I did not mean to frighten or inconvenience people by being sexually harassed, and these sentiments made me feel like I had done something wrong, something uncivil. Some of the reactions to my testimony, including messages from Reinhardt clerks hypothesizing about why they were able to avoid this treatment, made me fall into the age-old trope of believing that I had somehow asked for it. It took a long time to remind myself that this was not true, that despite me being notoriously outspoken, none of the ways I spoke up in chambers could have protected me. I should not have had to protect myself. I did nothing to invite this behavior, nor did anyone else who endured it over the years. These sentiments also frustrated me, because they reveal the collective lack of vision — or willful blindness — that perpetuates harmful systems and leaves victims without voice, much less recourse. Lots of people are harassed in chambers, in lots of different ways: we keep learning this, but in the face of repeated revelations, we refuse to imagine that there might be a bigger problem that we can’t see.
The beginning of my choice to testify took place one day in chambers when I articulated a piece of the unforeseeable for myself. On a real Tuesday of a Tuesday, Judge Reinhardt was screaming at me in his office
about a case. He was furious, so angry that I was covered in flecks of spittle, an experience that the clerks before me had cautioned was a consequence of his “rage drooling.” I was tired, we had been going in circles for over an hour, and I stopped engaging. When he was done, he stared at me, breathing heavily after laboring with such assumed righteousness. Without thinking, I quietly responded: “Is this what it feels like to scream into the face of a future that you will have no part in?” I got thrown out of his office for the afternoon, a blessed occurrence
that allowed me to actually work on his cases. But I walked out in the knowledge that my question contained a fact that I hadn’t realized until came out of my mouth — that I would have a future that was not defined by him, that I could live my life without the burden of service to his legacy.
A big part of the problem is that an enormous amount of essentially sexist harassment isn’t even recognized legally as sexual harassment per se: it’s just being a “demanding boss” in a pathological elite culture, in which hierarchical striving is everything:
Thursday’s statement of support for [Olivia] Warren was released by [Michele] Dauber, a Stanford law professor and former Reinhardt clerk who remained close to him until he died in 2018 at the age of 87.
Dauber led a successful recall campaign in 2018 against former Santa Clara County Superior Court Judge Aaron Persky. Voters ousted Persky for giving a light sentence to a Stanford student who sexually assaulted an unconscious, intoxicated woman.
The statement distributed by Dauber was signed by 72 of 135 men and women who clerked for Reinhardt over his 38 years on the 9th Circuit.
“Some of us experienced or witnessed conduct in chambers that we would call sexist, workplace bullying or mistreatment,” the statement said. “Others did not. Most of us were as shocked as the rest of the world to learn of the clerk’s experience in Judge Reinhardt’s final year.”
The clerks said they believed Warren and expressed gratitude “for her courage in speaking out.”
Dauber, in a telephone interview, said Reinhardt did not sexually harass her but that she experienced “belittling, bullying and sexist” behavior from him when she clerked for him more than two decades ago.
“What I personally experienced centered around the fact that I was the only woman with children he ever hired, and I had a lot of trouble keeping up with the notoriously high workload in his chamber because of family responsibilities,” Dauber said.
She said the judge told her that her children were taking too much time away from her work and regularly reminded her that she had not graduated from a top tier law school. [Dauber graduated from Northwestern, with both a JD and a Ph.D. in sociology]
“I internalized his relentless commentary about how my children were the problem as I was a failure, I was stupid, and I was not up to the job,” she said. “And I was really scarred because he was a hero to me, and I thought I was letting him down.”
The clerks’ statement said it was “particularly unfortunate” that the alleged behavior “occurred in the chambers of a preeminent judge who made pursuing justice his lifelong goal and who wrote countless opinions advancing the cause of gender equality, civil rights, and labor rights.”
The end of Warren’s essay:
My days now are filled with a baby screaming into a world they literally cannot see, and I try to stay present with and not impose onto their future. As I sit in my own present, I do not regret my testimony and I would do it again. But sometimes on hard days, I find myself back in the office with Judge Reinhardt, wondering if it is me instead
of him screaming into the face of a future in this profession that does not want or welcome people like me. I used to tell myself there was virtue in screaming into the void just for the sake of it, but the last year as an American citizen has really beaten any notion of inherent virtue out of me. Now I tell myself there is virtue in screaming into the face of deafening indifference, if only because the sound of my voice reminds me that I have not yet succumbed to it.