NEW YORK Dec 6 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 Nov. 18 not to review a challenge to a class action
settlement that resolved antitrust claims against Sirius XM
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
Alito likened the practice to "court-approved
discrimination" and said it might warrant further review by the
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
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
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
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