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Reinhardt Clerks Want ‘Bold Steps’ to Prevent Sex Harassment (1)

Feb. 20, 2020, 6:30 PM

Dozens of former clerks for the late Ninth Circuit Judge Stephen Reinhardt signed a letter supporting an attorney who told Congress that he sexually harassed her during her clerkship.

The open letter released Thursday called on the Judicial Conference and possibly Congress to “take bold steps” to prevent harassment and improve reporting for harassment claims. That includes training judicial personnel on nondiscrimination and anti-harassment, more than 70 of Reinhardt’s former clerks wrote.

“We believe the clerk’s testimony that she experienced inappropriate conduct, including sexual harassment. We are thankful to the clerk for her courage in speaking out about her experience,” the clerks said in response to Olivia Warren’s allegations about her time in Reinhardt’s office at the U.S. Court of Appeals for the Ninth Circuit.

The signers represent more than half of his clerks from the mid 1980s to 2017 and include law school deans, professors, and appellate lawyers.

“As the letter says, the signers commend Olivia for her courage, we believe her, and we stand with her,” former Reinhardt clerk Michele Dauber, who coordinated the letter along with Cornell Law Professor Michael Dorf and several other former clerks, said in an email to Bloomberg Law.

“Speaking for myself, I am proud that more than half of the judge’s former clerks signed the letter, and anticipate that more will choose to do so in the days ahead,” Dauber, a professor at Stanford Law School, said.

Warren’s testimony sent a shock wave through the legal community, as Reinhardt was a fixture of the Ninth Circuit who had an impact on many lawyers. Reinhardt, often referred to as a “liberal lion,” spent nearly 40 years on the San Francisco-based circuit before he died in 2018 at 87.

The federal courts have taken action aimed at preventing judicial misconduct after similar allegations against former Judge Alex Kozinski, also of the Ninth Circuit, came out in 2017 amid the #MeToo movement. Those changes from the Judicial Conference, the federal judiciary’s policy-making body, include new protocols for harassment reporting.

Clerk’s Allegations

Warren, who clerked for Reinhardt in the year he died, alleged at a House Judiciary subcommittee hearing Feb. 13 on workplace misconduct reforms in the federal judiciary that he sexually harassed her.

Warren described coming to her clerkship on the first day and finding a drawing of what appeared to be female breasts taped to a computer. According to Warren, the judge later told her he played a role in creating the drawing and asked her if it was accurate.

“Based on his tone and demeanor, I understood his question to be asking whether or not the drawing looked like my breasts,” Warren said.

Warren, who is now at The Center for Death Penalty Litigation, said she tried reporting the alleged misconduct to the federal judiciary through a Judicial Integrity Officer, and to her alma mater, Harvard Law School.

A spokesperson for the Administrative Office of the U.S. Courts, which oversees the workings of the federal judiciary, said in a statement Feb. 13 that no judiciary employee should suffer the kind of harassment described by Warren. The office didn’t respond to a request for comment on the letter.

The Ninth Circuit has yet to respond to requests for comment on the Warren allegations or the letter.

Harvard Law Dean John F. Manning responded to Warren’s testimony on Thursday in a letter to the law school’s community that was shared with Bloomberg Law.

Manning said he was “saddened and appalled” by the actions Warren described in her testimony and that the law school is “committed to helping confront the problem of judicial misconduct and to ensuring our students and graduates understand the options and support available to them.”

Harvard Law School “heightened” efforts over the last two years to raise awareness among alumni clerking for judges about sexual harassment and the resources for reporting misconduct, Manning said, including adding new programs and improving communication. He also highlighted a November 2018 letter, in which the law school also called on the federal courts to prevent misconduct in the judiciary.

“There is much work still to be done by all. We can, must, and will always seek ways to do more to help build a profession in which all are treated fairly and with dignity and have equal opportunity to thrive in their work,” Manning said.

Questions Raised

The Democratic-led House has questions about whether steps taken by the judiciary go far enough to protect employees, which is why it held the hearing where Warren gave her testimony. At the center of the concerns for Democratic lawmakers is the power imbalance between clerks and judges.

In her testimony, Warren said Reinhardt’s status made her hesitant to report the alleged misconduct and she had concerns that her reporting wouldn’t be confidential. That’s a concern others may share given the tight-knit nature of the legal community.

“Some of us experienced or witnessed conduct in chambers that we would call sexist, workplace bullying or mistreatment. Others did not,” the clerks wrote in the letter, adding that most were “shocked” to learn about the behavior described in Warren’s testimony.

“All of us, whatever our personal experience, are united that no clerk should have to go through this kind of ordeal and that it is important to stand with those who speak out about it,” the clerks said.

Among the former clerks who signed the letter are:

  • Heather Gerken, dean of Yale Law School;
  • Kevin Johnson, dean of the UC Davis School of Law;
  • Catherine Lhamon, chair of the U.S. Commission on Civil Rights;
  • Richard Katskee, legal director for Americans United for Separation of Church and State;
  • Justin Levitt, associate dean for research at Loyola Law School;
  • Brian Goldman, an Orrick partner and Appellate Lawyer Representative to the Ninth Circuit Judicial Conference; and
  • Joshua Matz, an adjunct professor at Georgetown Law who was a counsel to the House Judiciary committee during the impeachment of President Donald Trump.

— with assistance from Kimberly Robinson

To contact the reporter on this story: Madison Alder in Washington at malder@bloomberglaw.com

To contact the editors responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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