Strict Scrutiny - Workplace Misconduct And The Federal Courts

Episode Date: April 27, 2020

Leah and Jaime are joined by Deeva Shah (from Law Clerks for Workplace Accountability) and Sejal Singh and Emma Janger (from People’s Parity Project) for a discussion about workplace misconduct and the federal courts. Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Welcome to Strict Scrutiny, a podcast about the Supreme Court and the legal culture that surrounds it. Hi, Leah. Hi, Jamie.

And hi, new friends. And hi, new friends. I'm so excited about the show and the guests we have on. committee hearing about protecting federal judiciary employees from sexual harassment, including the testimony of Olivia Warren, a former law clerk of Ninth Circuit Judge Stephen Reinhart. Liv recounted the severe harassment she experienced during her clerkship and her frustrating efforts to report her experience so it could help law schools and the judiciary implement reforms. So at the time we had our show, we flagged that we wanted to spend some more time on this topic. And so we have invited several guests to the show that have spent hundreds,

if not thousands of hours advocating on these issues. Their work has had a huge impact, so we wanted to highlight it and also have a deeper discussion about the cultural issues animating harassment in the judiciary and what everyone can do to help address it. So why don't we go ahead and introduce and welcome our guests now. So first we have with us Deva Shah. Hi, Deva. Hi. Deva is one of the co-founders of Law Clerks for Workplace Accountability, which we'll

be talking more about in a minute. She is also an attorney now at Kecker Van Ness in San Francisco, and a graduate of the greatest law school in the world, the University of Michigan. Go blue. We also have with us two third-year law students at one of the greatest law schools in the world, Harvard Law School, and that would be Sejal Singh and Emma Janger. They are among the co-founders and organizers behind People's Parody Project, which we will also be hearing about more later in the episode. So welcome, Emma and Sejal. Thank you so much for having us. And I think we'd be remiss if we didn't point out that the two co-hosts here have also spent hundreds, if not thousands of hours advocating

on these issues. So we're very excited to be here chatting with some of our collaborators. Thanks, Sejal. Outline for the show is going to proceed kind of as follows. We're going to do a recap of the hearing that Jamie mentioned. Then we will do an introduction to the work of the two organizations that we talked about, Law Clerks for Workplace Accountability and People's Parity Project. Then we'll spend some time discussing what we think are some contributing sources to the problem of harassment and the courts and the legal profession, as well as some reforms and ways to work forward. We did want to note one thing before we dive in, which is just that in keeping with her approach to media, generally Liv declined to participate in this podcast, though she is, of course, aware that

we are doing it. So Diva, do you want to get started recapping the hearing, which I think was on February 13th, which feels like 17,000 years ago? Also, Galentine's Day. Yeah, a really great Valentine's Day was kicked off by the House Judiciary Committee, having its, or it was the House Judiciary Subcommittee on the courts having a hearing on workplace misconduct in the federal judiciary. I testified at that hearing, but instead of starting with my testimony, I'd first like to talk about Olivia Warren's testimony, where she talked about what she experienced during her clerkship with Judge Reinhart.

So before I even get there, I want to start off with who Liv is. Liv is a capital defense attorney at the Center for Death Penalty Litigation. She graduated cum laude from Harvard Law. Where she won many gold stars at Harvard. I was a teaching fellow there when she was there. So, you know, just wanted to put that out there too. Yeah, she is a very shiny person. She then went on to clerk for Judge Stephen Reinhart on the Ninth Circuit

and then Judge Katonji Brown-Jackson on the U.S. District Court for the District of D.C. Not only does Liv have a lot of gold stars, and she's generally a wonderful person, she is also very brave. Liv testified about the harassment she experienced while clerking for Judge Reinhart, and she testified about that before this House Judiciary Subcommittee on the Courts. Most people with shiny gold stars don't just stop collecting them, especially early in their career. They don't generally testify before Congress against their famous boss, but Liv took that step. And her testimony can be broken down into two major parts. Part one was the details of the

harassment she experienced, and part two, the frustrations and obstacles she encountered when she tried to report within the federal judiciary. So before I explain a little bit about Liv's testimony, here would be a good place to play the first part of Liv's testimony. Chairman Johnson, Ranking Member Roby, members of the subcommittee, good morning. My name is Olivia Warren and I appreciate the opportunity to testify at this subcommittee hearing on protecting federal judiciary employees from sexual harassment. As an attorney, I represent people who have been sentenced to death. Society has condemned and forgotten about the people who have been sentenced to death. Society has condemned and forgotten

about the people who trust me with their stories and their lives. I begin here because I hope that it illustrates how opposed I am to the condemnation of any human being. I believe in my core that people are deeply complex, that most of us are doing the best we can most of the time, and that all people have the capacity to simultaneously make good and bad choices. I saw Judge Stephen Reinhart this way.

