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Justice Alito rips NY federal judge for requiring race- and sex-based law firm staffing

Justice Alito rips NY federal judge for requiring race- and sex-based law firm staffing

Federal Judge Harold Baer requires that attorneys at law firms in class actions reflect the racial and gender make up of the class.

Supreme Court Justices occasionally issue statements in connection with the Court’s decision not to accept a case for review.  Sometimes the statement is in the nature of a dissent, other times just to make a point.

Justice Alito has issued a blistering statement in connection with the Court’s denial of a Petition for Writ of Certiorari in the case of Martin v. Blessing.  Justice Alito did not disagree with the decision not to take the case in light of the fact that the issue involved appeared isolated.

The issue was the practice of U.S. District Judge Harold Baer in the Southern District of New York in requiring that class action counsel ensure that attorney staffing of the case reflect the racial and gender of the class.  That practice, apparently unique to Judge Baer, sparked a lengthy statement by Justice Alito warning that if the Court of Appeals does not address the situation, future Supreme Court review may be warranted.

Think about it for a second.  While Judge Baer’s intent undoubtedly is to bring diversity to the case, what if the class itself is non-diverse?  What if the class constituted almost entirely white males, would Judge Baer insist that only white male attorney staff a case?  I think not.

Justice Alito’s statement was part of an Order list issued this morning.  I have extracted Justice Alito’s Statement, which is embedded at the bottom of this post.  Here’s an excerpt (emphasis added):

The petition in this case challenges a highly unusualpractice followed by one District Court Judge in assessingthe adequacy of counsel in class actions. This judge insiststhat class counsel “ensure that the lawyers staffed on the case fairly reflect the class composition in terms of relevant race and gender metrics.” App. to Pet. for Cert. 35a. The uniqueness of this practice weighs against review by this Court, but the meaning of the Court’s denial of the petition should not be misunderstood.

In July 2010, class plaintiffs moved to certify a federal antitrust class. Ibid. Class certification is governed by Federal Rule of Civil Procedure 23, which sets out the requirements that a putative class must meet to gain certification. One such requirement is adequate class coun- sel; subsection (g) orders the district court to consider four particular indicators of adequacy. It provides alsothat the district court “may consider any other matterpertinent to counsel’s ability to fairly and adequately represent the interests of the class.” Fed. Rule Civ. Proc. 23(g)(1)(B). Citing that provision, Judge Baer ordered that the three law firms appointed as interim counsel (and subsequently elevated to permanent counsel) “ensure that the lawyersstaffed on the case fairly reflect the class composition in terms of relevant race and gender metrics.” App. to Pet. for Cert. 35a.

Class certification orders that impose race- and sex based staffing requirements on law firms appear to be part of Judge Baer’s standard practice….

Nicolas Martin, a class member and petitionerhere, objected, not only to those terms, but also to JudgeBaer’s reliance on race and gender in assessing the adequacy of class counsel. Petitioner asked the Second Circuit to set aside the settlement as the tainted product of an invalid certification order. The Second Circuit rejectedhis challenge to the certification order on standing grounds, concluding that Martin failed to allege injury in fact. Martin now asks this Court to intervene.

Based on the materials now before us, I am hardpressed to see any ground on which Judge Baer’s practice can be defended. This Court has often stressed that “[r]acial discrimination has no place in the courtroom, whether the proceeding is civil or criminal.” Edmonson v. Leesville Concrete Co., 500 U. S. 614, 630 (1991). Court approved discrimination based on gender is similarly objectionable, and therefore it is doubtful that the practicein question could survive a constitutional challenge….

Where the demographics of the class can be ascertainedor approximated, faithful application of the District Court’srule would lead to strange results. The racial and eth-nic makeup of the plaintiff class in many cases deviatessignificantly from the racial and ethnic makeup of the general population or of the bar. Suppose, for example,that the class consisted of persons who had undergone aparticular type of treatment for prostate cancer. Would it be proper for a district judge to favor law firms with a highpercentage of male attorneys? …. To the extent that affluence correlates with race, would it be proper for a district judge in such a case to favor law firms with relatively low minority representation?

The Second Circuit did not decide whether the District Court’s practice is unconstitutional or otherwise unlawful because the court held that Martin lacked standing to challenge the order at issue….

Unlike the courts of appeals, we are not a court of error correction, and thus I do not disagree with the Court’srefusal to review the singular policy at issue here. I stress, however, that the “denial of certiorari does not constitute an expression of any opinion on the merits.” Boumediene v. Bush, 549 U. S. 1328, 1329 (2007) (Stevens and KENNEDY, JJ., statement respecting denial of certiorari). If the challenged appointment practice continues and is not addressed by the Court of Appeals, future review may be warranted.

