Federal Courts Recent Event

Recent Event: House Judiciary Committee Hearing on Harassment and the Judiciary

Like any workplace, the federal judiciary is vulnerable to instances of sexual harassment and abuse.  Clerks, in particular, are vulnerable to such treatment.  The relationship between a clerk and a judge is one that requires secrecy and loyalty, and carries with it an immense power imbalance.  These factors, coupled with the fact that the judiciary’s reporting systems are inadequate to the task, has led to a systemic problem.  In December 2017, Ninth Circuit Judge Alex Kozinski retired from the bench after having been accused of misconduct by at least fifteen women.  Although the judiciary has since taken steps to improve its handling of harassment reports, much work remains to be done.  To make real change, the judiciary, and the individual actors who make up the legal profession, must fairly assess how our own actions and decisions can perpetuate the existing system.

On February 13, 2020 the House Judiciary Committee’s Subcommittee on Courts, Intellectual Property, and the Internet conducted a hearing titled, “Protecting Federal Judiciary Employees from Sexual Harassment, Discrimination, and Other Workplace Misconduct.”  Congressman Hank Johnson (D-GA) chaired the meeting, by first noting that “more than 30,000 women and men who work for our federal courts have a right to a workplace free from sexual harassment . . . and yet the laws that protect nearly every civilian employee in this country, public or private, . . . do not protect the employees of the judicial branch.”  He remarked that the committee will determine whether the judiciary’s existing efforts to protect its employees are working.  Ranking Member Martha Roby (R-AL) also gave opening remarks, highlighting reforms the judiciary has already implemented and calling for follow-through.

Four witnesses testified to the panel: Chai Feldblum, Dahlia Lithwick, Deeva Shah, and Olivia Warren.  Their written statements were also entered into the record.  Three letters, from attorney Jaime Santos, Sejal Singh of People’s Parity Project, and James Duff of the Administrative Office of the US Courts, were also entered.

Olivia Warren, the first witness to speak, told representatives of her personal experiences of sexual harassment at the hands of the late Judge Stephen Reinhardt while she was clerking in his chambers, and noted how the system failed her when she attempted to report those experiences.  Now working as an attorney at the Center for Death Penalty Litigation, Warren clerked for Judge Reinhardt from 2017 to 2018.  In her testimony, she remarked that as a defense attorney she “is opposed to the condemnation of any human being . . . and that all people have the capacity to simultaneously make good and bad choices.”  Her perspective of Judge Reinhardt was no different; he was at once a “brilliant jurist,” a “courageous champion of causes he believed in,” and a man who subjected her to repeated sexual harassment.  Warren outlined in detail the harassment she experienced, including an incident in which Judge Reinhardt asked whether a drawing of two breasts resembled her own and regular negative comments about her appearance. She testified that the Judge queried whether her husband was either a “wimp” or gay,” and stated that he didn’t believe she and her husband could have consummated their marriage.  Warren also noted that these comments increased after Judge Reinhardt’s colleague, former judge Alex Kozinski, was accused of sexual harassing his own clerks.  In response, Judge Reinhardt attacked the #MeToo movement, particularly those clerks who had bravely stepped forward, calling judges “the real victims.”

Warren also addressed her own response to this treatment.  She noted that “as any law school dean will tell you, a federal clerkship is considered the gateway to many of the most successful and prestigious legal careers,” and that students who receive a clerkship offer are “expected and advised to accept it without question.”  She explained that she was scared of ending her own nascent legal career and being alienated from the Judge’s network of well-connected and “reflexively loyal” clerks. 

After Judge Reinhardt died in March 2018, Warren decided to take action in an effort to prevent other clerks from experiencing similar treatment at the hands of other judges.  She eventually met with the Dean of Harvard Law School, her alma mater, to tell the University about what had happened but never received an update on “what, if any, steps Harvard has taken” in response.  Warren also reached out to the Judicial Integrity Officer, providing a hypothetical version of her experience and asking what her options were.  The letter she received “essentially answer[ed] none of [her] questions,” and suggested she report her complaint to other judges on the Circuit.  “Surely there must be some better system than one that requires abused clerks to report their abuse to the courts or the friends and the confidants of their abusers,” she declared.

Warren closed her remarks by noting her own privilege: she is an Ivy League educated white woman, she is fully supported by her employer in making these statements, and the man she accused is no longer on the bench.  She noted that many other people do not have such protections.  Addressing them, Warren said: “Know that what you are going through is not your fault. Know that your feelings of powerlessness are not irrational. And know that if the system feels stacked against you, it is because right now it is.”

