On Thursday, January 25, 2024, the conservative legal group America First Legal filed a judicial misconduct complaint against three federal judges in the Southern District of Illinois.

The complaint alleges that Chief District Judge Nancy J. Rosenstengel, Judge Staci M. Yandle, and Judge David W. Dugan have established policies that discriminate on the basis of sex and race when granting oral arguments in cases. Specifically, the policies aim to increase opportunities for “newer, female, and minority attorneys” in courtroom proceedings.

According to the complaint filed with the 7th Circuit Court of Appeals, the judges’ standing orders say that after a motion is fully briefed, parties can request oral argument and specify their intent to have a less experienced, female, or minority attorney argue the motion if granted. The orders then state the court will grant such requests for oral arguments “if practicable” and “strongly consider” allocating more time beyond what would normally be given.

America First Legal, represented by attorney Gene Hamilton, argues these policies constitute unlawful discrimination and violate judicial conduct rules. The complaint contends the judges are violating federal judicial conduct rules. It also claims the policies violate the equal protection clause of the Fifth Amendment.

Specifically, the group contends the stated aim to encourage participation of certain groups is not a valid reason to use protected class preferences like race or sex. It argues the policies are not narrowly tailored to increase opportunities and inevitably means less argument time will be available for attorneys who are not of favored races, sexes, or experience levels.

The complaint requests the chief judge terminate the discriminatory standing orders, publicly acknowledge the policies violate judicial conduct rules, and issue public reprimands or censures against the three judges. It does not challenge any specific rulings but the propriety of the announced policies themselves.

America First Legal insists the mere existence of discriminatory policies undermines public confidence in the integrity and impartiality of the judiciary, regardless of whether the judges follow them in practice. It also claims the downstream effect could be increased incentives for law firms and clients to also discriminate in staffing cases and hiring attorneys.

The group argues the misconduct process is the proper way to remedy the situation, as a direct or interlocutory appeal would not fix the ongoing damage caused to the public perception of fairness in the courts. It provides copies of the judges’ standing orders as evidence and says their intent to discriminate based on protected characteristics is clear on the face of the policies.

A copy of the original filing can be found here.