[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]
PROTECTING FEDERAL JUDICIARY EMPLOYEES FROM SEXUAL HARASSMENT,
DISCRIMINATION, AND OTHER WORKPLACE MISCONDUCT
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HEARING
before the
SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY, AND THE INTERNET
of the
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTEENTH CONGRESS
SECOND SESSION
__________
FEBRUARY 13, 2020
__________
Serial No. 116-75
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://judiciary.house.gov
______
U.S. GOVERNMENT PUBLISHING OFFICE
42-424 WASHINGTON : 2022
COMMITTEE ON THE JUDICIARY
JERROLD NADLER, New York, Chairman
MARY GAY SCANLON, Pennsylvania, Vice-Chair
ZOE LOFGREN, California DOUG COLLINS, Georgia, Ranking
SHEILA JACKSON LEE, Texas Member
STEVE COHEN, Tennessee F. JAMES SENSENBRENNER, Jr.,
HENRY C. ``HANK'' JOHNSON, Jr., Wisconsin
Georgia STEVE CHABOT, Ohio
THEODORE E. DEUTCH, Florida LOUIE GOHMERT, Texas
KAREN BASS, California JIM JORDAN, Ohio
CEDRIC L. RICHMOND, Louisiana KEN BUCK, Colorado
HAKEEM S. JEFFRIES, New York JOHN RATCLIFFE, Texas
DAVID N. CICILLINE, Rhode Island MARTHA ROBY, Alabama
ERIC SWALWELL, California MATT GAETZ, Florida
TED LIEU, California MIKE JOHNSON, Louisiana
JAMIE RASKIN, Maryland ANDY BIGGS, Arizona
PRAMILA JAYAPAL, Washington TOM McCLINTOCK, California
VAL BUTLER DEMINGS, Florida DEBBIE LESKO, Arizona
J. LUIS CORREA, California GUY RESCHENTHALER, Pennsylvania
SYLVIA R. GARCIA, Texas BEN CLINE, Virginia
JOE NEGUSE, Colorado KELLY ARMSTRONG, North Dakota
LUCY McBATH, Georgia W. GREGORY STEUBE, Florida
GREG STANTON, Arizona
MADELEINE DEAN, Pennsylvania
DEBBIE MUCARSEL-POWELL, Florida
VERONICA ESCOBAR, Texas
Perry Apelbaum, Majority Staff Director & Chief Counsel
Brendan Belair, Minority Staff Director
SUBCOMMIITTEE ON COURTS, INTELLECTUAL PROPERTY, AND THE INTERNET
HENRY C. ``HANK'' JOHNSON, Jr., Georgia, Chair
J. LUIS CORREA, California, Vice-Chair
THEODORE E. DEUTCH, Florida MARTHA ROBY, Alabama, Ranking
CEDRIC RICHMOND, Louisiana Member
HAKEEM JEFFRIES, New York STEVE CHABOT, Ohio
TED LIEU, California JIM JORDAN, Ohio
GREG STANTON, Arizona JOHN RATCLIFFE, Texas
ZOE LOFGREN, California MATT GAETZ, Florida
STEVE COHEN, Tennessee MIKE JOHNSON, Louisiana
KAREN BASS, California ANDY BIGGS, Arizona
ERIC SWALWELL, California GUY RESCHENTHALER, Pennsylvania
BEN CLINE, Virginia
Jamie Simpson, Chief Counsel
Thomas Stoll, Minority Chief Counsel
C O N T E N T S
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FEBRUARY 13, 2020
OPENING STATEMENTS
Page
The Honorable Henry C. ``Hank'' Johnson, Jr., a Representative in
the Congress from the State of Georgia, and Chairman,
Subcommittee on Courts, Intellectual Property, and the Internet 1
The Honorable Martha Roby, a Representative in the Congress from
the State of Alabama, and Ranking Member, Subcommittee on
Courts, Intellectual Property, and the Internet................ 14
WITNESSES
Ms. Olivia Warren, Durham, North Carolina
Oral Testimony............................................... 17
Prepared Statement........................................... 21
Ms. Deeva V. Shah, Founder, Law Clerks for Workplace
Accountability, Keker, Van Nest & Peters LLP
Oral Testimony............................................... 41
Prepared Statement........................................... 43
Ms. Dahlia Lithwick, Senior Legal Correspondent, Slate
Oral Testimony............................................... 59
Prepared Statement........................................... 61
Ms. Chai R. Feldblum, Partner, Morgan, Lewis & Bockius, LLP
Oral Testimony............................................... 63
Prepared Statement........................................... 65
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
A letter from Jaime A. Santos for the record from the Honorable
Henry C. ``Hank'' Johnson, Jr., a Representative in the
Congress from the State of Georgia, and Chairman of the
Subcommittee on Courts, Intellectual Property, and the Internet 4
A statement from the People's Parity Project for the record from
the Honorable Henry C. ``Hank'' Johnson, Jr., a Representative
in the Congress from the State of Georgia, and Chairman of the
Subcommittee on Courts, Intellectual Property, and the Internet 8
A letter from James C. Duff, Director, Administrative Office of
the United States Courts, for the record from the Honorable
Martha Roby, a Representative in the Congress from the State of
Alabama and Ranking Member of the Subcommittee on Courts,
Intellectual Property, and the Internet........................ 56
PROTECTING FEDERAL JUDICIARY EMPLOYEES FROM SEXUAL HARASSMENT,
DISCRIMINATION, AND OTHER WORKPLACE MISCONDUCT
----------
THURSDAY, FEBRUARY 13, 2020
House of Representatives
Subcommittee on Courts, Intellectual Property, and the Internet
Committee on the Judiciary
Washington, DC.
The subcommittee met, pursuant to call, at 8:42 a.m., in
Room 2141, Rayburn House Office Building, Hon. Henry Johnson
[chairman of the subcommittee] presiding.
Present: Representatives Johnson, Correa, Cohen, Bass,
Jeffries, Swalwell, Stanton, Roby, Chabot, Jordan,
Reschenthaler, and Cline.
Also Present: Representatives Jayapal and Scanlon.
Staff Present: Madeline Strasser, Chief Clerk; Jordan
Dashow, Professional Staff Member; Anthony Valdez, Staff
Assistant; John Williams, Parliamentarian; Jamie Simpson, Chief
Counsel; Danielle Johnson, Counsel; Matt Robinson, Counsel;
Rosalind Jackson, Professional Staff Member; Tom Stoll,
Minority Counsel; and Andrea Woodard, Minority Professional
Staff Member.
Mr. Johnson of Georgia. The subcommittee will come to
order.
Without objection, the chair is authorized to declare
recesses of the subcommittee at any time.
Welcome to this morning's hearing on Protecting Federal
Judiciary Employees From Sexual Harassment, Discrimination, and
Other Workplace Misconduct.
Before I begin, I ask unanimous consent that our Judiciary
Committee colleagues, or colleague, the gentlelady from
Washington, Ms. Jayapal, be permitted to sit at the dais for
today's subcommittee hearing. Following the committee's
practices, these members will be allowed to question the
witnesses if they are yielded time by one of the members of the
subcommittee.
I also ask unanimous consent that the following items be
entered into the record: A letter to chairman, to myself,
Chairman Johnson, and Ranking Member Roby from Jamey Santos,
and a letter to the subcommittee from Sejal Singh on behalf of
the People's Party Project.
MR. JOHNSON OF GEORGIA FOR THE RECORD
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Mr. Johnson of Georgia. Without objection, I will now
recognize myself for an opening statement.
Good morning and welcome to today's hearing on Protecting
Federal Judiciary Employees From Sexual Harassment,
Discrimination, and Other Workplace Misconduct. So that we can
begin this hearing in earnest, I will submit my full opening
remarks for the record and limit myself to just a few words
here.
