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Federal judges end ‘oral-argument affirmative action,’ leading Stephen Miller group to declare victory

By Debra Cassens Weiss

March 25, 2024, 3:02 pm CDT

A legal group founded by Stephen Miller, a former senior policy adviser in the Trump White House, has declared victory after two federal judges in Illinois rescinded polices promoting what the group calls “oral-argument affirmative action.”

Chief U.S. District Judge Nancy J. Rosenstengel and Judge Staci M. Yandle of the Southern District of Illinois rescinded their policies after Miller’s conservative group, the America First Legal Foundation, filed a January misconduct complaint with the 7th U.S. Circuit Court of Appeals at Chicago, according to a March 21 memorandum and order by Chief Judge Diane S. Sykes of the 7th Circuit.

U.S. District Judge David W. Dugan, also in the Southern District of Illinois, was also targeted by America First Legal, but he had rescinded the policy in October 2022, Sykes said.

Reuters and Law360 have coverage.

The rescinded policies were intended to encourage “newer, female and minority” attorneys to argue motions. They provided that after a motion is briefed, a party may alert the court that a newer, female or minority attorney will argue the motion if a request for argument is granted. The court would then grant the request if practicable, would strongly consider granting extra time for argument, and would permit more experienced lawyers to assist.

The misconduct complaint had contended that the judges were violating federal judicial conduct rules, violating the equal protection clause of the Fifth Amendment, and discriminating on the basis of race and sex. A conservative second group, Judicial Watch, filed a misconduct complaint in March.

The judges’ revised policies now say oral argument by “relatively inexperienced attorneys” is welcomed or encouraged.

In a March 22 press release, America First Legal called the rescinded policies “an important victory for our Constitution and the rule of law.”

America First Legal has filed more than 100 lawsuits, Equal Employment Opportunities Commission complaints, amicus briefs and other legal demands over the past three years, the New York Times reports in a separate story.

The group has fewer than 10 lawyers, according to the New York Times. Only $1.7 million of its $44 million budget is used to pay lawyers, while $29.6 million is used for promotion and advertising, according to the New York Times.

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Judiciary

Federal judges wrongly engaged in ‘oral-argument affirmative action,’ group’s misconduct complaint says

By Debra Cassens Weiss

January 29, 2024, 3:15 pm CST

The conservative legal group America First Legal has filed a misconduct complaint against three federal judges in Illinois who issued orders intended to encourage “newer, female and minority attorneys” to argue motions.

The complaint, filed with the Chicago-based 7th U.S. Circuit Court of Appeals, contends the judges are violating federal judicial conduct rules, violating the equal protection clause of the Fifth Amendment, and discriminating on the basis of race and sex, according to a press release. Reuters and Law360 are among the publications with coverage.

The judges, all from the Southern District of Illinois, are Nancy J. Rosenstengel, Staci M. Yandle and David W. Dugan. Rosenstengel is the chief judge.

Their policies provide that, after a motion is briefed, a party may alert the court that a newer, female or minority attorney will argue the motion if a request for argument is granted. The court will then grant the request, if practicable; will strongly consider granting extra time for argument; and will permit more experienced lawyers to assist.

“The judges’ policies are essentially oral-argument affirmative action for lawyers,” the complaint says. The policies violate judicial canons requiring judges to act in a manner that promotes public confidence in the integrity and the impartiality of the judiciary, according to the complaint.

America First Legal has also targeted diversity efforts by corporations and a law review.