Nate is unpersuaded by my argument against Judge James C. Ho’s decision not to hire law clerks from Yale Law School and his plea for other federal judges to join him in that boycott. It would appear that he believes this is the fundamental flaw of my critique:
If you’re criticizing another man’s proposed solution to an issue that you both believe is a problem, it seems necessary to offer a viable alternative.
But that doesn’t follow. If I were to come down with strep throat and a doctor recommended bloodletting, I would be eternally grateful to the physician who provided a second opinion advising against the bloodletting, even if he were to fail to suggest an antibiotic instead. The do something instinct is one that conservatives rightly object to in other contexts.
Nate also notes that:
Schorr is doubtful that the move, in and of itself, will be effective enough in that endeavor — “the only consequence we know Judge Ho’s declaration will have is that Yale graduates’ applications will be thrown out, and that’s a shame,” he writes. “Maybe only a few, or just one, or no Yale graduates will suffer as a result.” But he also argues that it would be bad if it were effective — “if Ho gets his wish, it’ll be a lot more.”
I did write both of those things. Nate frames them as contradictory, but I don’t see how he’s reached that conclusion. Indeed, I both am doubtful that Ho’s means will result in his desired end and have concerns about the unintended consequences even if they eventually would. Those are concerns for the affirmative in this debate to address.
Returning to the issue at hand, though, I am happy to provide an alternative. To oppose the do something instinct is not to oppose doing anything. I just think that as long as we’re taking action, we should want that action to be an effective, well-tailored solution to the problem.
Tying federal dollars to a mandate that college campuses protect and promote free speech on campus is just such a solution.
It is absolutely the case that the federal government should concern itself with ensuring a culture of healthy and diverse discourse at American universities. Within the judicial branch, that consists of protecting free speech as cases touching on it come up. The more active role, however, should be played by the political branches.
In 2019, President Donald Trump signed an executive order directing his administration to make research-grant money conditional on universities’ compliance with the First Amendment and their own rules.
“In America, the very heart of the university’s mission is preparing students for life as citizens in a free society. But even as universities have received billions and billions of dollars from taxpayers, many have become increasingly hostile to free speech and to the First Amendment,” remarked the president at the signing ceremony.
“Taxpayer dollars should not subsidize anti–First Amendment institutions. And that’s exactly what they are: anti–First Amendment. Universities that want taxpayer dollars should promote free speech, not silence free speech,” he argued. I couldn’t have said it better myself.
But there’s scant evidence that the order was ever enforced broadly. The next Republican president should sign a similar order aimed at curbing universities’ adoption of draconian speech codes, de facto endorsement of the heckler’s veto, and other forms of viewpoint discrimination. Then that president should devote considerable energy to enforcing it.
This approach would target universities directly, and where it matters. The typical American university — as anyone who has attended one might have noticed — cares a great deal about money. Directly denying research-grant dollars for the institution to which a law school is attached seems like a much simpler, fairer approach than pursuing a convoluted effort to drag Yale Law School down in third-party rankings (good luck!) by punishing graduates of the originalist persuasion.
Critics might submit that this would adversely affect professors and graduate students whose research projects might as a result go unfunded, thus creating the same bystander problem I object to in Ho’s approach. That’s a fair point, but faculty members have much more power to effect change than recent graduates do, and if federal grant money were to stop pouring in, I suspect that they would band together, demanding change much more quickly and with much more success than the conservative students who would lose out under Ho’s framework.
Hostility toward the “wrong” views on college campuses is a problem that talented conservatives are determined to solve, and that’s a good thing. My suggestion is imperfect, but I’m quite certain that it’s preferable to an ad hoc strategy (Ho believes Yale to be the worst offender, but the records of other campuses, such as Georgetown, are hardly spotless) that, were it to be even minimally effective, would disqualify possible future Clarence Thomases, Samuel Alitos, and Brett Kavanaughs from working as law clerks in the federal judiciary.