The more than 30,000 women and men who work for our Federal
courts have a right to a workplace free from sexual harassment,
discrimination, isolation, and retaliation. And yet, the laws
that protect nearly every civilian employee in this country,
public or private, from discrimination, harassment, and
retaliation, those rules do not protect the employees of the
judicial branch. Against this backdrop, the revelations in late
2017 of persistent unreported sexual harassment in certain
judicial chambers took on a special urgency. The women who came
forward warned that it would be a mistake to treat this as an
isolated problem.
To the judiciary's credit, it took action. Chief Justice
Roberts formed a working group to evaluate the judiciary's
policies and procedures governing workplace misconduct. The
questions I have and the overarching purpose of this hearing is
whether the judiciary's efforts to create a safe, respectful,
and diverse and inclusive workplace are actually working. I
want to know what more Congress and the courts need to do.
To help us in this important task, I am grateful to have
such an extraordinary panel of witnesses, and I thank you all
for being here.
Ms. Warren, I especially want to thank you for coming
forward. Your courage to be here today to testify publicly
about both the harassment you suffered and how the system
failed you when you tried to report that harassment is--that is
a critical aspect of promoting meaningful and lasting change to
how the judiciary responds to these issues.
Thanks to you, law clerks and other judiciary employees who
may be in similar situations right now know that they are not
alone, and if they want to share their concerns, I am here to
listen.
I would also like to note that we invited representatives
from the Judicial Conference to attend today's hearing, and I
am disappointed that they chose not to be here. Their direct
and continued engagement is critical for further progress on
this issue, and it is my hope that they will send a
representative to appear before the subcommittee in the near
future to engage on this important issue.
Finally, I think it is fitting that this hearing happens to
be on the same day as the House of Representatives voting on
the passage of a bill to make possible ratification of the
Equal Rights Amendment. It is a reminder that meaningful change
is not easy, it does not happen overnight, but with commitment
and dedication, it is achievable.
It is my hope that for the judiciary, we are taking one
step further today with this hearing. In speaking for myself,
my commitment to ensuring meaningful reform for the women and
men who work at our Federal courts shall certainly not end with
the final gavel today.
It is now my pleasure to recognize the ranking member of
the subcommittee, the gentlewoman from Alabama, Mrs. Roby, for
her opening statement.
Mrs. Roby. Thank you, Chairman.
And good morning to our witnesses, and I just want to echo
the chairman's words, and I thank you very much for your
willingness to be here with us today.
No matter where you work, everyone should feel comfortable
in their workplace. Absolutely no one should face sexual
harassment, or inappropriate conduct. All employees should have
a fostering work environment and, if not, they should have an
efficient and effective mechanisms for correcting any problems.
In December of 2017, several women who had previously
served as law clerks in the United States Court of Appeals for
the Ninth Circuit stated that Judge Alex Kozinski had sexually
harassed and had participated in other workplace misconduct.
And shortly after those accusations surfaced, Judge Kozinski
resigned.
Following media reports on the allegations lodged against
Judge Kozinski and his subsequent retirement, Chief Justice
Roberts directed that the Administrative Office of the U.S.
Courts, also known as the AO, to establish the Federal
Judiciary Workplace Conduct Working Group to investigate and
establish new mechanisms to prevent inappropriate workplace
conduct.
The working group issued a report in June of 2018, finding
that inappropriate conduct in the Federal judiciary is, quote,
``not pervasive but also,'' quote, ``not limited to few
isolated instances'' and made recommendations for further
action.
The working group made three recommendations: One, clarify
the judiciary's codes and standards of workplace behavior to
more aggressively prohibit all forms of harassment; two,
improve reporting complaint procedures; and, three, add
additional educational and training programs.
The Judicial Conference approved extensive revisions to the
judicial codes and rules of conduct in March of 2019. The
changes made include improvements to the code of conduct for
U.S. judges, code of conduct for judicial employees, and the
Judicial Conduct and Disability Act rules.
The changes highlighted the obligations of all court
employees to act with civility, and avoid all forms of
harassment and abuse, subject to having their conduct reviewed
by the District Court, Circuit Court, or the Judicial
Conference, and having action taken against them, should they
cross the line.
The AO also established a new Office of Judicial Integrity,
OJI, intended as a resource where employees can confidentially
seek advice and guidance for filing a complaint under the
relevant circuit employment dispute resolution plan, or
anonymously report harassment.
On September 17, 2019, the Judicial Conference adopted a
new model Employment Dispute Resolution Plan to simplify and
expand the options available to employees to address
mistreatment.
The Judicial Conference also made improvements to the codes
and rules governing courthouse conduct by including provisions
to better define misconduct. They also made clear that
confidentiality obligations of employees should never be an
obstacle to reporting judicial misconduct or disability.
It is encouraging that Chief Justice Roberts impaneled this
working group, and that there have been several reforms
implemented. However, we must ensure that these changes are
working as intended, and are protecting judicial employees. It
is imperative, it is imperative, that we get this right.
When this hearing was originally envisioned, it was
supposed to be an opportunity for us to hear about the
recommendations that the Federal Judiciary Workplace Conduct
Working Group, to hear from them and the steps that the
judiciary has taken since the working group's report was issued
in June of 2018.
The director of the AO, Jim Duff, had agreed to testify on
the changes the judiciary has implemented from that working
group's recommendations. However, just hours after this hearing
was announced, there were members of this committee that sent a
letter to Director Duff, regarding an order issued by the 10th
circuit judicial counsel on September 30, 2019, and this order
reprimanded District Judge Carlos Murguia for having engaged in
serious judicial misconduct. This letter completely changed the
focus of the hearing.
The AO communicated to this committee multiple times before
the letter was sent that the order issued by the 10th Circuit
is currently under review by the Judicial Conduct and
Disability Committee and that they are legally unable to
comment on that review.
Therefore, in a February 7th letter to this committee,
Director Duff stated, quote, ``The likely result,
unfortunately, is that the Judge Murguia matter will now
displace or overshadow any discussion of more general reforms
we had planned to review with the committee,'' end quote. He
also let the committee know he could no longer testify,
stating, ``I note that under existing rules and law, I could
not discuss any issues involving the Judge Murguia matter in
the hearing.'' He continued to say, ``Furthermore, discussion
of the Murguia matter at the hearing, express or implied, could
raise due process concerns, might violate ethical and legal
requirements for confidentiality, and could seriously
compromise our procedures.''
So I would ask unanimous consent that Director Duff's
letter be entered into the record.
Let me be clear. No one should be sexually harassed or
abused in the workplace, and employees of the judicial branch
should be held to a very high standard. Every member of the
judiciary should be protected from workplace misconduct.
Again, I just want to say to our witnesses, thank you so
very much for being here today. I look forward to hearing your
testimony about changes in the judiciary following the working
group's findings and any suggestions that any of you may have
for future improvements.
With this, I yield back.
Mr. Johnson of Georgia. Thank you.
I will now introduce our witnesses. Olivia Warren is a
staff attorney at The Center For Death Penalty Litigation in
Durham, North Carolina. She is a former law clerk to Judge
Ketanji Brown Jackson of the United States District Court for
the District of Columbia, and the late Judge Steven Reinhardt
of the United States Court of Appeals for the Ninth Circuit.
Ms. Warren is a 2017 cum laude graduate of Harvard
University Law School. She received her B.F.A. in dance, magna
cum laude from Marymount Manhattan College in 2011. Welcome,
ma'am.
Next we have Ms. Deeva Shah, and Mr. Swalwell will
introduce his constituent.
