The federal judiciary still isn’t doing enough to protect law clerks from sexual harassment, says an attorney who last year detailed to Congress troubling allegations about her experience as a clerk on the largest federal appeals court.
While Olivia Warren prepared for the possibility of little to no response before she appeared before a House Judiciary subcommittee in February 2020, she said in a Harvard Law Review article published this week “the inaction hurts more than I could have ever anticipated.”
Warren, who is now a staff attorney at the Center for Death Penalty Litigation, clerked for the late Judge Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit in 2017 and 2018 and alleges he sexually harassed her. Warren said she hoped her decision to speak publicly about her experiences would “light a torch” for someone to do something.
“I am not aware of anyone taking any steps, much less the ‘bold steps’ over half of Reinhardt’s clerks called for—not the Ninth Circuit, not the federal judiciary, not Congress, not Harvard Law School, not any of the Reinhardt clerks themselves,” Warren said. “To my knowledge, there have been no public conversations about or reflections upon individual actions and inactions that might have contributed to the problem.”
Allegations of harassment involving federal judges, including Reinhardt and his former colleague on the Ninth Circuit, Alex Kozinski, surfaced as the #MeToo movement put a spotlight on similar misconduct in workplaces throughout the U.S. Bipartisan members of Congress have also rebuked the judiciary for “systemic problems” with the processes for reporting and addressing judicial misconduct.
The judiciary said in response to the article that its process for reporting harassment has improved since Warren’s testimony, and House lawmakers are preparing to take action.
‘Inaction and Indifference’
The alleged harassment Warren described to lawmakers publicly last year included arriving at her desk the first day as a clerk to find an explicit image Reinhardt had drawn taped to her computer screen.
Reinhardt spent nearly 40 years on the San Francisco-based circuit before he died in 2018 at 87. Some former clerks came to his defense, but dozens of others said they believed Warren.
Although there were positives from testifying, Warren said “what I reclaimed myself pales against the staggering scale of institutional inaction and indifference.”
In her article, Warren said when it comes to changes to judicial misconduct reporting, she’s “not an expert” in policies to prevent harassment and “will not be prescriptive.”
Resources More ‘Robust’
Warren’s appearance on Capitol Hill came after the Judicial Conference, the policy arm of the judiciary, developed new protocols for misconduct reporting and updated its code of conduct in response to harassment allegations from 15 women, including clerks, that drove Kozinski from the bench in 2017.
Kozinski said it was never his intent to make his clerks feel uncomfortable and apologized.
The Administrative Office of the U.S. Courts, which handles nonjudicial business of the judiciary, told Bloomberg Law Monday that its reporting network has improved since the time of Warren reported the alleged misconduct. The courts’ office also responded for the Ninth Circuit.
“The resources and support network available to all Judiciary employees, including law clerks, is far more robust today than it was at the time of Ms. Warren’s experiences, which reflects the Judiciary’s ongoing commitment to improving workplace protections,” a spokesperson for the courts’ office said in a statement.
Those more recent changes include a “wide range of initiatives that engage directly with law clerks” such as “the creation of law clerk advisory groups at several circuits,” the spokesperson said. The judiciary has also been collaborating with law schools and organizations that work with students on career opportunities, the spokesperson said.
House lawmakers, who have questioned the effectiveness of judicial changes in light of other reports of harassment, are preparing to take action.
In response to a Bloomberg Law inquiry about Warren’s article, Rep. Hank Johnson (D-Ga.), chairman of the House Judiciary Subcommittee on Courts, Intellectual Property and the Internet, said its “legislative and investigative work on these issues—as well as with Ms. Warren and others—is ongoing.”
He added that lawmakers “expect to take action in the coming weeks.”
Johnson said Warren’s testimony, and the testimony of others, emphasized the need for federal judiciary employees to have “strong statutory protections, an effective nationwide workplace misconduct prevention program, and the tools to investigate past misconduct so that wrongdoers can be held accountable.”
In response to Warren’s testimony, more than 70 law clerks to Reinhardt called for the judiciary and lawmakers to take “bold steps” to prevent harassment of law clerks. Warren referenced the letter in her article when talking about the lack of action.
Michele Landis Dauber, a professor at Stanford Law School who was one of the former Reinhardt clerks who helped coordinate that letter, said she also was disappointed to see nothing done since Warren’s testimony. She said she hopes Congress will act on legislation to prevent discrimination and harassment in the judiciary.
Warren’s testimony also prompted a group of law students to send the judiciary suggestions for how to prevent misconduct. Those included creating a uniform national survey of clerks and other judicial employees to collect data about workplace conduct and a national reporting option for clerks and employees outside individual circuits.
Harvard Law School didn’t respond to requests for comment about Warren’s article.
Harvard Law dean John F. Manning sent a letter to the law school’s community after Warren’s testimony, saying the school had “heightened” efforts in recent years to raise awareness among alumni clerking for judges about sexual harassment and the resources for reporting misconduct. But, he said, more work was needed.