Short Take: Judge Reinhardt’s Obituary

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.

12 thoughts on “Short Take: Judge Reinhardt’s Obituary

  1. B. McLeod

    I think there is considerable reason to doubt Ms. Warren’s account. Federal judges are ordinarily quite protective of their clerks, and that is a part of the culture of the federal bench.

    Judge Reinhardt was a Carter appointee, on the bench for decades. The character of the insults and abuse Ms. Warren alleges goes well beyond anything Kozinski was accused of. Had Judge Reinhardt been treating his clerks this way, it would have got around, and it would not have been accepted or acceptable among Judge Reinhardt’s colleagues. He could not and would not have been the “beloved” figure Warren describes in her own written testimony.

    Note that in the case of Kozinski, his conspicuous attention to the sexuality of his female clerks was the subject of widespread and longstanding rumor, coast to coast. I had heard about it here in the flats, not even close to the 9th Circuit. David Lat rather obviously alluded to the Kozinski situation through a character in his novel recognizably based on Kozinski. All the details weren’t public, but there was and had been a lot of smoke, and there has been nothing similar in regard to Judge Reinhardt.

    Ms. Warren alleges that the behavior she complains of was pervasive, and that Judge Reinhardt mistreated his female clerks generally. Until there is corroboration of her claims by other witnesses, I am not buying into her story. It may well be simply an attempt to manufacture MeToo victim/hero status out of whole cloth, at the expense of a dead man.

    1. SHG Post author

      Not being anyone’s clerk, I lacked either inside or outside knowledge of Judge Reinhardt. Accordingly, I demur.

      1. Miles

        After the initial revelations about Koz, all hell broke loose and every woman who adored being at his side was suddenly crying harassment. One would expect the same to happen with Reinhardt, even if it wasn’t as widely known a secret as Koz.

        Are you hearing any of this other clerks coming forward with their #MeToo stories? I’m not.

          1. B. McLeod

            There is a story on Nobody is backing her up. Not even former clerk Michele Dauber.

            I believe I can safely say that if Judge Reinhardt was one to insult his clerks for being unattractive. Ms. Dauber would know it.

            1. SHG Post author

              Dauber’s fudging with typical Dauber bullshit.

              “Although I did not personally see or experience anything sexual in nature, much of what Olivia says rings true to me. He was not an easy person to work for and often seemed to enjoy needling clerks on subjects that he knew were important to them, including gender issues. Sometimes these comments went too far in my view, but I never saw anything I considered sexual harassment,” she said.

              “I maintained a close relationship with the Judge and he was interested in and supportive of my anti-sexual violence work. However, just because I did not see or experience something doesn’t mean that Olivia didn’t,” Dauber said.

              She won’t say no, but she’s not about to lose whatever juice she gets out of being a former Reinhardt clerk.

          2. John Barleycorn

            I guess this post had to happen.….

            P.S. don’t forget to check out our esteemed hosts CONCISE with cogent via the man rolling over…


            Go figure no tunes in the back pages of that post either… and if you didn’t know it, now you do. Scott can get really, really concise, I think he only does it when he cries while typing. Most of those posts he deems inadequate because he is “afraid” he might slip off cogent into rage. And we never see um.

            Bummer that maybe….;)

            someone ought to write Patti Smith a letter or go visit her or something….

  2. Bob

    I would find her account more credible if she didn’t conflate allegations of harassment with the judge’s opinions about feminism or the credibility of various public accusations against men.

    It also strikes me that she doesn’t mention her immediate responses to the actions and statements she (now) says were harassing or offensive. I know there’s a power imbalance, but I suspect that if she had made it clear she didn’t take his drawings of boobs or his comments about her appearance and husband in good humor, that it made her personally uncomfortable, he wouldn’t have kept it up.

  3. Gbarry

    Having read the Bloomberg piece, it’s hard not to wonder if it was actual harassment or just needling a person not inclined to take such needling well. Judges live in a world in which they have, if not absolute power, about as close as one can get to it short of being a billionaire (I clerked for a fed d.ct judge – she was great, but very used to deference in all things). As a result, they tend not to pick up on other’s reactions – if Reinhardt thought he was being funny or provocative within the confines of a friendly relationship with his clerks, , I doubt he’d recognize if the recipient felt harassed. Having been involved (as a witness!) in several workplace harassment complaints, it’s clear that people react to office banter in wildly different ways. As someone noted above, with Koz, it became clear pretty fast that a lot of clerks felt harassed. I’d give it a couple of days (the code of silence is strong), but we’ll see with Reinhardt soon enough. As an aside, Leah Litman, in her Twitter thread, says we “can’t keep demanding that women be heroes.” If the victim of such alleged harassment does not report it, then what?

    1. SHG Post author

      There’s a saying that the teller of the story is always the hero. Was she the victim or oversensitive? We Reinhardt a harasser or undersensitive? Since we only get one story, that’s the story we know.

  4. John Barleycorn

    No tunes-n-the back pages of SJ?

    is it safe…?

    a solitary sofa hugs pride of place
    in a heated lounge in Brighton,
    two sleek chairs mimic servitude
    to the king of loneliness
    fidgeting with every prod of the TV
    conjuring ghosts with wood as smiles,
    a souvenir clock as garrison
    counts lost hours
    stretches stained honours,
    a family portrait sucks passion
    drains spirit and stamina
    and reflects the flight of the will
    in the broken pieces of a man.
    by Kabura Zakama

    Straight to you from the inter-tubes….because somebody said something

    1. John Barleycorn

      if Avenatti is the beat
      and Barr wobbles in dance
      does Giuliani set the pole
      but for the bar…how low will the limbo go?

      RIP Stephen may you find the ultimate reversal in death….

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