Mr. Swalwell. I thank the chairman.
I thank each of you, but I want to acknowledge Ms. Deeva
Shah is a trial attorney at Keker, Van Nest & Peters in San
Francisco. Ms. Shaw earned her J.D. from the University of
Michigan Law School. After law school, Ms. Shaw served as a
judicial law clerk to Judge Raymond Fisher of the U.S. Court of
Appeals for the Ninth Circuit, and to Judge Stephen Wilson of
the U.S. District Court for the Central District of California.
Ms. Shaw is a cofounder of Law Clerks For Workplace
Accountability, whose mission is to ensure that the Federal
judiciary provides a safe workplace environment, free of
harassment for all employees.
And Ms. Shaw has recently moved to Castro Valley,
California, which I told her is Rachel Maddow's hometown and we
have all the expectations that you are going to do us proud in
the East Bay. So welcome, Ms. Shaw.
Mr. Johnson of Georgia. Next we have Dahlia Lithwick.
Dahlia Lithwick is a senior editor at Slate, and in that
capacity, writes the Supreme Court dispatches and jurisprudence
columns, and hosts the biweekly podcast, Amicus. Her work has
appeared in numerous national publications, and she is the
recipient of several prestigious awards for her work.
Ms. Lithwick has previously testified before Congress about
access to justice in the era of the Roberts court. Ms. Lithwick
earned her B.A. from Yale University, and her J.D. degree from
Stanford University. Welcome.
And last but not least, Ms. Chai Feldblum. Ms. Feldblum is
a partner and a director of Workplace Culture Consulting at the
law firm of Morgan, Lewis & Bockius, LLP. Ms. Feldblum
previously served as a commissioner of the Equal Employment
Opportunity Commission from 2010 to 2019. Prior to her
appointment to the EEOC in 2010, Ms. Feldblum was a noted
scholar on employment discrimination law, who spent nearly two
decades at Georgetown University Law Center. She helped draft
the Americans with Disabilities Act of 1990 which bars
discrimination against workers based on disabilities and
medical issues, and State and Federal proposals to extend
antidiscrimination protections to LGBT people. Welcome, Ms.
Feldblum.
Before proceeding with testimony, I hereby remind the
witnesses that all of your written and oral statements made to
the subcommittee in connection with this hearing are subject to
penalties of perjury pursuant to 18 U.S.C. Section 1001, which
may result in the imposition of a fine or imprisonment of up to
5 years or both.
Please note that your written statements will be entered
into the record in its entirety.
Ms. Warren, I ask you to summarize your testimony in 12
minutes. To help you stay within that time, there is a timing
light on your table. When the light switches from green to
yellow, you have 1 minute to conclude your testimony. When the
light turns red, it signals that your 12 minutes have expired.
Ms. Shaw, Ms. Lithwick, and Ms. Feldblum, I ask that you
summarize your testimony in 5 minutes.
Ms. Warren, you may begin.
STATEMENTS OF OLIVIA WARREN, DURHAM, NORTH CAROLINA; DEEVA
SHAH, FOUNDER, LAW CLERKS FOR WORKPLACE ACCOUNTABILITY, KEKER,
VAN NEST & PETERS LLP; DAHLIA LITHWICK, SENIOR LEGAL
CORRESPONDENT, SLATE; AND CHAI FELDBLUM, PARTNER, MORGAN, LEWIS
& BOCKIUS LLP.
STATEMENT OF OLIVIA WARREN
Ms. Warren. 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 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 Reinhardt 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.
I am not here today to condemn Judge Reinhardt. I am here
to explain the sexual harassment that I experienced while
working for him, and how I struggled to find the right way to
report this misconduct. To those outside the profession, the
prestige and status of a Federal judicial clerkship may be
difficult to fathom. My own parents were momentarily
disappointed that, after graduating from Harvard Law School, I
decided to take a job as a clerk, which they equated with being
an administrative assistant.
But as any law school dean will tell you, a Federal
clerkship is considered the gateway to many of the most
successful and prestigious legal careers, and anyone who wants
to clerk and is privileged enough to have the opportunity to do
so, is expected and advised to accept it without question.
That was the case for me. After my first semester, I was
told by mentors at Harvard that I should prioritize landing a
clerkship, and promised that they would help me in that effort.
A Harvard faculty member who was a former Judge Reinhardt
clerk, in fact, helped me get the job with the judge. Given my
desire to become a public defender, and the judge's deep
commitment to public interests, it seemed like the perfect fit.
It was not.
On my first day, I was confronted with a drawing of a sine
curve taped above the computer in my office to which two dots
had been added by the judge so that the curves resembled
breasts. The judge himself asked me whether or not the drawing
was, quote, ``accurate,'' with a look that indicated that the
question was whether or not it resembled my own breasts.
This was only the beginning of what felt like an endless
stream of comments about my physical appearance. It was, in
fact, one of the few neutral comments the judge ever made about
my body. Mainly, he suggested I was horrifically unattractive.
He questioned whether my husband could possibly be real, given
how unlikely it seemed to him that any man could ever be
attracted to me. He speculated that if my husband, in fact,
existed, he was doubtless a, quote, ``wimp or gay.''
On more than one occasion, the judge suggested with words
and gestures that my husband likely did not have a penis, but
that if he did, he certainly would not be able to sustain an
erection while looking at me, making it clear that he did not
believe my marriage had been consummated.
These kinds of comments were not rare. They occurred at
least weekly through the first few months of my clerkship.
Eventually, they became daily. The precipitating event for that
change was the public allegations of sexual harassment against
Judge Reinhardt's good friend, former Judge Alex Kozinski.
Judge Reinhardt had already been obsessed with discussing and
deriding the #Me Too Movement. He told me that women were liars
who could not be trusted, and he surmised the allegations of
sexual harassment that came out against people like Louis C.K.
and Harvey Weinstein were made by women who had initially
wanted it and then changed their minds.
Against this backdrop, the allegations about his friend,
Judge Kozinski, lit a fire that consumed the chambers. The
judge railed that he would never again hire female law clerks
because women could not be trusted. He ruminated that judges
were the real victims of these feminists.
I tried to humanize the public allegations by telling Judge
Reinhardt about harassment I had personally experienced, my
coworkers placing a bet behind my back as to whether I would
sleep with my male supervisor, a man chasing me down a street
in New York City while I screamed for help.
Judge Reinhardt became visibly enraged. He told me to stop
talking, and then he explained to me that I have never been
sexually harassed, because no man has ever been sexually
attracted to me.
At the time, I did little to address this horrible
situation beyond confiding in my husband and some close
friends. I was scared, scared of offending the judge and
alienating his powerful network of clerks, scared of ending my
legal career before it had even begun, scared that the judge
would exact revenge on me the same way he had threatened to
exact revenge on Judge Kozinski's accusers.
It is these systemic conditions within the profession of
law that render the problem of sexual harassment by the
judiciary so intractable. The judge himself had life tenure, as
well as the unflinching support of his colleagues, the same
uncritical and unquestioning support he offered Judge Kozinski.
And the judge's former law clerks, legal luminaries in the
field of public interest law, including law school faculty,
politicians, and prominent members of the civil rights and
criminal defense bars, were reflexively loyal and protective of
the judge, despite the fact that some of the profane aspects of
life in his chambers were fairly well-known.
My time in chambers with the judge ended abruptly with his
death in March of 2018. Like Judge Reinhardt, I am a human with
complexity. I have never wept as hard as I did at his memorial
service. The juxtaposition of my anger and my grief and my
shame was impossible to bear. The harassment had ceased, and
the urgency of the need for redress had faded because of the
judge's death. Yet, I knew the structures in place to protect
law clerks were broken, and I feared that the allegations
against Judge Kozinski were incorrectly understood to be an
isolated incident limited to a single jurist.
