No, There Is Nothing Unethical Or Hypocritical About A Feminist Lawyer Defending Roger Ailes

"A feminist lawyer like Estrich taking on the same clients men do? That's outr...wait, what side am I on again?"

“A feminist lawyer like Estrich taking on the same clients men do? That’s outr…wait, what side am I on again?”

Fired Fox News creator Roger Aisle hired renowned feminist lawyer and teacher Susan Estrich to defend him against the sexual harassment law suit filed by former Fox Blonde Gretchen Carlson. Responding to shock and disappointment among some feminists and others that Estrich would “abandon her principles” to defend such a client, Slate’s feminism reporter Nora Caplan-Bricker authored a post titled “The One Good Reason for a Trailblazing Feminist Lawyer to Defend Roger Ailes.”

This is in the category of a supposedly enlightening post that actually makes readers less informed. There only needs to be one Reason for a Trailblazing Feminist Lawyer to Defend Roger Ailes, and it is a great reason. Susan Estrich is  a lawyer; lawyers defend people who are sued; lawyers do not have to agree with, support or approve of  a client’s alleged actions requiring such a defense; and there’s is no reason in legal ethics or any other ethical system that argues that a U.S. citizen shouldn’t have access to the best representation possible.

For her part, Estrich has said that she is taking the case because “The individual gets convicted long before he or she has had an opportunity to defend himself. And that’s not fair, whether it is happening to a woman or a man.” That’s the civil law equivalent of the late Johnnie Cochran defending his accepting O.J. as a client by saying, “In this country, everyone has the right to be treated as innocent until found guilty by a jury of his peers.”

Partial translation of both statements: “I’m a lawyer, and I don’t judge my clients. That’s not my job. My job is to help them use the law and legal system for their own purposes and protection, like any other citizen.”

I’ve written about this aspect of lawyers’ vital function in society, one that non-lawyers just cannot seem to grasp, so many times. Here’s a recent post; but maybe this one from 2015 is more on point. That one was about progressive legal icon and Harvard law prof Larry Tribe representing Peabody Energy, the world’s largest private-sector coal company, in a lawsuit that sought to invalidate some EPA regulations adverse to their horrible, evil, earth-destroying–but legal!–business. Tribe was called a traitor to the Cause of turning the U.S. into a wind and solar run nation, and I explained that the attacks on him, like all such attacks, were based on a stubborn lack of comprehension by non-lawyers, writing..

That is what lawyers do, and what they exist to do: represent citizens and companies as they seek to avail themselves of their guaranteed right to use the law to protect their interests. The public and media just don’t get it, and appear to be immune from educating on the subject: what your lawyer personally believes about your cause doesn’t matter. His or her job isn’t to judge you or your purpose. It is to give you the chance to use your rights to due process and the courts to have the law work for you rather than against you, and to have your position, if legal, serious and offered sincerely, represented by the best legal talent available.  Whether or not Tribe personally believes or supports the position being taken by his client is irrelevant to his role, unless he is so unprofessional (as in emotional and unable to overcome his own biases) that he can’t represent a client whose objectives he opposes. Then he would be obligated to refuse the representation. Then he would also be a poor lawyer, and Lawrence Tribe is anything but.

Replace “Larry Tribe” in that paragraph with “Susan Estrich”, and save me some time.


There are other good reasons “For A Trailblazing Feminist Lawyer to Defend Roger Ailes,” you know. Like M-O-N-E-Y.  That’s a perfectly good and ethical reason, since lawyers sell their skills, advice and professional expertise just like any other profession. I’m sure that Ailes is paying her a lot of money, in part because she is a lawyer with feminist credentials. In the 90’s, when Swiss banks tried to keep the  gold and art they had received from Nazis after the Nazis had stolen it from the Jews they exterminated, the banks hired a lot of distinguished Jewish-American lawyers to battle the representatives of the World Jewish Congress and various Jewish organizations bringing the lawsuits. These lawyers weren’t traitors to their race and religion. They were true to the values of their profession.