Martin v Blessing – Alito Statement Re Denial of Cert

(Featured image CC-BY-SA-3.0/Matt H. Wade at Wikipedia)


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I did not know the justices could do this.

    They can’t. Or rather, they aren’t supposed to. This statement by Justice Alito pretty much quashes any further stupidity on the part of Judge Baer.

    “If the challenged appointment practice continues and is not addressed by the Court of Appeals, future review may be warranted.”

    Pretty much says, If you want SCOTUS to decide your fate in a harsh and completely final thrashing, continue acting stupidly.

Professor-we went to law school before the vision of the law as a normative means of changing society in a theoretical direction took firm hold.

Now it gets pushed by the accreditation agencies and ABA directly. Part of its vision of getting the US finally to John Dewey’s vision of democracy. I had seen it in the ABA’s sponsorship of the Civic Mission of the Schools reports that are not tied in the least to the US Constitution as it exists. I asked a question of a law prof on whether he was pressured to teach students that the law should be about securing the common good. He said no but later the Dean of the law school came up to me at the luncheon to say he might not be feeling the pressure but the administrators of the law school certainly were.

It is also consistent with a Google presentation I heard about two months ago where employees were to be members of classes to be represented in the workforce, not as individuals. I was appalled but the woman was talking about the need to change the nature of hard science coursework to get degrees and credentials in diverse hands.

    The Drill SGT in reply to Robin. | November 18, 2013 at 12:49 pm

    May that she and her only child (for what thinking person would have more than one) have the opportunity to drive across bridges designed by the graduates of such a program 🙂

    stevewhitemd in reply to Robin. | November 18, 2013 at 10:00 pm

    May that she and her only child never have the unfortunate need to seek treatment at an Emergency Department staffed by the graduates of such a program 🙂

I wonder how long it’s going to be before some decent attorneys file suit over the unconstitutional practice of limiting law profession to state bar approved law school graduates (which would have excluded Lincoln, back in his day). Everybody has the right to assume the risk of hiring someone to represent him/her in a legal conflict. Limiting the pool of available talent is no different than Zerocare’s exchanges limiting policies.

A bar card is not a warranty of fitness for a particular purpose nor is it a guarantee of competency to represent someone in legal matters. A bar card is nothing more than an acknowledgment of sufficient student debt level plus an ability to pass a time limited exam (which is the worst way to actually practice law).

As a paralegal, I cannot list the number of times I have had to school attorneys on such mundane subjects as derogation of common law, statutory construction, etc.

The key test to choosing an attorney or legal professional for representation is whether said attorney utters the phrase “I don’t know the answer to that legal question” (or similar verbiage). Virtually no attorneys will admit they aren’t God in the flesh while most paralegals will be too humble to take credit for what they do.

Yeah, I’m biased. So sue me. 🙂

“…in terms of relevant race and gender metrics.”

For me, that would be an easy hurdle to jump.

There ARE NO “relevant” race and gender metrics.

The ONLY people to whom any of these things matter are the bigots in the Collective, who seek to codify racial and gender discrimination in the law, regulation, and in policy.

    It’s only relevant if it is an actual cause of discrimination. However, in our society, there is a presumption of innocence. This means, among other things, that it is illegitimate to extrapolate from the general to reach specific conclusions. Their use of statistics to infer knowledge only creates circumstantial evidence. It should not be generally sufficient to make affirmative statements or to declare the guilt of an individual or party; and it should certainly be insufficient to mete out punitive punishment or engage in practices with that effect. That said, the court of public opinion is notoriously fickle and subject to manipulations.

So, a person who is not vulnerable to an accusation of personal interest in a case is not qualified to represent the plaintiffs? Weird.

Does this mean that a person handling a shareholder’s derivative action must be a shareholder?

A plaintiff’s attorney in a personal injury suit must be someone who has been injured and recovered damages?

A person representing air traffic controllers involved in a strike against the US government must be an air traffic controller?

A person representing criminals must be a convicted felon?

This is not a matter for the US Supreme Court: it is a matter for the local disciplinary committee.

Boy Howdy, is Alito gonna’ get reamed in next years ‘State of MY Union’ thingy.

Wouldn’t surprise me one bit, if barry stopped, pointed and said, ‘that’s TWO for you, Alito’.

