Since the conversation on sexual harassment in the workplace broke open (again) in the fall of 2017, many smart people have tried to explain the dynamics of the abuse. Again and again it has come back to a simple maxim—that harassment is not only, or even predominantly about sex; it is about power. And so we have spent the past few years trying to unpack how various industries and offices foster power imbalances that allow for such abuse, from the casting couch to academia (and beyond and beyond). One field that operates around a particularly terrible set of power dynamics is the one that is hypothetically tasked with correcting these problems: the law.
It cannot be overstated how influential the clerkship is in elite legal circles. Young law students at the country’s top law schools often start thinking about their clerkship opportunities in the first weeks of their first year of law school, since whom they first clerk for can determine whom they might go on to clerk for, all the way up to the opportunity to clerk at the Supreme Court, an honor that comes not only with professional opportunities but with extraordinarily lucrative signing bonuses. Top students often secure their clerkships in that very first year of law school and go on to work—it is understood, ferociously, constantly, and without complaint—for federal judges who are beholden to no real system of accountability. As a result of reporting in Slate and elsewhere over the past few years, it has become clear just how dangerous that lack of accountability can be.
On Thursday, the House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet held a hearing on “Protecting Federal Judiciary Employees From Sexual Harassment, Discrimination, and Other Workplace Misconduct.” Congress is the body that oversees the federal judiciary, and, as the press release announcing the hearing notes, “Under current law, employees of the Federal Judiciary do not have protections from harassment, discrimination, and retaliation afforded under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, and Americans with Disabilities Act of 1990.” That release also notes that new rules and policies on how to handle workplace harassment in the judiciary were put into place just under a year ago, in March 2019, after several former clerks (including my colleague Dahlia Lithwick) disclosed that they had been harassed by or had witnessed harassment by a specific judge, Alex Kozinski, who retired from the 9th U.S. Circuit Court of Appeals but whose behavior was never formally investigated nor punished. In fact, when onetime Kozinski clerk Brett Kavanaugh was asked at his Supreme Court hearing about the allegations against Kozinski, he insisted repeatedly that he never witnessed any untoward behavior from the judge. (In announcing his retirement, Kozinski wrote, “It grieves me to learn that I caused any of my clerks to feel uncomfortable; this was never my intent. For this I sincerely apologize.”)
Kozinski’s record had been complicated even before these women spoke up: In 2008, the Los Angeles Times broke a story about a private email server he maintained to send crude, often sexually themed jokes, and he was lightly reprimanded by the judiciary for maintaining a publicly accessible website that contained pornographic images (the reprimand was that he had been careless in letting it be public). Thursday at the House Judiciary hearing, another former clerk, Olivia Warren, testified about her experiences clerking for a different judge, one with no such record—former 9th Circuit Judge Stephen Reinhardt. When Reinhardt passed away in March of 2018, Slate’s obituary described him as possibly the nation’s most liberal federal judge, a man whose career included “unapologetically defending LGBTQ equality, abortion access, women’s rights, immigrants’ rights, and free expression while opposing capital punishment, mass incarceration, and police brutality.” He, like Kozinski, was also known as a feeder judge for Supreme Court justices.
Warren testified Thursday that he was also a sexual harasser. Warren, a graduate of Harvard Law School, spoke to the House Judiciary Committee about her experiences clerking in Reinhardt’s chambers from May 2017 until the judge passed away in March 2018. Her testimony, which was followed by Lithwick’s own, is sickeningly familiar. She recounts being told by everyone around her at Harvard that a clerkship would be a “singular opportunity” and how a former clerk for Reinhardt, who was also her mentor, helped her secure a coveted spot with Reinhardt in her first year of law school. She talks about the unquestionable prestige attached to the clerkship and her excitement about Reinhardt’s reputation as a “liberal lion” given her professional ambitions. She tells of being warned by several people, including former Reinhardt clerks, that she would need to “brace” herself for “your grandfather’s sexism.” And then she goes on to detail her experience with that sexism, which was more than sexism, and how it felt.
Warren says that in her first days as a clerk, Reinhardt asked her if an image he had drawn, of nipples on a sine curve, was an accurate representation of her breasts. She learned of Reinhardt’s tendency to ask his other clerks to judge his selection of future clerks based on their physical appearance, of the shelf he reserved in his office for photos of him with the clerks he deemed attractive, and his code words for attractive and unattractive clerks. And, Warren says, he harassed her personally, directly, specifically. From her testimony:
Judge Reinhardt routinely and frequently made disparaging statements about my physical appearance, my views about feminism and women’s rights, and my relationship with my husband (including our sexual relationship). Often, these remarks included expressing surprise that I even had a husband because I was not a woman who any man would be attracted to. In that vein, Judge Reinhardt often speculated that my husband must be a “wimp,” or possibly gay. Judge Reinhardt would use both words and gestures to suggest that my “wimp” husband must either lack a penis, or not be able to get an erection in my presence. He implied that my marriage had not been consummated.
