Yesterday Seventh Circuit Chief Judge Diane S. Sykes, acting on behalf of the Seventh Circuit Judicial Council, issued a ruling that vindicated America First Legal’s judicial-misconduct complaint. In particular, Judge Rosenstengel and Judge Yandle agreed to rescind their orders, and Judge Dugan disclosed that he had already rescinded his.
That said, considerations of judicial collegiality—perhaps dictated by the rules governing judicial-misconduct complaints—seem to have led Chief Judge Sykes to put a very gentle spin on her ruling. (I say this as someone who has great respect for Chief Judge Sykes.) In particular:
1. The ruling only implicitly acknowledges that the judges’ orders were unethical. It says that the judges took “appropriate voluntary corrective action that acknowledges and remedies the problem[]” raised by the complaint. That obviously vindicates America First Legal’s complaint. But it would have been much better if the ruling directly condemned their orders.
2. The ruling seems to accept at face value statements by Rosenstengel and Yandle that “they have never granted or denied a request for oral argument based on an attorney’s sex, race, or other immutable characteristic.” But such statements are both irrelevant and difficult to credit.
The judges’ statements are irrelevant because the orders that the three judges adopted deliberately induced law-firm partners and clients to discriminate on the basis of race and sex in deciding which attorney would argue a motion—and to inform the judges that they were doing so.
The judges’ statements are difficult to credit. Are we really supposed to believe that their orders were empty virtue-signaling?
Rosenstengel now states (in a letter attached to the ruling) that she has “routinely granted requests for oral argument except for a few rare occasions when I did not believe a hearing would assist me in deciding the issues.” But she lamented in her order that “there are generally fewer in-court advocacy opportunities,” and she adopted her discriminatory policy “[r]ecognizing the importance of the development of future generations of practitioners through courtroom opportunities.” She sure seemed to think back then that her order was significant.
As for Yandle, she doesn’t claim that she routinely grants requests for oral argument.
Because Rosenstengel and Yandle had a stated policy of automatically granting a party’s request for oral argument on a motion if the party stated that it intends to have a female or minority attorney argue the motion, how can they plausibly contend that they never based a decision to grant oral argument on an attorney’s sex or race—and indeed would never do so? When a party stated its intention to have a female or minority attorney argue the motion, are we really supposed to believe that Rosenstengel and Yandle set aside their stated policy?
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