A Famed Federal Judge Was Just Accused Of Sexual Misconduct. It’s An All-Too Familiar Case For Law Clerks.

This piece is a commentary, part of The Appeal’s collection of opinion and analysis on important issues and actors in the criminal legal system.

In 2010, a strange essay called “Judge Stories” appeared in the Yale Law Journal.  It began like this: “Whenever Judge Reinhardt’s clerks are asked about the clerkship, they tell ‘Judge stories.’” The author, Heather K. Gerken, had clerked for Stephen R. Reinhardt on the Ninth Circuit Court of Appeals in the ’90s and listed the judge’s best qualities. His work ethic. His conviction. His quirk. 

Gerken was not alone in her admiration for the “liberal lion,” who died in 2018 at the age of 87. Reinhardt was long revered for the rigorousness and compassion of his court opinions, which never shied from protecting reproductive rights, upholding civil liberties, and siding with the oppressed. His deep commitment to public service drew like-minded, rising stars to his chambers, creating a powerful network of Reinhardt alumni at leading civil rights organizations, prestigious universities, public offices, and in the Supreme Court’s chambers. In 2017, Gerken became dean of Yale Law School.  After Reinhardt’s death, Gerken tweeted a link to “Judge Stories,” writing “I tried to capture the fierce love we have for him here.” 

Yet, for all the praise it heaped onto Judge Reinhardt, Gerken’s essay teemed with off-notes. She alluded to the judge’s “shockingly funny bluntness” and described him as a “curmudgeon” whose kindness might lie “pretty deep beneath the surface.” Gerken assured the reader that Judge Reinhardt never crossed a professional line with her as a young female clerk. But in the same passage, she wrote that the judge “otherwise relished crossing lines of every sort.” 

Last Thursday, 10 years after Gerken’s essay, Olivia Warren, a former Reinhardt clerk, told a congressional committee that the judge sexually harassed her for months. 

Warren said she isn’t interested in condemnation. As a capital defense attorney, Warren told the committee, she’s convinced that “people are deeply complex” and “have the capacity to simultaneously make good and bad choices.” This was important context for her testimony, as she prepared to recount her experience and the barriers that she faced in reporting the abusive conduct. 

Warren said a whisper network warned her that the clerkship would be “intense” and to brace herself for her “grandfather’s sexism.” However, nothing prepared her for what came next. She said that on her third day on the job in 2017, Reinhardt asked her to comment on a drawing of breasts proudly taped over her computer. It was all downhill from there. Warren said the judge routinely remarked on the appearance of past and present women clerks. Reinhardt thought her particularly unattractive and repeatedly expressed surprise that anyone would marry her. On occasion, the judge used “both words and gestures to suggest that [her] ‘wimp’ husband must either lack a penis, or not be able to get an erection in [her] presence.” 

The abuse worsened after Alex Kozinski, a federal judge, faced public allegations of sexual harassment in late 2017, Warren said. Though Kozinski was a libertarian, his opinions sometimes aligned with liberal goals. In 2013, for instance, Kozinski penned a fiery dissent condemning the courts’ failure to take Brady violations seriously. The two judges were close friends. Warren testified that Reinhardt derided the #MeToo movement daily, and dismissed accusers of the producer Harvey Weinstein as “women who had initially ‘wanted it,’ and then changed their minds.” She alleged that Reinhardt threatened to never hire women again. In March 2018, shortly before the end of her clerkship, the judge died. 

Warren had told her husband and a few friends about his abusive behavior, but feared that if she kept quiet, the legal profession would conclude that sexual harassment in the courts was limited to one bad apple. Warren felt particularly responsible for ensuring that her alma mater, Harvard Law School, wasn’t funneling clueless students into abusive workplaces. 

Federal clerkships are very competitive and the selection process is shrouded in secrecy, brewing a most perfect recipe for prestige. Top law schools perpetually race to place alumni into the most coveted clerkships in a symbiotic arrangement that advantages the judges, law schools, recommenders on the faculty and, usually, the incoming clerks. Law students are encouraged to apply only if they would definitely take the offer. And, if the opportunity arises, to accept on the spot. There’s also great pressure to stay in the job at all costs. Employers expect to see judges listed as references, and they look askance at clerk resumes that omit them. 

Warren feared that speaking out would alienate the network of Reinhardt clerks and kill her chances of landing a public defender job later. But she also worried that others in her position might leave the law disillusioned, and that they might disproportionately come from populations already underrepresented in the profession. So Warren spoke out last week. When allegations emerged against Judge Kozinski, she called a former Reinhardt clerk and informed him that the judge had said “horrible” things to her. Warren testified that the clerk listened but declined to engage her further. In August 2018, Warren met with Harvard Law Dean John Manning and other administrators. Warren told Congress, “Nobody has communicated to me since that meeting what, if any, steps Harvard has taken to address the issues I raised.” 

Warren’s testimony was not Harvard Law’s first chance to assess whether the school was adequately protecting clerks. Setting aside the fact that the law school routinely offers courses on employment law and discrimination on the basis of sex, administrators were well aware that federal judges are not immune from potential misconduct.  The allegations against Kozinski were public, as were the accusations against U.S. Supreme Court Justice Clarence Thomas years before. Then, in September 2018, Christine Blasey Ford testified before Congress that D.C. Circuit Judge Brett Kavanaugh had sexually assaulted her. That same month, Yale Law professors Amy Chua and Jed Rubenfeld were accused of having advised female law students that Kavanaugh, who was then in the midst of hearings on his nomination to the Supreme Court, liked a “certain look.” (Chua said the allegations were “100% false.”) Similarly, Warren had heard that Reinhardt “preferred women to wear skirts.” This widely available information gave the law schools ample opportunities for introspection.

It’s also difficult to imagine that Warren’s allegations were the first time Harvard Law’s faculty and administration ever heard of Reinhardt’s misconduct. Hundreds of law clerks and employees have passed through Judge Reinhardt’s chambers in the 38 years that he was on the bench. Gerken’s 2010 essay should’ve at least raised eyebrows. And if the whisper network managed to pass judge stories to lowly incoming clerks, then these stories probably reached the upper echelons of both law schools and the federal court system. Warren’s courageous testimony puts an end to the whispers and plausible deniability. The ball is now in the court of those who knew then and know now. 

Since the congressional hearing last week, the extensive Reinhardt network has been largely mum with some exceptions. Harvard Law professors Jeannie Suk Gersen, Adriaan Lanni, and Niko Bowie have expressed public support for Warren, along with Michigan Law professor Leah Litman. However, the dean of Harvard Law has not issued a statement. And while Dean Gerken of Yale Law was dismayed by reports of Chua and Rubenfeld’s advice, she has not yet revisited her judge stories. 

It’s imperative that law schools account for their complicity in sexual harassment. Congressional reforms for reporting abuse in the judiciary are a must, but they cannot solve the problem alone. Warren suffered in private for months because law schools foster a culture of silence, self-preservation, and retaliation around clerking. It is now their responsibility to help undo it. 

Vanessa A. Bee, a lawyer and writer, is an associate editor at Current Affairs magazine.