This five-paragraph letter to the editor by Cathy Catterson, the circuit executive (top manager) of the Ninth Circuit from 2007 until 2017, is remarkable—but not for the reasons Catterson intends.
Catterson is responding to a Los Angeles Times article last week that reported that more than 70 former law clerks to the late Ninth Circuit judge Stephen Reinhardt signed a letter “expressing support for a woman [Reinhardt’s former law clerk Olivia Warren] who said Reinhardt sexually harassed her.” (I highlighted Warren’s powerful testimony about Reinhardt’s outrageous behavior in this post two weeks ago.) Specifically, the former clerks affirm that they “believe [Warren’s] testimony,” they thank her for “her courage in speaking out,” and they attest that some of them (but not others of them) “experienced or witnessed conduct in chambers [i.e., by Reinhardt] that we would call sexist, workplace bullying or mistreatment.”
That same article also presents another former law clerk’s account of “belittling, bullying and sexist” behavior that she experienced from Reinhardt more than two decades ago.
In the face of these statements by law clerks who worked with Reinhardt day in and day out, Catterson offers not one word of sympathy for Warren. She professes herself agnostic on the truth of Warren’s account while offering no reason that anyone should disbelieve Warren. Instead, Catterson somehow has the gall to fault Warren for testifying before Congress (“I regret that she believed this was the best way to air her grievances, almost two years after Judge Reinhardt’s death”) and for disturbing her own memory of Reinhardt:
I have tremendous respect and admiration for Judge Reinhardt’s legacy, and I know there are many others who share these views. Let him rest in peace.
Catterson even invokes her own supposedly superior insights into “the judge I knew for almost 40 years,” but doesn’t disclose to the reader that she was based in San Francisco all that time while Reinhardt had his chambers in Los Angeles.
Two broader observations:
1. Catterson’s rush to protect Reinhardt amply vindicates Warren’s judgment that she couldn’t report Reinhardt’s misconduct to Ninth Circuit officials “because it was very clear how beloved Judge Reinhardt was and I could not trust that they would receive the information confidentially or with an open mind.” (Testimony at 15.) It also illustrates Warren’s concerns about the “systemic barriers to reporting harassment and misconduct by judges that are unique to the legal profession, and uniquely formidable in the context of the relationship between law clerk and judge.” (Testimony at 12; see generally pp. 11-17.) In any effort to improve the process, Catterson’s letter should be taken into account as showing a problem that needs to be addressed.
2. Five years ago, in a piece jointly published in the legal journals of San Francisco and Los Angeles, I reported how the remarkable good fortune that Reinhardt seemed to have in getting assigned to sit on ideologically charged cases owed in part to a longstanding but undisclosed practice that the Ninth Circuit clerk’s office had for assigning expedited cases. That practice, I pointed out, was rife with potential for abuse and seemed to have been applied selectively to direct cases to Reinhardt. I also highlighted an academic study that concluded that case assignments in the Ninth Circuit were ideologically skewed in their deviation from what random assignments would generate. I observed that court clerks “are people, too [and] have their biases and their temptations to indulge their biases, especially when they think they can get away with it.” I called for the Ninth Circuit to conduct a thorough investigation of how its case-assignment process has in fact operated.
Catterson headed the Ninth Circuit clerk’s office from 1985 to 2007 before being named to the new position of circuit executive (where she, among other things, hired and supervised her successor as court clerk). Her fondness for Reinhardt personally and her open “admiration” for his liberal judicial “legacy” mean that she had the motive as well as the opportunity to abuse the case-assignment process to favor him. Her peculiar judgment in writing her letter to the editor reinforces suspicions that she might have sought opportunities to indulge her biases.
It’s long past time for the Ninth Circuit to carry out a serious investigation into the irregularities that occurred under Catterson’s watch.