Reuters, US Judge Warns That Law Clerk Hiring Boycotts May Cross Ethical Lines:

Law clerk hiring boycotts, like the type launched by 13 conservative federal judges last year in protest of Columbia University's handling of pro-Palestinian student demonstrations on its campus, may "cross an important line," a top federal appeals court judge concluded.

Chief U.S. Circuit Judge Steven Colloton reached that conclusion even as he dismissed a judicial misconduct complaint filed with the St. Louis-based 8th Circuit Judicial Council against one of those 13 judges, U.S. District Judge Daniel Traynor in Bismarck, North Dakota.

In re Complaint of John Doe, JCP No. 08-24-90036 (JUDICIAL COUNCIL OF THE EIGHTH CIRCUIT (Apr. 8, 2025):

This is a judicial complaint against a district judge who has participated in a hiring boycott against graduates of Columbia University in an effort to influence the university’s administration. The subject judge was one of thirteen federal judges who signed a letter in May 2024 to the president of the university.

The judicial complaint alleges that the action of the subject judge in joining the boycott is “prejudicial to the effective and expeditious administration of the business of the courts,” and is therefore cognizable misconduct under Rule 4(a). In particular, the complaint asserts that the judge (1) used his office “to obtain special treatment for friends” and to engage “in partisan political activity” and to make “inappropriate partisan statements,” see Rule 4(a)(1)(A), (D); (2) engaged in “abusive behavior in that his statements demonstrate that he presently is and will be treating litigants, attorneys, judicial employees, or others in a demonstrably egregious and hostile manner,” see Rule 4(a)(2)(B), (3) “used the ‘Columbia University community’ as a proxy to discriminate against various races, religions, and national origins that may share in the views of his targeted community,” see Rule 4(a)(3), and (4) engaged in conduct outside the performance of his official duties and was “reasonably likely to have a prejudicial effect on the administration of the business of the courts, including a substantial and widespread lowering of public confidence in the courts among reasonable people.” See Rule 4(a)(7). …

Several of the specific allegations in the complaint are insubstantial and are unsupported by sufficient evidence to raise an inference that misconduct has occurred. See Rule 11(c)(1)(D); 28 U.S.C. § 352(b)(1)(A)(iii). There is no showing that the judge’s action was taken to obtain special treatment for friends, and the complaint does not specify any “friends” of the judge who might benefit from the judge’s refusal to hire Columbia graduates or from changes in the university’s policies. The judge’s activity and statements were not taken in association with a political organization or made on behalf of, or against, a political party or candidate. They were thus not “partisan” actions or statements within the meaning of the rules. There is no reasonable inference that the judge’s criticism of Columbia University and effort to encourage change at the institution functions as a “proxy” to discriminate on the basis of race, religion, or national origin. The letter does not plausibly constitute mistreatment of litigants, attorneys, or judicial employees, as it was directed only to the university. The complaint does not establish that the signing of the letter would lead to frequent disqualification.

More substantial is the question whether a federal judge’s participation in a hiring boycott is “reasonably likely to have a prejudicial effect on the administration of the business of the courts, including a substantial and widespread lowering of public confidence in the courts among reasonable people.” …

A judge’s participation in a hiring boycott against graduates of a private university does not fit the ordinary meaning of “political activity,” because the boycott is not directed at governmental actions or policies that are the focus of the political process. A boycott may be seen, however, as raising similar problems where judges seek through the allocation of publicly-funded employment opportunities (or other allocations of public funds) to influence the behavior of private institutions on matters of public concern. The boycott at issue here involves only thirteen federal judges and one private institution, but the practice—if approved and widely accepted—could proliferate. Judges will have different views on what causes are righteous and which institutions or entities should be targeted. Widespread judicial boycotting based on issues of the day may well have the potential to embroil the judiciary in extrajudicial public controversies and to lower public confidence in the courts among reasonable people. There isthus a substantial question whether judges cross an important line when they go beyond expressing their personal views in an effort to persuade and begin using their power as government officials to pressure private institutions to conform to the judges’ preferences. See Orin Kerr, Boycotting Law Schools in Clerk Hiring as a Way to Influence Law School Culture, Reason Magazine Online (Sept. 29, 2022).

Despite this concern, I conclude that the judicial complaint should be dismissed under the present circumstances. Judges subjected to judicial-conduct proceedings are entitled to fair notice of what constitutes cognizable misconduct. When the subject judge signed the letter declaring his participation in the hiring boycott, there was no guidance declaring that such activity was forbidden for federal judges. The Code of Conduct does not address boycotting by judges in their capacity as government officials. Research has located no guidance on boycotting that was readily available from ethics authorities within the federal judiciary or in published treatises.

The governing rules define cognizable misconduct as “conduct prejudicial to the effective and expeditious administration of the business of the courts,” a phrase that is “not subject to precise definition” and is illuminated primarily by examples. See Commentary on Rule 4; 28 U.S.C. § 351(a). The examples do not speak to boycotting. Some conduct not enumerated may be so obviously prejudicial to the business of the courts that it could properly be sanctioned, but the conduct at issue is not of that character. The Code of Conduct identifies other conduct protected by the First Amendment from which judges should abstain, but does not specify that a judge should refrain from the conduct that is the subject of this complaint. Three chief judges in other jurisdictions have concluded that participation in the same hiring boycott was not cognizable misconduct. Even assuming for the sake of analysis that this circuit’s judicial council might reach a different conclusion under the imprecise standard of Rule 4(a), it would unfair to hold the subject judge to such a standard without fair notice before the conduct was undertaken. The matter may be appropriate for study by those who revise and interpret the Code of Conduct, but a judicial-conduct proceeding is not the appropriate forum for developing or advising on the ethical canons.

ABA Journal, Boycotting Law Clerks to Pressure Schools Might 'Cross an Important Line,' 8th Circuit Chief Judge Says

Prior TaxProf Blog coverage:

• Fifth Circuit Judicial Council Upholds Dismissal Of Prisoner's Complaint Against 8 Trump-Appointed Federal Judges Who Vowed Not To Hire Columbia Graduates As Law Clerks (Aug. 7, 2024)
• 11th Circuit Joins 5th Circuit In Dismissing Complaint Against Judges For Refusing To Hire Columbia Law Clerks (Sept. 18, 2024)
• 7th Circuit Judicial Council Dismisses Misconduct Complaint Against Federal Judge For Columbia Law Clerk Boycott (Apr. 12, 2025)

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