He was a complicated man. This was known, understood, and accepted by those who loved him. I saw the good in him, a brilliant jurist and a courageous champion of causes he believed in. I saw the bad in him, a judge who demeaned his employees, a man who demeaned women, and a man who sexually harassed me. A lot of the media attention has focused on part one, so I'm only going to briefly describe the harassment Liv testified about for people who may not be familiar with her testimony. Liv mentioned that on her first day when she started her clerkship with Judge Reinhart, she found a crude drawing taped over her computer that

resembled women's breasts. Just two days later, Judge Reinhart came into her office and asked if she had seen the drawing, whether she liked it, and whether it was accurate. That was the beginning to her clerkship. Over the next few weeks, Judge Reinhart made disparaging statements about Liv's physical appearance, her views about women's rights, her relationship with her husband, including asking whether her husband had a penis and whether her husband could maintain an erection in her presence. These comments were not just made to Liv alone, but in front of other members of Chambers too. Liv testified that by December, she was experiencing this harassment on a daily basis, and it became particularly pointed because the media began covering Me Too in the legal context during her time clerking for Judge Reinhart. As Liv said, her testimony only provided a summary

of what happened during that time. I don't want to give the impression here that Liv didn't try to stand up to this harassment. She did. Her testimony detailed how at one point she told Judge Reinhart she was disappointed that someone with his intellect could not grasp the harmful nature of sexual harassment. He responded by calling her a stupid little girl. Separately, Liv tried to explain to Judge Reinhart that she had been harassed before and what the impact of that harassment was. And then in front of her colleague, Judge Reinhart became enraged, yelled at her, and said that she had never been sexually harassed because no one had ever been attracted to her. The harassment that Liv details in her written testimony is severe and sustained and goes far beyond what I'm describing here, but I just wanted

to give a little snapshot before we started. So I'll briefly talk about part two now. Part two of Liv's testimony detailed her efforts to formally report that harassment. And her failed efforts are what she says led her to report and why she decided to testify before Congress, because she was not able to actually report within the federal judiciary. So first, Liv noted the difficulty of deciding to report in the first place. She didn't want to alienate the extensive Reinhartt clerk family. She was worried about retaliation in one form or another from the judiciary. And as some listeners can imagine, many clerks don't actually have jobs lined up after their clerkships, especially if they want to do niche public interest work like Liv does now. So she was also concerned about finding a

job afterwards. Liv then, during her clerkship, called a former Reinhardt clerk for help. She said she was concerned about the allegations regarding Judge Kaczynski that had come out during that time and that she was worried similar allegations about Judge Reinhardt might also come out. Liv mentioned that this person responded he didn't know about any of that and that this person never asked for more information or followed up about possible misconduct. So after Judge Reinhart's death, Liv then tried to formally report to Harvard Law School. She described what had happened to her and why she was having trouble reporting. No one at the law school followed up with her in any way after that meeting, despite knowing that she was about to begin another clerkship. And then she conferred with lawyers about reporting through the channels recently implemented by the federal judiciary's workplace conduct working group.

She couldn't find a truly confidential option. She was also concerned that Judge Reinhardt's colleagues would be receiving her complaints and knew that he was clearly beloved by his colleagues and was concerned about reporting through that avenue. Then while she was clerking at the District of DC, which, side note, I think is amazing that she continued and did a second clerkship after what she experienced during her first, because if I had to go through something like that, I'm not sure I would have been able to. During that time, she contacted the Office of Judicial Integrity, and Jill Langley, the Judicial Integrity Officer, Ms. Langley was unable to answer any of the detailed hypotheticals that Liv posed through an advocate. I believe that advocate is Jamie. And Ms. Langley was not able to provide any guidance about the confidentiality

of any report that Liv would make. Ironically, despite the Office of Judicial Integrity being the only national body that can give advice about reporting procedures, Liv was unable to get any advice from the OJI, nor could Liv report to the OJI instead of the Ninth Circuit. So that's sort of the landscape that brought Liv to testifying in front of Congress. And I think that those failures led her to believe that that was her only option. And I just want to flag one quick thing, Deva, about your summary of her testimony, is you mentioned the hypotheticals that Liv tried to ask OJI to give her some guidance about. And if you read OJI's response to her, it sounds like the hypotheticals that Liv gave them, she listed four in the letter. And only one of those things, if I understand it

correctly, did she testify about either in her written or her oral testimony at Congress? So the OJI letter mentions hypotheticals along the lines of a former federal judge harassed the law clerk while a judge, I take that to be Liv's testimony. Second, that the same former judge knew about misconduct by other federal judges and failed to report that information and actively dissuaded others from reporting the misconduct. Third, that other judges and judicial employees knew about the former judge's harassment, also did nothing. And last, that the law clerk observed another judicial employee experience adverse treatment by current federal judges and current federal judicial employees designed to inter that employee. And I think one thing we will be coming back to throughout the conversation is just the lack of

follow-up and investigation into some of these allegations and formal investigations. And particularly when you take time to sit down and read this letter, you're like, wow, like when Liv says, I am just trying to give you a brief summary about the experience in my clerkship. It is very clear that this was just, in fact, a small summary, and maybe there is more for us to learn. So there were two other people besides Liv and Deva who testified at the hearing. One was Dahlia Lithwick, who is a friend of the show, a former Ninth Circuit law clerk, and a journalist at Slate. Dahlia has extensively covered stories of harassment and abuse, both within the judiciary and within the law clerk pipeline. She spoke during her testimony about the serious barriers to reporting

that might not always be so obvious, which include what we've talked about earlier, a law clerk's fear of losing the incredibly powerful network of former law clerks for your judge that can have a huge impact on your career. She also spoke about the judiciary's cultural norm of independence for each chambers, which means that judges really don't interfere in how other judges run their chambers or how they treat their employees. And she spoke really powerfully, I thought, about how journalism is not the best way to police misconduct, but it is the only way people will feel comfortable coming forward with their stories if the judiciary lacks adequate reporting procedures. A third witness was Heifeld Blum, the former commissioner of the EEOC. And while she was commissioner, she commissioned a task force

