The America First Legal Foundation filed a complaint against three district judges in the U.S. District Court for the Southern District of Illinois, claiming “ongoing unlawful judicial race and sex discrimination” for policies established four years ago that allegedly “incentivize” law firms to task newer, female or minority attorneys with presenting oral arguments.
Gene Hamilton, vice president and general counsel of America First Legal, filed the complaint on Jan. 25 in the Seventh Circuit Court of Appeals, claiming the policies “erode public confidence in the judiciary.” He seeks remedy through termination of the alleged discriminatory policies, published acknowledgment that the policies constitute judicial misconduct, and public reprimand or censure.
“A reasonable observer would lose faith in the judiciary upon discovering that a court considers a lawyer’s sex or minority status when making important decisions about how cases are adjudicated,” Hamilton wrote. “A reasonable observer would also lose faith in the judiciary on learning that a judge would even contemplate asking about a litigant’s attorney’s sex or race. That’s because the only reason a judge needs to know a lawyer’s race or sex in the first place is to discriminate based on it.”
The complaint states that U.S. District Judges Nancy Rosenstengel, Staci Yandle and David Dugan “established policies of granting oral argument in a case based partly on a lawyer’s sex and race.”
“Those policies constitute judicial misconduct because they unlawfully discriminate, evidence judicial bias, undermine faith in the judiciary’s integrity, and violate the equal protection guarantee of the Fifth Amendment,” Hamilton wrote.
The judges did not respond to a request for comment.
According to the complaint, Rosenstengel and Yandle entered standing orders in January 2020 announcing new policies regarding oral arguments in their courtrooms. Then in October 2020, Dugan adopted a similar policy.
The policies note a growing trend of fewer cases going to trial; and the judges express concern over fewer in-court advocacy opportunities, especially for “newer attorneys in general, and women and underrepresented minorities in particular.”
“Recognizing the importance of the development of future generations of practitioners through courtroom opportunities, the undersigned encourages the participation of newer, female, and minority attorneys in proceedings in my courtroom, particularly with respect to oral argument on motions where that attorney drafted or contributed significantly to the briefing on the motion,” the policies state.
The judges adopted procedures that if a newer, female, or minority attorney is expected to argue a motion, then the court will grant the request for oral argument if it is practicable to do so, strongly consider allocating additional time for oral argument, and permit other more experienced counsel of record the ability to provide some assistance where appropriate during oral argument.
“All attorneys will be held to the highest professional standards,” the policies state. “All attorneys appearing in court are of course expected to be adequately prepared and thoroughly familiar with the factual record and the applicable law, and to have a degree of authority commensurate with the proceeding.”
However, the judges noted that they recognize there are circumstances in which it is not appropriate for a newer, female, or minority attorney to argue a motion and draw no inference from a party’s decision not to have a certain attorney conduct oral arguments.
In his complaint, Hamilton argues that the policies are “cognizable misconduct” and were announced under seal.
“The fact that the policies were announced under court seal aggravates the severity of the misconduct,” he wrote.
Specially, he argues that the policies “constitute intentional sex discrimination.”
“The judges intentionally discriminate based on sex because the object of their policies is to explicitly condition a benefit - the award of oral argument time - on a lawyer’s sex,” Hamilton wrote.
Hamilton also argues that the policies are “essentially oral-argument affirmative action for lawyers.”
“Though ‘race’ is not expressly mentioned in the policies, it need not be, as the use of the word ‘minority’ in context creates an inescapable inference that the judges’ shared policy impermissibly considers race,” he wrote.
Hamilton called the policies “confidence-shaking” as cases will be handled with the sex and race of a litigant’s attorney taken into consideration.
“Judges do not promote public confidence in the integrity and impartiality of the judiciary when they announce policies expressly favoring persons with certain immutable characteristics,” he wrote. “Public confidence in the judiciary is especially threatened when judges effect those policies through contemplated and actual exercise of the judicial power of the United States. By ratifying their discriminatory policies as standing orders, these judges stamped the federal judiciary’s imprimatur on long outlawed forms of discrimination.”
Hamilton argues that the alleged discrimination “incentivizes” second- and third-order discrimination, because law firms may consider sex and race when staffing cases and clients may discriminate when hiring lawyers.
Hamilton calls the judges’ goal of creating opportunities for “groups historically discriminated against” a noble goal, but rejects the objective. He argues that courtroom opportunities in “modern America” are not dependent on race and sex.
“Even if race and sex preferences succeeded in creating opportunities for some without imposing inequalities on others, the judges’ policies would still be judicial misconduct because a reasonable observer would lose faith in the judiciary on learning that a judge believes members of certain races and sexes are more deserving of court time than members of other races and sexes,” he wrote.