The New Warren Court

Moira Donegan started the “Shitty Media Men” list, which gave rise to an opportunity for women to tell their stories, whether real, exaggerated or completely false, without challenge or question. Did it help? Sure, it destroyed a few careers of men about whom lies were spread, but isn’t it worth it if they stopped just one bad man? Surely you understand that there will be collateral damage of innocent people in the war for gender hegemony.

So why not federal judges?

There’s a real problem in the federal judiciary. Whether you look at disgraced retired judge Alex Kozinski, who was accused of pernicious sexual harassment in 2017; the resignation of district court judge Carlos Murguia, who was reprimanded for his “inappropriate behavior”; the stymied inquiry into Kavanaugh’s behavior which disappeared because he left the D.C. Circuit when he got elevated to the Supreme Court; or the powerful testimony of Olivia Warren, who detailed the sexual harassment and abuse she was subjected to during her tenure at the Ninth Circuit by the late Judge Stephen Reinhardt, it is clear the legal industry needs to do something.

This fascinating extrapolation, from the brilliantly fertile legal mind of Kathryn Rubino at Above the Law, from two federal judges who are no longer on the bench, together with another for whom there was no hint of impropriety in his chambers, and another who is now deceased, but one (and despite some equivocation) and only one claim of sexual harassment is raised, is condemned.

No mention is made of Ninth Circuit and Court of Appeals executive, Cathy A. Catterson, who retired in 2017, coming to Judge Reinhardt’s defense.

He was known as the liberal lion of the 9th Circuit, but to those who knew him well his bark was much worse than his bite. Judge Reinhardt was devoted to his law clerks, many of whom, both male and female, he helped advance in their legal careers.

I cannot speak personally to the recent testimony by a former law clerk who told of her eight-month experience in chambers to a House Judiciary subcommittee. I regret that she believed this was the best way to air her grievances, almost two years after Judge Reinhardt’s death.

In contrast, the testimony of Olivia Warren has given rise to a new call to the Chief Justice of the United States to act for their protection.

We are frustrated by the slow progress in combatting [sic] misconduct in the judiciary, and we
urge immediate action on the aforementioned reforms. The brave testimony of Olivia Warren
is a reminder that these issues must not be ignored. We remain committed to ensuring the
federal judiciary is a safe workplace and hope to serve as a resource for future reforms.

This letter is signed by a host of groups from elite law schools:

  • Harvard Women’s Law Association
  • People’s Parity Project
  • Stanford Law School for Gender Violence Prevention
  • Women of Stanford Law
  • Yale Law Women
  • Yale Law School Title IX Working Group

As their complaint makes clear, they too see a “real problem.”

We, the undersigned law student advocacy organizations, write with regard to the efforts
of the Judicial Conference to address misconduct in the federal judiciary. We write on
behalf of law students who believe that the federal judiciary has responded inadequately to
widespread misconduct and are concerned that the judiciary is not a safe working
environment. As the February 13th testimony before the House Judiciary Committee made
clear, current processes are not sufficient. We urge additional reforms that we believe are
essential to improving the functioning and culture of the judiciary.

Are they right, that the two instances of misconduct reflected by the resignations of Kozinski and Murguia, coupled with Warren’s testimony about her sexual harassment that finds no support from another of Reinhardt’s clerks and, as pointed out by Cathy Catterson, comes only after his death when her words can be believed by those so inclined but cannot be challenged? Is there an epidemic of misconduct by Article III judges, creating a sexually hostile work environment for female law school graduates so compelling that it demands the judiciary police itself to align with the trauma suffered by law clerks?

As you may know, some have suggested that law schools send out surveys to their alumni.
However, because law schools can reach only their own alumni, a school-based approach
would capture fewer responses and would be far less comprehensive than an internal,
judiciary-run survey. Therefore, we ask the Conference to encourage each circuit to engage
in a rigorous survey of its own.