I wanted to report what had happened to me to minimize the
chance that something similar could happen to someone else in
my position. I reached out first to my alma matter. I believed
that Harvard Law School should care about the harmful
experience of one of its students, and I hoped that my
experience would lead the school to scrutinize potential
clerkships more carefully.
It took a close friend and mentor of mine who is a tenured
Harvard professor several weeks to get me a meeting with the
administration including the dean. I told them much of what I
have told you today. Nobody has communicated to me since that
meeting what, if any, steps Harvard has taken to address the
issues I raised.
I worked up the courage to report my harassment to what I
expected would be a less friendly audience, the judiciary. I
was nervous about revealing my or Judge Reinhardt's identity
initially. So I provided the judicial integrity officer with a
hypothetical version of my experience, and asked what the
reporting obligations of the judicial integrity officer and
other members of the judiciary who I could report to would be.
The officer wrote me a letter response, essentially
answering none of my questions. I have provided that letter to
the committee.
My primary concern was gaining an assurance that my
information would be treated confidentially, but no one could
give me a straight answer as to whether, and under what
circumstances, it would remain confidential.
The officer referred me to the judges on the Committee on
Codes of Conduct in the first instance. But surely, there must
be some better system than one that requires abused clerks to
report their abuse to the courts or the friends and the
confidants of their abusers.
I am able to sit here today and tell you about my
experience because of a combination of privilege and fortune.
My fear of attacks on my credibility is lessened by my
demographics and credentials. I am an Ivy League-educated white
woman. My fear of retaliation is lessened because Judge
Reinhardt is no longer on the bench. My fear of reputational
damage is manageable because I am currently working in a job
that I love, and I have the full support of my employer and
colleagues. My courage is bolstered by the brave women who have
come forward before me, and I enjoy the support of incredible
personal and professional networks.
But many people who suffer sexual harassment by members of
the judiciary are not so lucky, and it is those people who are
my real audience today. To them, I say: 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.
[The statement of Ms. Warren follows:]
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Mr. Johnson of Georgia. Thank you, Ms. Warren.
Next we will hear from Ms. Shah, 5 minutes.
STATEMENT OF DEEVA V. SHAH
Ms. Shah. Thank you, Chairman Johnson, Ranking Member Roby,
and distinguished members of the subcommittee for inviting me
to testify.
My name is Deeva Shah, and I am a trial attorney at Keker,
Van Nest & Peters in San Francisco.
For the past 2 years, I have been working with a group of
current and former law clerks to urge the judiciary to take
action and address harassment and other forms of abusive
behavior in the Federal courts. During those 2 years, I had the
opportunity, and the honor, to serve as a law clerk to two
wonderful judges, Judge Raymond Fisher on the Ninth Circuit
Court of Appeals, and Judge Stephen Wilson on the Central
District of California. And like other law clerks, I began my
clerkship with the belief that my judges would become my
teachers, that they would challenge my preconceptions, and that
they would turn into lifelong mentors for me. For me and for
many other law clerks, those beliefs became reality because our
clerkships were formative experiences that molded us as young
lawyers.
Unfortunately, as you all have heard today, that is not the
experience of all law clerks. Those who are lucky enough to be
hired as law clerks are typically law students for whom judges
are more role models than they are employers. Judges are titans
of the profession, and for clerks who experience harassment in
that workplace, the ideal of what a judge should be versus what
a judge actually is like is devastating, personally and
professionally. It is incredibly difficult to speak up against
a life-tenured Federal judge who has the very real power to
affect the rest of your career.
Although harassment and abuse within the judiciary are not
the norm, these experiences aren't uncommon either. Law clerks
from numerous Federal courts shared with our organization that
they had felt demeaned, belittled, and humiliated during their
clerkships. The one theme that united these experiences was
that the law clerks did not feel comfortable reporting, either
because the reporting procedures were unclear, their
confidentiality could not be guaranteed, or, because the fear
of retaliation was too high.
My written testimony details the ways in which the
judiciary has attempted to address these concerns, and why we
believe those steps have failed. Today, I want to highlight
four changes that I believe are necessary to ensure
accountability.
First, the fear of retaliation is most likely the largest
barrier to reporting harassment. Although the judiciary now
defines wrongful conduct to include retaliation, changing a
definition is not enough. Simply prohibiting retaliation does
not eradicate it in the same way that prohibiting harassment
did not and has not prevented it.
The judiciary should explain how it will determine whether
retaliation has occurred, what remedies are available to a
victim of retaliation, and what disciplinary action may be
taken against an offending judge.
Second, the judiciary needs to conduct a comprehensive
retrospective review. Despite significant public allegations of
inappropriate behavior by a judge, the judiciary has not
solicited specific feedback on how that misconduct was able to
continue for so long, whether clerks attempted to report that
misconduct, and, if not, what barriers prevented those clerks
from reporting that conduct. I continue to believe that such a
review is necessary for a thorough understanding of why the
system has failed.
Third, the Judicial Conduct and Disability Act currently
allows a judge to resign or retire without further
investigation of a complaint. After retirement, that judge
still receives full benefits and pension, regardless of how
extensive or well-founded these allegations may be. I recommend
amendments to empower the judiciary to require investigations,
and to take action, regardless of resignation.
Fourth, the judiciary should create a nationwide reporting
system, instead of depending on individual district and circuit
courts to deal with instances of misconduct. This would help
clerks who fear retaliation within their own courts, or feel
uncomfortable reporting to the colleagues of that very judge. A
national reporting requirement would also prevent any plausible
deniability about harassment at any level of the judiciary.
The Federal judiciary was my home for the last 2 years. It
is still where I practice law every day. My two clerkships
shaped me as a lawyer and as a person, and I hope that every
law clerk can receive that experience. To the extent that they
cannot, I encourage the judiciary and this committee to make
the necessary changes to encourage reporting and ensure
accountability.
Thank you.
[The statement of Ms. Shah follows:]
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Mr. Johnson of Georgia. Thank you.
I ask unanimous consent that our judiciary colleague, Mary
Gay Scanlon, be allowed to sit on the dais for this hearing,
and following the committee's practices, she be allowed to
question the witnesses if she is yielded time by one of the
members of the subcommittee.
Mrs. Roby. And Chairman? I ask unanimous consent to enter
Mr. Duff's letter into the record.
Mr. Johnson of Georgia. So ordered without objection.
Mrs. Roby. Thank you.
[The information follows:]
MS. ROBY FOR THE RECORD
=======================================================================
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Mr. Johnson of Georgia. And also, so ordered without
objection.
Ms. Lithwick, you may begin.
STATEMENT OF DAHLIA H. LITHWICK
Ms. Lithwick. Mr. Chairman, Ranking Member, members of the
committee, I am honored to be invited to speak with you today
on the issue of sexual harassment and misconduct in the Federal
judiciary. I am here in my individual capacity. My views do not
reflect those of my publication or any other entity, but I am
here in several capacities.
As a former Ninth Circuit law clerk, as a journalist who
covered the #Me Too stories in 2017, and who, in fact, was one
of the people who came forward about the conduct of Judge
Kozinski, I have covered other stories of harassment and abuse,
both in the judiciary and in the law clerk pipeline that begins
in law schools, as Ms. Warren has suggested, and I have spoken
on this topic at the judicial college, at a multiple Federal
circuit conferences.
