McCarthyism Is Rearing Its Head in America’s Law Schools

Conservative firebrand James Ho, a judge on the Fifth Circuit, spoke at Yale Law School yesterday, and according to my sources, it went without a hitch. No disruptions, or mentions of his vow to boycott Yale Law students for clerkship hires. And no questions about his incendiary op-ed published earlier in the day.

I don’t know if the students were being inordinately polite or missed Ho’s latest rant against “woke” law schools—but it should’ve sparked outrage.

Along with Eleventh Circuit Judge Elizabeth Branch, Ho advocated for cracking down on student protesters. Alluding to instances when students shouted down conservative speakers, Ho and Branch urged law schools to take action: “They know they can suspend or expel students for engaging in disruptive tactics, or threaten to report negatively on a student’s character and fitness to state bar examiners.”

But here’s the kicker: “If schools are unwilling to impose consequences themselves, at a minimum they should identify the disrupters so that future employers know who they are hiring,” Ho and Branch wrote in the National Review.

That’s wild stuff. Essentially, they’re proposing a form of academic McCarthyism. But instead of the FBI monitoring political undesirables and maintaining blacklists, they’re suggesting that law schools get into that dirty business.

What astounds me is that this is not coming from some Fox News pundit or wacky politician but two sitting federal judges.

From what Ho and Branch are describing, students wouldn’t have to commit a truly egregious act, such as violence or threatening someone with bodily harm, to be blacklisted. Simple unruly behavior—albeit juvenile and annoying—might suffice.

“The article is far too imprecise to serve as a useful guide to make policy,” said Stephen Gillers, a professor at NYU School of Law. “What would they do if a student shouted, ‘You lie’ during a visitor’s speech but did nothing more? Or if 10 students in the first row silently stood and turned their backs on a speaker?”

Setting aside the concept of free speech for a moment, it seems rather harsh to condemn a 20-something to a forever no-fly list for rude behavior. I don’t disagree that some punishment might be merited in cases where students have crossed the line. But how many of us haven’t done idiotic, obnoxious things in our youth that we’ve outgrown?

‘A Kind of Performance Art’

What are the chances that schools will implement their crazy idea? Zippo.

No reputable law school aspires to be in the blacklisting business. It’s ethically odious but also legally perilous. Considering how cautious employers are about responding to reference checks these days—they seldom comment on former employees except to confirm dates of employment—what law school would be nutty enough to alert prospective employers about a “disruptive” student?

So why are Ho and Branch putting this out there? “I read their piece as a kind of performance art,” Gillers said.

I don’t think the judges seriously believe their proposal will help promote free speech and ease conversations across the aisle. If anything, the punitive measure they advocate seems designed to clamp down on free expression.

My hunch is that Ho and Branch want to bolster their creds as culture warriors. What better way to boost your career prospects in that crowded pool of conservative judges? Ho, for one, is rumored to harbor ambitions to be the first Asian American on the US Supreme Court. And we know he’s good at showmanship—considering the mileage he accrued when he announced he was boycotting Yale Law students as clerks.

But ultimately what’s striking is how lame their proposal is.

“They should have demanded of themselves a degree of the precision and focus that they would expect in briefs,” Gillers said. “I’m also astonished that anyone would print such a weak and unsubstantiated argument—if it can be called that.”

There’s only one word to describe their efforts: Embarrassing.