This time, the number was 13.
A group of 13 conservative US federal judges are vowing to not hire Columbia University law students or undergraduates because of how the school has handled pro-Palestinian demonstrations on its campus in recent weeks.
The judges sent a letter to Columbia President Minouche Shafik and the dean of Columbia’s law school Gillian Lester, on Monday, outlining their position and describing the Manhattan campus as “ground zero for the explosion of student disruptions, antisemitism and hatred for diverse viewpoints on campuses across the Nation.”
Whether you agree or disagree with the particulars of the judges’ condemnation of Columbia Law, a more basic question arises from this letter. As noted by Orin Kerr at VC, do judges have a role, any role, to play in this melodrama?
Over at David Lat’s substack, Judge Lee Rudovsky, who is considering whether to join the Columbia clerk boycott, offers a perspective on the role of judge that is relevant to that discussion and that I think is worth addressing:
Judges have an important role to play in our society beyond the work we do in the courtroom or in chambers. We have a special responsibility to stand up for the rule of law and to stand against mob violence, especially where such violence echoes an age-old evil that once led to the murder of 6,000,000 Jews and millions of other innocents.
I respectfully disagree. As I see it, judges as judges do not have an important role to play in our society beyond the work they do in the courtroom or in chambers. They shouldn’t be stepping up to the plate, and they shouldn’t be trying to help American society solve problems like anti-Semitism, in any kind of official capacity.
Judge Rudovsky’s “special role to play” has the ring of social activism to it, much like the duty to speak up for the oppressed or be complicit in their oppression. The claim is inherently unsound as applied to society in general, and improper as applied to judges in particular.
First, they have not been elected as society’s moral arbiters any more than activists, but as folks with robes who decide questions of law.
[N]othing in that process qualifies a judge for some broader role in society. Judges are not overseers of our culture, or specialists in mob violence or how to address it. If, as individuals, judges want to take on a broader role in society, they are free to step down from the bench and pursue it.
Second, while they have the right to speak out on any political or controversial subject of their choice, regardless of whether their thoughts are any more valuable than, say Taylor Swift’s, they do not have the right to do so when it is in conflict with the position they’ve voluntarily assumed as judges.
The problem, it seems to me, is that the “special responsibilities” Judge Rudovsky suggests judges have can be hard to distinguish from politics. I don’t mean politics in the Republican versus Democrat sense (although it’s presumably no coincidence that all of the judges who have publicly joined the boycott are Trump appointees). I mean politics in the broader sense of how our society resolves competing claims about justice and fairness. When those claims don’t happen to involve a legal claim brought by a party in court, turning that question of politics into a question of law, I think judges acting in their official capacities should sit on the sidelines.
There is always the possibility that a case will come before them involving issues raised, or parties involved, in the moment’s outrage. By putting their thoughts and feelings on paper, they have compromised their integrity, expressed their bias and demonstrated a lack of impartiality expected and demanded of a judge.
When one becomes a federal judge, one assumes vast power to impact litigants. That power is granted for life upon good behavior, the point of which is to insulate judges from the political and social winds of the moment such that they can reach sound if unpopular legal decisions. With this vast power comes some limitations, not the least of which is getting embroiled in politics that taints a judge’s impartiality. Yes, they have opinions and beliefs just like everyone else. No, they do not get to put up a tent or take one down. Not if they want to continue to wear the robe.
Judge Rudovsky is right, judges do have an important role to play. Orin is right, that the important role is that of being a judge, even if that means they can’t get down in the mud and wrestle with pigs.
I don’t understand the logic (or justice) behind a blanket ban on all Columbia students. Many Columbia students were innocent of the appalling antisemitism displayed by some of their fellow students and faculty members.
FOCUS.
“By putting their thoughts and feelings on paper, they have compromised their integrity, expressed their bias and demonstrated a lack of impartiality expected and demanded of a judge.”
I disagree with this. All people have political opinions and biases, judges included, and those biases do not get created or changed just because they say them out loud or write them down. I would prefer that their biases are out in the open and known, rather then hidden. This is the same reason I object to the practice of potential judges or justices dodging questions about cases during confirmation hearings.
The only reason we trust judges at all is because they appear to be unbiased, or at least capable of acting without bias in their official roles. Human beings inherently have biases and act on them, but a black robe and a careful portrayal of the “unbiased judge” role creates the illusion of impartiality that allows us to trust the system. Maintaining this illusion of impartiality allows the system to work better than it would without that illusion.
Anything that pulls back that facade is going to undermine the public trust in the judicial system, and should be avoided. This applies to left and right equally, and the fact that many left-wing judges have strayed far out of bounds doesn’t make it right for right-wing judges to start doing it.
The frame here seems to be off.
First, there’s a boycott by 13 Judges and second, there’s whatever Judge Rudovsky is talking about.
Orin appears to have issues with the Boycott concept by Judges and here he’s using Judge Rudovsky’s comments to further that argument. Fine.
But what connection does the singular ranting of Judge Rudovsky (or Orin’s use of it) have to the 13 Judges who are boycotting Columbia students?
The “demands” of the 13 appear to be neutral and generally applicable concepts that are aligned with the goals and requirements of civic life in America, a part of which involves an independent branch of its government:
None of these three demands, if instituted in hiring practices for chambers’ employees would violate the Judicial oath, unless I’m missing something. So, why is it an issue to demand the same from fora where they will be taking clerks in the future?
And as an aside: as someone who works with these kids when they get out of school, I gotta say – I prefer the ones that are capable of that kind of neutrality when representing clients.
FOCUS!
HEY!! LOOK AT THAT SQUIRREL1!!!11!!
The problem is that conservative law students are the big losers from a hiring freeze by conservative judges. And they’re not the ones out there in Hamas headbands.
Then again, with a federal clerkship rate of 4.2%, the impact at Columbia may be limited.