Q: Judge Amul Thapar of the Sixth Circuit recently criticized the law clerk hiring boycott that you and others launched earlier this year against Columbia. Judge Kevin Newsom of the Eleventh Circuit made similar criticisms on a podcast hosted by The Dispatch. On the other hand, Judge Matthew Solomson of the Court of Federal Claims has been quite vocal in defending your efforts, including an extended interview with me here. Other than joining the judges' letter, I don't think you've said anything publicly about Columbia to date. Would you like to say anything here, just as Judge Solomson did?
Sure, but let me start by explaining why I haven't been speaking about the boycott. I gave my speech about Yale in 2022, and about Stanford in 2023. At that time, Judge Solomson publicly stated that he didn't agree with the boycott. Then, earlier this year, as conditions at Columbia worsened following October 7, he called me out of the blue and asked if I would consider extending the boycott to Columbia. I responded that, if he wanted to lead such an effort, of course I would support him.
I've been very happy for Judge Solomson to take the lead. He has demonstrated inspiring leadership. There's absolutely nothing wrong with people changing their minds. Indeed, I applaud and admire him for doing it—just as I deeply admire Judge Lisa Branch of the Eleventh Circuit for being the first to jump in. I sincerely hope others will do the same.
It's in that spirit that I wish to warmly welcome Judge Thapar to the conversation. He's made clear that it's absolutely appropriate for judges to be troubled about what's happening on campus, and to want to do something about it. We're just negotiating over terms at this point.
He proposes to have donors and legislators do the heavy lifting of divesting from intolerant institutions. I'm delighted, of course, for any citizen to take action to protect our country against the bigotry and intolerance being spread by certain institutions.
What I'm not interested in doing, however, is passing the buck. Why shouldn't judges stand up and take responsibility as well? Why can't we do both?
My colleagues say they worry about the impact of a boycott on individual law students. I'll confess that I have never understood this argument. Because it's a losing attitude. We should have a winning attitude. If we only focus on losses if a boycott fails, then no one would ever boycott. That's not how rational people make decisions. Rational people look at the benefits of success as well as the costs of failure. They also consider the probability of success vs. failure. As I tell my law clerks, there are two types of people in the legal profession—fighters and climbers. Fighters always assume that we have a chance to win. And smart fighters make rational, intelligent decisions about when to fight.
So imagine this: If a dozen or two dozen federal circuit judges all took this action, how would these schools respond? Would they say, well, that's okay, our students will just go to law firms, they'll find other places to work. Or will they care about clerkships?
I'd submit that it should cost essentially nothing to take this action. Enough of us would have a major impact. Schools would stop the intolerance to regain the prestige. And there would be no cost to anyone as a result. Indeed, Lisa and I have both heard from a number of folks—at Yale and elsewhere—who say that just the two of us have made a meaningful impact.
For many years, Justice Brennan hired exclusively from Harvard. Then he boycotted Harvard (for far less publicly spirited reasons—e.g., he didn't like how Harvard professors treated him and his work). After boycotting for three years, he eventually got what he wanted from Harvard (public displays of respect). So he went back to hiring from Harvard (although much less frequently). See Stephen Wermiel, Justice Brennan and His Law Clerks, 98 Marquette L. Rev. 367, 372 (2014); Owen Fiss, Pillars of Justice 46 (2017); Seth Stern & Stephen Wermiel, Justice Brennan 204-5, 276-77 (2010).
Justice Brennan isn't the only Justice to view law clerk hiring as a means to a broader end. During oral argument in the Harvard case, Justice Kagan noted that many judges make special efforts to hire racially diverse law clerks out of a desire to further social change. Surely other judges can adopt hiring policies out of a desire to combat antisemitism and religious bigotry at certain colleges and universities.
Look, let's not pretend that every federal judge looks at clerkship applicants without regard to which law school they went to. Justice Scalia said publicly that he would never hire a law clerk from Ohio State—even though he personally knows extraordinarily well qualified students who graduated from Ohio State.
The only question is which schools we choose to favor or disfavor, and why. Countless judges hire only from certain schools, or have a strong preference for their alma mater, or prefer schools in their geographic region. I hire from a broader range of law schools than many of my colleagues. But I'm not excited about hiring from law schools that welcome intolerance.
Q: Speaking of academia: You recently said that, "in the six years that I've been a judge, I've come to an understanding about academic commentary about the Supreme Court: Too many academics regard the views of half the country as garbage." Would you like to explain?
