In January, I called attention to the fact that three federal judges in Illinois had each issued blatantly unethical and unconstitutional orders in which they committed to grant a party’s request for oral argument on a motion if the party states that it “intends to have a newer, female, or minority attorney argue the motion (or a portion of the motion).” Following my post, America First Legal filed a formal judicial-misconduct complaint against the three judges, Nancy J. Rosenstengel, Staci M. Yandle, and David W. Dugan.
Yesterday Seventh Circuit Chief Judge Diane S. Sykes, acting on behalf of the Seventh Circuit Judicial Council, issued a ruling that vindicated America First Legal’s judicial-misconduct complaint. In particular, Judge Rosenstengel and Judge Yandle agreed to rescind their orders, and Judge Dugan disclosed that he had already rescinded his.
That said, considerations of judicial collegiality—perhaps dictated by the rules governing judicial-misconduct complaints—seem to have led Chief Judge Sykes to put a very gentle spin on her ruling. (I say this as someone who has great respect for Chief Judge Sykes.) In particular:
1. The ruling only implicitly acknowledges that the judges’ orders were unethical. It says that the judges took “appropriate voluntary corrective action that acknowledges and remedies the problem[]” raised by the complaint. That obviously vindicates America First Legal’s complaint. But it would have been much better if the ruling directly condemned their orders.
2. The ruling seems to accept at face value statements by Rosenstengel and Yandle that “they have never granted or denied a request for oral argument based on an attorney’s sex, race, or other immutable characteristic.” But such statements are both irrelevant and difficult to credit.
The judges’ statements are irrelevant because the orders that the three judges adopted deliberately induced law-firm partners and clients to discriminate on the basis of race and sex in deciding which attorney would argue a motion—and to inform the judges that they were doing so.
The judges’ statements are difficult to credit. Are we really supposed to believe that their orders were empty virtue-signaling?
Rosenstengel now states (in a letter attached to the ruling) that she has “routinely granted requests for oral argument except for a few rare occasions when I did not believe a hearing would assist me in deciding the issues.” But she lamented in her order that “there are generally fewer in-court advocacy opportunities,” and she adopted her discriminatory policy “[r]ecognizing the importance of the development of future generations of practitioners through courtroom opportunities.” She sure seemed to think back then that her order was significant.
As for Yandle, she doesn’t claim that she routinely grants requests for oral argument.
Because Rosenstengel and Yandle had a stated policy of automatically granting a party’s request for oral argument on a motion if the party stated that it intends to have a female or minority attorney argue the motion, how can they plausibly contend that they never based a decision to grant oral argument on an attorney’s sex or race—and indeed would never do so? When a party stated its intention to have a female or minority attorney argue the motion, are we really supposed to believe that Rosenstengel and Yandle set aside their stated policy?
The letters from Rosenstengel and Yandle to Chief Judge Sykes lack candor in other respects. Rosenstengel contends that she had a “goal of expanding courtroom opportunities for young lawyers,” but her order emphasized “women and underrepresented minorities in particular.” She states that her order “created perceived preferences based on immutable characteristics,” but it created actual preferences based on sex and race. Yandle similarly now claims that her order was “an effort to expand courtroom opportunities for inexperienced lawyers,” but her order also emphasized “women and underrepresented minorities in particular.” She states that her order “created a perception of preferences based on immutable characteristics,” but it created the reality of preferences based on sex and race.
3. Sykes’s treatment of Dugan is even gentler. Dugan, we learn, rescinded his discriminatory order in October 2022 (two years after he adopted it). Sykes concludes that means that America First Legal’s complaint “lacked a factual foundation” when it was filed and is “conclusively refuted by objective evidence,” and should therefore be dismissed. But Dugan’s rescission does not alter the fact that his order constituted judicial misconduct, and the Judicial Council’s authority is not limited to ongoing misconduct. To be sure, American First Legal alleged ongoing misconduct. Should it file a new complaint that alleges Dugan’s past misconduct?
Sykes and Dugan (in his letter accompanying the order) also seem to fault American First Legal for not discovering that Dugan had rescinded his order. But a judge’s standing orders can be a hodgepodge. Dugan, having adopted an unethical and unconstitutional order, could fairly be expected to have had the burden to be explicit and unequivocal if he were repudiating that order. Given that his order treated “woman and underrepresented minorities in particular” as a subset of “newer attorneys … in general,” it was far from clear that his continuing preference for granting requests for oral argument for “relatively inexperienced attorneys” doesn’t embed that same discrimination on the basis of race and sex.
It is interesting to learn from Dugan’s letter that, so far as he can tell, no party ever availed itself of the discriminatory treatment he promised. I do not understand, though, how he can maintain that he never “granted, denied or even seriously entertained, access to oral argument … on the basis of race, sex, age or any immutable characteristic” when that is exactly what his order committed him to do. Surely he “seriously entertained” discrimination on the basis of race and sex when he issued his order.