all-encompassing and far-reaching accusations of misconduct and bigotry that have no foundation in any judicial reasoning.  Indeed, the May 6 Letter’s blunderbuss warning to entering undergraduates and law students, none of whom was, to our knowledge, accused of illegal conduct at Columbia or anywhere else, seems intended to deter all students from attending that university under pain of forfeiting opportunities for future clerkships with a significant number of federal judges.  That, too, is the opposite of judicious and honorable conduct by federal judges.

Nor can the May 6 Letter be seen in isolation.  As the signatories certainly know, the manner in which university presidents and deans have dealt with the crescendo of student protests on campus has been the subject of Congressional hearings, in which political leaders of both parties have expressed themselves forcefully.  The impact of the protests continues today, as different university leaders seek to balance the need to respect freedom of speech with the need for lawful conduct, respect for university property and the educational missions of their universities.  For judges to enter into this debate in the public arena compromises any appearance of judicial impartiality.

The New York City Bar Association’s views appropriately are informed and guided by the norms and standards set forth in the Canons. In any discussion of the propriety of lawyer or judicial conduct, it is necessary to reference and consider the guideposts provided by the Canons; in particular here, those Canons that require judges to uphold the integrity and independence of the Judiciary (Canon 1), promote public confidence in the integrity and impartiality of the judiciary (Canon 2A), refrain from political activity (Canon 5), and hire law clerks fairly and only on the basis of merit (Canon 3(B)(3)).

Our nation is rightfully proud of the independence and integrity of our federal judiciary, and the efforts made by federal judges to avoid even the appearance of impropriety.  This independence has been historically honored by judges regardless of their political affiliation. We call on the Judicial Conference, court leaders, lawyers, judges, law schools and law students across the nation to reaffirm the legal profession’s commitment to these principles and to chart a path forward that precludes the May 6 Letter from becoming the new normal.

About the Association

The mission of the New York City Bar Association, which was founded in 1870 and has 23,000 members, is to equip and mobilize a diverse legal profession to practice with excellence, promote reform of the law, and uphold the rule of law and access to justice in support of a fair society and the public interest in our community, our nation, and throughout the world. www.nycbar.org

 

Footnotes

 

 

[1] In full, the judges who signed the letter are:  U.S. Circuit Court Judge Elizabeth L. Branch (11th Cir.); U.S. Circuit Court Judge James C. Ho (5th Cir.); U.S. Court of Federal Claims Judge Matthew H. Solomson (Fed. Clms.); U.S. District Court Judge Alan Albright (W.D.Tex.);  U.S. District Judge David Counts (W.D.Tex); U.S. District Judge James W. Hendrix, (N.D.Tex.); U.S. District Judge Matthew J. Kacsmaryk (N.D.Tex.);  U.S. District Judge Jeremy D. Kernodle (E.D.Tex.);  U.S. District Judge Tilman E. Self, III ( M.D.Ga); U.S. District Judge Brantley Starr (N.D.Tex.); U. S. District Judge Drew B. Tipton (S.D. Tex.);  U.S. District Judge Daniel M. Traynor  (D.N.D.); and U.S. Judge of the Court of International Trade  Stephen Alexander Vaden (Ct of Int’l Trade).

[2] The letter is available at: https://s3.documentcloud.org/documents/24654009/file_9699-1.pdf.  U.S. Circuit Court Judges Branch and Ho publicly announced a similar “boycott” of Yale Law School students in 2022.  While narrower in focus than the May 6 Letter, that 2022 announcement raises concerns similar to those expressed here.  See https://nypost.com/2022/10/10/two-trump-appointed-judges-say-they-will-not-hire-law-clerks-from-yale/ (N.Y. Post, Oct. 10, 2022).