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.
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.
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