GOP Sens. Blast Ill. Judges' Moves For Diversity In Oral Arguments - Mr. Mark Smith, LL.M., CLDP

Two Republican senators are questioning what they say are "unethical and unconstitutional" standing orders issued by at least three judges in the Southern District of Illinois that aim to promote participation by newer, female and minority attorneys. Sens. Ted Cruz, R-Texas, and John Kennedy, R-La., the top Republicans on the Senate Judiciary Committee's Constitution and Federal Courts, Oversight, Agency Action and Federal Rights subcommittees, respectively, questioning the judges' alleged practice of granting oral argument requests based on an attorney's race or sex. In a letter sent Wednesday to Chief U.S. Circuit Judge Diane S. Sykes of the Seventh Circuit, which oversees the Illinois court, Cruz and Kennedy cite a legal complaint against the court's purported practice brought late last month by the conservative legal advocacy group America First Legal, which was founded by two top Trump administration officials. "In January 2020, Chief Judge Nancy J. Rosenstengel, along with Judge Staci M. Yandle, and later in October 2020, Judge David W. Dugan, issued nearly identical standing orders implementing a new policy regarding oral arguments in an effort to 'encourage the participation of newer, female, and minority attorneys in proceedings' in reaction to concerns about 'increasing opportunities for courtroom advocacy,'" reads the letter, shared exclusively with Law360, ahead of its public release. There were some variations between the orders, but "each establishes a policy under which oral argument requests are granted based on an attorney's race or sex rather than the substantive merits of the case or the importance of oral argument in clarifying the issue before the court," Cruz and Kennedy wrote. "Those disfavored 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," the group said in a complaint. "Few judicial acts are as confidence-shaking as an announcement by a judge that she will handle a case depending in part on the sex or race of a litigant's attorney." They added this is "unethical and unconstitutional," especially since the U.S. Supreme Court over the summer struck down affirmative action in higher education admissions. Cruz and Kennedy asked Judge Sykes for answers to a list of questions to better understand the scale and scope of what they deem a "discriminatory" practice. They also ask for information about any training the Seventh Circuit or Administrative Office of the U.S. Courts has provided for judges following the high court decision in Students for Fair Admissions v. Harvard . The district judges could not be immediately reached for comment, and the Seventh Circuit said it could not comment currently.