Canceling the cancelers: Toxic polarization outs itself in the federal courts

A WaPo opinion piece comments:

Can you cancel “cancel culture” by canceling the cancelers? Some Republican judges are answering with an emphatic “Yes!” — which shows that their commitment to free and open debate isn’t quite what they would have you believe.

This very public attack on Yale Law School isn’t just about hypocrisy over free expression, or even just about the politicization of the judiciary. It also shows that in a way, this isn’t an argument the right actually wants to win. The controversy itself is the point.

The story starts a couple of weeks ago, when Judge James C. Ho of the U.S. Court of Appeals for the 5th Circuit announced in a speech that he would no longer accept clerks from Yale Law School, which he described as a place where censorious liberals suppress conservative voices with a particular cruelty. “Yale not only tolerates the cancellation of views — it actively practices it,” he said, and Ho encouraged other judges to follow his lead.

Although some conservatives objected, on the whole the right celebrated. The Federalist trumpeted Ho’s speech, calling Yale a “cancel culture cesspool.” Sen. Ted Cruz (R-Tex.) tweeted that “Judge Ho’s takedown of cancel culture" was “a courageous and important stand that I hope other judges will replicate!”

And some have. Another appeals court judge, Elizabeth Branch of the 11th Circuit, said she too would refuse to hire clerks from Yale (like Ho, she is restricting her boycott to future students, not those currently enrolled). The conservative Washington Free Beacon reported that a dozen other judges were taking up Ho’s call, though they wanted to remain anonymous.

As a practical matter, this boycott makes almost no sense. Let’s grant for a moment that Yale has a stifling culture of silencing conservatives. That means the students Ho is shutting out of positions in his chambers would be the victims of this culture, not its perpetrators.

However firm their ideological commitments, we used to expect judges to let their decisions speak for themselves, with perhaps the occasional speech or interview thrown in. Now judges perform stunts designed to attract media attention — and that’s exactly what this is. At this point it wouldn’t be surprising to see Ho or others like him interrupt oral arguments in court to say, “Hang on, I was just totally owning the libs on Truth Social. Proceed, counsel.”

And it’s clear that, like many conservatives, Ho is moved to take action against the silencing of free expression only when it’s the expression of people he agrees with that is supposedly being silenced. And that lets liberals off the hook.

Who does Yale law school cancel? One was Ilya Shapiro. He is an influential radical right Federalist Society[1] legal theorist. He left Georgetown (but was not fired or disciplined) after an investigation of his Tweets about Biden's pick for the Supreme Court: “But alas doesn’t fit into the latest intersectionality hierarchy so we’ll get lesser black woman. Thank heaven for small favors?” Yale law students shouted him down at a Federalist Society speaking engagement at Yale. Shapiro could only get out a few words before the audience shouted him off the stage. 

What if the speakers at private engagements want to polarize and divide the audience by advocating lies, slanders and other forms of dark free speech? 

Does the cancellation of speakers in a private institution like Yale justify cancellation by federal judges of lawyers from a targeted law school? Courts are public places and speech generally cannot be censored. Speech can be censored in private places but not public places. 

Does choice of clerks for judges constitute speech, or is that just a hiring decision? Does one wrong justify another wrong? 

Footnote: The Federalist Society screens and picks ideologically loyal conservative and Christian nationalist, anti-government, anti-regulation federal judges for Republican presidents to nominate. That makes it influential and powerful. Wikipedia says this about the Federalist Society:

The Federalist Society for Law and Public Policy Studies is an American conservative and libertarian legal organization that advocates for a textualist and originalist interpretation of the U.S. Constitution. Headquartered in Washington, D.C., it has chapters at more than 200 American law schools and features student, lawyer, and faculty divisions. The lawyers division comprises more than 70,000 practicing attorneys (organized as lawyers chapters and practice groups within the division) in ninety cities. Through speaking events, lectures, and other activities, it provides a forum for legal experts of opposing views to interact with members of the legal profession, the judiciary, and the legal academy. It is one of the most influential legal organizations in the United States.