Bench Memos

Law & the Courts

Former Reinhardt Clerk Alleges Pervasive Sexual Harassment and Misconduct

In testimony offered today before a House subcommittee exploring how to protect federal judicial employees from sexual harassment, Olivia Warren, who was a law clerk for Ninth Circuit judge Stephen Reinhardt during the last year of his life, provides an extraordinary account of Reinhardt’s misbehavior. Some excerpts:

I quickly learned how often the judge commented in detail on the appearance of women. During my first few weeks at the clerkship, Judge Reinhardt’s chambers was in the midst of hiring new clerks for future terms. The Judge brought to my office photos that had been printed from the social media accounts of two female applicants who were scheduled to come to chambers for interviews. Judge Reinhardt instructed me to look at the photos and asked me to assess which candidate was more attractive and which candidate had nicer or longer legs. He then asked me which would add more “value” to chambers based on the photos.

Early in my clerkship, I also learned about a shelf in the judge’s office where he kept pictures of some of his female “pretty” clerks, many of which included Judge Reinhardt in the photo as well. Judge Reinhardt made it clear that photographs of male law clerks would not be placed on the shelf and that the shelf was special. Judge Reinhardt discussed the appearance of women directly, but he also had a regular euphemism: he used “short” and “tall” as code for “unattractive” and “attractive,” respectively, when referring to different women—including describing women of the same height, standing next to one another, as short and tall. Sometimes these comments were used to describe people outside of chambers, and sometimes they were used to describe us, his current and former law clerks. Judge Reinhardt only contemplated the attractiveness of women through the male gaze, and at times he used homophobic slurs: for example, a gay female clerk was repeatedly referred to by the judge as a “dykester,” which he found funny.

All of that provides the context within which I experienced direct sexual harassment. Judge Reinhardt routinely and frequently made disparaging statements about my physical appearance, my views about feminism and women’s rights, and my relationship with my husband (including our sexual relationship). Often, these remarks included expressing surprise that I even had a husband because I was not a woman who any man would be attracted to. In that vein, Judge Reinhardt often speculated that my husband must be a “wimp,” or possibly gay. Judge Reinhardt would use both words and gestures to suggest that my “wimp” husband must either lack a penis, or not be able to get an erection in my presence. He implied that my marriage had not been consummated. I was subjected on a weekly, and sometimes daily, basis to these types of comments about my husband, our relationship, and my being a woman who no man would marry—which he attributed both to my being a feminist and to my physical appearance, including my “short” stature. Judge Reinhardt made these comments to me when we were alone, and also in front of other members of chambers at times.

The atmosphere in chambers worsened in late 2017 with the start of the Me Too movement, which became Judge Reinhardt’s favorite topic of conversation. He frequently discussed and always cast doubt upon credible allegations of sexual harassment. The doubts he expressed were sometimes based on his assessment of the attractiveness of the accuser, and sometimes based on his general incredulity that men could be harassing women. For example, Judge Reinhardt told me that the allegations of sexual harassment that came out against people like Louis CK and Harvey Weinstein were made by women who had initially “wanted it,” and then changed their minds. Regarding Louis CK, he repeatedly asked me to explain to him why a man would want to show a woman his penis or masturbate in front of her. When I could not satisfy these kinds of questions about the alleged choices of men, Judge Reinhardt often responded by telling me that women were liars who could not be trusted. Sometimes, he read me emails that he exchanged with his friends about the Me Too movement that cast doubt on women raising sexual harassment and misconduct allegations. When I engaged in these discussions with him and would try to explain that sexual harassment was indeed a pervasive problem, he regularly replied with the same playbook I described above—that I did not understand sexual harassment because I was not attractive, that I did not understand men because I was a feminist, and that my husband was not a real man.

Another turning point in chambers occurred on December 8, 2017, when the Washington Post publicly reported on allegations about Judge Alex Kozinski’s conduct. I was alarmed by Judge Reinhardt’s fury at these allegations against his close friend. I was also concerned that this would prompt other people to raise similar complaints about Judge Reinhardt, even while I was still a clerk in chambers. Shortly after the first media report, the judge again told me that women were not to be trusted and that he did not ever want to be alone in a room with a female law clerk again; he suggested that he would not hire any more female clerks or other female employees for these reasons. After he had made that statement, he would sometimes suggest when he and I were alone that he needed protection because I might sexually assault him.

There is, of course, no reason to presume that the awful problem of sexual harassment by judges predominates on one or the other side of the ideological aisle. I also have no idea how prevalent it is; by calling it awful, I mean simply that it is awful whenever it occurs.

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