Judiciary
Federal judge who sought female attorneys among class counsel has acknowledged sex-bias concerns, order says
A federal judge who called for female attorneys to be “adequately represented” on the leadership team for plaintiffs in multidistrict contraceptive litigation has “acknowledged the concerns created by her statements.” (Image from Shutterstock)
A federal judge who called for female attorneys to be “adequately represented” on the leadership team for plaintiffs in multidistrict contraceptive litigation has “acknowledged the concerns created by her statements,” according to an order closing an ethics inquiry.
U.S. District Judge M. Casey Rodgers of the Northern District of Florida “has taken appropriate voluntary corrective action that acknowledges and remedies the problems created by her statements,” wrote Chief Judge William H. Pryor Jr. of the 11th U.S. Circuit Court of Appeals at Atlanta in the March 20 order.
Conservative activist Mike Davis, the founder of the Article III Project—a conservative group—filed a complaint against Rodgers after she said during a Feb. 21 case management conference and in a Feb. 23 order that she thinks that female attorneys have to be “adequately represented” on the leadership team given the female plaintiffs in the contraceptive drug Depo-Provera litigation.
Davis had released the complaint and his organization, the Article III Project, published online articles about it. He alleged that Rodgers’ statements amounted to discrimination based on sex and constituted judicial misconduct.
Rodgers omitted references to sex when she invited applications for leadership positions in a Feb. 28 order. All applicants would be considered based on merit, she said in the order. Then, in a March 13 hearing allowing nearly 70 applicants to give presentations, Rodgers said she would not give preferences to women to avoid the appearance of impermissible sex discrimination.
Pryor said Rodgers’ voluntary corrective action was sufficient while warning that judges can’t discriminate based on sex when selecting class counsel.
Pryor noted a 2013 statement by U.S. Supreme Court Justice Samuel Alito in a cert denial in which he criticized a judge’s “unique” requirement that class counsel fairly reflect the composition of plaintiffs.
What Alito described as a unique practice “has been touted as a ‘best practice’ in multidistrict litigation,” Pryor said. “Commentators openly encourage judges who preside over these actions to consider impermissible characteristics like sex or race when they appoint leadership counsel.”
Notions about a lawyer’s ability to fairly and adequately represent class interests “must exist within the bounds of the rules that govern judicial conduct, and those bounds prohibit discrimination based on sex,” Pryor said.
Law360 and Reuters are among the publications with coverage of the order, noted by How Appealing.
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