The dangerously illiberal judges
The dangerously illiberal judges
A group of Trump appointees vow they won't hire clerks from Columbia because students there engaged in protest they don't like.
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It was likely only a matter of time before right-wing federal judges decided to weigh in on student protests over the ongoing slaughter of Palestinians. And, these judges being the reactionaries they are, their contribution to the discourse is not designed to provide solutions or even to advance a coherent worldview. Instead, it’s just some good old-fashioned hippie-punching.
On Monday, 13 federal judges, led by Trump appointees James Ho of the Fifth Circuit Court of Appeals and Lisa Branch of the Eleventh Circuit, sent a letter to the president of Columbia University, Minouche Shafik. They stated they would no longer hire as law clerks anyone who attends Columbia University — the undergraduate and the law school — starting with the entering class of 2024.
This isn’t the first time Ho and Branch have pulled this stunt. In the fall of 2022, they both declared they would no longer hire law clerks from Yale Law School after students disrupted speeches by right-wing speakers. In March 2023, they extended their boycott to Stanford after students heckled fellow Trump appointee Judge Kyle Duncan. This time around, they’re joined in the letter to Columbia by 11 other Trump-appointed judges (Alan Albright, David Counts, James W. Hendrix, Matthew J. Kacsmaryk, Jeremy D. Kernodle, Tilman E. Self III, Matthew H. Solomson, Brantley Starr, Drew B. Tipton, Daniel M. Traynor, and Stephen Alexander Vaden).
The esteemed jurists have three demands for Columbia — but they don’t provide any facts, context, or legal reasoning to underpin them. At only two pages, this is a thin little screed, particularly given that fully one-third of a page is just the list of the judges’ names.
Trumpers get mad about made-up scenarios
First, the judges demand the school impose “serious consequences for students and faculty who have participated in campus disruptions.” Their reasoning, such as it is, is that “in recent years, citizens have been told that unlawfully trespassing on and occupying public spaces is a sufficient basis to warrant incarceration. So that same conduct should surely be sufficient to warrant lesser measures such as expulsion or termination.”
These judges know full well that jailing people who trespass and occupy public spaces is not a recent invention. Texas, for example, first put its current criminal trespass statute on the books over fifty years ago. To hazard a guess, given the Trumpy composition of these letter-signers, this is actually a jab at the January 6 prosecutions, given a routine right-wing defense is that the insurrectionists were just visiting the Capitol, which is open to the public.
The judges also ignore the fact that Columbia students have already faced the sorts of consequences the judges are demanding. Even students who voluntarily left the encampment before the NYPD’s April 30 arrests were told they would be on academic probation through June 2025. In advance of the arrests, Columbia also informed students that if they remained past the school-imposed deadline, they would not be allowed on campus and could no longer participate in classes.
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Next, the judges want “neutrality and nondiscrimination in the protection of freedom of speech and the enforcement of rules of campus conduct.” Do the judges have any evidence that Columbia treats some groups of protestors differently than others? Nope! Instead, they offer a vague thought experiment: “If Columbia had been faced with a campus uprising of religious conservatives upset because they view abortion as a tragic genocide, we have no doubt that the university’s response would have been profoundly different.”
It’s impossible to combat this because it’s based on inventing a situation and then making up a poor response by Columbia. But the general notion that anti-abortion protests on campuses are met with stronger responses is unfounded.
Last year, right-wing students at the University of Arizona worked with an outside group, the Center for Bio-Ethical Reform, to set up giant photos of aborted fetuses mixed with Holocaust and other genocide images. Students walking to class were forced to walk past them. A Jewish group at the school later reproached the group for its use of Holocaust imagery. The students accosted people who took issue with the display, yelling slurs at them. There is no report that any of the right-wing students suffered any consequences. Just last month, the same outside group did a similar display at Marshall University in West Virginia, again with no reports of consequences.
In October 2022, the Genocide Awareness Project got a permit from the University of North Carolina at Charlotte to display similarly lurid images on campus for three days. Students said the group used racial slurs, spit on them, and blocked people from getting to class. The school took no action, instead issuing a statement saying that allowing such displays was part of how “freedom of speech and expression is supported regardless of the viewpoint of the speaker.”
Free speech as the absence of diversity
As much as these judges are certain that schools are letting progressive protests run wild, it’s not true. As of Monday, over 2,200 people had been arrested on at least 45 campuses in 25 states. The Washington Post noted universities have responded with “consequences not imposed en masse for decades: suspensions, expulsions, and arrests.” Experts the Post consulted said they had not seen this level of crackdown since the 1980s protests against apartheid and the Vietnam War protests in the 1960s and 1970s.
Had they given it even a modicum of thought, the judges could have located an apples-to-apples comparison as to how pro-Palestinian protestors were treated versus right-wing protestors at the same school. On May 4, police arrested at least 25 protestors at the University of Virginia in Charlottesville. Cops wore riot gear and used chemical irritants to clear the peaceful encampment. Contrast this with the Unite the Right Rally in 2017, where that same school let hundreds of white supremacists march on the quadrangle while they yelled, “Jews will not replace us.” This was an actual example of a violent antisemitic protest, but given that the man who gave these 13 judges their job thought there were “very fine people on both sides” in Charlottesville, it’s not really surprising they didn’t want to bring that one up.
