It’s not news that outspoken liberals are capable of egregious #MeToo behavior. Harvey Weinstein’s on trial right now for conduct more egregious than what Reinhardt’s accused of by former clerk Olivia Warren.
It’s not news either to hear of sexual harassment happening on the federal bench, not even on Reinhardt’s circuit. Illustrious “conservatarian” Alex Kozinski opted for retirement a few years ago when allegations of his own habit of harassment finally went public.
But the lack of novelty shouldn’t deter you from spending some time with Warren’s prepared testimony. It’s bad, alleging not just casual lechery but nasty verbal abuse. The lingering question, as it always is in these cases: How many more are there? How many people knew?
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. I was subjected on a weekly, and sometimes daily, basis to these types of comments about my husband, our relationship, and my being a woman who no man would marry—which he attributed both to my being a feminist and to my physical appearance, including my “short” stature. Judge Reinhardt made these comments to me when we were alone, and also in front of other members of chambers at times.
Note the last bit about him supposedly saying this in front of others. “Short” was allegedly a euphemism Reinhardt used to describe women he found unattractive.
Warren claims he made her look at photos of other women candidates for clerkships and rate them by their attractiveness, reserving a special shelf in his office for photos of himself with his prettiest clerks. She also says he was a hardcore #MeToo skeptic, especially towards Kozinski’s accusers. He disparaged one, allegedly, by sneering that she was too unattractive to ogle — then, later, said the same thing to Warren about her own prior experiences with harassment.
In an effort to appeal to his humanity, I tried to describe instances when I personally had been harassed and how those incidents had harmed me. The anecdotes I recounted included: learning on my last day of an internship after college that there had been a bet among colleagues in the office about whether I would sleep with my male supervisor; being chased down York Avenue by a stranger while screaming until a cab driver stopped to help me; and working as a paralegal at a law firm when an intoxicated associate came by my cubicle one night, placed his arms over it, and blocked my exit until I picked up the phone and told him that I would dial 911 if he did not leave. I explained to the judge that I had not reported these incidents, but that they had still hurt and frightened me, and affected the way I moved through the world. Judge Reinhardt became enraged. He yelled at me to stop speaking, and said that none of what I had just said was true. He explained to me that I had never been sexually harassed because no one had ever been sexually attracted to me. He said that to the extent that I believed I was sexually harassed, it was because men wanted to silence me and used harassment to do so—which, he added, was within their rights to free speech.
He passed away in March 2018.
How many people knew? Warren claims she was warned by a former Reinhardt clerk before accepting the job that she should prepare for “your grandfather’s sexism,” and that someone else told her that he preferred when women candidates wore skirts. She confided in a different Reinhardt clerk — a man — after the judge’s death about what went on and the other clerk supposedly said he never saw any misconduct, but he also never broached the subject with Warren again. She has a theory why:
[I]t 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.
A Reinhardt clerkship is one of the most stellar credentials a left-wing lawyer could have, a notch below a Supreme Court clerkship. To the extent that Warren has now complicated his legacy, she’s also complicated the value of that credential to others. Overnight, thanks to her testimony, perceptions of ex-clerks will shift from “liberal legal all-star” to “suspected enabler.” That’s damaging to anyone but especially to someone whose ideology claims special enlightenment about women’s rights.
So maybe she’s not wrong to fear reprisals.
She says she tried to use standard channels for reporting misconduct but got the runaround when she did. On top of worrying about retaliation, she likely also had to wrestle with the culture of secrecy that surrounds the judiciary. There’s a reason why there are never leaks to the media about forthcoming Supreme Court opinions before those opinions are handed down, even though each justice has multiple clerks and administrative staff. The bench jealously guards its mystique and its alleged impartiality by inculcating an ethic of silence about its process. Go figure that that might make subordinates less likely to report improper “process” as well.
Now we wait to see if any other Reinhardt clerks have anything to say.