Supreme Court Justice Samuel Alito Slams Judge

By Jacob Gershman

Judge Shira Scheindlin can take comfort in that she’s not the only on the bench to be taken to the woodshed.

This time, it’s her colleague Judge Harold Baer, who also sits in the Southern District of New York, who’s come in for reproach. And it’s not the Court of Appeals for the Second Circuit doing the finger-wagging but a Supreme Court justice.

Justice Samuel Alito on Monday rebuked Mr. Baer for his practice of imposing racial and gender staffing requirements on law firms representing plaintiffs in class actions.

The justice’s concerns weren’t enough to trigger a review of the case at issue, a lawsuit challenging Judge Baer’s approval of a 2012 settlement between satellite-radio broadcaster Sirius XM Radio Inc.SIRI -2.00% and a class of its subscribers.

But in a statement accompanying the high court’s decision not to hear the case, Justice Alito criticized the judge’s practice — citing three other instances in which Judge Baer imposed similar racial and gender instructions — and warned him that if he keeps it up “a further review may be warranted.”

“I am hard­-pressed to see any ground on which Judge Baer’s practice can be defended,” wrote Justice Alito.

Judge Baer could not immediately be reached for comment on Monday.

When certifying the class in 2011, Judge Baer had required that class counsel “ensure that the lawyers staffed on the case fairly reflect the class composition in terms of rele­vant race and gender metrics.”

Public-interest litigator Ted Frank had claimed in a lawsuit that the judge’s mandate tainted the settlement, which included $13 million in fees to the plaintiffs’ lawyers.

Federal rules of civil procedure allow a district court to con­sider “any . . . matter pertinent to counsel’s ability to fairly and adequately represent the interests of the class.” But Justice Alito said he doubted that the provision “can be stretched to justify the practice at issue here.”

He continued:

It seems quite far-fetched to argue that class counsel cannot fairly and adequately represent a class unless the race and gender of counsel mirror the demographics of the class. Indeed, if the District Court’s rule were taken seriously, it would seriously complicate the appointment process and lead to truly bizarre results. . .

Suppose, for example, that the class consisted of persons who had undergone a particular type of treatment for prostate cancer. Would it be proper for a district judge to favor law firms with a high percentage of male attorneys? Or if the class consisted of persons who had undergone treatment for breast cancer, would it be permissible for a court to favor firms with a high percentage of female lawyers?

Mr. Frank told Law Blog that he felt “vindicated” by Justice Alito’s statement, adding that it “would have been nicer if the lower courts had gotten it right.”

An attorney for the plaintiffs in the original lawsuit declined comment

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