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Federal judge criticized by Supreme Court Justice fires back

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

By Bernard Vaughan

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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