Some may see these demands as a positive contribution to the cause of reinventing the federal judiciary to either align with the feelings of female law clerks or suffer the consequences. Others may see this as an attempt of the least worthwhile contributors to the system, new lawyers offered an opportunity who instead believe they’re entitled to demand it reinvent itself to suit their feelings.

But there’s another way to view this homage to outrage, as federal judges come to recognize that they, too, are subject to the whims of the mob. As innocent male students have sought redress in federal courts for their being the collateral damage in a war of feelings, and as their male profs who shared the sensibilities of the oppressed subsequently learned as they joined their students under the bus, federal judges have struggled with appreciating that this isn’t a benign bias in favor of victims, but an inquisition.

What’s surprising, in light of the fact that the groups calling for Chief Justice Roberts to create an official “shitty judges list” so that women law students know who is awful and disgusting, is that they could just pull a Moira Donegan and do it themselves. And when judges find their names on the list, see the baseless accusations against them for which there is no opportunity to challenge, and find themselves added to Kathy Rubino’s litany of indisputable judicial awfulness, then federal judges may begin to get a clearer sense of what’s happening.

It’s too bad Judge Stephen Reinhardt can’t call bullshit, but he’s dead. Not even death, these days, is reason enough not to escape conviction in the new Warren Court.

15 thoughts on “The New Warren Court

    1. SHG Post author

      Thanks, Stuart. Perhaps federal judges will come to grips with the damage being done to others now that it’s coming for them.

      1. LocoYokel

        Not being as starry-eyed about human nature, I will be willing to go on record stating that if this really starts to affect the bench, outside a few known actors, it will get shut down quick and hard. It’s all about whose ox is being gored.

        And good luck to any of those who signed at getting any federal (and probably state as well) clerkship.

        1. SHG Post author

          It was somewhat surprising to me how many law students/baby lawyers were boggled by the suggestion that if their clerkships put them in a problematic power dynamic and hostile environment, the solution isn’t to let them dictate the environment but to end clerkships.

          Like everything else in their narcissistic world, they see it as an entitlement. Judges exist to give them somewhere to go in the morning. Judges are lucky to have them. It’s time they learned a harsh lesson that whining has consequences.

  1. B. McLeod

    Ironically, by stopping investigations when judges leave, federal courts now find themselves facing these kind of imbecilec demands on the premise that a systemic problem *might* exist. And after all, isn’t that enough to install some star chamber protocols, just to make sure?

    1. SHG Post author

      To add some wrinkly to the irony, it embeds inquisitors in every judge’s chambers, just in case he or she should stray from their correct version of the straight and narrow because these two errant defrocked judges.

      1. B. McLeod

        Well, they must ensure the irony never becomes steamy. Also, the children must never be exposed to the sort of unsafe words that might leave them inconsolable even through binge-watching their favorite “My Little Pony” episodes.

  2. Rengit

    Also note how Justice Kavanaugh is blithely thrown into the mix. Even if you accept Dr. Blasey-Ford’s allegations as true, as well as the other two from sometime during his freshman year at Yale, the conduct would have occurred more than 20 years before Justice Kavanaugh became a federal judge. How is it then reflective of a “problem with the federal judiciary”? What investigation could they have carried out that would have been any different than his hearings before the Judiciary Committee? What would the punishment have been? Young Brett Kavanaugh’s actions at a high school party wouldn’t be sexual harassment, because the hostile environment theory doesn’t extend to all corners of our society (yet); rather, it’s attempted sexual assault and possibly attempted rape.

  3. Louis Renault

    The supposed problem of “sexual harassment in the federal courts” is part of the #MeToo moral panic that has swept through various levels of American society in recent years. The ideology that animates the MeToo moral panic (I don’t like to call it a “movement”) emanates from feminists and their allies on American campuses. They have been condemning American universities for years for maintaining a “rape culture” in which 1 in 5 (or is it 1 in 4?) American female students are destined to experience sexual assault during their years on campus. Strangely, more young women than ever flock to campuses despite the extreme level of violence supposedly present in those places. I imagine the situation is the same with law clerkships-they are supposedly now very dangerous jobs and more women than ever want them.

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