Cynicism was ingrained in an exceedingly opaque clerkship process..

The Elite Legal World’s ‘Conspiracy of Silence’

What do the Kavanaugh hearings reveal about many of our top law schools, professors, judges and former clerks? A self-interested blindness, where every incentive works in favor of those with the most power.

By JOHN F. MULLER

After I graduated from Yale Law School in 2010, I clerked for federal appeals court judges in Boston and New York, two judges at a level akin to that of Judge Brett Kavanaugh. Both were Democratic appointees, named to the bench by President Bill Clinton.

I had applied to Judge Kavanaugh, too, but I never heard back. His silence was not surprising or, indeed, unusual. I applied to about 30 federal appeals court judges, and heard back from just five. Selection for clerkships is highly competitive and idiosyncratic.

Among my classmates, it was an open secret that to get a clerkship with a judge like Kavanaugh one should join the Federalist Society, a group that since the 1980s has sought, with great success, to bend the federal courts toward conservative ideology. Those of us not in the Federalist Society whispered about the motives of its members. Some clearly were true conservatives, but it was also clear that others, versed in the arts of self-promotion that had landed them at Yale, recognized that identifying themselves as conservative was a savvy career move. With the judiciary split roughly evenly between liberals and conservatives, and students split more like 80–20 in favor of liberals, opportunities abounded if you identified as conservative.

Perhaps our whispering was overly cynical. But cynicism was ingrained in an exceedingly opaque clerkship process, one in which game-playing was obvious, but the rules of the game were not. Distinction at Yale is not tied all that closely to grades: The law school abolished traditional grades in the late 1960s, adopting a system whereby there are essentially only two grades: Honors and Pass. Career advancement is tied particularly to networking—making a few well-connected faculty members see themselves in you, so that down the line they’ll call their friends on the bench. Clerkships were an obsession: a good one, we gathered, had the power to make a career.

The resulting patronage system fostered a sort of self-interested blindness on the part of faculty and students alike. Most federal judges, in my experience, are reasonable and desirable bosses for the handful of clerks they employ each year. Some, however, are not. And all preside, even more than the standard boss, over a dictatorship. Federal anti-discrimination laws do not apply to federal judges. Meanwhile, given their stature and connections, federal judges hold tremendous power over the reputations and career prospects of their clerks.

Notorious among the judges to avoid, when I was in school, was Alex Kozinski, the appeals judge for whom Kavanaugh clerked. Kozinski retired last year amid a flurry of sexual harassment allegations by former clerks, junior staff, attorneys and judges who accused the judge of behavior ranging from explicit comments to forcible and unwanted kissing and groping. (Kozinski has apologized for making “any of my clerks … feel uncomfortable,” but has also disputed these allegations.) Kozinski’s sexual innuendo—both in chambers and on an email list of former clerks—has become infamous, but when I was in school, the rumor mill among students spoke only in hushed and vague tones.

Typically, at least one of Judge Kozinski’s clerks each year came from Yale, propelled in part by connections from law professors. For faculty, sending students to clerk for judges like Kozinski and Kavanaugh—“feeder” judges whose clerks often go on to clerk on the Supreme Court—is a point of pride, a way to further distinguish oneself in the upper echelons of the legal profession. But the self-interested blindness of faculty can lead to obvious and tangible harms for students who become clerks. Kozinski’s harassing conduct, it seems, was an open secret: visible to those who knew to look, while hidden to those who didn’t—or didn’t want to see.

In recent days, students have questioned what their professors knew but did not tell them about the likes of Kozinski and Kavanaugh—or what they knew and quietly hinted at. According to a report in the Guardian, Yale Law professor Amy Chua told a group of students last year that it was “no accident” that Kavanaugh’s female clerks “looked like models.” Chua also reportedly recommended that a female student send Chua photos of the outfit she planned to wear to an interview with him, apparently to confirm it included a skirt. (Chua denies all of this.) Chua’s husband and fellow professor Jed Rubenfeld, himself under investigation at Yale for sexual misconduct, reportedly warned a student to steer clear of two judges: Kozinski and Kavanaugh. (One of Chua and Rubenfeld’s daughters, meanwhile, recently accepted a clerkship with Kavanaugh.)

Self-interested professors are not acting alone. Former clerks play a role too, keeping up the reputations of their bosses so that their experience as clerks will continue to be an asset—perhaps even a growing asset, say if their judge becomes a “feeder” judge or is nominated to the Supreme Court. There are, of course, those who opt out of this self-interested dance, like the brave Kozinski clerks who exposed his pattern of sexual harassment. (Kavanaugh, though a Kozinski clerk, has professed complete ignorance of any sexual comments by his former boss.)

At Yale, the career services office keeps former clerks’ reflections about their clerkships. Reading them, it is easy to see that even these anonymous, for-Yale-only questionnaires are tilted toward making the judges look good. For former clerks, the continued desirability of our judges serves our professional goals. And if, God forbid, we were to say something unbecoming about a judge and it got back to them, we might face the wrath of a person with the power to make or break our careers.

The result can be a conspiracy of silence, as incentives encourage people—law professors and former clerks alike—not to speak up about a judge’s bad behavior. We are tempted to keep quiet or to sugarcoat things, to trade self-interest for the truth.

This is a familiar impulse. At Yale Law School, we are told we will soon be leaders of the legal profession: judges and politicians, scholars and activists, movers and shakers. (The examples of famous graduates like Kavanaugh and the Clintons give weight to such claims.) Our success reaching those heights, we learn, depends not just on making allies among the faculty, but also on making allies among our classmates. There is something beautiful in the camaraderie that grows from this, produced in part by the de-emphasis on grades. But there is also pervasive pressure not to ruffle too many feathers, lest you alienate a classmate who could someday appoint you to the bench.

And so the game goes on, not just in the halls of Yale, but in the halls of power. Those in power who think their self-interests will be served by Kavanaugh’s confirmation have made clear that they are not interested in taking steps to investigate the truth of the sexual assault allegations against him—straightforward steps like enlisting the FBI or calling witnesses in order to engage in genuine fact-finding. Their “truth” is simply that Kavanaugh is a good man, period—a “truth” that requires no further inquiry aside from that which is necessary to dramatize its reaffirmation. So they do whatever they think it takes to keep up the man’s reputation.

We owe each other more than this self-interested blindness—at least we do if a law school like Yale’s is to rest on something deeper than the pursuit of power and prestige whatever the cost. And we owe each other more than that in politics, too, if our government is to rest on something deeper than the self-interested “truths” of those in power. Such “truths” are not self-evident; they are not even truths at all.