Federal district judge William H. Orrick somehow thinks that it’s a proper part of his role as a judge to encourage lawyers who appear before him to discriminate on the basis of race and sex in the lawyers they enlist to work with them. According to this report lauding his actions, Orrick made this complaint at a recent hearing regarding approval of a class-action settlement:
It is stark to me that here you had 62 great firms, and apparently almost no Blacks or Latinos who are either lawyers there, or that the firms put up. There are excellent lawyers throughout this country who are not being involved in these MDLs [multidistrict litigations], and when it has such a huge percentage of the caseload, you have to do better. The courts have to do better.
Further, Orrick in that same MDL case ordered plaintiffs’ counsel “to provide a confidential demographic report detailing the plaintiffs’ lawyers involved in the case and the tasks they worked on, such as authoring briefs or chairing depositions, as well as addressing multiple factors such as race, sexual orientation and years in practice.” And after appointing women to 10 of the 21 leadership positions in that case, “he questioned why, according to the demographic report, so few of the appointed female lawyers handled depositions in the litigation.” (The answer from Sarah London, co-lead plaintiffs’ counsel: “we relied on a lot of hand raising,” i.e., on who stepped up to volunteer. Trying to appease Orrick, London cravenly condemns herself and her colleagues: “Implicit bias runs rampant, even within our ranks.” Ah, yes, the implicit bias of relying on those ready and willing to do the work.)
Orrick’s complaint and the demographic report that he requires plaintiffs’ counsel to provide have the obvious purpose of spurring plaintiffs’ counsel to take race and sex into account—i.e., to discriminate on those (and other) grounds—in forming their leadership teams and in doling out assignments. What possible business is it of Orrick’s to promote such discrimination? Why is his action itself not a violation of equal-protection principles? And does he care one whit that he is pushing lawyers to violate various federal and state laws?