So Roger Ailes resigned the other week. (That was fast!) And he may walk away with a reported $40 million golden parachute. (That was fast, too.) To recap the big story that the Democratic Convention may leave us slightly fuzzy-memory’d about: after Gretchen Carlson’s July 6 sexual harassment lawsuit, attorneys Paul, Weiss, Rifkind, Wharton, Garrison hired by James and Lachlan Murdoch, conducted an investigation and determined that other women also claimed sexual harassment by Ailes over the years. Some had pretty hardcore accusations about the porcine media giant, who made Fox News the red-meat/right-wing monolith it is. “He asked me to turn around so he can see my ass,” one former employee said. “He told me that if he was thinking of hiring a woman, he’d ask himself if he would fuck her, and then if he would, he would hire her on camera,” said another.
Then, after a silence of a few days, Megyn Kelly—Fox’s most powerful anchor (and TV’s arguably most news-bait anchor of either gender)—let it be revealed that Ailes had harassed her, too. (More, according to this story’s chief news breaker, Gabriel Sherman, Kelly may have encouraged another former female anchor to disclose that Ailes had kissed her against her will.) So, Ailes was out. Most recently—and shockingly (and this hit just last week): Longtime Fox talent booker and event planner Laurie Luhn called Paul Weiss Rifkind to say that, for twenty years, she had been sexually harassed by Ailes—made to service him sexually and lure other women to him. The details, which Sherman reported, were sensational, and Luhn, who earned as much as $250,000 a year for her job-cum-services, claimed to have suffered a series of mental breakdowns as a result of the abuse. “He’s a predator,” she bluntly said. What’s more, about five years ago, Luhn told a Fox lawyer about the years of harassment; though Ailes vehemently denied this, he told that lawyer to offer Luhn a lucrative settlement.
During the initial Carlson-and-Kelly revelations, there was lots of “Way ta go!” from feminists about the speed of Ailes’ downfall. So much so that Ailes’ lawyer’s predictable discrediting of and hypocrisy-shaming of his claimants at first was mere background noise. His lawyer said that Carlson’s charges were a “concerted smear campaign.” And that “Roger Ailes has never sexually harassed Megyn Kelly. In fact, he has spent much of the last decade promoting and helping her to achieve the stardom she earned, for which she has repeatedly and publicly thanked him.”
Now, at this point a lot of women with longish memories did a “Wait a minute, who just said that?” Susan Estrich is Ailes’ lawyer. Estrich was one of the Clinton era’s most tough-assed feminists, as well as Michael Dukakis’ campaign manager during his presidential run in 1988 and the first female president of Harvard Law Review. With her arresting, gravelly voice and her wholesome, blond post-collegiate looks, she was all over the airwaves. Not only did she make the case for Hillary for President back in 2006, but 15 years ago her book Sex & Power was a clarion call for women to stand together against the fact that over 95 percent of top earners in America were men. More to the point at hand, in 1987, Estrich wrote Real Rape, using her own assault to argue that so-called “acquaintance rape”—rape by a nonstranger in the midst of a social occasion—was as real as rape at gunpoint. Our recent dramatic reform on campus sexual assault cases owe a debt to Estrich’s emphatically argued theory, which was, as one reviewer put it, “a powerful indictment of the sexism, double standards and institutionalized distrust of women that lie behind the legal system.”
So, women who knew Estrich’s reputation were astonished to learn that she would be defending Ailes. (As of press time, Estrich had declined to make a statement about Luhn. For her part, Luhn’s $3.15 million settlement barred her from going to court against Fox for the rest of her life.) Even before the Luhn bombshell, “I’m outraged,” said a well-regarded female reporter in a social media post. “Would Thurgood Marshall have represented George Wallace if he had been sued by a victim of his segregationist policies?” asked a prominent feminist advocate in the Midwest.
As for me, I remembered interviewing—a decade ago—the lovely, gentle Mechelle Vinson, who, in 1986 (and after she and her lawyers had spent eight years on the case) had won the 9-0 Supreme Court decision making sexual harassment (including not just quid-pro-quo but the “hostile environment” kind: crude language, jokes and pornography at work) a federal crime.
Vinson’s story was harrowing: In 1974, fleeing a violent marriage, she took a job as a bank teller and then spent four years submitting to a boss who’d said, “If you don’t sleep with me, I’ll destroy you.” During those years, Vinson told me, “I came to believe it was my fate to be abused.’’
O.K., I thought, How could Estrich betray the cause? But then, I thought of something else—of conservative Theodore Olson co-winning, with former foe David Boies, the case for gay marriage in California. I thought of Barry Scheck, famous for passionately defending severely battered Hedda Nussbaum…then turning around and taking on the defense of O.J. Simpson. I thought of Alan Dershowitz, who has a pronounced sensitivity for even perceived anti-Semitism, passionately defending Claus von Bülow, whose Danish father was regarded as a Nazi collaborator. These lawyers were never called hypocritical—their tough relish for advocating forcefully for clients you’d never expect them to agree with was considered the essence of being a lawyer. (I also thought of the fact that the one female lawyer who has consistently defended women for 25 years never gets credit for being a feminist but rather as an ambulance-chasing tabloid headline grabber. And that is Gloria Allred.)
I did an informal poll asking Facebook friends who considered themselves feminists if, on a gut level, it bothered them that Ailes was being defended by Estrich. One-quarter of the comments—and a majority of the judgments—were a hearty yes. “How could she?” “Absolutely!” “I am horrified!” “Bothered me tremendously.’’ “Yeppers.” “Of course.” “She ought to be ashamed of herself.” Others pointed out that Estrich is a Fox News contributor and said her politics may have changed (she has not stated that they have); still others made the point that lawyers are not, as one poster put it, “Mother Teresa.’’ Whether the opiners were upset at Estrich betraying her politics; whether they implied she’d changed her politics; or whether they were doing the What-do-you-expect-from-lawyers? eye roll—it was negative.
