The promotion of diversity has been a well-known feature of the legal profession for many years. Surprisingly less well-known is the imposition of racial quotas on law firms by the actual courts themselves.
So-called “diversity orders” have been issued for years by federal judges in class-action proceedings to mandate that plaintiffs’ counsel be diverse enough to “effectively represent’” their class member-clients. The underlying assumption apparently being that proper representation can only be provided when counsel and class racially concord. Recently, the constitutionality of diversity orders was made the subject of a Supreme Court petition.
The case, Martin v Blessing, was an important one to watch. If review had not been denied, the more ideological judges within the federal judiciary might have seen the decision as a green light to impose more of these types of orders, not only in class-action proceedings, but perhaps elsewhere as well.
The Martin case derives from a 2010 antitrust lawsuit against Sirius-XM Radio, which raised fees on subscribers following the takeover of its only industry rival. Unhappy with the negotiated settlement (plaintiffs got a guarantee that subscriptions wouldn’t rise for 5 months, attorneys got $13 million in fees), class members filed another challenge which also included an objection to a “diversity order” made during class-certification proceedings. Before he agreed to certify class counsel, Manhattan District Court Judge Harold Baer Jr. ordered that they “ensure that the lawyers staffed on the case fairly reflect the class composition in terms of relevant race and gender metrics.” Aware of the huge fees lead counsel roles can bring, the candidate firm apparently failed to mount any protest and dutifully complied with the order.