Bench Memos

Un-Baer-able Judicial Behavior

Federal district judge Harold Baer (of the Southern District of New York) earned notoriety more than a decade ago when he first implausibly ruled, despite a mountain of evidence (see Wikipedia’s summary), that the police did not have reasonable suspicion to search a car that turned out, surprise!, to be loaded with cocaine and heroin, and then, in the face of intense public criticism and suggestions by President Clinton that he would ask Baer (his own appointee) to resign, reversed his ruling. (Note to liberal judicial activists: If you’re going to commit wild rulings, it plays somewhat better if you maintain the pretense that you’re doing what the law requires.)

I see that Baer is now back in the news (subscription required) for ordering two law firms in securities litigation in his court to “make every effort” to assign at least one woman and one minority lawyer to the litigation—and then for backpedaling on his order. According to the Law360 article, Baer’s initial order rested on the reasoning (if I may use that term loosely) that the law firms representing a proposed class of plaintiffs who were “arguably from diverse backgrounds” should ensure racial and gender diversity in their legal teams.

What possible authority would Baer have for such an order—or even for the slightly more subtle encouragement that he has apparently retreated to? To be sure, Rule 23 of the Federal Rules of Civil Procedure provides that a judge, in appointing counsel for a party class, “may consider any … matter pertinent to counsel’s ability to adequately represent the interests of the class.” But might it really be Baer’s position that the race and gender of a lawyer—or the racial and gender diversity of a legal team—are pertinent to the ability to represent the interests of the class? (And even if one might hypothesize extreme cases where that might seem plausible, is there anything about this securities litigation that would warrant such a position?)

Update: Here’s a article on Baer’s order. Baer’s explanation reinforces my view that he has no authority to do what he’s doing. But if he does have such authority, why not also micromanage the firms’ compensation systems to achieve Baer’s vision of race and gender equity?


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