to study harassment in the workplace. And then Deva, you were the fourth speaker at the fourth witness at the at the hearing. Thanks, Jamie. I was the fourth member of that panel. I testified as a founding member of Law Clerks for Workplace Accountability, an organization we'll discuss a bit later. Overall, we've worked to recommend specific changes to reporting procedures in the federal judiciary. And in my testimony, I discussed five specific recommendations. I want to be clear that these recommendations are the recommendations that I think are necessary now, but that in 2017 and 2018, we made a number of recommendations to the federal judiciary. Some of them were adopted, but most of these are continuing recommendations that haven't been adopted yet. And the five major ones are all things that we

mentioned in 2017 and 2018. But we still hope that there will be more action on those five things. So in addition to the testimony of Diva, as well as Dahlia, Hai, and Liv, there were also letters to Congress that were entered into the record, including by several of the people here today. So Jamie, do you want to describe the letter you submitted? Sure. So I submitted a letter. Let me actually first say, I had testified in 2018 before the Senate Judiciary Committee about these same issues. And so I wanted to provide a letter to kind of update some of my views and provide a personal example federal judge after law clerks for workplace

accountability submitted comments to the judicial conference about the judiciary's reform efforts. And we were, I should say, invited to do so by the working group that had addressed these issues. So this judge took to Twitter and kind of for, I think, two days attacked LCWA and me personally about our audacity in kind of taking part in activism on these issues. So I explained in my letter that I had informed the director of the administrative office of the U.S. courts about what had happened and never got a response. I also explained that I knew for certain that the Eighth Circuit knew about what the judge had done. The Eighth Circuit is where he was a district judge. So they knew about what the judge had done, and I understood that they were meeting about it, but that they never reached

out to me or took any public action. So this incident didn't, as far as I know, affect me professionally, aside from significantly rattling me. But I said that I think it exemplifies the need for continued systemic change, because even this issue I didn't think was really handled properly. And Sejal and Emma, you also submitted a letter on behalf of the People's Parity Project. Yeah, thanks, Jamie. So like Deva's testimony and your letter, our letter also built off of recommendations that we had previously made first to the working group. And then in 2018, through a formal comment to the Federal Judicial Conference when they were updating their code of conduct and really focused on some areas where we thought they had a lot of room for improvement still. So we had three main recommendations that we submitted to them in our letter. The first was that the federal judiciary conduct a climate survey, which would assess

whether employees had experienced or witnessed harassment. And this would be a climate survey that addressed current clerks, former clerks, as well as permanent judicial employees, who I think sometimes get lost in this conversation, that obviously, you know, chambers are staffed with many employees who are not clerks who are there for a long time and who may be subject to or witnesses to harassment as well. This is a recommendation that LCWA made years ago. This is a recommendation that Jenny Yang, who testified in 2018, made. This is a recommendation that's in the EEOC's report on which the working groups report was supposedly

based. And kind of the conclusion that I've come to, and I'm curious if you have, is that with everyone who is advocating on these issues, recommending this, the judiciary's choice to not do it almost seems like an intentional effort to avoid finding out how widespread the problem is, which is, I feel like even aside from not finding out the problem, sends a message to employees about whether the judiciary actually wants to know. And that is disappointing. Jamie, I completely agree. So in our letter, we recommended two other things. Along with DIVA, we recommended a national reporting avenue, which I know we're going to talk about more a little bit later. So I'm not going to get into the details of what that would look like. But I think, as Liv's testimony shows, only having your circuit as an option is not a viable reporting avenue. There has to be a

confidential national reporting avenue if employees are going to have the ability to report harassment. And then the third thing we recommended was the existence of accountability mechanisms so that there was actually responses from the judiciary when you report. We know that Harvard Law School, our institution, knew about Liv's harassment by Judge Reinhart because she reported it directly to them and they chose to do nothing. that if schools were receiving annual reports from the judiciary, there would be more onus on them to also take protective measures to ensure that their students who are entering clerkships were safe. I completely agree with everything Emma said. We've been advocating for these changes, like Deva, Jamie, and everyone else on this call for years. And the climate survey in particular, I mean, I've been working on sexual harassment issues since 2012, and we were advocating for climate surveys in workplaces and schools back then. And most workplaces and schools do climate surveys now, or at least most law schools do climate surveys.

So it is sort of ridiculous to me that, you know, we are still having this fight in 2020 when we know this is a best practice. But another thing that we did at PPP is we contacted students who were in the DC area, including students that are Georgetown PPP chapter, to let them know about the hearing. And within 24 hours, students were mobilized to turn out. The hearing was at 8 a.m. and they were there bright and early, ready because they care about this issue. And I think it really drove home to us how salient this issue is for students because people were really ready to mobilize. Sejal, I just wanted to add that as a person who was testifying that day, it was really helpful to see that students support these efforts and that having the Georgetown People's Parity Project there really made a difference just

knowing that there were other people who were interested in making sure that this progress happened. I think it's safe to say that there has been some reaction, although maybe not exactly what all of us hoped for. So for example, there was a joint letter issued by about 70 or more of Judge Reinhart's former clerks, definitely not all of them. I'm not even sure if it was, I think it was around a majority, I don't totally know. The letter basically said, we support some of the reforms that had been offered, and that we think the law clerk who testified, Liv, is brave. There were also individual responses by individual Reinhart clerks. One that I did want to highlight in particular, that I appreciated was Michelle

