Friday, February 14, 2020

Reassessing Judge Reinhardt

by Michael C. Dorf

Yesterday attorney Olivia Warren testified before a House Judiciary subcommittee about her experience being sexually harassed when she was a law clerk to Judge Stephen Reinhardt of the US Court of Appeals for the Ninth Circuit during the last year of Reinhardt's life. Because I was a Reinhardt clerk and have written in praise of his work and character, I feel some obligation to comment.

I am surprised and saddened to learn of what Ms. Warren endured, but I do not doubt her account. I say that because she has no reason to fabricate it and every incentive not to. Don't believe me? Ask Dr. Christine Blasey Ford (if you can find her) or Lt. Colonel Alexander Vindman what rewards come to those who speak truth to power.

On the Internet and elsewhere over the last 24 hours, various commentators have suggested that we Reinhardt clerks were engaged in a conspiracy of silence. That is false. I cannot speak for everyone, but I have been in touch with a great many former clerks who had the same reaction I did: we believe Ms. Warren and are shocked and horrified by what she endured.

I am shocked because the severity of the mistreatment goes beyond anything I knew about Judge Reinhardt. Yes, he was a demanding boss, sometimes unreasonably so, but demanding does not mean abusive.

As Ms. Warren said in her testimony, before her clerkship she was warned by a former Reinhardt clerk to brace herself for "your grandfather's sexism." That warning understandably did not suffice to prepare her for what she would experience, but it is exactly what I (or, I imagine, nearly any other former Reinhardt clerk) would have said. I can illustrate the way in which we understood Judge Reinhardt to be something of a sexist but not a sexual harasser with a couple of examples.

(1) The year I worked for him, Judge Reinhardt had two secretaries--both women--and three law clerks--two men and a woman. On a weekday during business hours, one of the secretaries would make coffee for the judge. After hours or on a weekend (when we were typically in chambers because it was that kind of job), Judge Reinhardt would ask Gail but never Frank or me to make him coffee. I repeat this story with some shame, as I realize that I did not object at the time or even volunteer to make coffee on occasion. I have learned from women who clerked in later years that the judge persisted in this obviously sexist practice for some years but that eventually the clerks divided the job equally on a non-gendered basis.

(2) The Reinhardt-specific law clerk handbook that we were required to read and absorb contained numerous instructions and rules. Nearly all of these were mundane matters involving research, citations, telephone usage, etc. In one place, the judge instructed that in writing materials for him, when referring to generic individuals we were to use male pronouns such as "he" or "him" rather than female pronouns or inclusive phrases like "he or she." The male includes the female, the handbook said, invoking a usage rule that was already being challenged in 1990. The handbook further instructed that each law clerk would be allowed no more than one opportunity during the course of "his" clerkship year to try to persuade the judge to change the rule. The implication was that of course the judge would not change his mind and that objections to masculine pronouns were silly.

Neither the gendered coffee-making assignments nor the masculine pronouns rule nor any of a number of other examples of casual sexism comes close to the kind of abuse to which Judge Reinhardt subjected Ms. Warren, but that does not call her account into question. It is possible that other former clerks will come forward with stories of similar abuse. Even if they do not, that is to say, even if Ms. Warren is the only law clerk who was treated this way by Judge Reinhardt, that would hardly cast doubt on her sworn testimony.

Why would Ms. Warren have been the only victim of egregious sexual harassment by Judge Reinhardt (if she was in fact the only victim)? I honestly don't know. Perhaps he developed some personal animosity towards her and expressed it through sexual harassment. Or perhaps in his old age and under the stress of caring for his declining wife (the once-formidable Ramona Ripston), Judge Reinhardt became uninhibited and gave expression to ugly feelings he had long been bottling up or simply underwent a personality change.

We former Reinhardt clerks now struggle with how to understand why Judge Reinhardt acted as he did towards Ms. Warren and with how to process this new information--how to integrate it into our memories of him. It is tempting to file it under a kind of "warts and all" understanding of the judge. We can, after all, appreciate the accomplishments of great artists, writers, and humanitarians despite the fact that they acted badly in various ways. I expect that I'll get somewhere like that eventually, but it will take some time.

The judge/law-clerk relationship is a lifelong mentorship. Learning that a judge for whom you clerked and whom you idolized committed a bad act is different from learning that a comedian you find funny acted inappropriately or that a sports star on your favorite team is a Trump supporter. It is more like learning something very disturbing about a close relative.

The fact that Judge Reinhardt is no longer alive both mitigates and exacerbates the problem. It is mitigating because the judge cannot further tarnish his reputation by, for example, implausible denials. But neither can he apologize, assuming that he would do so if given the opportunity.

Finally, because I do not wish to end on a completely bleak note, I'll add that I share Ms. Warren’s view that going forward the question is how to strengthen the system for deterring, reporting, and responding to sexual harassment and other inappropriate behavior--which, after all, was the point of the hearing. The intense personal supervision that makes a federal court clerkship so valuable for a new lawyer also creates risks of abuse that the judiciary and, for our part, law schools, need to do a better job preventing and remedying.

[N.B. I posted some of the foregoing thoughts yesterday on Twitter.]