Bench Memos

Re: A Baer of Very Little Brain?

Very happy to see Justice Alito’s statement, and thanks to you, Ed, for posting it. I had noted Judge Baer’s dubious track record in this area a few years ago, and soon thereafter the Center for Equal Opportunity filed a complaint against him, the substance of which read as follows (citations omitted):

It is generally unconstitutional for government actors to engage in discrimination or even use classifications based on race, ethnicity, or sex.  Indeed, such classifications and discrimination are “presumptively invalid.”  In addition, law firms are employers covered by Title VII of the 1964 Civil Rights Act [prohibiting employment discrimination on, inter alia, the basis of race, ethnicity, or sex], so Judge Baer’s order is also inconsistent with that statute.  Canon 2 of the Code of Conduct for United States Judges provides, “A judge should not hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion, or national origin; a fortiori, then, it would seem inappropriate for the judge himself or herself to engage in such discrimination.  Finally, for a judge to instruct law firms in the assignment of counsel in this manner raises Sixth Amendment (right to counsel) issues as well.

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