Dauber, who is a professor at Stanford, who has previously said publicly very nice things about the judge. And Michelle both publicly apologized to Olivia and then also did, I think, an honest reflection about some things that she observed during her clerkship that she should have been more forthcoming about and discussing publicly that might have included some red flags about the fact that Judge Reinhart had, let's say, antiquated views toward women and expressed those things rather openly in chambers. A lot of the other responses, however, focused on how difficult this was for the other clerks, rather than Olivia, who had by this point had 10% of her life sucked up by, you know, this speculating some of the personal and professional costs of the harassment. I think it's, again, worth underscoring that this harassment happened at the very beginning of Liv's legal career during her first clerkship as she was about to start another by someone who she expected to be her idol, by someone who was celebrated as a liberal lion. And that dimension of personal harm was exacerbated by the professional harms as well, like having

all of those seeds of doubt planted in you and being told you are a stupid little girl by someone who is revered by all of the people you aspire to be like and all the people you aspire to work with is exceptionally hard. I think I said around the time of her testimony that if that had happened to me during my clerkship, I probably would not be a lawyer, much less a law professor. I just personally do not think I had like a tenth of the strength that could have carried me through that experience. And, you know, one, I think, specific example about the possible professional harm to live that is worth highlighting is that in the wake of her testimony, a former circuit executive of the Ninth Circuit,

Kathy Katterson, wrote a letter to the editor of the Los Angeles Times, and it is worth quoting at least a few of the lines of that letter. So, for example, Katterson said, Judge Reinhart was devoted to his law clerks, many of whom, both male and female, he helped advance in their careers. I cannot speak personally to the recent testimony by a former law clerk who told of her eight-month experience in chambers. I regret that she believed this was the best way to air her grievances almost two years

after Judge Reinhart's death. She closes with, I have tremendous respect and admiration for Judge Reinhart's legacy, and I know there are many others who share these views. It's hard to know where to start with this letter, but first, just based on this letter itself, Liv is a Capitol defense attorney, as you mentioned, and I think it is not unreasonable to surmise that it would be detrimental to her clients' interests for her to appear in the largest jurisdiction in the United States if this is the views of the former

circuit executive of the Ninth Circuit, who is representing that, in fact, other people share these views as well. And why on earth do we think it is OK to sacrifice Liv's professional career to this. It is just beyond frustrating and aggravating to me that people view this as an acceptable consequence. I totally agree, Leah. And it just makes me think about how broken our systems are for preventing retaliation, because retaliation occurs in all of these subtle, and in this case, unsubtle ways that, you know, don't just happen within the individual reporting mechanism. It's not that her judge, who appears to be extremely supportive and wonderful, or her second judge after clerking for Judge Reinhart,

was going to fire her, but rather that, you know, different attorneys might look at her differently, that people in the Reinhardt network might be less willing to support her in her professional endeavors, and that this might impact her clients. And it's very, very difficult to police that, especially when, as is usually the case, people have the good sense not to make their terrible opinion so public. Right. If this is what Kathy Katson felt comfortable sharing in public,

as you were just suggesting, Sejal, imagine what these people are saying in private. And, you know, what I think this demonstrates is like, this is why the calculus was that it was better for Liv to testify to Congress than to attempt to report internally to the Ninth Circuit. Because at least now we know or you have reason to suspect why certain people in certain groups through certain channels might be saying bad things about Liv. Whereas if she had merely attempted to report internally and then all of a sudden you have some Ninth Circuit judges and some like other clerks and some circuit executives being

like, you know, that Liv Warren, she just doesn't make the best decisions. You wouldn't know why they were saying it. Whereas now, like it's all out there. Well, I'd like to note also that just because you didn't personally experience harassment from someone does not mean that that person isn't a harasser or that you should minimize victims' experiences. That especially applies if you're the person to whom people might report misconduct. So until last year, the circuit executive was the person, was one of the few informal reporting avenues that was supposed to receive complaints about sexual harassment. So Kathy Patterson was one of the people that Liv, or people before Liv, could have reported to. So to me, this letter highlighted sort of the institutional resistance to protecting victims and taking reports seriously. And although I've spoken to numerous

judges who are invested in making reporting easier, I imagine that Kathy Patterson, as she indicates, knows many others that perhaps don't feel the same way. And that's frustrating. That's a great point, Diva. And I'll say I was really hoping that the Ninth Circuit would come out with a public statement after this letter to the editor came out. Because to me, it was clearly intended to be victim shaming, to be dismissive, and even to be intimidating, that line, I know many others who share these views. And I was incredibly disappointed that the Ninth Circuit didn't come out with a statement that was more supportive and at least, you know, stated the circuit's commitment to

encouraging reporting. There was a former Ninth Circuit clerk, David Hackett, who did respond to this letter. And I'll just quote the very last part. He mentioned that a circuit judge's chambers is a small and private place, a place where vicious bites, referring to Kathy Patterson's letter, could be delivered frequently and without much, if any, notice outside. And that is exactly why the reporting system must be strengthened. All right. So I think we should jump into talking a little bit about LCWA and the People's Parity Project. So Deva, what is LCWA? When was it formed? What's it do? LCWA, Law Clerks for Workplace Accountability, was an organization that Jamie, myself,

and a few other women started in 2017. While I was clerking, I spoke to two women who were facing harassment in the same courthouse that I was clerking in. I thought it couldn't possibly be that hard to report within the judiciary. Judges litigate these cases all the time. They're concerned with justice, so there must be some kind of procedure. And for a few months, I tried to help them figure out where to report and realized that the reporting procedures were not just unclear, but frequently non-existent or existent. And, you know, we're so backdated that people didn't really know who they were supposed to report to or how. In December of 2017, that's when the Kaczynski allegations came out, and we realized it was a much bigger issue. And so I reached out to my former professor at Michigan Law, Beth Walensky, who put me in touch with Jamie.

