A judge’s attack on Yale explains the right’s ‘cancel culture’ ruse

The Washington Post / Paul Waldman

12:17 JST, October 12, 2022

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.

Ho, who is extremely conservative, essentially had the prototypical career for someone gliding through the Federalist Society pipeline, including experience in the George W. Bush administration and at a corporate law firm. His clerks are presumably Federalist Society-approved conservatives seeking careers just like his; his move would just cut off one path to a prestigious clerkship. Rather than encouraging debate at Yale, fewer conservatives might apply, giving up on following Clarence Thomas (Yale Law ’74), Samuel Alito (Yale Law ’75) and Brett Kavanaugh (Yale Law ’90).

Apparently many conservatives would be perfectly happy if Yale Law remained a source of anecdotes that they could use to rail against cancel culture. As for Ho himself, he’ll have plenty of schools to choose from; the Federalist Society brags that it has chapters at all 204 ABA-accredited law schools.

Which is why his move is culture-war posturing, of a type we used to think judges would excuse themselves from.

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.

Because the truth is that there are plenty of liberal excesses when it comes to the boundaries of expression. (And yes, expression always has boundaries; anyone who tells you they’re a “free speech absolutist” almost certainly isn’t really one.) Some of those liberal excesses do indeed happen on college campuses, where liberals tend to predominate.

But when conservatives elevate every argument in the Oberlin College student center to a “Breaking News Alert!” on Fox News even as they cheer when state governments ban books from libraries or threaten teachers with firing for speaking too much about sexuality or race, it’s clear they don’t want a genuine debate about free expression.

That enables liberals to dismiss conservatives out of hand without examining whether, in some cases, they might have a point.

It might help the right’s cause in the quest to eliminate cancel culture if conservatives weren’t themselves so enthusiastic about punishing those who engage in speech they don’t like (ask Colin Kaepernick), while whining endlessly about how victimized they are. No one in American life is louder than the people on the right who claim constantly they’re being silenced.

So when someone like Ho promotes a boycott of a law school he doesn’t like, what appeals to conservatives is not the possibility of getting closer to the day when all ideas are given a respectful hearing, but rather the prospect of revenge. It’s a common human impulse, but let’s not pretend it comes from a place of principle.