Do federal judges violate judicial ethics codes and the constitutional equal protection guarantee when they consider attorneys’ sex and race to decide whether and for how long to grant oral argument? Yes, argues conservative nonprofit America First Legal (AFL) in its judicial-conduct complaint filed on January 25. The complaint, addressed to Chief Judge Diane Sykes of the Seventh Circuit, alleges that three judges in the Southern District of Illinois have engaged in judicial misconduct by adopting policies that “unlawfully discriminate, evidence judicial bias, undermine faith in the judiciary’s integrity, and violate the equal protection guarantee of the Fifth Amendment.”

At issue are three virtually identical standing orders that Judge David Dugan, Judge Staci Yandle, and Chief Judge Nancy Rosenstengel promulgated in 2020 with the purported goal of “Increasing Opportunities for Courtroom Advocacy.” The orders instruct that a party requesting oral argument on pending motions can alert these judges that it plans to have “a newer, female, or minority attorney argue the motion (or a portion of the motion),” and in response, these judges “will . . . [g]rant the request for oral argument” if doing so is “at all practicable” (emphasis added). Further, the judges pledge to “[s]trongly consider allocating additional time for oral argument beyond what the Court may otherwise have allocated were a newer, female, or minority attorney not arguing the motion”—in other words, if a white male were arguing (emphasis added).

Note the comma placement: under this policy as written, even highly experienced female and minority law firm partners can expect to enjoy special consideration for oral argument time allocation. Note also that the policy on whether to grant oral argument is not discretionary or case-by-case, but mandatory. The Illinois judges who adopt it “will” (not “may”) grant the request for oral argument if a newer, female, or minority lawyer will argue.

In the wake of Students for Fair Admissions, AFL characterizes the judges’ 2020 policy as “oral-argument affirmative action” meant to “reward” female and minority attorneys by “explicitly condition[ing] . . . the award of oral argument time” on the sex or minority status of the lawyer. The policy thus constitutes “unlawful judicial race and sex discrimination” and so violates the Rule for Judicial Conduct and Judicial Disability Proceedings 4(a), Judicial Code of Conduct Canon 2(A), and the Fifth Amendment, says AFL.

AFL’s ethics argument hinges on whether the policy amounts to “intentional discrimination” and whether it will lead the public to doubt the judges’ impartiality. Rule 4(a) characterizes as “cognizable judicial misconduct” any “intentional discrimination on the basis of race, color, sex, gender” and other characteristics. By conditioning oral argument time on sex and race, AFL argues, the policy amounts to intentional discrimination and misconduct. Whether the judges implemented the policy matters little because its existence on the books will “erode public confidence in the judiciary,” says AFL. Under Judicial Canon 2(A), judges must act to promote the “public confidence in the integrity and impartiality of the judiciary,” but this policy will shake public confidence by suggesting that judges handle cases “depending in part on the sex or race of a litigant’s attorney,” the complaint reads. AFL also sounds the alarm about potential downstream effects of the judges’ policy. Giving preference to minority and female lawyers when deciding whether to grant oral argument may incentivize law firms to discriminate when staffing cases and clients to discriminate when selecting counsel.

For AFL, the policy is not only unethical, but also unconstitutional: it fails to satisfy strict scrutiny and so violates equal protection. According to the nonprofit, “there is no compelling government interest in judicial race- and sex-balancing for lawyers appearing in federal court,” and the goal of encouraging minority attorney participation is too “immeasurable” and “amorphous” to satisfy strict scrutiny post-Students for Fair Admissions. The policy is also not narrowly tailored but a “blunt racial classification[],” AFL suggests. With respect to sex, AFL flags that “nowhere have the judges established that female lawyers receive fewer courtroom opportunities than men because of their sex” and that this makes the policy “an impermissibly overbroad response to the purported harm.” AFL asks that (1) the policies be terminated, (2) an acknowledgment that such policies are judicial misconduct be published, and (3) Judges Dugan, Yandle, and Rosenstengel be publicly reprimanded or censured.