We then were put in touch with a bunch of women who we decided that we should just write a letter to the chief justice and say that there were certain changes we were looking for. A lot of the changes that I testified about were actually the changes that we recommended in that initial letter. From there, the organization has developed even more. Sejal and Emma, do you want to talk a little bit about People's Parity Project? Yes, absolutely. The People's Parity Project is a new campaign of law students organizing to fight corporate legal power and to make the legal system work for everyone. We started organizing very informally about two years ago, in part because of reports that emerged during Emma and my 1L year about powerful Ninth Circuit Judge Alex Kaczynski's harassment of at least two dozen clerks, colleagues, and other women who worked in the Ninth Circuit. We were horrified to learn, you know, not just that this harassment had gone on for so long, but also that it was extremely widely known.

There are a lot of, like, very many instances in which the harassment occurred in public and nobody did anything about it. We know that students reported this harassment to, you know harassment to their schools and to others. We learned recently that there was even like a university-wide spreadsheet at Yale Law School that had like included information that was like, Alex Kaczynski has a history of harassing people. And this information was incredibly widely known and no one did anything. And it was just shocking to us how broken the system was.

Well, Sejal, I actually think people did continue to do things. Namely, they continued to recommend students to Alex Kaczynski and encourage students to clerk for him if they wanted a Supreme Court clerkship. So slight modification there. Right. No, I think that's exactly right. And, you know, for us to seem very connected to our core work of making the legal system work for everyone. secret. It was that Kaczynski was a feeder to the Supreme Court and then Supreme Court clerkships themselves are feeders to incredibly impressive jobs as a litigator in academia and as future judges. And Supreme Court justices. Right, exactly. So it is this pipeline that can

begin when you are 26, 27 with that first judge that you clerk for. And so when you have something that is an open secret like Kaczynski was, you don't just have the harassment that's going on in chambers. You also have all the women who through a spreadsheet in their career services office or through a well-connected upperclassman friend don't apply to Judge Kaczynski. And that doesn't just shape who ends up being a clerk for those judges. It ends up shaping our entire legal profession and frankly, what the laws in America look like when you shape who has access to eventually become a judge, a Supreme Court litigator. I mean, Jamie, I know you are constantly calculating how many women are arguing in front of the Supreme Court

and how dismal those numbers are. And I think that, you know, we can all see that this isn't a problem that just, this is a problem that has many authors and that harassment in the judiciary is absolutely one of the sort of starting stumbling blocks to that pathway. So we started organizing around the issue of harassment in clerkships, around, as Sejal mentioned more broadly, around corporate legal power. And then sort of through over clerkships around, as Sejal mentioned more broadly, around corporate legal power. And then sort of through over the last two years, we've stayed engaged on these issues and become, you know, from a group of women who were angry in Sejal's apartment on that couch behind her. We are now a national nonprofit with law student chapters at nine law schools,

including the wonderful University of Michigan. And counting. So if any listeners are interested in starting a PVP chapter, you should hit us up. I think that the work that these groups are doing is incredibly important. And also, I want to flag, and I think, Deva, you can talk about this a little bit, that it is incredibly powerful and rewarding and interesting work. It also is being done almost entirely by women. And it takes a massive amount of time, resources, and personal emotional toll on everyone. Yeah, Jamie, as Liv noted in her testimony, she lost so much time and ability to do other things because she was dealing with this. And I think that on a personal level,

that applies to her, but also for people who aren't maybe reporting harassment, but just doing the kind of work that all of us have been doing. It's difficult because, for example, I was clerking during that time. I couldn't speak publicly. And I was trying to advocate for these changes. And a lot of the women that you and I worked with, Jamie, were current clerks or former clerks who couldn't really say anything because of their jobs, but were still taking the step despite the fact that there could be professional repercussions. And also, it takes up just a lot of personal time to do this kind of work. So I think that for people in practice, that's difficult, but also for law students, that can be difficult, but also really enriching. So it's really cool that People's Parity has been doing

this kind of work. And then also like, you know, being two L's and three L's and one L's, like having other things in their life that they also need to take care of. Yeah. And Deva, if I could just add like one additional thing on the tax that doing this work kind of carries with it is the legal profession, for whatever reason, prioritizes or values or is understood to value this idea that like being a lawyer means appearing not angry and very neutral all of the time and not having strong opinions or beliefs. And so when you put yourself out there as this really makes me pissed and we need to do something about it now slash yesterday, you are kind of sacrificing some of your credibility

or putting your integrity on the line in a way that it would be helpful if more people were willing to do that. So it wasn't just this group of women who are constantly willing to put themselves on the line to make this issue heard. So one thing I want to add to that is just so Justice Sotomayor talks about this a lot when she goes and speaks at law schools and different places. She says you can't do human activity and judging as a human activity without having human emotions. And I think that like this work is really taxing, especially because we're supposed

