Judicial-Misconduct Complaint Filed Against Judges Who Grant Oral Argument Based on Sex and Race of Attorneys

A follow-up to my post earlier this afternoon:

I’m very pleased to pass along that America First Legal has submitted a formal judicial-misconduct complaint against federal judges Nancy J. Rosenstengel, Staci M. Yandle, and David W. Dugan. Here are excerpts from its complaint, submitted to Seventh Circuit chief judge Diane Sykes:

Three judges on the U.S. District Court for the Southern District of Illinois— Chief Judge Nancy J. Rosenstengel, Judge Staci M. Yandle, and Judge David W. Dugan—have established policies of granting oral argument in a case based partly on a lawyer’s sex and race. 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 judges’ announced policies constitute intentional sex discrimination. The judges intentionally discriminate based on sex because the object of their policies is to explicitly condition a benefit—the award of oral argument time— on a lawyer’s sex. Consider an example: two lawyers appear in any of these three courtrooms. They are identical in all respects except that one is a man and one is a woman. If the man requested oral argument on his motion and oral argument is practicable, it might be granted. But if the woman requested oral argument on her motion and oral argument is practicable, it “will” be granted….

The judges’ policies are essentially oral-argument affirmative action for lawyers. The policies expressly reward “female” and “minority” lawyers. Though “race” is not expressly mentioned in the policies, it need not be, as the use of the word “minority” in context creates an inescapable inference that the judges’ shared policy impermissibly considers race….

The judges’ policies unconstitutionally discriminate based on race…. Any exception to the Constitution’s requirement of equal protection must satisfy strict scrutiny. The judges’ policies flunk that test…. There is no compelling government interest in judicial race- and sex-balancing for lawyers appearing in federal court…. [T]he policies are not narrowly tailored to achieve even their own asserted goal, let alone a compelling governmental interest….

To the extent the policies discriminate on sex, they also fail intermediate scrutiny. That exacting standard requires the government to advance an exceedingly persuasive justification for any sex-based classification….

In-court argument time is a precious limited resource—judges are busy. Because there’s a finite supply of available oral-argument time, apportioning it based on the immutable characteristics of a litigant’s counsel necessarily results in less time available for litigants whose lawyers are of non-favored races, sexes, and experience levels. Those disfavored lawyers notice. So do potential clients who realize they can get a leg up by hiring lawyers whose sexes and races are preferred by the court. Judicial bias of this sort trickles down through law firms and the client base; in that sense, it is both invidious and insidious.

This should be a slam dunk.