(The Center Square) – America First Legal declared victory after three federal judges in Illinois rescinded policies promoting what the group calls “oral-argument affirmative action.”
The rescinded policies gave special privileges to “newer, female and minority” attorneys. Constitutional attorney and former attorney general candidate David Shestokas said the rescinding of the policies doesn’t have any precedential value.
“But the value is it puts other courts on notice,” said Shestokas. “If in fact they had done so this could consist of appealable error in the future, if in fact they had done this and made a decision based on oral argument and somebody got an extra 10 minutes and they were able in that 10 minutes to make points … that were not made before, there could very well be reversible error.”
A reversible error is an error in trial proceedings that affects a party’s rights so significantly that it is grounds for reversal if the affected party properly objected at trial.
The misconduct complaint filed by America First Legal contended that the judges were violating federal judicial conduct rules, violating the Fifth Amendment, and discriminating on the basis of race and sex. Shestokas said the Fifth Amendment establishes five rights, one being the right to due process.
“These judges were going to give preferential treatment to women or minorities when it came to granting of oral arguments and the judicial system is supposed to be impartial. It’s not supposed to give anybody a leg up based on anything in particular except what the facts and the law says,” Shestokas told The Center Square.
The rules that gave newer, Black female attorneys more time in oral arguments were discriminatory and illegal, he said.
“Oral argument is not something the court has to give somebody, but the standing orders of the judges said that they will give oral argument to litigants that have either a female or minority lawyer, pretty much illegal,” said Shestokas.
Under the Fifth Amendment, the rescinded judicial conduct rules would have interfered with somebody’s right to due process. Shestokas pointed out, however, the America First Legal complaint points to the equal protection clause in the Fifth Amendment. The amendment doesn’t have one.
“The Fifth Amendment does in fact apply to the federal government. The 14th Amendment does have an equal protection clause, it specifically says, ‘no state shall deprive any person of equal protection of the laws within its boundaries.’ The 14th Amendment applies to the states but doesn’t apply to the federal government,” said Shestokas.
The Fifth Amendment is known for the right to remain silent, right to a speedy trial, public trials and situations regarding protections against taking of your property without compensation, including that no person should be deprived of due process of law.
“Courts are not supposed to be about diversity, equity and inclusion, they are supposed to be about justice,” said Shestokas.