to somehow present it in a way that's emotionless and rational. But the stuff that's happening to a lot of these people who are being harassed, mostly women that we've heard from, is taxing and is emotional and dealing with it as emotional and then advocating for it as emotional. So I think what you're saying makes perfect sense, Leah, because I think that there's just a tax mentally in doing this kind of work that is hard to explain. So we want to talk about some of the contributing forces to harassment in the judiciary, and then we want to spend a chunk of time talking about reforms and things that people can do to help. So I'm just going to briefly mention a few things since we've talked about some of them already. One thing I

wanted to flag as a contributing force is that the EEOC's task force discussed a number of issues that make sexual harassment more likely in certain workplaces. So things like having the male dominated jobs, having short term assignments, isolated workplaces like judicial chambers, significant power differences, all of those things describe the judiciary really to a T. The things we've talked about as well with law clerkships in particular happening at the beginning of stages of your career before you have a professional support network. That's exacerbated for first generation students, first generation lawyers and lawyers from underrepresented backgrounds. We've talked also about the lack of kind of the judiciary doesn't have there's an administrative office of the U.S. courts.

But generally, every circuit, every chambers, every district is independent. So there's not a lot of centralized oversight. Something that Dahlia Lithwick has talked about quite a bit is the sense of kind of judicial fetishization or hero worship. So Dahlia has said that the experience of working in a judicial chambers is that it has a culture of worshipful silence, which I think really describes what it feels like to work for a judge. And there's an HLR blog post about this that came out recently that talked about it. Leah, did you want to mention that? Sure. So the HLR blog post mentioned that law reviews have a tradition of writing tributes to judges or justices who retired, or at least some judges or justices who retired or passed away, and that

the law review on some reflection realized that part of these tributes contributed to the fetishization and lionization of these judges without any kind of critical reflection or honesty about what it might have been like to work in those chambers and that that pattern of doing those tributes might have facilitated the kind of culture of silence or making it more difficult for victims to report. I wanted to add also that Liv's testimony goes into this in some detail and it might be a good place to play her testimony. And what I do want to tell you is that mentor told me something I had never considered until a day that we spoke late in December. She told me that I could leave. That idea had not occurred to me. I honestly felt that I would walk out of chambers either at the

end of my clerkship as scheduled or on a stretcher after a heart attack. Those were the options that I saw. I was not somebody who went straight from college to law school and who had never worked. I've been working since I was 17 years old when I left home. I am now 31. I was 28 at the time, and I had held a number of jobs in which I understood I could leave. This was the one where I felt I had nowhere to go and

I came forward today because I have described all of the places that I felt I should go or I could go. I tried all of those and nothing worked. Another contributing force that I wanted to mention is law schools and law professors' relationship with judges and the incentives that the clerk network in general has to maintain good relationships with their judges, but the particular incentives that law schools and law professors have to do as well. Law professors who get, you know, major institutional service credit, if they are able to get students clerkships, law schools also report out clerkships. And those are, you know, part of what goes into employment rankings for law schools. And so those features about like maintaining good relationships with judges are something that law schools and law professors have an incentive to do as well. And, you know, we previously flagged how the Kathy Patterson letter mentioned that, you know,

I know there are others who share these views, i.e. her views about Liv testifying about Judge Reinhart. And in the wake of Liv's testimony, I identified myself as the woman who had accused Judge Kaczynski of harassment, who Reinhart later publicly insulted at this gathering. And after that happened, I actually had three separate people come to me because they heard statements that other people made either about me specifically or about the decision to speak out about Judge Reinhart and basically alerting me to the fact that like there are people within legal academia

and the legal profession who like I might expect to be kind of friends or like supporters. But like I should just know that, you know, basically these people have had second thoughts about, you know, me slash my work generally. I think that the problem with this is a lot of the time, like when people are reporting or are involved in this sort of activity or being an advocate in this area, you don't know whether there's retaliation or not. And so you sit there and say there isn't retaliation or I haven't experienced anything yet. But but for example, how is Liv supposed to know whether the Ninth Circuit is retaliating against her in some

way when she decides to file something on behalf of a client? How are you supposed to know in the instance you just talked about? I think that's what makes it especially difficult to report, but also to just be an advocate. That's totally right, Deva. I think that this is actually a great segue to talk about some of the structural problems in the federal judiciary's reporting procedures and structural changes that can help. Because I think one of the challenges with the incentives that law schools and law professors have is that structurally, there is no mechanism whatsoever for law schools, any formal mechanism for law schools to be able to provide information to the judiciary without

fear of retaliation. And I think one of the most critical things for there to be big change in this area will be that law schools have to work together to create a mechanism that will make them feel safe and comfortable reporting without fear that their law students or future law students might get dinged on the clerkship market. They have to work collaboratively with the judiciary to put it into place. And the judiciary has to effusively welcome it. If the judiciary does not signal strongly to academia, we want to know information that you have. We will welcome it. And here are all the ways we will make sure that you won't be retaliated against. I don't see a lot of change

happening. So that's a structural mechanism that I would really like to see put in place. And I'm a bit bummed that it's still a couple years later and nothing's happened there. We know that the Judicial Integrity Office, which was created in 2018 in part to address this very issue and these very scandals, is supposed to answer individuals' questions, provide guidance on this process. And it currently only has one employee. The judiciary employs a lot of people, so that's obviously not enough. But also that employee is Jill Langley, the very same person who provided a completely inadequate response to Liv's complaint. So I think that we need to have more people and also better people. My understanding is that the AO has requested funding for several more staff members, And also better people. Jill Langley made the independent decision to kind of punt and tell to live essentially to pound sand or if she was pressured to do so by those above her.

