Federal judge criticized by Supreme Court Justice fires back

NEW YORK Fri Dec 6, 2013 6:17pm EST

U.S. Supreme Court Justice Samuel Alito delivers an address at the American Bankruptcy Institute's 26th annual spring meeting in Washington April 4, 2008. REUTERS/Jason Reed

U.S. Supreme Court Justice Samuel Alito delivers an address at the American Bankruptcy Institute's 26th annual spring meeting in Washington April 4, 2008.

Credit: Reuters/Jason Reed

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NEW YORK (Reuters) - A federal judge this week defended his custom of urging lead law firms in class actions to staff the lawsuits with women and minority lawyers, two weeks after U.S. Supreme Court Justice Samuel Alito took the unusual step of criticizing the practice.

The judicial dustup stems from the Supreme Court's decision on November 18 not to review a challenge to a class action settlement that resolved antitrust claims against Sirius XM Radio Inc.

Though it declined to hear the case, Alito wrote a six-page statement criticizing the practice of Judge Harold Baer, of U.S. District Court for the Southern District of New York, of encouraging firms that represent plaintiffs in class actions to assign lawyers that reflect the gender and racial makeup of the class.

Alito likened the practice to "court-approved discrimination" and said it might warrant further review by the high court.

In an interview with Reuters on Wednesday, Baer, 80, said that Alito lacked "either understanding or interest" in the discrimination faced by blacks, Latinos and women.

"So for him to talk about it as if this is something we shouldn't look at is unfortunate," Baer said.

Alito declined to comment through a Supreme Court spokeswoman.

In court orders, Baer has written that the practice is warranted under a federal rule governing the certification of class action lawsuits. The rule says a judge may, among other things, "consider any other matter pertinent to counsel's ability to fairly and adequately represent the interests of the class."

In the interview, Baer said that he does not require the firms to assign minority and women lawyers to cases. Instead, he said he notes the value of taking race and gender into account, and 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."

Baer, whom President Bill Clinton nominated to the bench in 1994, said Alito's salvo did not surprise him.

"I think the tongue-in-cheek answer would be that I was surprised because of how much he's done in the way of supporting anti-discrimination laws over the years," Baer said. "But that would be just a facetious comment."

He 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."

(Reporting by Bernard Vaughan; Editing by Noeleen Walder and Leslie Adler)

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Comments (7)
cheeze wrote:
Let’s give it a rest. Qualified people that are true professionals regardless of what or who they are is all that is needed. This race thing is getting old.

Dec 06, 2013 5:56pm EST  --  Report as abuse
WhyMeLord wrote:
Our SCOTUS can’t see the forest for the trees; who are these geeks?
Typical of high-brow, reality-challenged wanna-be kings and queens.
They’re so out of touch with the public view that it’s just pathetic.
Of course lawyers/judges should be representative of their clients.
How else can they have empathy for what their clients have been thru?
This concept is far too advanced for SCOTUS to comprehend; K.I.S.S.
Maybe they could have a fifth grader explain how empathy develops.

Dec 06, 2013 7:23pm EST  --  Report as abuse
Daleville wrote:
How about just appointing the best person for the job and skip the political correctness of it having to be a woman or a minority.

I am a woman and I would resent getting a job just because I am a woman. If I am not the most qualified person then I shouldn’t get the job.

Dec 06, 2013 8:21pm EST  --  Report as abuse
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