This January, CIR fired off an amicus brief in Blessing v. Sirius XM Radio, Inc. challenging U.S. District Court Judge Harold Baer’s requirement that lawyers appointed to represent the plaintiff class have a gender and racial makeup that “fairly reflects” that of the class members.
Judge Baer argued that that proportional race and gender representation would make the class representation “better.” But this seems to presume that the legal interests of white clients are better represented by white lawyers, the legal interests of black clients better represented by black lawyers, and so forth. There is no evidence that the quality of legal representation by class counsel varies according to its racial make-up.
Judge Baer has issued such race- and gender-balancing orders in class actions before — the only federal judge ever to do so — and has never explained his basis in any detail. In its brief, CIR points out the obvious: these orders violate the equal protection principles of the Constitution because appointing lawyers based on their race or sex is governmental racial or gender discrimination that does not serve any governmental interest, let alone a compelling one.