Speaking next, Deeva Shah, representing Law Clerks for Workplace Accountability, addressed the expectations and power imbalances inherent in the judge-clerk relationship.  She stated that many clerks she has spoken with who have experienced harassment are too afraid to report those concerns.  Shah called for four changes.  First, the judiciary must clarify how it defines retaliation and how it will respond to allegations of such behavior.  Second, the judiciary should conduct a “comprehensive retrospective review” of how the system has failed.  Third, the judiciary should require investigations of judges even after they have resigned from the bench amid misconduct allegations.  And fourth, there should be a nationwide reporting system for misconduct. 

Next, Dahlia Lithwick, a senior editor at Slate reporting on the courts, addressed the panel in her individual capacity.  Lithwick explained that the very secrecy and loyalty that is crucial to how a chamber functions also creates an environment that inhibits reporting.  Chai Feldblum, a former commissioner of the Equal Employment Opportunity Commission and employment-discrimination law expert, was the final witness to testify.  She called for a broader focus on “safe, respectful, diverse, and inclusive workplaces” in order to help limit abuse and encourage reporting when it does occur.  The panelists then answered questions from the representatives about their testimony.

This hearing, and Warren’s testimony about her personal experiences in particular, rightly generated outrage in the legal community.  More than half of Judge Reinhardt’s former clerks signed on to a letter supporting Warren.  Harvard Law School Dean John Manning emailed the student body, stating that he “was saddened and appalled” by Warren’s testimony, and outlining steps he claimed the HLS administration would be taking in order to protect students and alumni going forward.  And a federal judge in Kansas, Carlos Murguia, resigned from the bench, months after having been initially accused of sexual harassment by court employees. 

However, there is still a strong resistance to making substantive change.  Indeed, a former Ninth Circuit Court Executive recently authored a letter to the editor defending Judge Reinhardt and noting her “regret that [Warren] believed this was the best way to air her grievances, almost two years after Judge Reinhardt’s death.”  Warren’s testimony will not lead to real change unless the legal profession as a whole, and the individual actors within it—including law schools and law reviews — truly consider how they have allowed the current system to persist and how they can effect change. 

Experts in countering sexual harassment and abuse in the workplace, along with other stakeholders, have suggested many possible reforms to the judiciary, in addition to those Shaw suggested in her testimony.  People’s Parity Project has called for “[e]nhance[d] accountability so that review of information is available outside the judiciary, including to potential clerks,” as well as a nationwide climate survey of current and former clerks.  Moreover, employees of the federal judiciary currently do not have a realistic path to bringing a private cause of action for sexual harassment.  They are excluded from coverage under Title VII of the Civil Rights Act.  Congress should consider either ending that exemption or creating a new avenue for employees to pursue relief.

Perhaps most crucial is the establishment of a national reporting system for allegations of abuse within the judiciary.  Currently, the Office of Judicial Integrity has only one staff person and serves only in an advisory role, providing guidance to employees about their options for reporting within their region.  OJI then refers employees to reporting procedures that include judges—who are themselves too close to the judges being reported to perform any meaningfully independent investigatory role.  While secrecy and an independent judiciary are surely crucial goals, they must not be placed above basic workplace safety.

Law schools, too, must honestly assess their part in this system.  As was noted in the hearing, law schools place immense pressure on students to seek out clerkships, and the schools themselves are not incentivized to report misbehavior.  Warren explained that many students use a “whisper network” to determine whether a particular judge has a history of abuse.  This system inherently limits such information to well-connected students, and leaves others, particularly first-generation law students, out in the cold.  The system Lithwick described some professors using, of avoiding sending women to certain judges, only serves to perpetuate the underrepresentation of female clerks at all levels of the judiciary—and leaves other female employees of the court system to fend for themselves.  Although Dean Manning’s statement following Warren’s testimony listed a number of initiatives the school is said to be undertaking, it did not wrestle with how the school itself might be contributing to the very problems Warren encountered in Judge Reinhardt’s chambers.  Until schools begin that process, it will be difficult to implement real change.

Underlying these systemic failures is a culture that places federal judges on a pedestal and discourages reporting.  As Lithwick has written, “the relationships between law clerks and their judges are mostly built on worshipful silence.”  Indeed, in 2016, not a one of the 1,300 misconduct claims filed under the Judicial Conduct and Disability Act was from a law clerk or a judiciary employee. 

Finally, Law reviews, including this one, should also consider what actions they can take to improve the system.  This Law Review and others often publish tributes and in memoriam essays about prominent jurists, including Judge Reinhardt.  Without questioning the individual decision to publish any particular piece, journals should evaluate the role that such tributes play in lionizing and even idolizing such figures and, as an unanticipated result, possibly making it more difficult for victims of abuse of any kind to come forward.  As Warren noted in her testimony, “all people have the capacity to simultaneously make good and bad choices.”  By overly elevating judges and erasing their complexity, as people and as employers, legal institutions have a hand in perpetuating the profound injustices that continue to plague our profession.