In a prepared statement, a former Harvard law student cum law clerk to the Ninth Circuit’s “Liberal Lion,” Judge Stephen Reinhardt, told her story.
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.
It goes on, but this small taste is sufficient to get the idea that if this is an accurate description of Judge Reinhardt’s behavior, it was bizarre, outrageous and inexcusable. And there is no reason to doubt its accuracy, although there is curiosity as to why other former law clerks to Judge Reinhardt, or other judges in the Ninth, never mentioned this before.
At the time revelations were made about Alex Kozinski’s conduct, the opportunity to bring out the “toxic” behavior of other judges seemed ripe. Yet, Judge Reinhardt’s name didn’t come up. Perhaps it would have prevented the young lawyer from having taken a clerkship with Judge Reinhardt if she had known. Perhaps Judge Reinhardt would have chosen to behave better or leave the bench had it come out.
The problem is that it’s hard to say now because Judge Reinhardt died on March 29, 2018. He can’t fix it. He can’t deny it. He can’t explain it. He can’t apologize for it.
There is no accusation that Judge Reinhardt sexually assaulted or raped anyone, but that he was outrageously offensive in his dealing with this person. Part of it created a hostile work environment. Part of it was direct sexual harassment, as he attacked her appearance and marital sex life. Maybe he thought this was funny, and he was somehow bonding by deprecating a young woman’s appearance and spouse. Maybe he was suffering from senile dementia. Maybe he was just a pig.
It’s completely understandable that these allegations arise now, after his death. He was a powerful judge. He was an icon. The retaliation he could exact could be disastrous for a new grad and, as confirmed by Michigan prawf Leah Litman who was one of the people who accused Koz, Reinhardt was not above retaliation. Not only were her fortunes tied to Judge Reinhardt directly, but tied to the brotherhood of former Reinhardt clerks. If she tore down “their judge,” they too would be torn down. There are a lot of enemies to be made.
At the same time, dead men can’t defend themselves. Or apologize. Or explain. Or make amends. There is a lingering question about why this was never raised back when news of Kozinski’s conduct came out, which seems like such a natural opportunity to expose other judges who engage in similarly outrageous behavior.
No, it doesn’t mean the allegations are any less true or that the behavior is any less outrageous. It doesn’t mean the former clerk coming forward now is at fault for not doing to earlier. She didn’t do anything wrong here. She didn’t ask for Judge Reinhardt to treat her as he did, and she certainly didn’t play any role in Judge Reinhardt’s choice of how to conduct himself. That was all him.
In the quiet of chambers, there is a concern about revealing the inner workings of federal judges. Judges are, as readers here are well aware, people, with human foibles, and not the one dimensional characters they show to the outside world. There is a tacit understanding that what happens in chambers stays in chambers as part of the clerk’s credo.
But if this is what happened in Judge Reinhardt’s chambers, and there is no reason to suspect otherwise, then where were the others, fellow judges, staff, chief judge, family, friends, and yes, other clerks, to say that this was wrong and unacceptable behavior? Judges are people sure, but that means they are subject to the same rules of proper conduct as other people, if not more so because of the duty they’ve undertaken as judges. not above it because they’re judges.
It would be enormously helpful at this point to know what Judge Reinhardt has to say about all this. But that won’t happen. Of course, there are others who might illuminate how things went so horribly wrong in Judge Reinhardt’s chambers and are still here to speak.