So, you know, so I think that a level of independence is really important to be able to give someone with authority to provide independent as an independent reporting avenue to really be an advocate, to really be the right person for the job, and also to be able to have the leeway to do that job well, and to report to the judicial conference and potentially to Congress as well about what's happening. And Jamie, I'd like to add that hiring any number of employees doesn't change the fact that currently the OJI just does not have the power that it could to not just provide advice, but also to receive complaints. And so one of the things that Sejal sort of talked about is there needs to be a national office to receive these complaints because there are districts that only have one judge, for example. And so that's problematic. There are also courthouses that are very remotely located,

so they might be part of a larger district or circuit, but really the only person you can talk to in person would be your own judge or someone that your judge hired. The Judicial Conduct and Disability Act does not require that there be some kind of post-resignation investigation. And I think that that's extremely problematic when a judge resigns or retires pending an investigation and allegations have been made against that judge. degree to which the judiciary is fundamentally never treated as an employer. And because of that, there just aren't employee protections. And I think one of the things that ends up sometimes getting overlooked as we all sort of in our free time on top of being students and lawyers try to design perfect, you know, systems for them that they then don't, you know, that they then ignore is that another thing that Congress could do is extend the protection of Title VII, the ADA, and the ADEA to actually cover the judiciary and its employees so that

when you are going through this process, if it's regarding sexual harassment or discrimination, you have the legal protections of Title VII that, frankly, the judiciary should know pretty well since they've been the ones interpreting the law for decades. And I think that that sometimes is a broad level structural change that we overlook and I think should not be overlooked. And I also think it's worth reminding people that currently there is no Title VII protection for judicial employees, which is just sort of astounding. I think it might make sense now to kind of move into talking about what people can do, what role people can play. And maybe what we could each do is kind of go around and mention one or two things that you want people to know about what they can do to help.

Yeah. Thank you, Jamie. So I think the best thing that people could do is join the People's Parity Project if you're a current law student. Snaps for that. Thank you. I mean, we're able to do a lot of like large structural advocacy, both around this issue and a lot of the other structural issues that lead to the fact that fewer women and people of color get to the point where they're applying for these elite clerkships in the first place. And we're also doing a lot of law-specific work here too. So in addition to all of the work that we've talked about here, we continue to be pressuring the judiciary to reform its procedures,

but also there's a lot of changes that need to happen on our campuses, and we're pushing our campuses to do that as well. Emma and I are working on a comprehensive memo about best practices that schools should be adopting. And we're also working with Congress on some potential changes there as well. For those of you who are current clerks or recent clerks, law clerks for workplace accountability could definitely use your help.

So if you are interested in working with us or simply spreading the message to people that you might speak to that are experiencing harassment or have seen misconduct in the federal judiciary while they're clerking, we're happy to help in any way. I also think that we need to continue advocating for the structural changes that we talked about before. And that includes changes to whistleblower protections and focusing on the people who are most likely to use it, clerks and employees of the court. Um, so overall, I think that, you know, there are many ways to, to start attacking this

problem, but I think like Emma said earlier, there are many authors to this problem. And so we all need to take ownership and fixing it by sort of looking at what role law schools play, what role institutions play, and how we can start tweaking those even in small ways. One thing I want to mention sort of speaking as a current student is one of the things that is particularly current and mainly former clerks actually can most do is be honest about their clerkship experience. I think for, you know, obviously these structural fixes are going to take longer than we all hope they will. And getting involved and engaged on structural change is important. But we have, you know, more 2Ls and 3Ls applying for clerkships every year. And the more that this is shrouded in

mystery and whisper networks and rumors, the harder it is for those students to go through this process feeling safe, feeling supported, understanding where they can turn for information, even in perfect system. You know, HLS does collect some exit evaluations of clerkships. And one of the things every 3L tries to tell every 2L they know is that if an evaluation says, call me, you have to call the former clerk who wrote it. Obviously, that is an inadequate proxy for these large real structural changes. But I think it is important to really ask former clerks to be as honest as

they can with current law students about how their clerkship was, the good, the bad, the reality of what clerking is and the huge benefits it can have. I know you all had wonderful clerkship experiences and that's useful to hear too. Sometimes the drumbeat of these media stories can drown that out as well and that can dissuade people who should be pursuing clerkships from doing them. So I think that honesty needs to be full on the good and the bad, But I think that's something that people can do right now. Emma, I really appreciate that. And I think that clerkships are really important. But one thing that I think everyone can do, whether you're a current clerk, a former clerk, you never clerked, is to not minimize the statements of people like Liv. So to bring it

full circle, Liv is an example of someone who's come forward and there's been people who have tried to minimize what she said about her experience in Judge Reinhardt's chambers. But similarly, if someone else tells you that they're experiencing something like this, they're experiencing misconduct or harassment, you know, don't say that the person who's harassed them has always been nice to you. So like, you don't see it. And if appropriate, reach out directly, ask them how they're doing, keep checking on them. These sort of things aren't just like blips in a person's life. They can affect years and years of that person's life and can take over a lot of

time. And so I think it's important not to minimize when people do come forward and report and to help those people report to the extent that you can, but also to just be there as like humans. I think the other thing as we focus so much on discrimination and harassment is that sometimes you'll see this in evaluations and conversations with former clerks. They'll just say that someone was a bad boss or a really harsh boss. And I think if you're applying to clerk, it's okay to decide, okay, this might not be harassment and it really might not be. I still don't want to go into that experience. Even though it is a clerkship, even though it is prestigious, it is not the only first job you can have out of

law school. It is not the only way to have an incredibly successful and enriching legal career. And just because, you know, it's a judge doesn't mean you should be putting up with a bad boss, even if it isn't behavior that honestly would rise to the level of being reported or being actionable. I completely agree with everything Diva and Emma said. And I think the other thing you can do is you can be a good bystander. You know, we've talked a lot today about the many different kinds of ways that retaliation shows up, including in ways that it's, I can't imagine a system that could effectively redress every form of social and professional subtle retaliation.

