WASHINGTON, D.C. – Today, America First Legal (AFL) filed a formal judicial conduct complaint regarding unlawful judicial race and sex discrimination by three district court judges, in violation of the Rule for Judicial-Conduct and Judicial-Disability Proceedings 4(a), Judicial Code of Conduct Canon 2(A), and the Fifth Amendment of the United States Constitution.

All Americans deserve equal treatment and opportunity under the law, and the legal profession has a special duty to serve as an example for the rest of society. This is particularly true for federal judges, whose conduct must be beyond reproach–particularly when it comes to policies that overtly discriminate against attorneys appearing before them based on their race or sex. 

Three judges on the U.S. District Court for the Southern District of Illinois – Chief Judge Nancy J. Rosenstengel, Judge Staci M. Yandle, and Judge David W. Dugan – have established policies of granting oral argument in cases based on a lawyer’s sex and race. These policies constitute judicial misconduct because they unlawfully discriminate, evidence judicial bias, undermine faith in the judiciary’s integrity, and violate the equal protection guarantee of the Fifth Amendment. 

In January 2020, Chief Judge Rosenstengel and Judge Yandle entered standing orders announcing new policies governing oral argument in cases before them. And in October 2020, Judge Dugan followed in their footsteps. In a purported effort to “encourage[] the participation of newer, female, and minority attorneys in proceedings,” the judges instituted a two-part process of discrimination: 

• 1. “[a]fter a motion is fully briefed,..a party may alert the Court that, if argument is granted, it intends to have a newer, female, or minority attorney argue the motion (or a portion of the motion).” 
• 2. Following the request, the court “will,” among other things, (1) “grant the request…if practicable” and (2) “strongly consider allocating additional time for oral argument beyond what the Court may have otherwise allocated” but for the sex or race of the lawyer. 

Using sex and race preferences to provide in-court argument time to parties is foreclosed by the Constitution. Apportioning in-court argument time based on the immutable characteristics of an attorney means less time is available for lawyers of non-favored races or the wrong sex. It is wrong and it must end.

Read the complaint here.

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