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Former Clerk Accuses Late Judge Reinhardt of Sex Harassment (4)

Feb. 13, 2020, 2:27 PMUpdated: Feb. 13, 2020, 9:01 PM

A former clerk to late liberal icon Judge Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit accused him of sex harassment, including crass commentary and displaying explicit drawings.

Olivia Warren, now at The Center for Death Penalty Litigation, made the explosive allegations on Thursday at a House Judiciary subcommittee hearing on the adequacy of workplace misconduct reforms in the federal judiciary.

Despite being warned to brace herself for “your grandfather’s sexism,” Warren said nothing “fully prepared me for the profane atmosphere I entered when I began my clerkship.”

The explicit written and oral testimony hit the same San Francisco-based court rocked by similar allegations against now-former Judge Alex Kozinski in 2017, revelations that trained #MeToo scrutiny on the judiciary.

Federal courts have taken steps since to address workplace misconduct issues, including the establishment of new protocols for employees to report harassment and other misbehavior. But the Democratic-led House has questions about whether they go far enough to protect employees.

A spokesperson for the Administrative Office of the U.S. Courts, which oversees the workings of the federal judiciary, said in a statement that no judiciary employee should suffer the kind of harassment described by Warren.

“We are deeply concerned about the new information we have learned through Ms. Warren’s statement to the House Judiciary Subcommittee this morning, and we take her statement very seriously. We are committed to addressing this new information and continuing to refine our processes and procedures for protecting our employees and addressing misconduct,” the spokesperson said.

Reinhardt died in 2018 at 87 after nearly 40 years on the Ninth Circuit, which didn’t immediately return a request for comment.

However, when Reinhardt died, Chief Judge Sidney R. Thomas said he was “rightly considered to be one of the giants of the law. He earned his reputation by virtue of a brilliant legal mind, an unmatched work ethic and deeply held principles. He resolutely pursued justice as he saw it.”

Reinhardt was championed as a liberal lion who often ruled in favor of those causes, only to see his rulings reversed by the U.S. Supreme Court. For instance in 2006, he penned the majority striking down the federal Partial-Birth Abortion Ban Act, prohibiting what was the most common form of post-first trimester abortion at the time. The Supreme Court reversed that ruling in an ideologically split decision.

Early in Clerkship

Warren said the harassment began early in her clerkship in 2017. In one incident, she said Reinhardt pointed out an explicit image he had drawn and later asked if he’d drawn the image accurately.

“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),” Warren said.

“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,” Warren said.

The harassment continued until Reinhardt’s abrupt death, but she said systemic barriers kept her from reporting the misconduct even after reforms were adopted.

Cornell law professor Michael Dorf, another former Reinhardt clerk, told Bloomberg Law that he has “no reason” to doubt Warren’s account but said he didn’t see such conduct first hand.

Dorf said he’d “witnessed numerous instances of what I regarded as his not-so-quaintly archaic views about gender roles.” But “in front of me he did not engage in the sort of expressly sexually demeaning behavior that Ms. Warren describes.”

Michele Landis Dauber, the Frederick I. Richman Professor of Law at Stanford Law School, reflected on her experience clerking for Reinhardt.

“Although I did not personally see or experience anything sexual in nature, much of what Olivia says rings true to me. He was not an easy person to work for and often seemed to enjoy needling clerks on subjects that he knew were important to them, including gender issues. Sometimes these comments went too far in my view, but I never saw anything I considered sexual harassment,” she said.

“I maintained a close relationship with the Judge and he was interested in and supportive of my anti-sexual violence work. However, just because I did not see or experience something doesn’t mean that Olivia didn’t,” Dauber said.

Heather Mac Donald, a fellow at the Manhattan Institute and contributing editor of City Journal who also clerked for Reinhardt, defended her former boss, calling the allegations “deplorable.”

“The judge needled everybody but it was always with a twinkle in his eye to get a rise out of people. This is hardly something confined to females,” Mac Donald told Bloomberg Law.

Mac Donald said she worked closely with Reinhardt when she was a clerk and remained in contact with him later in her career despite their political differences. Mac Donald is conservative, a stark contrast to the judge known for his liberal decisions.

“He was extraordinarily warm toward me,” Mac Donald said.

Power Imbalance

While Warren’s experience isn’t the norm among federal clerks, it also isn’t unusual, said Keker, Van Nest & Peters LLP associate Deeva Shah, who founded Law Clerks for Workplace Accountability.

Witnesses at the hearing tied the problem of sex harassment to the power imbalance between life-tenured federal judges and recent law school graduates whose careers often hinge on their relationship with those figures.

This “is not a sex or abuse problem, but rather a power problem,” said former Ninth Circuit clerk and journalist Dahlia Lithwick, who has spoken out about sex harassment she said she experienced from Kozinski.

Kozinski retired amid numerous harassment allegations, and said at the time it was never his intent to make his clerks feel uncomfortable. He apologized for doing so.

It “is fundamentally a problem of closed systems that rely, often reasonably, on secrecy and discretion on the part of every member of a judicial chambers,” said Lithwick, who now covers the courts for Slate.

It’s not enough for women to come forward, but the “machine” of judicial clerkship must bend in order for there to be any meaningful change, she said.

Changes Made

The “judiciary has made some meaningful improvements” in the past couple of years, but Warren’s testimony shows there is more to be done, said Rep. Hank Johnson (D-Ga.), who chairs the subcommittee on courts, intellectual property, and the Internet.

Prompted by the Kozinski allegations, the judiciary has created a working group to address sexual harassment and reporting mechanisms, revised its Code of Conduct to expressly include sexual harassment as prohibited misconduct, and appointed the first judicial integrity officer, among other reforms.

Additionally, most federal circuits have implemented new plans for reporting and resolving workplace misconduct. The Ninth Circuit, for example, hired a workplace relations director following the allegations against Kozinski.

But Shah said a cultural change is necessary, too.

The power imbalance between judges and their clerks is so pervasive that it really requires that other judges step in, Lithwick said.

Dorf said said that he shares “Ms. Warren’s broader view that the intense personal supervision that makes a federal court clerkship so valuable as an opportunity for a new lawyer to be mentored creates risks of abuse that the judiciary and, for our part, law schools, need to do a better job preventing and remedying,”

Declined to Testify

The courts’ office, which oversees the workings of the federal judiciary, was asked to testify at the hearing, but declined in a Feb. 7 letter.

The letter, signed by James Duff, the director of the courts’ office, said he was eager to go over workplace reforms, but declined to testify to avoid possible ethical problems with speaking about a 2019 reprimand of Kansas federal court judge Carlos Murguia for “multiple acts of serious judicial misconduct.” That matter is still pending.

Several Judiciary Committee members asked the courts’ office on Feb. 6 to address questions concerning workplace reforms and how they were applied in the Murguia case. It said it expects to reply to that request by Feb. 20.

(Updated to include comments from Michele Landis Dauber and Heather Mac Donald, both former clerks.)

To contact the reporters on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com; Melissa Heelan Stanzione in Washington at mstanzione@bloomberglaw.com; Madison Alder in Washington at malder@bloomberglaw.com

To contact the editors responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com; Jo-el J. Meyer at jmeyer@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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