Three federal judges in Illinois have implemented standing orders in their courtrooms that provide additional time for oral arguments exclusively for young lawyers who are either female or belong to a minority race. However, a recent complaint has raised concerns about the constitutionality of these orders, alleging that they are discriminatory.
America First Legal recently lodged a complaint with the chief judge of the Seventh Circuit U.S. Court of Appeals against three federal judges from the Southern District of Illinois.
Gene Hamilton of the America First Legal Foundation has filed a complaint, asserting that the policies in question not only constitute judicial misconduct but also unlawfully discriminate and evidence judicial bias. In addition, Hamilton argues that these policies undermine the integrity of the judiciary and violate the Fifth Amendment’s equal protection guarantee. Hamilton urges a thorough review of the complaint and the subsequent implementation of corrective measures to prevent lawyers from facing discrimination based on immutable characteristics when appearing before the U.S. District Court for the Southern District of Illinois.
According to William Trachman, the general counsel for Mountain States Legal Foundation, discrimination based on race by judges is a problem that is prevalent in Colorado as well. Therefore, he is closely following the complaint filed in Illinois.
According to Trachman, filing a conventional complaint and relying on the judges to change their behavior or receive a reprimand from the chief justice is one thing. However, it’s a completely different scenario when the cases are overturned or the rulings are rejected because the judges provided a hearing to an African American attorney that they wouldn’t have offered to a white person or an Asian person.
According to Trachman, the significant advantage of a granted hearing is the opportunity it provides to directly communicate with the judge, rather than just submitting written documents.
Mountain States has not filed an official complaint in Colorado, but they have submitted comments regarding the practice standards. These standards include language that encourages law firms to hire, retain, and send “diverse” attorneys to court. Trachman, a representative from Mountain States, mentioned that the judges in Colorado have not yet defined what “diverse” means. However, in Illinois, it is understood to refer to new, female, and Black attorneys.
Trachman has been actively engaged in finding a solution to surpass the filed judicial complaints and come up with a strategy for attorneys or law firms to challenge these practice standards. He proposes a scenario where an Illinois attorney, who happens to be a white male, is denied a hearing in the Illinois Southern District. In such a case, the attorney could potentially appeal all the way up to the Supreme Court, arguing that these practice standards violate the constitution. Trachman believes there should be a mechanism that allows individuals to challenge such practices and take their grievances to higher authorities, provided they can demonstrate injury and have the necessary standing.
Trachman noted that while Illinois judges have implemented orders titled “Increasing Opportunities for Courtroom Advocacy,” in Colorado, judges have adopted practice standards with the same purpose.
Trachman from Mountain States expressed their concern about the ongoing issue, stating that while they have not taken any legal action yet, they are closely monitoring the situation. They emphasized that this problem is not limited to Illinois but is occurring in other areas as well. Trachman highlighted the negative consequences of treating individuals differently based on their skin color and sex, which they consider to be a grave injustice. They also expressed their surprise at witnessing such discrimination within the confines of a courtroom.
U.S. Senators Ted Cruz, a Republican from Texas, and John Kennedy, a Republican from Louisiana, penned a letter to the chief judge of the Seventh Circuit.
“In January 2020, Chief Judge Nancy J. Rosenstengel, Judge Staci M. Yandle, and later in October 2020, Judge David W. Dugan, issued standing orders that introduced a new policy on oral arguments. The objective was to promote the involvement of newer, female, and minority attorneys in court proceedings. However, the letter states that this policy is deemed unethical and unconstitutional.”
President Barack Obama nominated Rosenstengel and Yandle for their respective positions, while President Donald Trump nominated Dugan. Trachman, on the other hand, was appointed by Trump to serve as deputy assistant secretary in the Office for Civil Rights in the U.S. Department of Education.
According to Trachman, the judiciary must adhere to the Constitution, even in cases that pertain to themselves.
