The Legal Future of #MeToo

Opinion Interview | Dahlia Lithwick
By | Jan 16, 2018
2018 January/February

No reporter likes to be sucked into a story she’s covering. But when a Washington Post article late last year quoted two law clerks by name who said that Judge Alex Kozinski of the Ninth Federal Circuit Court of Appeals had shown them pornography in his chambers, while four other unnamed women described other inappropriate behavior by the judge, Dahlia Lithwick decided to speak up. A legal writer who covers the Supreme Court for Slate, Lithwick described her own uncomfortable run-ins with Kozinski, whom she’d known since her days clerking for another judge. Moment opinion editor Amy E. Schwartz talks to Lithwick about the legal future of the #MeToo movement and how the recent retirement of the high-profile Kozinski could lead to real change.

What made you come forward with your own interactions with Kozinski?

I certainly didn’t expect to become part of the story. I probably wouldn’t have come forward if [Kozinski] had not dismissed and diminished Heidi Bond and the other accusers in the first Washington Post piece. She was one of the two women named in that first story, she and Emily Murphy. When the Los Angeles Times asked him for comment, he was quoted as saying, “If this is all they are able to dredge up after 35 years, I am not too worried.” Heidi Bond, who went on to be a Supreme Court clerk and issued a statement describing serious suffering and emotional pain, has left the law and is now a successful writer of romance novels. He said something about how one of her books contained “very torrid sex.” I just thought, “He is not going to slut-shame Heidi Bond.” This just seemed like a classic case of someone all but asking for more people to come forward.

Was it a difficult decision?

I talked to my husband, who has known about these incidents for 16 years, and my co-clerks, who remembered things happening at the time. I looked at old texts I had sent. I agonized over the weekend, wrote the piece, then sat on it for a couple of days, and in the interim a lot of people were in touch with me saying they also had stories to share. As a journalist, you never want to be [part of] the story. But I felt I had at least enough reputational credibility that nobody was going to slut-shame me, and if I could give that to Heidi and Emily, I was going to. And I sort of felt that Im lo akhshav, eimatai? If not now, when?

Did you expect Kozinski to retire?

If you’d asked me that morning, I’d have said he was never going to step down. But part of the paradox of the open secret is that almost everybody seemed to have a story about this type of conduct. I guess that’s part of what my own piece was about: Because so many people knew, including me, it felt collusive, particularly in legal academia, where a lot of people were sending their clerks to him because it was a pipeline to a Supreme Court clerkship.

Is this incident going to lead to change?

It’s something the academy is now going to have to think through. The law is a very small-c conservative institution—it doesn’t change easily or happily. I think it’s really important that an event like this not stand for the proposition that this one-off thing happened and now everything’s fixed in the judicial branch. I get the sense that the judiciary and the academy really want to take this seriously.  Supreme Court Chief Justice John Roberts just announced that the court is going to assess its own practices and procedures. They are revising law clerks’ handbooks to super-clarify that you have no duty of confidentiality if your judge is behaving improperly toward you.

What more can be done to prevent workplace sexual harassment?

First we need to create a meaningful understanding of improper behavior, and then mechanisms to enforce that. If Heidi Bond had worked at IBM, she wouldn’t have had a duty of confidentiality—there would have been a mechanism for complaint and investigation and redress. What we see in Hollywood, with women signing non-disclosure agreements and therefore contracting out of basic civil rights protections, can’t go on.

The discussion can go off on tangents because it’s salacious, but it has to be framed as a work problem. If women are dropping out of the law or avoiding clerkships—which men are then taking—and these clerkships are pipelines to the Supreme Court, that’s a work problem, not a sex problem. It’s women who can’t come forward because the cost is too high, and then we see this unbelievable attrition rate. And recognizing that requires a paradigm shift, not just “A bunch of humorless women came and ran a good man out of office because of his sense of humor.”

Why are we still hearing that women who take offense are humorless?

Judge Kozinski’s defense has been that he has a quirky sense of humor. It’s an incredibly weighted thing to say, “You just don’t get me and I’m very funny.” I think if you’re in a position where you can set out the markers of what’s funny, and people have to accede to that, maybe that’s not the best way to decide what’s funny.

How can we develop a process for addressing this kind of behavior that distinguishes between different levels of offenses?

We need some sort of process that is more than #MeToo and individuals being drummed out of office. That’s not a process. It’s not fair to the accuser or the accused. What Roy Moore was accused of was vastly worse than what Al Franken was accused of.

For centuries we’ve been able to distinguish between levels of offense. We recognize a difference between first- and second-degree murder, intentional and unintentional homicide. The idea that we can’t is nihilistic. The most dispiriting thing about the press conference I covered with those Trump victims was that they felt there was no legal mechanism for redress—they’d given up on the law.

Where do you see this going in the longer term?

In 1991, after Anita Hill, I thought that was a watershed moment. And a lot of truly massive things changed. Women got themselves elected to office—remember 1992, the “Year of the Woman?” Women got onto the Senate Judiciary Committee, so we would never again see an all-male panel so unseriously investigating a case of sexual harassment. Some of those changes were important and profound, and some were not adequate. Now we need to look at the gaps. That is going to require a really deep reassessment. What are the screwed-up incentives and imperatives in the workplace that keep predatory men preying on women and keep women from reporting and fixing it?

One difference between Anita Hill in 1991 and Heidi Bond in 2017 is that the minute Heidi said she might need a lawyer, she was able to get a woman lawyer pro bono. And I felt I’d risen high enough in my own professional life that I could take the risk and support her. And that’s what Kirsten Gillibrand did with Franken. It doesn’t take parity; it doesn’t take 50 percent, though imagine where we would be with parity, but you do need enough women in the Senate and in journalism to do what [New York Times reporters] Megan Twohey and Jodi Kantor were able to do with the Harvey Weinstein complaints, and women who are federal judges or deans of law schools who rushed in to say, “Let’s fix this.” And men too—I’ve had incredible mail from men in positions of power, so I don’t mean to say it’s on women to fix this. I say this as a mother of teenage boys.

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