U.S. Circuit Judges James Ho, Kyle Duncan, and Elizabeth Branch (Images: YouTube/screengrab of conformation hearing; Twitter/screengrab of Stanford speech; 11th Circuit).
Prominent federal judges at the forefront of the culture wars over free speech on the most prestigious law school campuses in America have weighed in on an incident at Stanford Law School, in which a fellow conservative judge was shouted down last week.
U.S. Circuit Judge James Ho, of the Fifth Circuit, and U.S. Circuit Judge Elizabeth Branch, of the 11th Circuit, opined in the conservative National Review on Wednesday that students who engage in such behavior should be subject to future professional consequences for their “intolerance.”
The judges wrote that schools should “at a minimum […] identify the disrupters so that future employers know who they are hiring” and “inform employers if they’re injecting potentially disruptive forces into their organizations.” Notably, Judge Ho obtained his bachelor’s degree from Stanford.
“Otherwise, more and more employers may start to reach the same conclusion that we did last fall — that we have no choice but to stop hiring from these schools in the future,” the Donald Trump-appointed federal judges wrote, in an op-ed that was published before they were scheduled to speak at Yale Law School.
Both judges previously endorsed a boycott on hiring clerks from Yale, over “concerns about the lack of free speech on law school campuses.” Some of their fellow jurists pushed back on that boycott and called it “regrettable.”
The latest commentary from Judges Ho and Branch were a response to what happened at Stanford Law School on March 9, where U.S. Circuit Judge Kyle Duncan, another Donald Trump appointee sitting on the conservative Fifth Circuit, appeared at a Federalist Society event. Duncan was heckled by student protesters over his writings and rulings on the bench — including one where the judge refused to refer to a transgender inmate by the appellant’s preferred pronouns. What followed was a series of disruptions and ugly exchanges, including one in which the jurist referred to a student as an “appalling idiot.”
As critics on the left slammed Duncan for displaying a less than judicious temperament, critics on the right concluded that the incident was just another example of a leading law school for elites doing nothing to stop the intolerant — even “Soviet” — progressive left’s ad hominem attacks on conservative speakers.
The day after the incident, Duncan himself gave an interview with the conservative Washington Free Beacon in which he said the students’ behavior was “dogs—.”
Calling his appearance a “bizarre therapy session from hell,” Duncan criticized Stanford’s associate diversity dean Tirien Steinbach and called for her ouster.
“If enough of these kids get into the legal profession,” Duncan told the Free Beacon, predicting that “the rule of law will descend into barbarism.”
Before clips of the speech started going viral, Stanford Law School Dean Jenny Martinez and the university’s president issued an apology to the judge on March 11, saying that the protest was “inconsistent with our policies on free speech” and the institution was “very sorry about the experience [Duncan] had while visiting our campus.”
“We are very clear with our students that, given our commitment to free expression, if there are speakers they disagree with, they are welcome to exercise their right to protest but not to disrupt the proceedings. Our disruption policy states that students are not allowed to ‘prevent the effective carrying out’ of a ‘public event’ whether by heckling or other forms of interruption,” the letter continued. “We are taking steps to ensure that something like this does not happen again.”
“Freedom of speech is a bedrock principle for the law school, the university, and a democratic society, and we can and must do better to ensure that it continues even in polarized times,” the apology ended.
In one video clip posted online two days after the Free Beacon interview, Tirien Steinbach could be heard telling the judge: “We believe that the way to address speech that feels abhorrent, that feels harmful, that literally denies the humanity of people — that one way to do that is with more speech and not less; and not to shut you down or censor you or censor the student group that invited you here. That is hard, that is uncomfortable, and that is a policy and principle worth defending even in this time. Even in this time.”
Here’s Dean Tierien Steinbach, whom Kyle Duncan demanded that Stanford *fire* after this event (and for whom @StanfordLaw formally apologized today), telling Duncan that he is “absolutely welcome” to speak, regardless of the content, and that the admin won’t censor him pic.twitter.com/io2rsXBBSL
— Jay Willis (@jaywillis) March 12, 2023
On March 12, another Duncan interview was published in conservative writer Rod Dreher’s Substack. He criticized students for “screeching” vulgarities at him rather than grappling with complex issues in an orderly and respectful manner:
It was a deeply unpleasant experience, but, no, I didn’t fear for my safety. We haven’t reached the point (yet?) where the kind of vicious invective thrown around thoughtlessly by coddled law students portends real violence. Still, had you been there, the loathing in the room for me and everything I supposedly stand for would have been almost tangible. And not only were my judicial opinions or my ideas attacked. The attack was intimately personal and, frankly, disgusting. If I talked to a dog the way those students talked to me, I’d feel ashamed. (Actually, there was a dog there, with paint on its fur in what is evidently one version of a transgender flag. But I don’t blame the dog).
Duncan took aim at “elites” and warned the very students sending “invective” his way would one day rise to powerful positions in “government, academia, big business, philanthropy, and so on.”
The judge also defended his angry reaction.
At some point in the “talk,” I just gave up and started trying to respond to the invective. And yes, I was angry. Sometimes anger is justified. Sometimes it is the appropriate response. I angrily told these jeering, howling students that what they were doing simply would not work in the courtroom, or in a law firm, or in a board room. They thought this was hilarious. They couldn’t care less.
The full audio of the Duncan-Stanford incident is now available for listening, thanks to David Lat.
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