The XX Factor

The One Good Reason for a Trailblazing Feminist Lawyer to Defend Roger Ailes

Roger Ailes, former Fox News chairman and CEO, onstage in Pasadena, California, in 2006.

Frederick M. Brown/Getty Images

The ouster of Fox News chairman Roger Ailes over allegations that he sexually harassed multiple female employees is being hailed as a milestone in women’s fight for equal treatment in the workplace. Since former anchor Gretchen Carlson filed her lawsuit against Ailes, at least two other women have breached settlement agreements in order to publicize their own experiences, as the New York Times pointed out Sunday. Years from now, we may look back on this episode as a rung in the ladder to “another Anita Hill moment,” as the Times put it, in which the country is forced to reckon with the ubiquity of sexual harassment.

Few could be better equipped to help Ailes rewrite that narrative than one of the lawyers who has signed up for the job: the pioneering feminist Susan Estrich, who helped make the case, in the early 1990s, that sexual harassment was a serious problem with far-reaching consequences for women. “Last month, a minor shock wave coursed through feminist and legal circles when Estrich’s name surfaced” on Ailes’ defense team, the Washington Post reports.

Longtime allies are accusing Estrich of selling out. But Estrich herself, in emails to the Post, framed her decision—at least in part—as a response to the very media attention that is amplifying women’s stories into a force for social change. “The individual gets convicted long before he or she has had an opportunity to defend himself,” Estrich wrote. “And that’s not fair, whether it is happening to a woman or a man.”

Estrich’s concerns about the lawless court of public opinion can’t fully explain her defense of Ailes. They’re also longtime friends, as the Post’s Paul Farhi reports: They met during the 1988 presidential race, when Estrich was managing Democrat Michael Dukakis’s campaign—making her the first woman to manage the presidential bid of a major-party candidate—and Ailes was advising George H.W. Bush on his media strategy. In the intervening years, Estrich has frequently appeared as the lone liberal voice on Fox’s conservative panels. Farhi reports that, when Estrich spent three weeks in intensive care after a botched surgery in 2014, “Ailes continued to check on her recovery and to pay her, even though she was too ill to appear on TV.”

“The man described by the media is simply not the man I know,” Estrich wrote to the Post. “I don’t think anyone in the business has done more to promote the careers of women than Roger.”

Since more than 20 women have reportedly accused Ailes of harassment in conversations with Carlson’s attorneys, many of Estrich’s fellow feminists beg to differ. “I was just taken aback,” Louise Fitzgerald, a professor emeritus of gender and women’s studies at the University of Illinois, told Farhi. “When I was coming along as a researcher, [Estrich] was one of my goddesses. … 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.”

Farhi continues:

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.”

Farhi reports that Estrich is trying to force Carlson’s complaint out of a New Jersey courtroom and into private arbitration—or, in other words, to pull the curtains on the stage where Ailes’ case is playing out before countless viewers who may never before have considered the damage that sexual harassment in the workplace can wreak. Sometimes, a single, compelling story can change the way that people think—consider a young woman’s account of being sexually assaulted by former Stanford swimmer Brock Turner, which made the problem of campus rape real to thousands of readers (including Vice President Joe Biden) when it went viral in June. Many saw the public outcry that followed as a remedy to an appalling failure of the legal system, which had sentenced Turner to just six months in jail. But others saw it as a dangerous overcorrection that—especially once a petition circulated demanding the resignation of the presiding judge—threatened to “toss due process out the window,” as Mark Joseph Stern wrote in Slate at the time.

In the end, there’s truth in both interpretations of the Brock Turner backlash. Likewise, whatever Estrich’s reasons for defending Ailes—and even if her decision to do so forestalls the march of social progress—she’s not wrong to point out that our ongoing reckoning with sexual harassment and assault sometimes fails to balance justice for individuals against the campaign for a more just world. No one gets a fair trial in the court of public opinion, and even the guilty deserve a good attorney.