In general, judicial clerkships can place young women in a particularly vulnerable position — the job, by its nature, requires young clerks to work in close and secluded quarters with judges who have the power to make or break their careers. The current system encourages women to put up with bad behavior or forego certain opportunities rather than insist on fair and equitable treatment. It is a structural flaw with the way we train some of the most promising young lawyers. Whether these clerkships are structured in a way that allows women to thrive is important to the health of the legal profession.
For young lawyers, federal judicial clerkships are a gateway to membership in the profession’s elite, easing the way to highly paid jobs at law firms, prestigious government positions and prized fellowships at respected nonprofit organizations.
In the 2000s, I clerked for federal appeals court Judge M. Margaret McKeown. It was a wonderful opportunity for close mentorship by a talented legal thinker. I learned a tremendous amount about effective legal writing, gained a better understanding of the operation of the court and the experience helped land me my dream job, a fellowship at the American Civil Liberties Union. But I also saw how clerkships can be the perfect setup for abusive relationships. When things go wrong, too often clerks — about half of whom are women — feel there is nowhere for them to turn.
A few years ago, during my ACLU days, I observed an instance of what seems typical of Kozinski’s alleged pattern of behavior and its lack of consequences. At a legal conference, I saw him invade the personal space of a young female law student in a clearly inappropriate way and briefly touch her chest as he reached over to adjust her crooked nametag. When I related this story to a senior ACLU attorney, his disturbing response was that Kozinski was notoriously “handsy” but that “we” — meaning the liberal legal advocacy community — needed him on our side, resigning us, in other words, to looking the other way.
That Kozinski’s problematic behavior was an open secret is evident from some of the public response to The Post’s reporting. Penn State Law associate professor Dara E. Purvis, who clerked for the 9th Circuit in 2008-09, tweeted that she “was warned, explicitly and repeatedly, about his behavior by other clerks.” Former 9th Circuit clerk Lauren Groth tweeted, “I clerked on the Ninth from 2013-14. … The stories of inappropriate behavior by Judge Kozinski were rampant and female clerks were warned to stay away from him.” In a heart-rending column, Slate’s legal correspondent, Dahlia Lithwick recounted years of Kozinski leering at her and subjecting her to inappropriate sexual comments, and her feelings of guilt for not reporting the “open secret” of his behavior sooner.
This isn’t just a story, though, of one bad judge. Clerkships are plagued by what Lithwick calls a culture of “worshipful silence” that leaves young lawyers feeling helpless in the face of abusive treatment. The power disparity between judges and their clerks is enormous. And for clerks who might consider going public, they almost certainly ask themselves what law firm would be eager to hire a young woman who had accused a prominent judge of sexual harassment. What client wants to hire a lawyer if the first Google hit associated with her name was not about her legal victories, but about the lawyer’s own victimization by a federal judge? It’s no wonder that neither of the two former clerks who blew the whistle on Kozinski practices law full time. One writes romance novels. The other is a law professor.
So what can be done?
Law students are adults, but they’re generally young, and many have never held a full-time job before graduation. More law schools should do what Stanford did for me in the early 2000s and both gather and disclose to students information about problem judges. At least students should be warned about what they may face.
Additionally, law schools should reduce pressure on students to accept offers they’re unsure about — one highly ranked law school’s clerkship handbook says “rejecting an offer personally insults the judge, reflects poorly on you and the Law School, and negatively impacts the chances for future clerkship applicants” — bad advice. And law schools should serve as continuing resources to former students during their clerkships. Lawyers entering the profession should know that their schools will have their backs if they encounter sexual harassment as clerks.
Courts shouldn’t be let off the hook. Heidi Bond, one of the law clerks who went public with her accusations against Kozinski, and who blogs under her pen name, Courtney Milan, is right that “attempting to shield” judges accused of harassment “from scrutiny by invoking the principle of judicial confidentiality is an abuse of judicial privilege.” The federal judiciary must implement rules making clear that a judge’s inappropriate sexual conduct and comments fall outside of the traditional confidential relationship between judges and clerks that exists to further legal deliberation, not to bury ugly behavior. Existing mechanisms for registering complaints have been insufficient.
And federal courts should take advantage of our growing understanding of what works in combating sexual harassment. As my colleague, Lauren B. Edelman, explained, making harassment training mandatory may be counterproductive. But voluntary training can help, as can other affirmative measures such as conducting climate surveys to identify problems. That might be particularly important with law clerks, a group especially unlikely to step forward on their own.
In the end, though, the problem is largely cultural. The various reform ideas people have floated will make a marginal difference. But ultimately, as Edelman wrote, “a culture free of harassment will require widespread respect for women and equal representation of women in leadership.” There, the profession has a long way to go.