In every such presentation, I am at pains to say this is
not a sex problem or an abuse problem. It is a power problem,
and this is fundamentally a problem of closed systems that
rely, often reasonably, on secrecy and discretion on the part
of every single member of a judicial chambers. But that same
secrecy that protects the reputational and dignitary interests
of the weakest branch of governments can also quickly become
the kind of toxic and corrosive secrecy that allows abuse and
harassment and bullying to go unaddressed and undetected.
At its worst, this is the very same secrecy that forces
victims to report such conduct by way of journalism or
committee hearing, which is emphatically not the best way to
police misconduct. I want to say that one more time. Journalism
and congressional oversight become necessary only when the
judiciary fails to police itself. They are not the solution to
the problem. They are a symptom of the problem.
The judge clerk experience can be one of the most important
relationships in any young attorney's life. I say that without
reservation. My clerkship at the Ninth Circuit made me the
person I am today, and the legal thinker I am today. Judicial
clerk families become vital job contacts. They become cherished
wedding guests. They become lifelong boosters and fans.
But when it is cast in terms of family and secrecy and
loyalty, abuse can also flourish in chambers as well, and most
young law clerks persuaded that they are on the trajectory to
bigger and better clerkships, or lucrative signing bonuses at
firms are willing to endure almost any kind of abuse in the
short-term.
And prestigious clerkships are now essential for highly
competitive jobs as academics, Federal prosecutors, public
defenders, and civil rights lawyers. For many, many first-
generation lawyers without contacts in the profession, giving
up a law clerkship and a network that can level the playing
field is illogical. But there is a fundamental difference
between a demanding, exacting judge, and a bullying or
misogynist judge, and we do not have sufficient mechanisms to
sort the difference yet.
The ethos of the judiciary has long been, Let other judges
run their chambers, run their courtrooms as they please without
comment or interference from their colleagues, and this is why
open secrets about inappropriate judicial behavior become well-
known, and are never acted upon, not for decades, in some
cases.
My reporting also suggests that abusive and inappropriate
relationships can even begin with law school professors, as
students feel pressured, even in their first weeks at school to
form the kind of relationships to known feeder judges. As is
the case in any situation in which one person appears to have
all the power to make or break a legal career, that power can
be abused. It can go unredressed over many years.
I understand there is temptation to say that law students
and lawyers are adults, they enter into these asymmetric
relationships with eyes wide open. My own experience is that in
some of the cases I have reported on, the abuse can do horrific
damage. Careers can be short-circuited. Trauma can be lasting.
This abuse transcends race and gender in some cases, and it
calls the integrity of the entire judicial branch into
question.
I am aware of the fact that judges relay on blind reverence
and mystification to preserve public legitimacy. That is the
only power they have. But when secret keeping and abuse are
eventually revealed, it is the judiciary and the integrity of
the judiciary that suffers. And that is all the more reason to
craft open, transparent, and fair policies to deal with
complaints from clerks and other support staff that work around
Article III courts.
The judiciary must be beyond reproach. Judicial misconduct
should not be minimized or swept under the rugs in the hope
that the public never learns. Right or wrong, the public is
always going to find out. I am immensely grateful to the Chief
Justice and the circuit courts who have begun the hard work of
improving systems by which abuse, harassment, and bullying can
be reported but there is so much more work to do.
I want to thank the committee for including me. I want to
thank my colleagues for their bravery and their voices. And I
look forward to your questions.
[The statement of Ms. Lithwick follows:]
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Mr. Johnson of Georgia. I thank you.
And last but not least, Ms. Feldblum.
STATEMENT OF CHAI R. FELDBLUM
Ms. Feldblum. Thank you, Chairman Johnson, Ranking Member
Roby, members of the subcommittee. Thank you for asking me here
to testify.
My name is Chai Feldblum. I am a partner at Morgan Lewis.
My testimony and the answers I will give you reflect my views,
and not necessarily Morgan Lewis or its clients.
For 9 years from 2010 to 2019, I served as a commissioner
of the Equal Employment Opportunity Commission. While there, I
worked with my fellow commissioner, Victoria Lipnic, to study
how to prevent harassment. In June 2016, the two of us released
a comprehensive, bipartisan report with ideas for doing so.
One of our key findings was that to stop harassment in the
workplace, employers had to focus more broadly on creating
safe, respectful, diverse, and inclusive workplaces. In such a
workplace, unwelcome behavior, including illegal harassment, is
less likely to occur, and if it does, it is more likely to be
reported early, treated seriously, and stopped. Creating such a
culture is worth every dollar and hour put into it.
There are five key elements to creating such a culture: The
first is leadership. Leaders must believe that such a workplace
is something they want to have. They have to articulate that
belief, and state their expectations that everyone in the
workplace will act in a manner that will support that climate.
And people must believe their leaders are authentic. They have
to act in a manner that makes it clear they mean what they say.
The second element is to do a cultural assessment. Leaders
need to know what type of culture they currently have. At
Morgan Lewis, we do cultural assessments for a range of
clients. We send a short survey to the full workforce, focusing
specifically on safety, respect, diversity, and inclusion, and
then most importantly, we conduct focus groups and interviews
with randomly selected employees. That allows us to probe
deeper, have follow-up questions, and get a truly realistic
sense of what is happening in that workplace.
The third element is holding people accountable. Anyone who
is engaged in misconduct must be held accountable in a manner
that is proportionate to the misconduct. Supervisors and judges
who ignore complaints or trivialize them must be held
accountable.
Finally, action must be taken against anyone who retaliates
against someone who reports. People are unlikely to come
forward, and organizations will lose the opportunities to stop
bad behavior early if people are not protected from
retaliation.
The fourth and fifth elements are effective policies and
procedures and training that works. Let me say just a few
things about those. One, an effective policy must use clear and
plain language. Policy for employees is not where you put a lot
of legalese. Second, an effective training procedure will offer
multiple avenues for people to report to their own superior, to
another superior, to a central office set up by the
organization.
Third, investigations must be timely, thorough, and fair.
That means that the organization has to commit sufficient money
to hire a sufficient number of well-trained investigators.
And, finally, anti-harassment training should be
supplemented with training on how to create a culture of
respect. This type of training provides employees with
practical skills on how to engage coworkers directly when they
experience unwelcome behavior, and gives them realistic options
for being engaged bystanders. This training provides
supervisors with practical skills on how to take in complaints,
and how to coach problematic employees.
These five elements for creating a safe, respectful,
diverse, and inclusive workplace should seem like common sense.
They are: leadership, assessing one's workplace culture,
holding people accountable, having effective policies and
procedures, and training that works. The challenge is putting
these elements in place and making them sustainable.
Thank you for giving me this opportunity to testify, and I
look forward to answering your questions.
[The statement of Ms. Feldblum follows:]
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Mr. Johnson of Georgia. Thank you.
We will now proceed under the 5-minute rule with questions.
I will begin by recognizing myself for 5 minutes.
As I have noted, the judiciary has made some meaningful
improvements in recent years to better protect its employees
and promote a safe and respectful workplace. But from the
testimony we have heard today, it is clear that there is much
more that has to be done.
Ms. Warren, I know that I speak for all of my colleagues on
both sides of the aisle when I say that I am profoundly sorry
for the harassment that you experienced. It is deeply troubling
that a Federal appeals judge, someone who is tasked with
ensuring equal rights under the law, could behave in such an
abhorrent manner. I commend your courage throughout that
experience, and in your decision to come forward and testify
today.
If you are comfortable, I would like to ask you: Do you
think the system failed you? And if so, why?
Ms. Warren. As I have explained in my written testimony and
some today in my statement, I do think that the system failed
me. I did everything that I could to try to figure out what
would happen if and when I reported that would protect me
because of what I felt were reasonable fears for my
professional future. I was unable to get those answers. I
believe that a system should make it easy for a law clerk in a
moment of distress to know where to go, to provide answers.