Caplan-Bricker tries to explain Estrich’s conduct by noting that she and Ailes are friends. That’s such an insult to Susan Estrich. So she likes Ailes, and that is all it takes to allow her to want to defend a man she may think or know is a sexual predator and a workplace harasser? It’s a job, that’s all, the job she’s been trained for, a job without which all of us are sitting ducks to have our lives messed up by powerful, rich and predatory people using the law to their advantage, and against ours. Part of Estrich’s job is making statements that support her high-profile client, even though she knows that they are functionally and legally meaningless. “The man described by the media is simply not the man I know,” Estrich wrote to the Washington Post. “I don’t think anyone in the business has done more to promote the careers of women than Roger.”

As for the first sentence, all it means is that Ailes didn’t harass her, which is hardly a surprise. The second part is not quite deceit, but misleading as a true statement that doesn’t mean what she seems to be suggesting it means. It isn’t unusual for executives who assist and mentor women to also harass them, often without knowing that’s what they are doing. As an authority on sexual harassment, Estrich knows this better than anyone.

Said celebrity lawyer Gloria Allred, grandstanding as usual, “If Mr. Ailes had approached me, there’s no amount of money I would accept to represent him. The bottom line is, my credibility is not for sale, my reputation is not for sale, my conscience is not for sale.”

Baloney. Allred’s credibility and reputation is exactly what she sells, and her conscience has nothing to do with it. Any lawyer can choose to take only cases she believes in as a matter of ideology, but that practicing activism, not law.

Finally, I find it ironic that those claiming that a feminist cannot competently and ethically represent Roger Ailes are validating and endorsing the flawed logic of Donald Trump, who was excoriated by these same people for stupidly suggesting that a Mexican-American judge shouldn’t insist on doing his job when called upon to adjudicate a matter involving someone whose statements and conduct the judge had reason to oppose.


Pointer: Fred

Source: Slate

9 thoughts on “No, There Is Nothing Unethical Or Hypocritical About A Feminist Lawyer Defending Roger Ailes

  1. If I ever need a lawyer, and I might, I want it to be Jack, for no other reason than that he believes in the ethics of his profession.

  2. A polite suggestion:

    Because you believe there is so little knowledge of this sort of principle, informing your readers of the “cab-rank rule” would be a good basis for a post. I have remembered it from law school: lawyers used to be obliged to take the next person in line if they were competent to do the work. Oddly, I live in a city where taxi drivers now feel entitled to decline customers who engage in behavior objectionable to the driver.

  3. I seems clear to me that people who criticize lawyers for doing their job to defend guilty or disliked people must not understand the concept of honor. Whereas most people are fine with compassion, which is eusocial chaos (spontaneously doing something kind which is not required), they seem ambivalent about honor, which is eusocial order (maintaining a pattern of behavior because the consistency is good for society).

    It’s understandable, because honor may not be optimal in a specific situation, or it may be good in the long term even though we pay a price today for it. However, human society needs it just as much as it needs compassion, because sometimes compassion is actually the wrong answer. As Jack has pointed out countless times, we need to be able to trust in the impartiality of the judicial process as it endeavors to determine culpability. Societal order isn’t always the best ideal, but it is very important in some respects. We don’t negotiate with terrorists, we give the accused legal representation and due process, and by the same principle, we have some safe spaces for illegal immigrants, because without those limits that people can trust, society would be worse off. If you know what you can’t do, you don’t take actions that are dangerously close to losing nuance and becoming outright unethical. The desperation is rebuffed, so you find more constructive ways to get what you’re after.

    The American justice system is not constructive, but that’s not really its job. It literally just keeps order. Taking society to the next level is up to the rest of us.

  4. Jeez, next thing you know, you’ll be telling us that Supreme Court justices are supposed to decide cases based solely on the law and the Constitution.

    It’s a slippery slope, I tell you!

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