Warren was clerking for Reinhardt at the same time that several women were speaking out about the harassment they had experienced as clerks for Kozinski. She recounts in her testimony how this infuriated Reinhardt and how he responded by telling Warren that women were liars, that he would not hire female clerks going forward, and that he was more at risk of sexual harassment from her than she was at risk from him. When Slate published Lithwick’s piece describing the harassment she witnessed from Kozinski, Reinhardt, according to Warren, had his clerks read the piece and then started a conversation on it by stating, “No one ever ogled Dahlia Lithwick.” (I am Lithwick’s editor, and I edited and fact-checked that piece.)
In her testimony, Warren also outlined her efforts to use her own personal experiences with sexual harassment in other contexts to explain the reality of abuse to her boss, whose job, it is worth remembering, is interpreting and dictating the law. “I have not attempted here to recount every instance of sexual harassment that I experienced or witnessed while clerking for Judge Reinhardt,” she said Thursday on Capitol Hill. “Indeed, after Dec. 8, 2017, there may have been a day in which I was not harassed (whether by reference to my physicality, my intellectual capacity, my feminism, my gender identity, or my sexuality), but I cannot remember one after searching my memory.” She spoke about her fruitless attempts to report the harassment to anyone at the judiciary or at Harvard after Reinhardt had died and, crucially, of the difficulty in speaking up at all:
There are systemic barriers to reporting harassment and misconduct by judges that are unique to the legal profession, and uniquely formidable in the context of the relationship between law clerk and judge. The consequences of miscalculating the risk of possibly offending a judge are fraught with a peril that does not dissipate with time and can hang over one’s entire professional career. For a law clerk, at the precipice of his or her legal career, alienating a federal judge can spell doom for their life in the law. And it is not only the judge him or herself from whom retribution is feared. Judges have networks of former law clerks to whom the judge’s reputation is inextricably intertwined with their own: These former clerks have made their name, in part, by reference to the reputation of the judge for whom they clerked. This group therefore has reasons both devoted and selfish to want to protect the judge’s reputation at all costs.
Judge Reinhardt’s clerks are dazzling, particularly to a young lawyer committed to public service. The Reinhardt clerks are legal luminaries in the field of public interest law whose accomplishments befit having clerked for a liberal lion: law school faculty, politicians, and prominent members of the civil rights and criminal defense bars. I was terrified of offending them; I still am. I draw attention to this fact because it is yet another barrier to reporting harassment for law clerks—the possibility of immediate retaliation by the judge is supplemented by the possibility of long-term retaliation by those devoted to protecting his reputation and remaining in his good graces.
In 2018, Lithwick and I reported on a facet of this toxic system: how the clerkship pipeline seemed to incentivize Yale Law students to tolerate harassing behavior from their professors, out of a desire not to rock the boat or possibly jeopardize crucial letters of recommendation they might need to get in the door in the first place. (In her testimony, Warren noted that in her conversations with Harvard Law faculty, she “emphasized that students rarely hear about negative clerkship experiences for many of the systemic reasons that I have explained,” and that she told several members of the Harvard Law administration “how misled I felt by the institutional push to clerk.”)
The hearing was not intended to try a judge for something he is not able to answer for but rather to bring these dynamics into the open, to explain them to the very committee tasked with overseeing the judiciary. The new rules enacted in 2019 emphasize judges’ requirement to report misconduct and clarify that retaliation against those who do report is unacceptable, but there is little transparency around corrective actions for judges as courts are not required to publicly disclose how they resolve such complaints. Broader judicial reforms are still in the works, including from the newly created Office of Judicial Integrity, and the hearing was one step in an attempt to gain more information about the problem.
After Warren’s testimony, the members of the subcommittee asked questions. When asked to elaborate on how she felt the system had failed her, Warren spoke of the desperation of seeking answers and allies and finding only silence, and of trying to find a safe way to report the abuse. “This burden should not have been on me,” she said.
Warren told the committee that other women considering clerkships had heard rumors of abusive judges and asked her for advice on how to proceed. She had tried to help those women, but she expressed frustration about law students’ reliance on whisper networks in the absence of real protections. “It is not fair that only a few people should understand the risks,” she said. When asked about her decision to come forward, Warren made it clear that it wasn’t an easy one to make. For a long time, she told almost no one. “It was only after Dahlia Lithwick published her piece that I reached out to a mentor of mine,” she said. The mentor told her something she had never considered before: that she had the option to leave the clerkship. But as other women in the hearing made clear: Prestigious clerkships like the one Warren had with Reinhardt are considered an opportunity just too valuable to question.
Additional reporting by Molly Olmstead.