Some thoughts on the Ho-Thapar debate on federal judicial clerkship boycotts
Imagine this: you grew up in rural Texas to a lower-income family, and no one in your family attended college. But you’re attending college, as best you could figure out, and attend a nearby regional public university. You excel and thrive. You choose political science because you find it fascinating, and you’re interested in law school. There isn’t much of a pre-law program at your school. No one in your family has gone to law school, and outside a couple of family members who had brief encounters with the criminal justice system, you’ve never met a lawyer, to your knowledge.
But you study for the LSAT and score well—very well. You have a high GPA, too. And so you apply broadly. Not knowing much else, you look around for law school rankings, and the same schools are always at the top, so you apply to them. You are accepted at Yale, which offers generous financial aid given your socioeconomic status. Yale is very far from home, but you realize the opportunity means something. You attend. And very quickly, you hear people talking about “clerkships,” jobs that can really help you in your career and really outstanding experience.
After one semester at Yale, you learn that judges are already hiring. In something of a panic, you follow the lead of other students and start to apply. You’re from Texas, so you look to Texas. And you’re told, still learning, of course, that the federal courts of appeals—one step below the United States Supreme Court—are the most desirable. So you send out applications to some of those judges, including one particular federal appellate judge in Texas.
Sorry, the judge says in a reply letter, I won’t hire you, because I don’t hire from Yale because of some things that happened before you ever applied.
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The background story is, in many respects, not unlike my own (but I did not attend Yale—for that, perhaps instead consider Clarence Thomas or JD Vance…), a first-gen law student who never traveled far from home and had little concept of the legal profession or “clerkships” before entering law school. And it’s here to highlight the significant student-oriented cost of any “boycott” that federal judges might impose on law schools.
I haven’t really weighed in on this debate, because it was playing out very publicly more than two years ago, and I didn’t know it would stretch very far or or last very long. I did note that the whole debate was focusing on a very narrow sliver of clerkships and would not affect very many people.
But it’s recently come back into the public consciousness, as Judge James Ho has given multiple talks in the last several days, including a recent Advisory Opinions podcast, in defense of the boycott—a boycott he initiated. His new tour takes aim at the critics, including, on the other side, Judge Amul Thapar, among others. I use them as the sides of this “debate,” but one could easily construct other ways of setting up the debate (and the debate is on quite amicable terms).
I do know I am adequately positioned to weigh in. I’ve worked at three law schools, including playing significant roles with clerkships institutionally at all three; I’ve had extensive examination of legal education and employment outcomes, and specific studies on federal judicial clerkships. This blog is filled with discussions of clerkship figures and statistics, along with the market of legal education and legal employment. So I can speak much more confidently about the overall economy of legal education and judicial clerkships.
To set the stage. From Sarah Isgur’s interview at Advisory Opinions with Judge Ho (around the 11:30 mark, lightly cleaned up):
Ho: The main argument that I’m hearing from some of the judges on your podcast, and Judge Thapar, his most recent remarks, is that, we shouldn’t do this, because it will hurt students. And with respect, I don’t understand that argument. And let me explain why. I would regard that as what I’ll call a “losing” attitude when we should have a “winning” attitude. And let me explain what I mean by that.
Every boycott throughout history, just the very concept, by definition, it’s people refraining from engaging in transactions they would otherwise want to because of some larger goal that they have in mind. So if you just assume, 100% chance it’s not going to work, it’s not going to change anything, then all you do is calculate the losses, the consequences. Under that theory, nobody would ever boycott, the word wouldn’t exist, nobody would every do this. I think you should have a winning attitude. What that means is, actually do what rational decisionmakers do, figure out the benefits of success, the costs of failure, and then measure that against the probability of a certain tactic succeeding or failing.
So let me ask you a simple question, I appreciate you quoting my earlier speech, when I talked about the customers of a big company, so I don’t have to go through that again. Just a very simply question. If a dozen, two dozen federal circuit judges, agree that, you know, this school is adding more toxicity to our future leading class, class of leaders in the future, if we decide we’re going to hire from other schools from now on, what would the law school do? Would they say, no sweat, we’ll just send our kids to other law firms, other employers, no big deal? Or would they change? Honestly, what do you think?
Isgur: I don’t know. It depends on the school.
Ho: That’s the first time I’ve heard that. Every time I’ve asked that question, everybody’s agreed, no, every school cares deeply about this.
Isgur: Ten years ago I would have agreed. Now I wonder if we’ve gotten to the point where—I don’t know, maybe they shoot themselves in the foot and just be like, well, you shouldn’t be around those bad people anyway.
. . .
Ho: What they’re saying is, what happened is terrible. We regret all this. Please keep hiring our students. You don’t need to do this. Et cetera et cetera. So they're not acting as if you know, no big deal. They don’t care.
Isgur: Will you give us an update on the boycott, like where it stands right now? What schools are included in your boycott? How effective do you think it’s been based on what you just said?
Ho: Sure, well, so I’ll tell you in terms of effectiveness, quick story justice, William Brennan. . . .
I don’t know what the future will hold. My hope is that they will change.
Isgur: Is Yale the only school you’re not hiring from right now?
Ho: Yale. A year later, there was an incident at Stanford that was, that was, that was, let’s say, universally described as has a bad development. And then, of course, Columbia, that became essentially ground zero for all the post October 7 intolerance. So those are the three schools we've talked about.
And so we’ll see, I mean compared to the three year boycott that Justice Brennan did, this is still in its infancy.
Respectfully, I think Judge Ho doesn’t quite grasp the current economy of law schools with respect to employment for their students, and the overall economy for judicial clerkships, especially in the present moment.
