What are they thinking?!? So much for judicial impartiality.
Three federal judges in Illinois have each issued orders in which they commit 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).” They add the trivial qualifier “if it is at all practicable to do so.” (They define “newer” as “practicing for less than seven years.”)
So if a party wants to have oral argument on any motion—no matter how clear the merits, no matter how trivial the motion—all it needs to do is state that it “intends to have a newer, female, or minority attorney argue the motion (or a portion of the motion).”
These judges further state that they will “[s]trongly consider allocating time for oral argument beyond what the Court may otherwise have allocated were a newer, female, or minority attorney not arguing the motion.” And they will “[p]ermit other more experienced counsel of record the ability to provide some assistance to the newer, female, or minority attorney who is arguing the motion.” (The orders are nearly identical but there are some trivial variations; I’m quoting Rosenstengel’s.)
The three judges, all in the Southern District of Illinois, are Nancy J. Rosenstengel (who is chief judge in the District), Staci M. Yandle, and David W. Dugan. They issued their orders in 2020.
The judges attempt to justify these orders on the ground that there are now “generally fewer in-court advocacy opportunities” and that “[t]his is especially true for newer attorneys (attorneys practicing for less than seven years) in general, and women and underrepresented minorities in particular.”
But judges have a duty to grant requests for oral argument based on the merits of the requests. Those merits turn primarily on the importance of the matter being argued and the value that the judge anticipates that oral argument will have in clarifying how the matter should be decided. The scarcity of oral-argument time that the judges refer to makes it all the more important that judges use their brains to decide which matters merit oral argument.
Even worse here, of course, the judges are explicitly discriminating on the basis of sex and race. Such conduct is blatantly unethical and unconstitutional. A party that wants to have the attorney it deems best argue a motion risks being deprived of oral argument if that attorney is an experienced white male, but it is assured of oral argument being granted on any motion (“if it is at all practicable to do so”) if that attorney is female or a racial or ethnic minority. (The guarantee for “newer” attorneys is irrational but less obviously unethical and unconstitutional.)
It’s no surprise to learn that Rosenstengel and Yandle were appointed by President Obama. But Dugan is a very different story. President Trump appointed him in 2020. According to his Wikipedia page, he had been affiliated with Alliance Defending Freedom and had been a member of the Federalist Society since 2017. That doesn’t seem like the profile of a woke judge. Yet within two weeks of taking the bench, Dugan issued his order.