This burden should not have been on me.
And I want to add that because of all of these secret
channels, that is the reason I came forward today. When I was a
law clerk here in D.C., I sat down with many people who were
considering clerking. They had heard through whisper networks
that something had happened to me, and they asked me what they
should do. Should they go clerk? I was only able to speak to
those people, because they were friends of friends, most of
them were at Ivy League law schools, and that is not
representative of the vast majority of people who are clerks in
the Federal judiciary. It is not fair that only a few people
should understand the risks and the possibility of harm, and
how that harm was not addressed.
Mr. Johnson of Georgia. Okay. Thank you.
And with that, I will yield to balance of my time to Ms.
Scanlon.
Ms. Scanlon. Thank you. I appreciate that.
I have a vested interest in this. I began my legal career
by clerking, and, obviously, as several of you have testified,
it can be a huge boon to your legal career. My daughter is a
second-year law student, and she has obtained a clerkship for
when she graduates. So, clearly, we have a family interest.
Ms. Feldblum, you spoke of the need to have an inclusive
workplace as a backstop to harassment, et cetera. Have you had
the opportunity to review the workplace working group report?
Ms. Feldblum. I have. In fact, the work--I have and, in
fact, the working group asked Commissioner Lipnic and I to come
speak to them, even before they issued the report because they
relied significantly on our 2016 report.
Ms. Scanlon. Okay. Do you have any suggestions on how the
working group's report as it is implemented could be improved?
Ms. Feldblum. Well, I haven't followed it directly myself.
I do feel that the report looked at pretty much all of these
five elements, and so I think it is really just about refining
each of those to make sure that they are effective and that
they are working.
Ms. Scanlon. Okay. Certainly, there is some similarities
between law firms and with a partner structure and the
judiciary where people run their own fiefdoms. How important is
leadership from the top, from the Supreme Court?
Ms. Feldblum. Leadership is key. I mean, I clerked for
Frank Coffin on the First Circuit Court of Appeals, and then
for Justice Blackmun on the U.S. Supreme Court, and they were
formative experiences. The courthouse, by the way, employs lots
of people besides law clerks and that is why the leadership
from the top is essential.
Ms. Scanlon. Are there particular challenges, given the
fact that our judiciary is still overwhelmingly male, in terms
of encouraging a culture of reporting and respect for those who
do report?
Ms. Feldblum. Social science is clear that having diversity
at the highest levels is very important for making people feel
safe which is why we talk about SRDI, safe, respectful,
diverse, and inclusive. They are all essential.
Ms. Scanlon. Okay. The Office of Judicial Integrity may
only have one staff member responsible for providing support to
30,000 employees. Can anyone on the panel speak to whether that
is sufficient?
Ms. Shah. So I think that--I can speak to that question a
little bit. I am not sure of the number of complaints that the
judiciary receives through the Office of Judicial Integrity,
and so, perhaps based on the number of complaints that may be
sufficient for that reason, but I think that part of the issue
is that the Office of Judicial Integrity at this point in time
only serves an advisory purpose and does not actually allow
people to report directly to the Office of Judicial Integrity.
So I think that, to the extent that they are only providing
advice to people calling in, perhaps that staff member is
enough. I don't know the numbers on that. But to the extent
that we believe the Office of Judicial Integrity should be
doing more than providing advice on specific circuits, specific
and district rules, I think that more staffers are necessary.
Ms. Scanlon. Thank you.
I see my time has expired.
Mr. Johnson of Georgia. Thank you.
Next we will hear from the ranking member, Mrs. Roby.
Mrs. Roby. Your workplace should always be a safe
environment, regardless of your employer, safe from physical
harm, verbal or psychological abuse. Though every workplace is
not the same size, same type of company, or same type of
supervisors, the basic right to show up, to work, and succeed
in your job without being harassed in any way, shape, or form
is paramount. And today's hearing has focused on the challenges
within our judicial branch on how to stop, how to properly
report, and investigate improper behavior amongst judicial
employees.
I, too, want to take this opportunity to again to thank
each of you for being here today. Thank you for your very
powerful and personal testimony. It takes incredible courage
and bravery to come before Congress to speak about such
traumatic experiences.
I have heard you today. I have read your testimony in full,
including all of the suggestions that you have offered for
improvement. This is such an important topic. I want to make
sure that we get this right, and that the judiciary gets it
right. We have to ensure that the changes made by the judiciary
are actually working, and what, if any, additional changes may
be needed.
I appreciate hearing from each of you about your views on
how to shape the system moving forward and I look forward to
continuing to work with my colleagues here on this committee
and the judiciary to ensure that the best practices are in
place. So I want to publicly say today, I am committed to
continuing rigorous oversight through this committee.
And I thank you for having this hearing today.
With that, I yield back.
Mr. Johnson of Georgia. I thank you, Mrs. Roby.
Next, Mr. Stanton, from California.
Mr. Stanton. I thank you very much, Mr. Chairman. I
appreciate that introduction, although you did downgrade me. I
am from Arizona. I appreciate that.
Mr. Johnson of Georgia. I always get that wrong. I am
sorry.
Mr. Stanton. Thanks for having this hearing. Thanks for all
the witness.
Ms. Warren, in particular, thank you for your courage in
coming forward here today. It is very, very important that you
share that powerful story, to inspire others, and to educate us
so we can be better policymakers in this arena.
Thank to you all the witness.
Ms. Lithwick, I was looking on my phone while you were
testifying but I was subscribing to your podcast. So I am
looking forward to listening to the Amicus.
Of course, it reminds me of, you know, what this
institution is, an issue Congress had to go through over the
last few years where we had to do a lot of soul-searching in
how to improve the environment for our employees and put
institutions in place to protect and support our employees.
And I understand, talking to some of the leaders, including
Congressman Speier, who led the way on that, how difficult it
was to challenge the way it has always been, and somehow, the
way it is always been was somehow a reason for continuing to do
it. No, it is not. It looks like we have the same thing to do
with our Federal judiciary, in particular, our supportive staff
and our clerks.
So, Mr. Chair, I know you are leading the way, and I know
there is a bill. I am looking forward to supporting that so we
can push the envelope to provide better protection for people
under these circumstances.
And we have guests here who are members of the committee,
but not particularly this subcommittee and I wanted to yield
the remainder of my time to my friend, the Congressman Jayapal,
from California, from the great--oh, Washington. I did it
myself--from the great State of Washington.
Ms. Jayapal. I thank the gentleman from Arizona for
yielding. And I thank the chairman and the ranking member for
allowing me to be here.
Ms. Warren, I read your testimony last night, and I just
want to say to you how grateful I am that you have come
forward. I know that there are a million things that go through
your mind when you have to decide whether or not you are going
to tell your story, and I want you to know that your story and,
Ms. Lithwick, yours as well, are the reason that women have
courage to come forward and tell theirs, and they are the
reason that we ultimately are able to make any change at all.
So I am deeply, deeply grateful to you.
And I wanted to, if you are willing, just start with a
question to you, which is to say that I was struck in your
testimony, as I am with so many women who come forward to
testify, about the pressures and the circumstances of your
clerkship that made it very difficult for you to seek help. And
I just wanted to know if you wanted to elaborate on any of
those that you have not already mentioned or highlight some in
particular.
Ms. Warren. I think I have detailed in my written testimony
the extent to which chambers is such an all-consuming
environment. Honestly when I was in chambers, it was hard to
believe that there was a world outside of the people appearing
before us, and the network of former Reinhardt clerks. It
seemed like the only lawyers in the world, and I understand
that there are many lawyers.