And the best thing and the most important thing I think you can do is if you hear somebody who says something about, that is designed to malign a reporting party's credibility, or if you hear someone who's talking about how they are going to, you know, think differently about someone who's come forward, like you should step up and intervene. And that is like extremely scary and hard, but it is not more scary and hard than what the people who've come forward to do are doing. And so I think that, you know that the only way that we actually solve this problem, these structural fixes are necessary, but they're not sufficient without all of us stepping up for the cultural change.

Absolutely. Thanks, Sujal. The one thing that I wanted to flag of things that you can do, you can encourage your own state judiciary or your own district or your own circuit to study and address these issues. So if you're a judge listening, know that the way you respond to someone who comes to you to report something they experienced can have a massive impact on whether they decide to report on their emotional health and even on whether they decide to leave the profession. So imagine someone comes to you to report harassment by your judge, and you respond by saying, well-meaning, but you say, you know, wow, that's really hard. I'm sorry you've experienced that. And, you know, I've heard that from, that other people have experienced that as well. Listen, if you want to report, I can tell you how to do so. It's within

your rights. But your clerkship is almost over and you have an incredibly bright future. And maybe it would be better for me to just have a discussion with the judge to try to deal with it. Would that be okay? And then imagine the second experience is your response is, thank you so much for coming to talk to me and for trusting me with this information. That must have been incredibly difficult. What you describe is unacceptable and it violates our rules. And I want to tell you how to report. And I also want to let you know that even though it's scary to do so,

I'll be there with you every step of the way. I'll help you find pro bono counsel. I'll check in with you every week to make sure you're not experiencing any retaliation. What else can I do to help? I mean, the two results of those responses are going to be drastically different. So just think really critically about how you respond to people who come forward to you. And if you don't have training on how to do so, ask your judiciary to provide you with that training. OK, so I guess I would just kind of add two general thoughts, and they're probably related

to what you already said, but I just will take the ending privilege to underscore them. First is, I just think it's important for people to focus on the person who has been harassed and what that felt like and what that experience was like, not only in the moment, but thereafter. You know, we've mentioned some of the difficulties and some of the costs that go into doing this kind of work, including for people who choose to speak out about their own experiences of harassment. is to spend a lot of time explaining the emotional toll and how difficult it was on them. That does not mean, however, the experience and its aftermath was not exceptionally difficult and crushing. And so I would invite people who maybe have said this experience was difficult for them too, to think about how it was difficult for Liv and other people who were victims of harassment and incorporate that into their own responses, both publicly and privately. Second is just in the spirit of free knowledge slash advice, if you ever find yourself in a situation

where, let's say, someone has made an accusation of sexual misconduct against someone you know or someone you work for, I would say try to think about doing these two things. First is to publicly support them. That is, don't just email them and say like, hey, I think you're brave, right? Like it is really helpful for you to take proactive steps and offer proactive steps of ways you can help them. Second is to do what the very brave and apparently forward-thinking 2Ls and 3Ls

at Harvard Law School were able to think about, which is do some self-reflection about your own role in this system. We are all part of the system that led to the scenario where a young lawyer at the beginning of her career had to testify to Congress about her judge's statements about her husband's penis. Ideally, we shouldn't have to get there again. And so it would be nice if everyone could think about things they might have observed or things they might have done. Again, those things don't have to be, well, I personally

observed Judge Reinhart say to Liv that she was too ugly to be harassed. It instead can be, well, gosh, you know, along the lines of Michelle Dauber, like, you know, he said and like did some things to me that were pretty dismissive of women. I wrote them off, but like, here's what I should have done. And like, here's what I would do going forward. You know, again, like we are all part of the legal profession and all part of the institutions that failed to prevent this situation. It's not that you were there and personally observed this exact behavior. It's that we are all part of the community that could have done something or could have stopped this and didn't.

And so it'd be really nice to engage in that kind of public reflection to prevent this from happening again and again to support the people who were victims of harassment and had to testify about their experiences. So those would be my suggestions slash recommendations. I would now like to play the end of Liv's testimony, which is her message to people who might currently be being harassed or were victims of harassment. Know that what you are going through is not your fault. Know that your feelings of powerlessness are not irrational and know that if the

system feels stacked against you it is because right now it is. Thank you to the very best guests from both the very best law school and also very good law school, Deva Shah of Kakar Vadnest and Sejal Singh and Emma Janger of Harvard Law School. Again, Emma and Sejal are among the co-organizers of People's Parity Project, which everyone should check out and consider supporting in various ways. Diva is among the co-founders of Law Clerks for Workplace Accountability, which everyone should also likewise check out and consider supporting. Thank you all for joining us.

Thank you to our listeners as always for tuning in. Thank you to our wonderful producer, Melody Rowell. Thank you to Eddie Cooper for our music. And thanks, Jamie, for doing this episode with me. Thanks, Leah. Have a great one, everybody. Thank you all. Thanks so much for having us.