The robust woke movement gripping the nation’s private and public sectors is also threatening judicial impartiality with three federal judges enacting unlawful race and sex discrimination policies that grant oral argument in cases based on a lawyer’s gender and race. The goal is to give young women and minority attorneys greater opportunities to argue in court, according to the judges, who benefit from lifetime appointments. Two of the federal judges—Nancy J. Rosenstengel and Staci M. Yandle—were appointed by Barack Obama and one—David W. Dugan—is a Donald Trump appointee. All three sit on the U.S. District Court for the Southern District of Illinois.
The unconventional policies adopted by the three jurists 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, according to a judicial misconduct complaint filed this month. To “encourage the participation of newer, female, and minority attorneys in proceedings,” the judges instituted a two-part process of discrimination, says the complaint filed by a conservative legal group. After a motion is fully briefed a party may alert the court that, if argument is granted, it intends to have a newer, female, or minority attorney argue the motion or a portion of the motion. The court will grant the request if practicable and “strongly consider allocating additional time for oral argument beyond what the Court may have otherwise allocated” but for the sex or race of the lawyer, the complaint reads. “The judges’ policies are essentially oral-argument affirmative action for lawyers,” according to the complaint, which points out that “the policies expressly reward female and minority lawyers.”
In the two-page orders, which are identical, the three judges explain that they are cognizant of a growing trend in which fewer cases go to trial and in which there are generally fewer in-court advocacy opportunities. “This is especially true for newer attorneys (attorneys practicing for less than seven years) in general, and women and underrepresented minorities in particular,” the orders state. “Recognizing the importance of the development of future generations of practitioners through courtroom opportunities, the undersigned Judge encourages the participation of newer, female, and minority attorneys in proceedings in my courtroom; particularly with respect to oral argument on motions where said attorney drafted or contributed significantly to the briefing for the motion.” The reality is that the judges have a legal duty to grant oral argument requests based solely on the case’s legal merits and not the lawyer representing the parties engaged in the litigation.
The judicial misconduct complaint stresses that few judicial acts are as confidence-shaking as an announcement by a federal judge that he or she will manage a case depending in part on the sex or race of a litigant’s attorney. “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,” the document states. “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.” The document further points out that ratifying the discriminatory policies as standing orders creates an official acceptance of long-outlawed forms of discrimination in the federal judiciary.
In a press release announcing the judicial misconduct complaint, the Washington D.C. group, America First Legal, writes that all Americans deserve equal treatment and opportunity under the law and the legal profession has a special duty to serve as an example for the rest of society. “This is particularly true for federal judges, whose conduct must be beyond reproach–particularly when it comes to policies that overtly discriminate against attorneys appearing before them based on their race or sex.” The group adds that the Constitution forbids using sex and race preferences to provide parties with in-court argument time. The practice leaves less time available for lawyers of non-favored races or the wrong sex, which of course, is not legal and cheats both plaintiffs and defendants.
