December 9, 2013

Discriminating judge undeterred by benchslap

By Jonathan Wood Attorney

Last month, Justice Alito issued a statement regarding the Supreme Court’s decision not to review a class member’s challenge to an order requiring discrimination in the selection of attorneys to represent the class. As Alito explained, the case didn’t merit review because only a single judge in the entire federal court system had adopted this bizarre reading of the federal rules—that an attorney should be the same race as the client in order to provide competent representation. Despite the decision to pass on the case, Alito concluded his statement with a warning: “If the challenged appointment practice continues and is not addressed by the Court of Appeals, future review may be warranted.”

Last week, the discriminating judge responded in an interview with Reuters. His reply—bring it on! Judge Baer—who has ordered that court-appointed counsel match the racial and gender demographics of the class in four cases—accused Alito of lacking “either understanding or interest” in discrimination. Baer defended his practice by noting that he directs the counsel he appoints to discriminate:

only in cases where the plaintiffs are mainly minorities and women. If plaintiffs were “all white Anglo-Saxon Protestants,” Baer said, “I would not likely be making these comments.

But this is exactly one of the problems that Alito criticizes Baer’s practice for. If taken seriously, this logic would mean that, if a judge were appointing class counsel for a lawsuit brought by predominately affluent, white stockholders, she should refuse to appoint black attorneys to represent them on the grounds of incompetence.

[Baer] said he was undeterred by Alito’s criticism and welcomed a Supreme Court challenge.

“That would be a wonderful thing,” he said. “They ought to do that.”

If Baer persists in his blatant discrimination, perhaps they will.

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