What drove these judges to adopt a policy that may subject them to serious professional consequences? In their own words, they sought to respond to “a growing trend in which fewer cases go to trial,” leaving “generally fewer in-court advocacy opportunities.” They presumed that prioritizing oral argument by “newer, female, or minority attorneys” would contribute to “the development of future generations of practitioners through courtroom opportunities.”

But that purported goal—training the next generation of lawyers by letting them argue—has been discussed and supported in the legal profession for years and has already been advanced by other, more neutral judicial policies. The ABA has been a vocal proponent of empowering newer lawyers to argue, and in February 2023, it adopted a resolution (building on prior resolutions in 2017 and 2021) urging courts to allow two attorneys per party to participate in oral argument, especially “where one of the lawyers is in their first ten years of practice.” Lawyers with less than 10 years of practice experience often take the lead in drafting documents and may possess deeper knowledge of the facts than their senior partners; they can make excellent oral advocates given the chance, but often, clients will not trust them to argue their case unless they are convinced to do so by senior counsel or (the reasoning goes) judges.  

Several federal judges have already adopted policies encouraging newer lawyers to argue, without considering minority status or sex. In 2017, late Senior District Judge Jack Weinstein (E.D.N.Y.) changed the individual rules in his courtroom to state that he was “amenable to permitting a number of lawyers to argue for one party if this creates an opportunity for a junior lawyer to participate,” but he left the “ultimate decision of who speaks on behalf of the client” up to “the lawyer in charge of the case.” Crucially, though he made this change after studying data on the “underrepresentation of female and minority attorneys in oral arguments,” he kept his policy race- and sex-neutral, optional, and deferential to the parties and lead counsel. Likewise, Judge Ann Donnelly’s (E.D.N.Y.) individual rules indicate that in her courtroom, a party’s representing that “a less experienced lawyer” will argue “will weigh in favor of holding a hearing.” She maintains discretion, and remains race- and sex-neutral, while prioritizing up-and-coming talent. Judge James Donato (N.D. Cal.) will “typically guarantee oral argument on any motion handled by a lawyer with 6 or fewer years of experience.” Meanwhile, Judge William Alsup (N.D. Cal.) takes a multi-pronged approach, requiring firms of over 50 lawyers to submit specific plans on how they will provide opportunities to lawyers with six or fewer years of experience and agreeing to hear oral argument on a motion if a lawyer no more than four years out of law school will argue. Judge Lee Rudofsky (E.D. Ark.) took a slightly different approach in March 2023 by guaranteeing ten minutes of oral argument time to principal drafters of amicus briefs who are in the first seven years of their legal careers.  These policies, and others, show that judges have several tools at their disposal to empower newer lawyers without considering immutable characteristics.

With its emphasis on sex and race, the Illinois judges’ policy is a different beast. Perhaps the most troubling aspect of the policy is the suggestion, without explanation, that women and minorities may be entitled to extra time for oral argument simply because they are women and minorities. There’s an obvious logic in cutting less experienced attorneys slack on timing, but the same is not true for female and minority attorneys across the board. The insulting implication of the policy, as written, is that even experienced female and minority attorneys cannot make as persuasive an argument in the same amount of time as white males. Assuming the judges don’t take this dim view of female and minority advocates, perhaps they hope to incentivize clients and law firms to hire, retain, and assign as lead counsel more female and minority attorneys. Is it the role of judges to seek to manipulate the market for legal talent in this way? That’s a far cry from saying what the law is.

Experience-focused policies that do not consider immutable characteristics may contribute to a tide that lifts all boats: the ABA reasoned in 2023 that allowing less experienced attorneys to share oral argument would “beneficially impact women and people of color,” because they “make up larger proportions of the populations of new and young lawyers.” Whatever the outcome of the ethics complaint, deleting “female” and “minority” from the Illinois judges’ policy would make it far less legally and ethically fraught. 

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].