As Law360 has reported, U.S. District Judge Manish Shah of the Northern District of Illinois has said he will consider lead firms’ willingness to put young and diverse (minority and female) attorneys in positions to take substantive roles in the multidistrict litigation over alleged manipulation of the Chicago Board Options Exchange's volatility index, or VIX, that he is overseeing. Someone needs to state the obvious: This is an improper use of Judge Shah’s judicial power to appoint and remove interim and lead counsel.

First, the obligatory statements in my own defense to what is likely to come. Those who know me know that I am a pretty liberal guy. I supported Hillary. I gave money to Elizabeth Warren’s campaign after Mitch McConnell’s misogynistic remarks, even though I don’t agree with Warren on almost anything involving economic policy. I have defended female colleagues against sexual harassment and called out bad behavior even at considerable risk to my career. I strongly believe that young, female and minority lawyers are as capable (and sometimes as incapable) as old/middle-aged, male and white lawyers. And I understand and applaud any client’s desire to choose a law firm or a lawyer based on their youth and diversity to advance social goals, even as I am by this point a bit jaded at seeing some past clients trumpet such goals in public only to abandon them when a high-stakes trial actually occurred.

But to make such decisions is a client’s prerogative, not the place of a court. Judge Shah improperly usurps the rights of absent class members to have the best litigators — male, female, white, black, brown, old, middle-aged or young — regardless of his beliefs. He is not the client.

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