Let’s start with the “clerkship.” It’s true that a clerkship has long been deemed a valuable experience and an important part of a new lawyer’s entry in the profession, particularly for elite law schools, both as a credential and as a learning opportunity. For a wide variety of reasons—some of which are directly attributable to federal judges’ behavior—that is much less the case.
The market for federal judicial clerkship opportunities is quite large. Between 1100 and 1200 new graduates each year take a federal judicial clerkship. And there are many more positions filled by other graduates. And as that linked post shows, a generation ago, many more students took clerkships directly out of law school than today. Many judges prefer clerks with work experience, and now take them after a prior clerkship or after working. The value of the clerkship, in and of itself, has somewhat diminished. The clerkship is no longer the signaling or credentialing mechanism that it once was. It is still important, but less so.
Judge Ho suggests that a “dozen” or “two dozen” court of appeals judges could move the needle. I don’t think that’s quite right. The first, of course, is that there aren’t two dozen judges on the boycott. Those judges hold would, at most, around 90 of the more than 1500 positions (with caveats of multi-year clerkships, career clerks, and the ratio of judicial assistants and clerks in a chambers). It’s true that appellate clerkships are more coveted. But even there, there are 179 federal appellate judgeships, and many more senior status judges, for something like 700 or so clerkship positions.
This is a stark contrast to the anecdote involving Justice Brennan (an interesting choice of exemplar, to say the least), which involved (1) Supreme Court clerkships, which are more prestigious and far more scarce (~36/year); (2) withdrawal from one school for three years (Ho here suggests this boycott is in its “infancy”; and (3) the return to choosing Harvard clerks. But that’s really not the whole story—Justice Brennan used to hire exclusively Harvard clerks before his “boycott,” and after that he did hire clerks, but at a much lower rate than before. The damage was, essentially done.
There is quite obviously not the same leverage in these circumstances. And it’s quite clear that there’s a massive collective action problem. Judge Ho puts the terms of a “dozen” or “two dozen,” but in order to reach scale for effectiveness, you’d probably need a majority of federal appellate judges to even dent the clerkship economy market. Isolated actions will not alter the market in a meaningful way. (More on who it does affect in a moment.)
Another is the nebulous definition of “toxicity.” The ad hoc decisions to include Yale, Stanford, and Columbia [ed.: few Columbia law students pursue federal clerkships, anyway] do not seem particularly coherent. At Yale and Stanford, there were administrative problems at the law school; at Columbia, the university. The latter is much more problematic to manage from a boycott like this. Other schools, like UCLA had very public problems very similar to Columbia. Why is UCLA not included? I won’t pick on other schools (and there are many that could be named); I just mean to suggest, the categories of “toxicity” worthy of a boycott do not seem to track particularly helpful criteria.
It’s also not clear when the “end” will arrive for the boycotts or what that “end” game is. Take Yale. In recent months, it has hired Professors Keith Whittington and Garrett West, among others, and two faculty, I think, someone like Judge Ho would quite strongly approve of as reducing the “toxicity” of the faculty (again, to use his term). Why isn’t that enough to drop the boycott? What steps must the school take?
Regardless, it seems quite clear, to me, anyway, that the “boycott” has expanded to more schools, of indefinite time and scope, and that there are not particular actions any schools have yet taken that have assuaged the concerns of boycotting judges.
The ever-expanding list and non-responsiveness of schools suggests, I think, that the employment economy suggests a boycott will not be effective.
For rankings purposes, clerkships do not mean anything. A job is a job in those rankings. For career advancement, as I’ve mentioned, clerkships are less valuable. Additionally, the sheer enormity of the law firm salary makes clerking less attractive, even with a clerkship bonus—and the mere lack of opportunities will only mean more students earn more money. Indeed, we’ve seen stories about law students affirmatively failing to apply for clerkships because of a lack of interest. And more schools are appreciating the value of state court clerkships in ways they did not before.
So the market for clerkships is fairly large; there are high quality replacements for clerkships (i.e., a lucrative law firm salary); the opportunities are fairly fungible for students; and the schools do not suffer from employment-related or rankings-related metrics for a loss of clerkships.
In short, there are lots of reasons to think the market won’t particularly respond to a boycott—indeed, it has not.
But let’s get back to my opening anecdote. The burden here will fall on someone. There are intensity of preferences concerns that individual law students bear, but the school does not. A student greatly desires a particular clerkship; for the school, another clerkship will suffice, because, after all, clerkships are largely fungible, and the market can be idiosyncratic. A student wants to go back to Texas; for the school, there are other ways of getting there, or other desirable regions.
Maybe this student in my opening hypothetical will land on his feet. He’ll apply a little more and find the clerkship he wants. Or maybe he’ll skip the clerkship altogether. But the point is, I’m not sure the benefits, whatever they are, will be terrible measurable, and the tactics do not strike me as ones likely to succeed.
Let me close with this. Judge Ho in the interview notes, “What they’re saying is, what happened is terrible. We regret all this. Please keep hiring our students. You don’t need to do this. Et cetera et cetera. So they're not acting as if you know, no big deal.”
That’s assuredly right. Anytime someone has a very public rift with the school, especially somebody in a position of authority, the school’s reaction will naturally be—in private if not public—how can we fix this? They do care.
But “caring” is a very different matter from making major institutional choices in reaction to the boycott. I’m not convinced thing will change as a result of this boycott, as opposed to other institutional pressures (e.g., major donors threatening to withhold funding). And given that there appear to have been insufficient changes at these three boycotted schools in the last couple of years to appease the boycotting judges, so far, this view may end up being right.
