As a rising feminist legal scholar, Susan Estrich once wrote this in the Stanford Law Review:
“It should be obvious that the system already contains serious disincentives to women filing sexual harassment complaints. Start with embarrassment, loss of privacy, and sometimes shame. If the woman remains employed, she faces the prospect that her harasser and others will make her life impossible. If she has quit or been fired . . . the danger is that she will be branded a troublemaker, and find it difficult to find another job.”
That was in 1991. Lately, some people are wondering whether Estrich, a pioneering advocate for women’s legal rights, has changed her mind.
Last month, a minor shock wave coursed through feminist and legal circles when Estrich’s name surfaced in an unexpected context: As the new defense co-counsel to Roger Ailes, the founder and former chief executive of the Fox News Channel.
Ailes has been accused of harassment in a lawsuit brought by Gretchen Carlson, a former Fox host who claims he dangled advancement in exchange for sex. Some two dozen women have since contacted Carlson’s lawyer to offer their accounts of Ailes’s allegedly predatory behavior stretching over decades. The accusations, playing out amid an avalanche of unfavorable media attention, have already led to Ailes’s resignation at Fox.
Like Ailes, Estrich, too, was a pioneering political figure, becoming the first woman to manage a major-party presidential candidate’s campaign, Democrat Michael Dukakis’s in 1988. Ailes was on the opposite side, advising George H.W. Bush on media strategy; they met while negotiating the terms of presidential debates.
Through her prodigious writing, Estrich, 63, helped change the legal and cultural understanding of rape by highlighting the second-class status of “acquaintance rape.” She coined the phrase “nuts and sluts defense” to describe the demeaning ways female accusers are portrayed in rape cases.
And so Estrich and Ailes make an odd couple: the liberal feminist and one of the leading architects of the modern conservative movement, joined to fight the claims of dozens of women. That Ailes, who denies the claims, would turn to Estrich to defend him seems an astonishing turn.
“I was just taken aback,” said Louise Fitzgerald, a professor emeritus of gender and women’s studies at the University of Illinois. “When I was coming along as a researcher, [Estrich] was one of my goddesses.” She adds, “I’m concerned about the impact on public perception and on how it might affect women who have been victims [of sexual harassment or rape]. It’s like, wow. I have no basis to think less of her, but I’m just concerned.”
Gloria Allred, the women’s-rights attorney who is representing some of Bill Cosby’s alleged victims, is even more blunt.
“If Mr. Ailes had approached me, there’s no amount of money I would accept to represent him,” says Allred, who also practices in Los Angeles and has known Estrich for years. “The bottom line is, my credibility is not for sale, my reputation is not for sale, my conscience is not for sale.”
Estrich says she understands the reaction but frames the matter as both an act of professional responsibility and personal loyalty to a friend for the past 28 years.
“The man described by the media is simply not the man I know,” she wrote in an exchange of emails last week. “I don’t think anyone in the business has done more to promote the careers of women than Roger.”
That includes Estrich herself, a longtime commentator on Fox. She typically takes the liberal position on panels and was a substitute for Alan Colmes on the old “Hannity and Colmes” crossfire program (she has also worked for NBC and ABC as a commentator).
Within Fox, some employees say Ailes fostered a locker-room atmosphere with his sexually charged, inappropriate comments about women. “It became common knowledge that women did not want to be alone with him,” a former staffer told The Washington Post last month, speaking anonymously because of concerns over retribution. (Others heatedly dispute that characterization.)
Estrich says: “There are a lot of beautiful women [at Fox] because television is a visual medium, but I’ve just never seen or heard anything but praise for Roger from the women at Fox. That’s just not typical of any institution, but as Roger once said to me, the measure of a person is whether he or she helps people who could never help him. That building is full of people Roger has helped, and stood by when they faced problems. He had stood by me every time.”
As has she. When Ailes was attacked by participants in a post-election conference at Harvard in 1988 for a campaign ad featuring the convicted felon Willie Horton, Estrich rose to his defense, pointing out that an ad created by Ailes wasn’t the one widely condemned during the campaign as racist. “Roger sought me out afterwards to thank me,” she said.
Estrich is especially grateful to Ailes for his kindness when she was hospitalized five times in 2014 with stomach pains. She spent three weeks in intensive care after a doctor perforated her colon and nicked her spleen during surgery, causing peritonitis and sepsis. During her hospitalization, she said, Ailes continued to check on her recovery and to pay her, even though she was too ill to appear on TV.
A rape survivor herself, Estrich argued in her 1987 book “Real Rape” that “acquaintance rape” was systematically devalued or ignored by the legal system compared with crimes involving a stranger who brutalizes or wields a weapon against his victim. Estrich recounted in the book her own experience against an assailant who threatened her with an ice pick, noting that her legal path was relatively easier than for a victim who knows her attacker. Her argument helped heighten awareness of the crime, especially on college campuses, where instances of rape often involve classmates.
Estrich was also a passionate supporter of Anita Hill when Hill accused Supreme Court nominee Clarence Thomas of sexual harassment in 1991.
She was a living symbol of women’s advancement, too. In 1976, she became the first woman to head the Harvard Law Review. She won the job over classmate Merrick Garland, President Obama’s stalled nominee for the Supreme Court.
With such a résumé and reputation, Estrich might be the ideal lawyer for Ailes, if only for “the optics” their association provides, says Fitzgerald, the retired women’s studies professor.
“It gives a big boost to his credibility” for a judge or jury to have such a prominent feminist in his corner, said Fitzgerald. “It’s going to give a certain impression, and maybe that’s the right impression, I suppose” for a defense against sexual harassment.
Estrich hasn’t always been doctrinaire in her advocacy. She stood by President Clinton when he was accused of sexual harassment by Paula Jones in 1994 (her argument: that Jones had changed her story several times and was a pawn of Clinton’s political opponents).
She was also critical of the Los Angeles Times’ exposé about then-gubernatorial candidate Arnold Schwarzenegger’s alleged groping of women in 2003. She argued in a Times op-ed that the alleged acts “do not appear to constitute any crime” nor did they meet the legal test for sexual harassment. Schwarzenegger later appointed Estrich to his transition team.
So far, Estrich’s legal strategy on behalf of Ailes has involved arguing that Carlson is obligated to take her complaint to arbitration, as required by her employment contract with Fox rather than have her lawsuit heard in a New Jersey court — a step that would probably shield the proceedings from public view. In a court filing, she and co-counsel John Quinn accused Carlson’s attorney, Nancy Erika Smith, of leading “a concerted smear campaign” against Ailes.
To which Smith replies: Estrich is a hypocrite.
“Susan Estrich has published scholarly articles showing that real victims of sexual harassment are frequently unfairly attacked and not believed,” Smith said in a statement. “However, after being hired by Ailes, she has done a complete reversal, and attacked my client, Gretchen Carlson, and other victims of Roger Ailes, as liars. . . . Frankly, I am saddened by Ms. Estrich’s apparent abandonment of her principles.”
For her part, Estrich says the real victim in this case is Ailes.
“The individual gets convicted long before he or she has had an opportunity to defend himself,” she said. “And that’s not fair, whether it is happening to a woman or a man.”