On February 20, 2024, Missouri Attorney General candidate Will Scharf criticized policies implemented by three federal judges in Southern Illinois that aim to increase opportunities for “newer, female, and minority attorneys” in courtroom proceedings.

Scharf, appearing on the Dan Proft Show, a radio talk program in Chicago, said the judges in question – Chief District Judge Nancy J. Rosenstengel, Judge Staci M. Yandle, and Judge David W. Dugan of the U.S. District Court for the Southern District of Illinois – should be instructed on equal protection principles.

“I think these federal judges should be remanded back to the first year of law school constitutional classes that they apparently missed. Equal protection means equal protection, that’s just not a distinction you’re allowed to make under the law,” Scharf said.

The policies at issue grant requests for oral arguments “if practicable” and “strongly consider” allocating more time if the requesting party intends to have a less experienced, female, or minority attorney argue the motion.

Scharf criticized this approach as “setting up a segregated system of justice depending on the color of your counsel,” calling it “absolutely insane.”

His remarks came in response to a judicial misconduct complaint filed against the three judges by the conservative legal group America First Legal.

In the complaint filed on January 25 in the 7th Circuit Court of Appeals, America First Legal argues the judges are violating federal judicial conduct rules and the equal protection clause by implementing preferences based on characteristics like race and sex.

The group contends allocating argument time and opportunities based on protected traits is not a valid means of increasing participation. It insists the policies will necessarily mean less time is available for attorneys who are not of favored groups.

America First Legal has requested the termination of the “discriminatory” standing orders and the issuance of public reprimands against the judges. However, it does not challenge any specific rulings.

In criticizing the policies, Scharf echoed the argument that considering protected traits like race in this manner violates principles of equal protection. His remarks illustrate the controversy generated by the judges’ stated aim to promote diversity through their courtroom procedures.

The complaint remains pending before the federal judiciary. How it is ultimately resolved could impact the debate over the permissible bounds of diversity initiatives within the legal system.