Federal judges in Southern Illinois say they have rescinded standing orders critics said encouraged discrimination against white males in their courtrooms, and which two judges conceded could be perceived to create improper discriminatory preferences.
On March 21, Judge Diane Sykes, Chief Judge of the U.S. Seventh Circuit Court of Appeals, announced the Judicial Council of the Seventh Circuit would not investigate further or take action against U.S. District Judges Nancy J. Rosenstengel, Staci M. Yandle or David W. Dugan.
In that opinion, Sykes noted the judges had all voluntarily rescinded the policies, though two of the judges, Rosenstengel and Yandle, waited until after a complaint had been filed and Judge Sykes, in her role as head of the Judicial Council, had launched a preliminary investigation and questioned them about the policies.
U.S. District Judge Staci Yandle
| U.S. District Court for the Southern District of Illinois
A complaint was first filed by in January by the America First Legal Foundation against judges Rosenstengel, Yandle and Dugan. All of those judges preside over cases in the U.S. District Court for the Southern District of Illinois, based in the Metro East region, near St. Louis.
Judicial Watch followed with a separate complaint.
According to the complaints, the judges all entered orders in 2020, which give greater opportunities for career-advancing oral arguments in court to attorneys who are "newer, female and minority."
Under the orders, the judges adopted procedures that if an attorney who meets their desired demographics is expected to argue a motion, the judges would grant the request for oral argument, if the judge believes it is "practicable" to do so; strongly consider allocating additional time for oral argument to those specific demographics of attorneys; and permit other, more experienced attorneys on the case to help the newer, female and minority attorneys during oral argument.
According to the orders, the judges said they understood there would be instances in which more experienced white male attorneys may still need to argue a motion and would "draw no inference" about the case or the arguments based on the decision not to send a newer, female or minority attorney to present the case in court.
The complaints asserted the policies amount to illegal discrimination and would lead Americans to "lose faith" in the judges' ability to fairly handle their cases.
“A reasonable observer would also lose faith in the judiciary on learning that a judge would even contemplate asking about a litigant’s attorney’s sex or race," wrote America First Legal Foundation's vice president and general counsel Gene Hamilton in its complaint. "That’s because the only reason a judge needs to know a lawyer’s race or sex in the first place is to discriminate based on it.”
According to Judge Sykes' March 21 opinion, Judge Dugan had voluntarily withdrawn the order back in 2022, following a review of all of his court's standing orders.
Sykes questioned "why America First did not examine Judge Dugan’s current case management procedures before filing its complaint. Nor is it clear how or where the organization obtained a copy of the inoperative October 2020 order."
She said Judicial Watch conceded it also could not find Dugan's order, but filed their own complaint against Dugan "based on news reports."
However, following the filing of the complaints, Sykes said she spoke with the judges about the complaints, confirming such policies could violate judicial conduct rules.
Sykes said both Rosenstengel and Yandle "recognized the concerns created by the language in their standing orders."
Sykes said the judges "acknowledged the problem and took voluntary action to correct it."
The judges then "rescinded the standing orders in question and removed references to "women and underrepresented minorities" from the orders.
Sykes said all the judges said "they have never granted or denied a request for oral argument based on an attorney’s sex, race, or other immutable characteristic."
In letters shared by the Judicial Council, both Rosenstengel and Yandle acknowledged the perception of discrimination from their orders.
Rosenstengel said she "chose the wrong means to accomplish my goal of expanding courtroom opportunities for young lawyers."
Yandle said: "... I acknowledge that as worded, the procedure and Standing Order created a perception of preferences based on immutable characteristics."
The judges revised the orders to state they would encourage "the active participation of relatively inexperienced attorneys in all courtroom proceedings, particularly with respect to oral argument on motions where that attorney drafted or contributed significantly to the briefing..."
In a release following Sykes' order, American First Legal Foundation said the actions by the judges amounts to victory for their complaints.
“The legal community plays a vital role in our democratic republic - ensuring that disputes are resolved in an unbiased manner based on the facts and the law in each individual case. When judges do things that provide benefits to litigants based on immutable characteristics - like race and sex - they tear at the fabric that holds our society together. We applaud these moves to rescind these illegal policies, and will continue to fight for equality under the law for all Americans wherever we can,” Hamilton said, in a prepared statement.