Conservatives Single Out Judges Over DEI Courtroom Policies (1)

Conservatives are targeting the judiciary’s diversity, equity, and inclusion efforts after successfully dismantling or chilling DEI in the private sector, universities, and the executive branch.

Advocacy groups and litigants are seeking to disqualify judges from cases or subject them to ethics proceedings over policies that encourage greater trial participation among historically underrepresented lawyers or invite litigants to share and respect preferred pronouns.

In recent examples, two Manhattan federal judges in February stepped off a racial discrimination case after lawyers accused them of including “racial preferences” in their courtroom policies. Another in Colorado refused to do so in a transgender athlete case after his policy regarding pronouns was targeted.

The efforts also predate President Donald Trump’s election. Last year, three Illinois district court judges rescinded standing orders aimed at increasing oral argument opportunities for “newer, female, or minority” lawyers after two conservative legal groups filed ethics complaints against them.

Pressure has increased as the Trump administration culls federal DEI policies and expands that pressure to corporate America.

“I worry that the purpose of these complaints and publicizing those complaints is to try to put pressure, not only on that judge, but also to get other judges perhaps to second guess themselves,” said Paul Grimm, a former Maryland federal judge and now director of Duke Law School’s Bolch Judicial Institute.

Widespread Policies

Federal judges across the US have policies inviting lawyers and their clients to notify them of preferred pronouns and honorifics, with some instructing parties to observe those preferences.

Conservatives say the policies unconstitutionally restrict speech and impose gender and political ideologies in what’s supposed to be a neutral venue.

Litigants can have an ideological opposition to “the idea that gender is a construct that isn’t immediately identifiable via sex, and so that is a well-founded free speech position that they’re being compelled to overrule to benefit third parties,” said Michael Fragoso, a former top aide to then-Senate Minority Leader Mitch McConnell (R-Ky.).

This opposition isn’t new. Kansas Attorney General Kris Kobach in 2023 filed an ethics complaint that targeted at least five district judges with preferred pronoun policies.

In 2024, Republicans criticized District of Oregon nominee Mustafa Kasubhai for guidance he created and said was voluntary for the use of pronouns and honorifics in his courtroom while a US magistrate judge.

Colorado US District Judge Kato Crews declined in February to step off a case regarding a collegiate athletic conference’s policy for transgender athletes. Lawyers alleged his policy for preferred pronouns restricts speech and demonstrates potential bias. Crews said his policy was to show “respect and courtesy” in court proceedings and shouldn’t be confused for “bias and prejudgement,” a requirement, or a threat for parties.

Judges have also adopted policies designed to provide junior lawyers ways to develop trial skills. Most opt for race and gender neutral language and say lead counsel has final say on who argues for the client.

Conservatives say judges who explicitly promote courtroom opportunities for women and people of color, who are generally underrepresented in the law’s senior ranks, potentially violate lawyers’ equal protection rights.

The Article III Project filed an ethics complaint in February against Florida US District Judge Casey Rodgers, who’s overseeing multidistrict litigation regarding the contraceptive drug Depo-Provera, after she issued an order emphasizing the need for female attorneys in the MDL’s leadership.

“Equal justice under the law” is not just a bumper sticker—it’s an expectation of everyone with business before the federal judiciary,” said Robert Luther III, a former Trump White House lawyer, over email.

“Obviously, judges should not be applying race or sex-based preferences to attorneys, litigants, or anyone in their courtrooms. To the extent judges do so, any impacted parties, including the Trump administration, should take appropriate action against the offenders to ensure equal treatment for all,” Luther said.

Judicial Independence

Federal judges, unlike corporations and universities, are in a unique position to resist anti-DEI efforts, ex-judges said.

Judicial independence, lifetime appointment, and other Constitutional protections are meant to insulate federal judges from political, financial, and personal retaliation.

Judges are also subject to a code of conduct, and ethics complaints and recusal motions are two ways the public can keep judges accountable. But ex-judges say these tools can be abused.

Ethics complaints typically aren’t public until findings are made, but conservatives have circulated filings beforehand to draw public scrutiny. Three Southern District of Illinois judges drew rebuke from Sens. John Kennedy (R-La.) and Ted Cruz (R-Texas) amid review of their orders that encouraged more courtroom participation from younger, female, and minority lawyers.

“These efforts to intimidate by bringing these frivolous complaints and by publicly attacking what should be, what I view, as laudable efforts by judges to help improve our profession, the legal profession, should be met with the truth,” said Timothy Lewis, a former US district judge and circuit judge in Pennsylvania.

Judges can self-disqualify from cases—preemptively or following a motion—if they deem their involvement could be biased or perceived as such.

For conservative groups and litigants aiming to intensify pressure on a judge, recusal motions and the judge’s response are public. US District Judge Analisa Torres backed off a racial discrimination case in February after Consovoy McCarthy lawyers argued her policy that encouraged “relatively inexperienced attorneys—in particular women and underrepresented minorities—to participate in all courtroom proceedings” amounted to racial preferences. Torres also scrapped mentions of women and underrepresented minorities from the policy.

Grimm said not all arguments against a given policy are without merit.

Judges have “tremendous discretion” over their courtroom procedures, but if an issue is raised, it can be an opportunity for a judge to reflect on whether the language of the order “might have gone too far” or if their policies have been misinterpreted, Grimm said.

Vanessa Gilmore, a former federal judge in Texas as of 2022, didn’t have written policies around participation opportunities for minority or junior lawyers, but she says judges can communicate support for diversity and inclusion in other ways. Courtroom hiring practices, calling on junior lawyers during court proceedings, or participating in programs to diversify the legal profession’s pipeline are some.

Even if a judge scraps a policy, “do you think that changes the judge’s attitude or beliefs about the necessity for inclusiveness with respect to the lawyers and law firms that come before their court?” Gilmore said.