Finally, the judges want “viewpoint diversity on the faculty and across the administration — including the admissions office.” There is no information as to how that diversity is lacking, save for the assertion that “professors and administrators are on the front lines of the campus disruptions, encouraging the virulent spread of antisemitism and bigotry.” Some Columbia professors have indeed stood in solidarity with their students, but there are no reports that professors have encouraged antisemitic behavior. There’s no evidence that administrators support the protests at all.
When actual bigotry recently reared its head in the high-stakes world of federal judicial clerkships, right-wing jurists did not cover themselves in glory. In 2017, The New Yorker reported on Crystal Clanton, who resigned from ultra-right Turning Point USA after sending a racist text message to another Turning Point employee, saying, “i hate black people. Like fuck them all … I hate blacks.” Clanton was then hired by Ginni Thomas roughly a month later. Since graduating from law school, Clanton has had three federal clerkships. She first clerked at the district court level for Trump appointee Corey Maze and then clerked on the Eleventh Circuit for right-wing George W. Bush appointee William Pryor. Starting this fall, she will be clerking for Justice Clarence Thomas.
It is this type of behavior, not that of random professors or powerless college students, that actually does “encourage the violent spread” of bigotry. The lesson right-wing law students can take from Clanton’s success is that open bigotry will not derail their careers one bit. But engaging in peaceful protest will, as will choosing a school that happens to run afoul of Trumpers.
Quixotically, the people who will be most hurt by this are conservative students. The progressive students out protesting right now don’t want to clerk for judges like this. Right-wing students who might have contemplated attending Columbia will presumably go elsewhere, meaning the viewpoint diversity the judges demand won’t happen either. When Judge Ho announced his Yale clerk boycott, a Yale student asked him exactly this: “How will we fix the culture of students … if all of the conservatives suddenly boycott Yale with the judges?” Ho didn’t have an answer, instead saying that “if someone has a better idea, I am all ears” and that “the objective is very simple, it’s to restore free speech.”
These judges are only part of the current right-wing project to redefine free speech and tolerance as the absence of diversity. They’re joined by people like New York Republican Rep. Elise Stefanik, who has pushed the “great replacement theory” that Democrats are importing millions of undocumented immigrants to replace white voters. This is a theory endorsed by the marchers at Charlottesville and grounded in the antisemitic belief that Jews are behind the plan. These days, Stefanik is a self-styled protector of Jewish students, holding hearings to harangue university administrators over their ostensibly antisemitic behavior and celebrating when she gets them fired.
There’s also Christopher Rufo, who has helped with everything from destroying Florida’s public university system to ousting former Harvard president Claudine Gay. There’s former Trump senior advisor Stephen Miller, whose “America First Legal” law firm exists largely to file lawsuits to block any government initiative that attempts to redress historical wrongs against people of color. And there are any number of feckless state legislators who are eradicating all diversity initiatives in their states.
At root, this is a profoundly cynical enterprise. None of this is borne out of concern for Jewish students. Rather, they serve as a convenient prop for the latest iteration of MAGA bombast. None of these people will ever confront the antisemitism at the core of their party and that Trump, their presumptive presidential nominee, has a decades-long history of stoking. These judges will continue to use their lifetime appointments to roll back rights for everyone they don’t like and they will continue to demand that schools show them fealty. Meanwhile, the students they loathe will continue to risk their safety and their future by standing in solidarity with people thousands of miles away. The kids, as they say, are alright.
That’s it for today
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Thanks for reading.
I feel like I’m the only one saying this but it bears repeating. A lot of these same right wingers crying about campus antisemitism believe the following: Jewish people who don’t convert to their brand of Christianity are doomed with the rest of us. They will get raptured. The rest of us will be left to suffer horribly during the tribulations. And when Jesus comes back he’ll wipe out the rest of the Jewish population.
These aren’t secret beliefs! Hate preacher John Hagee, who endorsed John McCain back in the day, & who has a tv show on Christian networks, started CUFI. Christians United for Israel. With the intention of purposefully fomenting religious tension in Israel so Jesus will come back faster. He is very open about Jesus killing Jewish people who don’t convert. Hagee isn’t the only one! This is easily searchable information.
If you’re only befriending Jewish people to convert them with the belief they’ll later suffer & die if they don’t, you’re purposefully working to make that suffering & death happen, well that sounds pretty anti-freaking-semetic to me!
The Conservative judges feel emboldened by their lifetime appointments. Lifetime appointments are another Founders' error. It's such a mistake that R majority AZ legislators want to institute the same lifetime appointments for judges in Arizona. Currently AZ judges are retained by the votes of the people either every four or six years. Republican lawmakers are planning to put a referendum on the ballot to propose lifetime appointments for judges and justices. Two state Supreme court justices who voted to implement the 1864 abortion ban are up for retention in November. If the Republicans' ballot measure passes, it would be retroactive, in case Arizonans vote to oust those two justices.
Republicans are authoritarians. There's no debate. I bet none of those students at the protests at Columbia would even want to clerk for those reactionaries.