What I do want to say is, I want to echo what you just
said, that it is because other women came forward. From the end
of May to December 8, I did not tell almost anyone in my life
what was happening to me, and it was only after Dahlia Lithwick
published her piece that I reached out to a mentor of mine. I
am a little bit embarrassed by how deep my dance card is of
mentors, but it is because of that that I am coming forward,
because I have that support.
And what I do want to tell you is that mentor told me
something I had never considered until the 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 have 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.
Ms. Jayapal. And when you approached the Office of Judicial
Integrity, and when you received the letter, what did you feel
at that moment about that particular process that supposedly
was set up to address some of these issues?
Ms. Warren. I was devastated, personally, and I was angry.
I felt like I had done everything I could to ask someone to
tell me how I could report in the way that I felt safe. I had
provided details of how I felt I could report safely, and
nobody could guarantee me that there was that option. I was a
young lawyer at the time that Ms. Santos and I received that
letter, but an immediate read makes clear that the arguments in
that letter are spurious.
I wish, as a law clerk that I could have said that things
were too new to be interpreted. That would have made my life
much easier, but is that not an acceptable answer about
reporting procedures. If anything has changed since I received
that letter, I am devastated that that was not communicated to
Ms. Santos to help me.
Ms. Jayapal. Thank you so much, and I have many questions
for all of you that I didn't get to, but I just want to thank
you again for your work and for testifying before us.
Thank you, Mr. Chairman.
Mr. Johnson of Georgia. Next, Mr. Ben Cline, the gentleman
from Virginia.
Mr. Cline. Thank you, Mr. Chairman, and thank you for
holding this hearing. I thank our witnesses for appearing. I
thank Ms. Warren for her bravery and courage and coming today.
I read your testimony. It is deeply disturbing and
shocking, the abuse that you were subjected to, and I agree
that we must remove barriers to reporting harassment and create
a process that encourages victims to come forward throughout
this process. And I look forward to working with all involved
to help create the process and move forward our judicial and
legal system into the 21st century.
In your testimony, you concluded with three hopes: You hope
that your testimony helps law clerks and other judiciary
employees, who have similarly suffered harassment, to feel more
able to speak about their experiences; you hope it assists the
judiciary in considering the barriers to reporting that exist
and in assessing the adequacy of the current mechanisms; and
then finally, you said it is your hope that members of this
subcommittee consider how we can help to spur further changes
to ensure that victims of harassment and misconduct in the
judiciary have real, viable paths forward in the future to
report and address abusive conduct.
And I can say, certainly to that third hope, mission
accomplished. We are grateful that you are here today, and we
look forward to working with you and others to make the other
goals also accomplished. Thank you.
I yield back.
Mr. Johnson of Georgia. Thank you.
Next, the gentleman from New York, Mr. Jeffries.
Mr. Jeffries. I thank the distinguished chairman for
convening this very important hearing. I certainly thank all of
the witnesses for coming forward. Thank you, Ms. Warren, for
your courage and bravery in telling your story in this venue.
I had the opportunity to start out my law career, as well
as a law clerk, in the Southern District of New York clerking
for Judge Baer. And I think, like everyone, as a young law
student, it is just a phenomenal opportunity to be apprenticed
by someone who has got a tremendous amount of legal experience,
and is currently serving on the bench. But I think as all of
you have talked about, it does create quite extraordinary--and
I had a phenomenal experience with Judge Baer, but it does
create an extraordinary power dynamic, given the fact that you
have got life-tenured individuals who are on the bench, and
young law students transitioning from law students into young
lawyers starting out their careers. And then, of course, we
have the dynamic of separating co-equal Article III branch of
government.
But I am interested in your thoughts on the power dynamic
situation and how we can create a better system so that there
is accountability, given that I think we all want to maintain
an opportunity for people to start their careers in an
apprenticeship-type of fashion, and that should be available to
people of color; that should be available to women; that should
be available to traditionally disenfranchised individuals in a
harassment-free setting. So maybe, Ms. Warren, we can start
with you and Ms. Shah, and open it up to everyone on the panel.
Ms. Warren. I am not an expert in sexual harassment and
systems design. I am trying to become an expert in capital
defense. And as I detailed in my written testimony, this
experience has taken away an enormous amount of my time that
other people who have not been harassed could have used to
advance themselves professionally, so I would refer to people
with much more knowledge than I.
Ms. Shah. Thank you for your question. I think that the
power dynamic is extremely difficult to address on this
situation, but that there are two changes that would be
particularly helpful. First is one that I think that this
committee can help with, which is, ensuring that there are
clear reporting procedures, and that there are clear guidelines
for what kind of conduct is covered by both the employment
dispute resolution processes, and the Judicial Conduct and
Disability Act. That sort of clarity, at least, creates some
sort of safeguard on that power dynamic so that people who are
in a position of power know that there are still limits on that
power, and so that they know that there is accountability at
some point in time. As a law clerk, I think it would have made
me feel more comfortable if I knew that there was some sort of
accountability, and I knew exactly what kind of result that
accountability could lead to which I believe is still unclear.
Second, I think that a cultural change is necessary, and I
think that this committee can signal that that cultural change
is necessary, but I think that that is something that Ms.
Feldblum can talk about a little more in terms of leadership. I
think that as long as members of the judiciary continue to
believe that these issues are non-existent, or are isolated,
that these changes will not occur on a broader scale.
Mr. Jeffries. Thank you.
Ms. Lithwick. I would just say briefly two things: One, so
extraordinary is the power differential between a clerk and
their judge. It is unlike anything else. If you are doing your
job extraordinarily as a law clerk, you have subsumed your
entire identity into your judge's. You learn to write like your
judge. By the end of it, you are, quite literally, thinking
together, and I think that that makes it unique.
The only other thing I would say, and I don't know that we
focused on it enough, is that the asymmetry is so profound that
it really demands that bystanders, other judges who see things,
who later call you and say, Oh, I knew about that for 20 years,
but it was inappropriate for me to intervene. I think the
pressure on other judges to come forward and behave like
bystanders who have a dog in this fight really becomes
essential.
Mr. Jeffries. Thank you.
Ms. Feldblum. Sir, I would add two things: One, in the 2016
report that I issued with my Republican colleague, Vicki
Lipnic. We noted that there are risk factors in different
workplaces that are worth thinking about ahead of time. One
risk factor is the power dynamic that exists in any number of
places, and the other is decentralized workplaces which is
essentially what you have in chambers.
The second thing I would say is you, in Congress, have
taken a step in looking at your own procedures and updating
them. I mean, when I was a commissioner, I provided technical
assistance to those working on that bill, and one of the things
that people working on that bill said was we have to look at
our own House before we start saying things to others.
You have done that. It is not exactly the same, but look at
what was done there and then think about how it applies. And
again, I think many of us stand ready to provide technical
assistance on that.
Mr. Jeffries. Thank you.
Mr. Johnson of Georgia. Thank you. I would now like to
begin a second round of questioning, and I will recognize
myself. Ms. Lithwick, you have described the relationship
between law clerks and judges that they work for, law clerks
and the judges that they work for as being, quote, ``built on
worshipful silence.'' Can you speak as to why this culture of
silence has perpetuated, and whether you believe the judiciary
has taken sufficient steps to promote transparency and
encourage victims and bystanders to report misconduct?
Ms. Lithwick. I thank you for the question. I think part of
it is simply endemic to this particular--you know, the
clerkship environment is usually a 1-year--it is unlike so many
other employment opportunities, and I think that judges develop
reputations as big personalities, or they develop reputations
as feeder judges who will vault you to your next clerkship.
