(The Center Square) – Three federal judges in Illinois have standing orders for their courtrooms allowing extra time for oral arguments only for young lawyers who are either female or a member of a minority race. A recent complaint against the practice alleges the orders are unconstitutionally discriminatory.
America First Legal filed the complaint against three federal judges from the Southern District of Illinois with the chief judge of the Seventh Circuit U.S. Court of Appeals.
“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,” the complaint filed by Gene Hamilton of America First Legal Foundation says. “I ask that you carefully consider the contents of this complaint and, upon conclusion of your review, take appropriate corrective action to ensure that no lawyer appearing before the U.S. District Court for the Southern District of Illinois faces discrimination based on immutable characteristics.”
William Trachman, general counsel for Mountain States Legal Foundation, said in Colorado they have similar issues where judges are discriminating based on race, so he’s paying attention to the complaint in Illinois.
“It’s one thing to file a traditional complaint and hope that the judges change their ways, or that the chief justice slaps them on the wrist. It’s another thing to have their cases overturned or have their rulings rejected because they offered a hearing to an African American attorney that they wouldn’t have offered to a white person or an Asian person,” Trachman said.
Trachman said Illinois is more blatant with the discrimination because the three Illinois judges have adopted orders that say that the court will grant the request for oral argument for the minority or younger female if it is practical to do so.
“The key is that the ‘hearing will be granted,’ well, a hearing is a big benefit,” said Trachman. “You get to talk to the judge directly as opposed to just on paper.”
Trachman said Mountain States has not filed an official complaint in Colorado, but has submitted comments regarding the practice standards that have the language about encouraging law firms to hire, retain and send “diverse” attorneys to court. Trachman said the judges in Colorado haven’t defined what “diverse” means, but in Illinois he said it means new, female and Black.
“My engagement so far has been trying to figure a way to go beyond the judicial complaints that have been filed and brainstorm a way how an attorney or law firm could challenge these [practice standards],” said Trachman. “For instance, say an Illinois attorney is denied a hearing in the Illinois Southern District because he’s a white male, he could then seek an appeal all the way up to the Supreme Court saying, ‘these practice standards established violate the constitution.’ There ought to be a way, at some point, for someone to have injury and the standing necessary to challenge it and take it up higher.”
Trachman said although in Illinois the judges have adopted orders, each titled “Increasing Opportunities for Courtroom Advocacy,” in Colorado the judges have adopted practice standards with the same intent.
“We [Mountain States] haven’t yet filed a complaint or sought some sort of legal process like a lawsuit, but we are definitely paying close attention to this. It’s not just happening in Illinois, but in other places as well. Unfortunately it’s having a couple terrible effects. One being to treat people differently based on their skin color and sex,” said Trachman. “It’s the highest injustice, and to have it in the context of a courtroom is surprising.”
U.S. Sens. Ted Cruz, R-Texas, and John Kennedy, R-Louisiana, also wrote a letter to the chief judge of the Seventh Circuit.
“In January 2020, Chief Judge Nancy J. Rosenstengel, along with Judge Staci M. Yandle, and later in October 2020, Judge David W. Dugan, issued nearly identical standing orders implementing a new policy regarding oral arguments in an effort to ‘encourage the participation of newer, female, and minority attorneys in proceedings’ in reaction to concerns about ‘increasing opportunities for courtroom advocacy,"” the letter said. “This policy is both unethical and unconstitutional.”
Rosenstengel and Yandle were nominated by President Barack Obama. Dugan was nominated by President Donald Trump. Trachman served in the U.S. Department of Education as deputy assistant secretary in the Office for Civil Rights after being appointed by Trump.
“Even the judiciary has to abide by the Constitution even if it’s their own cases,” said Trachman.
