In the aftermath of the L’affaire Kozinski, a group of former law clerks took to the microphone to call for the judiciary to protect Harvard Law School’s finest from sexual harassment. Notably, the testimony was before a committee formed at the behest of the Chief Justice of the United States and comprised of judges. Recommendations followed, announced by no less adored a jurist than the benighted Merrick Garland.
And then came the zombie testimony of Olivia Warren, except she spoke not to the judiciary, but about the judiciary and the inadequacy of its newly created procedures for victims of judicial impropriety to feel entirely safe and comfortable. It was unclear from her complaint that the system didn’t, or wouldn’t, work to protect her from the ravages of Judge Stephen Reinhardt, but that the system wasn’t her safe space.
In the aftermath of deafening silence by the Reinhardt brotherhood, Michigan prawf Leah Litman took up arms against the crickets. After all, the failure of anyone else coming forward to provide additional testimony against Reinhardt could only mean one of two things: it didn’t happen (or at least not the way Warren testified it did) or the victims were so cowed, so frightened, that it proved how awful it was and how desperately the judiciary needs to be reinvented to protect the law clerks.
I think it is important to talk openly about clerkships — and specifically, about what people’s actual experiences were. We should not prime students to accept abusive, demeaning, belittling clerkships as a learning experience or worth it or part of becoming better lawyers.
I also think it’s important not to let 1-2 people be the only ones to say something publicly. I don’t think victims have to speak out, but there is a lot that bystanders & others can say + do to support victims, without minimizing or isolating their experiences.
And if you’re unwilling or unable to talk openly about your clerkship experience (or about warning signs that may have been overlooked, or minimized/glossed over for various reasons), …
… then there are lots of things to do — including actively and publicly supporting @ reforms, climate surveys, clerkship reforms, and organizing and pushing for these things too.
Whether or not the complaints about what happened are real, or the problem is isolated or pervasive, there is a valuable bit in Litman’s twitstream: clerkship reforms. No doubt her vision of reform has to do with the reinvention of the judiciary so as to conform it to the sensitivities of new law school graduates, so they can enjoy the benefits of their clerkship, from the mentoring by a judge to the camaraderie of the judge’s clerk family to the Supreme Court “feeder” potential to the Biglaw bonus paid to nail down ex-clerks.
But have the new grad law clerk fans lost the tune along the way?
Clerkship isn’t a right. The judicial branch of government does not exist for the benefit of Harvard and Yale law grads getting a first job. There is nothing in Article III of the Constitution mandating that federal judges hire kids out of law school. Maybe the time has come for reform, but is the most effective “reform” to end the risk of putting recent grads, whether steeped in debt or wearing shades to protect their starry eyes from their bright future, into the chambers of these unsafe judges?
Some judges have elected not to utilize the services of the babies, whether because the skills of career clerks are vastly superior or they just can’t tolerate the persistent whining. There could be other reasons as well, such as Article III judges, confirmed by the Senate, not being subject to congressional oversight should a newly-minted law grad find their mention of hysteria to be a traumatic sexist event.
Should the judiciary be reinvented to safeguard the law clerks rather than be judges and enjoy independence from regulatory oversight or the feelings of the vulnerable? If chambers can’t be made risk-free, then is the answer to eliminate the problem rather than make the judiciary subservient to law clerks?
*Tuesday Talk rules apply.