And I think, as Ms. Warren testified and Ms. Shah
testified, when you are in law school, and the sort of myopic
view of the only thing I can do to forward my career, or to
level the playing field, is to get a clerkship, I think it
simply contributes to this feeling that your judge is kind of a
god, and you are kind of a peon, and that you can endure
anything for a year. So I don't think that it is unique to the
judicial clerkship relationship.
I also want to really be at pains to say we are also
talking about people who are cleaning staff, who are marshals,
other people in the building. So I don't want to just so
narrowly define the problem as to take out other people who can
be subject to harassment and abuse.
But I do think that one of the things that absolutely has
to happen is sunlight. It is just to have the kinds of
transparency that this hearing affords us. Nobody should be
forced to keep a secret for years. I shouldn't probably have
kept a secret for decades, but I think that part of the problem
is because we all feel that the machinery will never change,
and that all we are doing is harming our own prospects and our
own careers by coming forward. I think the incentive is to keep
secrets for a very long time.
And I just would really say, again, to folks who are
listening to this hearing who are thinking about this: The only
way this changes is not just for women to come forward and
stick their necks out, but for the machine to change around
them. If it doesn't, you just feel like you wasted your time.
Mr. Johnson of Georgia. Thank you. The machine includes the
law schools that provide the talent to go into this culture of
male dominance oftentimes, power disparity, secrecy, silence,
and loyalty. What role can law schools play in ensuring that
that code has some exceptions when it comes to employment
discrimination, sexual discrimination, and the like?
Ms. Shah. So, I think that for a lot of law clerks, when
you don't know where to turn, you are recently a law school
grad, so you go back to your law school and talk to the
professors and the mentors that you had about the experience
that you are having during your clerkship. So, to extent that
law schools are aware of misconduct, the Office of Judicial
Integrity has created some kind of hotline where you can report
that misconduct.
I think that the problem here, though, is that law schools
face many of the same incentive problems that law clerks also
do. Law schools' rankings depend on where their students clerk.
Law schools have an incentive to continue good relationships
with every circuit and District Court. And, so, unless there is
some incentive for them to report, some kind of signaling from
the judiciary that not only will those reports be listened to,
but that there will not be any kind of retaliation or other
kind of action towards those law schools. They face the same
problem, frequently, that law clerks do.
On a separate level, I do think that some law schools have
made changes to try and not have the same type of conversation
that clerkships are necessary, or that every student who can
get a clerkship should take the first clerkship that they get.
There should be more open conversation about the risks that
come with clerking, and especially for first generation
students, students who don't have a network.
That sort of information, as Ms. Warren mentioned, is
frequently information they only get from whisper networks, and
people are left out of those whisper networks and end up taking
clerkships where they don't understand any of the risks. Law
schools have to be better about making sure their students
understand those risks before they start clerking.
Mr. Johnson of Georgia. Thank you. I will next call upon
Mr. Cline, if you have another round.
Okay. I will now yield to the gentleman from New York.
Mr. Jeffries. Thank you. I just want to follow up on one
question, a question that was asked by the chairman, which I
think is an important one in terms of the role of law schools,
and, in particular, the capacity if law schools were to unite,
that that could have an influence on a change in culture to the
extent that a series of law schools, probably those that
disproportionately send individuals to the bench or, you know,
schools in a given State that disproportionately send students
as future clerks to the judges in that particular State. Then
it could have a positive impact. But you mentioned, Ms. Shah, I
think an important observation. To harken back to my time as a
law student, longer ago than I would like to admit, but that I
remember being told, I assume this is still the case, that if
you get offered a clerkship, you do not say no.
So effectively, even at the very earliest stages of the
process, the notion of the power dynamic is embedded into the
culture. And I would be interested in whoever wanted to make an
observation, starting with Ms. Shah, about how that may have an
impact and how that, perhaps, needs to change, and if that
could possibly have a positive impact on the whole process?
Ms. Shah. So I think that that would have a positive impact
on the whole process because that signals that there is an
option to say no, or there is an option to leave the clerkship
if that is something that you need to do. I think up until now,
the language surrounding clerkships has enforced that power
dynamic, has made it difficult for people to think that they
can say no to a judge, which then becomes a problem once you
begin your clerkship.
But one of the issues that I have is that law schools,
while they can be partners in this issue, I do not believe that
they can be effective partners, unless the judiciary allows
them to be effective partners. And so while law schools can do
everything on their end to ensure that people are learning
about these risks, until the judiciary signals a willingness to
work with law schools without removing that disincentive, I
think that law schools can only do so much.
Ms. Feldblum. So I actually haven't thought about law
schools as a social actor in this way, and I think it is very
important thinking about my 18 years as a law professor at
Georgetown Law School, and having--there is a committee that
helps people get clerkships. That really could be a place where
clerks could report back to that committee that there are
issues, including male clerks that see things happening. I
mean, that is the bystander piece that is empowering them, that
there is a responsibility there.
And I think that can then make an impact if enough schools
are suddenly saying Well, I am not sure about that clerkship,
because we are not going to change the prestige of getting a
clerkship, right.
When I was at Harvard Law School many, many years ago, and
that is fine because I like getting older and wiser,
absolutely, like getting a clerkship. I mean, that is why the
First Circuit and then getting the Supreme Court; Harvard loves
it when their folks are getting clerkships. But they actually
shouldn't like it if their students are going to clerkships
that will be harmful for them going forward. I think there is
an opportunity there, partnered with an effective system inside
the judiciary.
Mr. Jeffries. Thank you.
Ms. Lithwick. I think I would just add two quick things:
One is in the wake of reporting in 2017 on Judge Kozinski, one
of the things I learned was an immense number of law professors
got in touch and said, Oh, it was fine. I just never sent him a
woman clerk, which, of course, doesn't solve the problem. And
all it does is sideline women from getting a prestigious
clerkship.
But more pointedly, I think one of the things I have
learned, again, in subsequent reporting, is the ways in which
some of these power imbalances actually replicate themselves in
law schools, so that you have students vying to have
relationships with professors who are sort of the pipeline
professors, who get you to these prestigious clerkships, and
that has its own really pernicious effects, when you sort of
replicate that asymmetry and have students who feel I have to
be in a close relationship with the professor who may make me
uncomfortable, simply because that is the only pathway to
clerkships. So not only can law schools be part of the
solution, but I think if they don't reckon with this, they can
be part of the problem.
Mr. Jeffries. Thank you. And I think, to close, that if law
schools are ignoring the problem in the way that you laid out,
for instance, with Judge Kozinski, and only sending male
clerks, then you are still leaving every other female employee
within the courthouse vulnerable to harassing behavior who may
be on the judge's staff directly or indirectly interacts with
them marshals or other employees of the judiciary.
And so, thank you all for your wisdom and your thoughts and
your courage, and I thank the chair for convening this hearing.
Mr. Johnson of Georgia. Thank you. And I can assure the
witnesses and those who are following this hearing that
diversity on the bench, diversity on the pipeline, or in the
pipeline to the bench in terms of clerks, and also diversity in
law school admissions in the universities that
disproportionately feed into the clerk pipeline are areas of
interest to this subcommittee. Diversity, including women, so
no way we would sit back and allow this phenomenon of women
coming forward to report sexual harassment, to end up reducing
the number of women serving as law clerks.
So I want to assure you of that, and again, to let you and
everyone listening know that our office is open for information
on this issue, and this is something that we will continue to
work on.
I want to thank you for your attendance and participation
in this very important hearing. I want to thank my ranking
member, Mrs. Roby, for her participation, and with that,
without objection, all members will have 5 legislative days to
submit additional written questions for the witnesses, or
additional materials for the record. And with that, this
hearing is adjourned.
[Whereupon, at 10:01 a.m., the subcommittee was adjourned.]
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