I decided to take the question to female lawyers—and there I got a perspective jolt. Manhattan matrimonial attorney Marcy Wachtel told me, “I have been on the receiving end of ‘Shame on you!’ chastisement in numerous instances representing a husband accused of misconduct (not necessarily domestic violence or sexual abuse). My [legal] adversary or even [my client’s] wife herself will approach me with a ‘As a woman, as a mother, you should know better’ castigation. I have never heard the same statement made to a male colleague.”
Another Manhattan matrimonial lawyer, Susan Bender, weighs in: “Gay male lawyers represent straight men and vice versa; white lawyers represent people of color—and vice versa; women represent men, and men represent women against all comers. Your question assumes that a feminist should have a different code of principles and ethics than everyone else. Why?” Still, “Some of us who are feminists do ‘self regulate.’ I choose not to work for just anyone. One of my greatest fears as an attorney is to have represented a sexual predator, rapist, child abuser and prevail, thereby sending that client back in the streets or back into his child’s bedroom to commit more horrific crimes. I could not live with myself.”
Says Lisa Helfend Meyer, founding partner of the 21-lawyer, L.A.-based matrimonial law firm Meyer, Olson, Lowy and Meyers, all four of whose senior partners are women, “It’s unfair to criticize a female attorney on the basis of who retains her. As women we’re much more under a microscope than men are. I have represented a lot of men accused of domestic violence and a lot of women who’ve accused men of domestic violence.” With the former, “people have said to me, ‘Don’t you think he [my client] is a bad person?’ You wouldn’t say that about a man who’s represented anyone notorious or infamous over the last 20 years.”
I thought of conservative Ted Olson co-winning the case for gay marriage in California. I thought of Barry Scheck defending severely battered Hedda Nussbaum…and then O.J. Simpson. I thought of Alan Dershowitz’s work for Claus von Bulow, whose Danish father was regarded as a Nazi collaborator. These lawyers were never called hypocritical.
Aside from crimping women lawyers, this attitude is patronizing—condescending—to them, Meyer continues. “It’s as if women can’t take the heat of having a controversial client…People don’t give women enough credit for being accomplished trial lawyers,” she says. “Why does society still think of us as weaker and softer than men?” Jurors, she says, are getting annoyed by this. “When a legal team uses a woman just as a female face”—a token—“jurors see through it. They get that you’re trying to play them for a fool.” Better if the woman were the lead—and face the brickbats.
Meyer thinks that Ailes and Estrich are the right team. “You want to select someone who is very intelligent and a very good strategist and can win. And that is exactly why he picked Susan—for all those reasons and because her beliefs are the opposite—the antithesis—of what he’s accused of doing. The fact that he has a known feminist represent him may put doubt in a juror’s [or the judge’s, if it’s an arbitration] mind—maybe he didn’t do it. Susan knows that, too.”
But it’s a risk to play that particular game. So the test is, Are the charges strong enough to overcome that irresistible but also riskily transparent ploy? A gorgeous 9-0 Supreme Court victory (it’s impossible to think of such unanimity today) was how sexual harassment became a federal crime with the strength of Mechelle Vinson, and the brilliant hard work of her lawyers, Patricia Barry and Catharine MacKinnon, powering that 12-year-long effort, that needed gift to women. Perhaps the rigor and purity of that Supreme Court win deserves a risk-laden, high-profile proving-ground case that itself takes no shortcuts and that highlights the long distance travelled between then and now. So maybe it’s best—and apt—to let the man whose network has stood for the opposite of feminism have both the advantage of a feminist attorney and the disadvantage of the heightened public disgust at the misbehavior he is being charged with, a disgust that has only heightened now that Laurie Luhn’s story is out.
And then: Game on. No one condescended to, no one short-shrifted. Let the chips fall as they may. And I for one am betting they will fall fairly.
“The fact that he has a known feminist represent him may put doubt in a juror’s [or the judge’s, if it’s an arbitration] mind—maybe he didn’t do it. Susan knows that, too.”—attorney Lisa Helfend Meyer
Meyer thinks that Ailes and Estrich are the right team. “You want to select someone who is very intelligent and a very good strategist and can win. And that is exactly why he picked Susan—for all those reasons and because her beliefs are the opposite—the antithesis—of what he’s accused of doing. The fact that he has a known feminist represent him may put doubt in a juror’s [or the judge’s, if it’s an arbitration] mind—maybe he didn’t do it. Susan knows that, too.”
But it’s a risk to play that particular game. So the test is: Are the charges strong enough to overcome that irresistible but also riskily transparent ploy? A gorgeous 9-0 Supreme Court victory (it’s impossible to think of such unanimity today) was how sexual harassment became a federal crime, with the strength of Mechelle Vinson, and the brilliant hard work of her lawyers, Patricia Barry and Catharine McKinnon, powering that 12-year long effort, that needed gift to women. Perhaps the rigor and purity of that Supreme Court win deserves a risk-laden, high-profile proving-ground case that itself takes no shortcuts and that highlights the long distance travelled between then and now. So maybe it’s best—and apt—to let the man whose network has stood for the opposite of feminism have both the advantage of a feminist attorney and the disadvantage of the heightened public disgust at the misbehavior he is being charged with.
And then: Game on. No one condescended to; no one short-shrifted. Let the chips fall as they may. And I for one am betting they will fall fairly.
