[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]




    PROTECTING FEDERAL JUDICIARY EMPLOYEES FROM SEXUAL HARASSMENT, 
             DISCRIMINATION, AND OTHER WORKPLACE MISCONDUCT

=======================================================================

                                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

                              ----------                              

                           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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