Judges are looking at student actions in the wake of October 7th and drawing a line in the sand for those who would want to clerk for them. Judge Matthew Solomson said,
To me, it’s a simple proposition that just like no judge would hire anyone who endorsed the KKK or the Nazis, anyone who endorses or approves or otherwise gives comfort to — in writing — Hamas, should not be hired.
Sarah Isgur reports on the Advisory Opinions podcast that Judge Lee Rudofsky has written to his own future clerks asking them to confirm that they have not condoned the October 7th massacre or engaged in acts of antisemitism or Islamophobia. He, quite appropriately, added that he had no problem with his future clerks holding or expressing a wide range of views about the Israeli-Palestinian situation and the current war, so long as they stopped short celebrating or advocating the targeting of civilians for abduction, torture, or death.
The point isn’t about the “go-to” excuse that anti-Zionism isn’t anti-Semitism, a facile statement that makes the perfect beard, but that supporting the rape, kidnapping and murder of women, children and the elderly for “the cause” is intolerable to most people who aren’t swept up in woke campus hysteria.
But can they? Should they?
The key precedents on this, I think, come from the line of cases dealing with political-affiliation-based hiring and dismissal of government employees. In these cases—Elrod v. Burns (1976), Branti v. Finkel (1980), and Rutan v. Republican Party of Illinois (1990)—the Court held that, generally speaking, such employees can’t be hired or fired because of their party membership. But the Court recognized that there were exceptions for certain kinds of employees, including ones who work so closely with a high-level official in implementing the official’s views that ideological compatibility is a legitimate employment criterion.
But this relates to political officials, not judges. Holders of political office are there to pursue their political goals. Judges are, theoretically, supposed to be apolitical, there to pursue no goal but justice. Eugene Volokh finds the analogy still holds.
But in the course of applying and developing the law, judges do sometimes express their beliefs about law and justice. I think one could likewise say,
It is clear that a Judge may appropriately believe that the official duties of various assistants who help him draft opinions and recommend particular decisions to him cannot be performed effectively unless those persons share at least some of his basic beliefs about law and justice.
Indeed, in my experiences, quite a few judges and Justices—both liberal and conservative—have generally preferred to hire law clerks who share their broad ideological perspectives.
That this is certainly true on a practical level, it neither should be nor should be protected in law as the very sort of political influence that the judiciary to strive to shed rather than embed. When this thing that shouldn’t happen is happening, the better solution is to try to eliminate it rather than perpetuate it.
Others hired law clerks without regard for ideology, or with little regard for ideology, but that has been seen as reflecting those judges’ particular preferences; both approaches have generally been seen as acceptable. It is likewise constitutionally permissible, I think, if a judge wants to generally be open to hiring clerks with many views, but draws the line at those who have publicly expressed positions that the judge thinks of as radically unjust (such as endorsing the KKK, Nazis, or Hamas).
It’s hard, if not impossible, to argue that anyone, judges in particular, would be required to be so politically neutral as to be required to hire a clerk who supported the KKK or the Nazis. And despite campus rationalizations to the contrary, Hamas fits right in. But, “it is likewise constitutionally permissible, I think,” isn’t a reason and provides no basis upon which to conclude that students with First Amendment rights that protect their expression of siding with terrorists and against Jews can be rejected by judges as law clerks.
There is, however, a different approach that may offer a better rationale than mere side-picking. It doe not offend the First Amendment for judges to hire based on the usual qualifications of education, intelligence, experience and skills. And if the analytical ability of an applicant demonstrates they are incapable of sound, rational decision-making, then they are intellectually unsuited to the position of judicial law clerk. Is this legitimate distinction or yet another rationalization that seeks to skirt Free Speech by tying it up in a neutral bow?
For those who see this as too easy to require thought, consider that this could just as easily serve the opposite should a progressive judge refuse to hire law clerks who don’t support Hamas or believe that “apartheid” Israel should be destroyed and all the Jews killed. Imagine the law clerk applicant being interviewed by a Biden-appointed judge or justice who asks, “Why isn’t your name on this open letter blaming Israel for making Hamas rape, kidnap and murder women, children and the elderly in order to free Palestine by eradicating Israel’s existence?” It could happen.