You know, when it is YOUR private country you can do stuffs like dat..

Holy WTF ?

So, I’m a judge. Bet you didn’t know that. And in my court, I have a rule : ‘All hot looking babe lawyers must have their tits examined by me personally, orally and manually, in chambers, for at least an hour, so I can determine their authenticity before trial’.

Alito is going to say “Cert denied, the issue involved appeared isolated.’ ???

Really ?

    Paul in reply to pjm. | November 18, 2013 at 12:44 pm

    You missed the point. Alito said if the local judiciary(i.e. court of appeals) doesn’t fix it, then

    “If the challenged appointment practice continues and is not addressed by the Court of Appeals, future review may be warranted.”

    In other words, You locals better kabosh this stupidity, or We’re gonna take your case and put you the wringer.

    SCOTUS shouldn’t have to deal with these isolated idiocy cases, that’s a job for the lower courts to weed out before it hits SCOTUS.

You have to wonder which side some of these thug judges are on?

This will come up more frequently. Disparate impact is the new lefty thing. Dodd-Frank requires racial quotas. The DOJ is enforcing racial quotas. HUD just recently stated that an apt building built specifically for deaf people had to evict 75% of them because it was discriminatory to have a building be just for one slice of life. HUD will be requiring that communities/neighborhoods be forced to reflect racial quotas. Loans based on racial quotas. Blacks only taught by blacks. Blacks treated by black doctors, etc. I’m pretty sure we will see this manifestation in the Exchange networks. Republican, white males will be excluded from participating kinda like they closed all those republican GM dealerships. Critical Theory defines leftists and is what Obama actually taught as a lecturer (not professor)when he claims he was a constitutional scholar. Christian Adams has a piece out regarding the guy who is replacing Tom Perez at DOJ. This is what the DOJ has turned into. Race based justice.

    JackRussellTerrierist in reply to GoHawks. | November 18, 2013 at 2:19 pm

    If DOJ wants blacks to only be taught by blacks and medically treated only by blacks, it shouldn’t be long before the black race reaches extinction.

    And is all this an admission that integration didn’t work?

      That’s the most headshaking aspect to it to me. Martin Luther King Jr preached integration and equal justice under the law. Equal access to opportunity. Today it’s all about segregation. Quota’s necessarily require segregation as it attempts to achieve integration. Just cray cray. I’d never hire anyone who graduated from an Ivy League School anymore. They don’t know anything based on reality anymore. It’s critical theory – or made up folkstory telling.

      It’s not that integration didn’t work; it’s that at some point many in the black community decided that to be educated is to act white; to speak standard English is to act white. With that kind of attitude, you don’t have a lot of your own professional people.

So if I sue a federal judge, do I have to hire former (and moon-lighting) federal judges as my counsel ?

Just out of curiosity, does Federal Judge Harold Baer reflect the racial and gender make up of people in his court room?

    He does if the people in his courtroom are old white guys.

    Old: He received his LLB from Yale Law School in 1957.
    White guy: Google his name to see his photograph.

Diversity does not recognize individual dignity. It’s a myopic vision with a dark history. That said, I congratulate Alito for taking a stand against this regressive nonsense.

Face it, all this “diversity” quackery is antithetical to freedom.

In an ACTUAL free country, you have an inalienable right to pick and choose who works for you, who you teach, where you dine, who you serve, etc.

We have killed our country over a false god. Everyone is afraid to say what they think, and God forbid, they act on what they think – they’d be fined/sued to death.


    Juba Doobai! in reply to Karen Sacandy. | November 18, 2013 at 8:41 pm

    True freedom exists in the individual making his own decisions about how to be and do. When the government is not there to pick one up and rest one on some soft cushion, one quickly learns that hard work gets results and no work also gets results. One learns about choice and decision making, the hard way.

So hypothetically speaking, if a “class” consisting of 50% black and 50% latino with 50% men and 50% women (not necessarily the same 50% hires a one-person law “firm” for representation, how would that work?

Will any mixed-race and/or transgendered attorney be acceptable? Or do they have to hold out specifically for a mulatto hermaphrodite?

Harold Baer. I remember his name. I don’t remember the case details, but the guy is an idiot.

This is deeply insulting to any professional lawyer – or would be to any other professional in any other field. It’s like saying “despite your years of legal training and case experience, you’re not qualified to handle this case simply because your skin is the wrong color, or your genitals are incorrect.”

Denying people the opportunity to practice their craft, based on skin color or gender – the very essence of racism and sexism.