Law clerk hiring and the #MeToo movement

Rahm Emanuel famously said “you never let a serious crisis go to waste.” It’s clear to me that left-wing feminists are not about to let the #MeToo crisis (if that’s what it is) go to waste.

Here’s an example. At a Senate Judiciary Committee hearing last week, Sen. Kamala Harris worried (or purported to) that judges will be reluctant to hire female law clerks for fear of being hit with claims of sexual harassment.

Is this a legitimate concern? It might be if judges fear being wrongly accused of harassment. If a judge does not fear this, then he has no reason to avoid hiring female clerks. The judge can hire such clerks and then not harass them.

Should judges fear being wrongly accused by women of sexual harassment? I’ve seen no evidence that female law clerks invent sexual harassment claims against their males bosses.

Indeed, the feminist narrative, which is probably valid in the law clerk-judge context, holds that women are loath to accuse powerful men like judges of sexual misconduct, even when it occurs. I don’t think judges need to worry about being accused of sexual misconduct when it does not occur.

Thus, the suspicion arises that Sen. Harris isn’t concerned about the non-hiring of female clerks due to MeToo. More likely, she is irked by the essentially unfettered power of judges to hire, and thereby provide a great credential to, clerks of their choosing.

I’m told that the freedom judges have to hire clerks at their discretion is one of the few areas in our society that’s essentially untouched by the identity-politics left. The left, having imposed identity-politics bean-counting at elite colleges and law schools, must hate not being able to impose it on what is, for some, the next step on the road to status and maybe stardom.

Keep in mind, as well, that the judiciary is about evenly split ideologically, whereas graduates law school grads these days are predominantly left-liberal. The unconstrained freedom of conservative judges to hire conservative law clerks, should they chose to (some don’t), must irk activist liberals.

Sen. Harris sees an opportunity in a “crisis” — the opportunity to move toward external law-clerk supervision. At the hearing, she urged that a survey be taken of the law clerks throughout the federal bench and talked about “making clear to all members of the bench that they should not be discouraged from hiring women law clerks for fear of sexual harassment claims.”

In addition, I’m told, she routinely asks judicial nominees this written question:

Would you commit to executing a plan to ensure that qualified minorities and women are given serious consideration for positions of power and/or supervisory positions?

(Emphasis added)

I don’t know whether Harris considers “law clerk” a “position of power.” But it’s easy to see where she wants to go. A commitment not to discriminate isn’t enough. There needs to be “a plan,” presumably an affirmative action plan like the type federal contractors are required to formulate, including, quite possibly, “goals and timetables.”

What would be the consequences of non-adherence to the plan? If you’re a liberal there have to be consequences — judges have to be held accountable like everyone else.

Maybe failure to adhere would be evidence in a discrimination suit. Maybe it would affect funding. Or maybe non-adhering judges would be placed on a list in order to shame them.

Maybe none of this will come to pass. Maybe judges will be left alone as long as they don’t sexually harass anyone. But that’s not the outcome Sen. Harris and her fellow leftists are gunning for.

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