Susan Estrich Plays the Feminist Card, Hopefully for the Last Time

by Michael Dorf

Yesterday, Ninth Circuit Judge Alex Kozinski retired effective immediately in response to the growing number of accusations of sexual harassment and misconduct by his former law clerks and others. Having yesterday described Judge Kozinski as a "bosshole" who nevertheless was genuinely fond of the law clerks he gratuitously overworked, I want to praise him today for having made the right call. Given his statement that he "cannot be an effective judge" in the face of the allegations, I assume that Judge Kozinski means to retire completely, rather than to take senior status.

Whether Judge Kozinski's retirement fully ends the controversy over his conduct remains to be seen. In the meantime, I want to dwell a little bit on the role that his lawyer, Susan Estrich, briefly played in the saga. Late last week, Estrich issued the following statement on behalf of Judge Kozinski: "Many of the things that are being said about me are simply not true, but I deeply regret that my unusual sense of humor caused offense or made anyone uncomfortable. I have always treated my male and female law clerks the same."

That statement was inadequate on its face for at least three reasons. First, "just kidding" has never been a good defense for touching a woman's breasts without her consent, not in the mid-1980s or last year, when, according to the WaPo story cited above, Kozinski allegedly did those things. Second, a fair number of the allegations come from people who were never Kozinski's law clerks. And third, it should be obvious to anyone with even the most passing familiarity with the law of sexual harassment--and both Kozinski and Estrich have more than a passing familiarity--that treating male and female supervisees exactly the same can amount to the creation of a hostile environment for the women but not the men (or, in rarer cases, vice-versa), depending on what the "same" treatment is.  Images of naked women and sexual talk are pretty much a textbook example.

Kozinski thus seemed to be left with the Donald Trump/Roy Moore defense that all of the stories were made up for no apparent reason. Or at best with the Al Franken defense that some of the stories were made up for no apparent reason. Except that Estrich provided a reason. And it's a doozy.

In a forum with the incongruous heading "from the left," Estrich wrote an essay last week with the title The Persecution of a Conservative Icon. Assuming she wrote or at least approved of the title, that means that she thought that the allegations against Judge Kozinski targeted him because of his views. That, in turn, only makes sense if one thinks that the allegations are either false or, if true, don't amount to much that should be cause for concern.

And in fact, Estrich made both of those points in her essay. Here is her denouement: "we should take care in bringing men down for conduct that, even if true, does not rise to the level of harassment, much less assault, and happened years ago, and never resulted in a complaint." Let's unpack that.

Why did Estrich include the qualifier "if true"? Or emphasize that many (though it turns out hardly all) of the alleged incidents "happened years ago"? Or that they didn't result in formal complaints?

These are rhetorical questions, of course. The answer is that Estrich's essay follows a well-worn path that defenders of men accused of sexual harassment and assault take.

1) Question the accusers' motives. Kozinski's a conservative; his accusers must be out to get him. Never mind that this hypothesis makes no sense. Judge Kozinski is a libertarian with an unpredictable streak. He will now be replaced by a Trump nominee who is more conservative and younger. That was entirely predictable, and thus his ideology cannot have served as a motive for any accuser with half a brain.

2) Ask why, if this happened, they didn't talk about it publicly or formally complain earlier. Estrich knows full well what the answer is: Because they were scared; because they were humiliated; because they needed the job; because they understood, correctly, that people would question their motives.

3) Minimize the wrong. Estrich's essay appeared on Dec 13. Two days later, a new WaPo story broke under the headline Nine more women say judge subjected them to inappropriate behavior, including four who say he touched or kissed themTwo of the women said they were touched on their breast(s) by Kozinski without their consent. One was pinched on the side and leg. Two of those incidents occurred in 2016 and The Post interviewed witnesses who corroborated contemporary accounts by all three. Two were named in the story.

Accordingly, whatever merit Estrich's defense had on Dec 13 was gone on Dec 15. These incidents rose to the level of assault and two of them occurred very recently.

But maybe Estrich just had bad timing?

Maybe not. Already on Dec 13, when Estrich wrote her essay, Heidi Bond, a former Kozinski law clerk who went on the record for the initial WaPo story, had published her own searing account of her experience. It included her description of Judge Kozinski asking her whether what Estrich calls "childish pornography" turned her on. Bond wrote:
It happened at least three times. I can’t remember exactly how many times it happened.
I was also alone the day he showed me what he called his knock chart. It was a typed piece of paper listing all the girls that he and his friends had banged while they were in college, tracking their conquests.
“Don’t tell your co-clerks about this,” he said. “It’s not something I want them to know about.”
I don’t remember everything he told me. I do remember him talking about how terrible the focus on STDs today was, because nobody was willing to just fuck anymore.
Why did Estrich think that this conduct "does not rise to the level of harassment"?

One possibility is that Estrich didn't believe a word of what she wrote--that she wasn't writing "From the Left," but was actually writing as Judge Kozinski's lawyer. If so, however, she had a duty to the public to disclose that fact.

The first public indication that Judge Kozinski had hired Estrich as his lawyer came on Dec 15. Either Estrich was already acting as his lawyer when she wrote The Persecution of a Conservative Icon, in which case she acted improperly by failing to disclose that fact, or the essay was an audition for the job. But in either case, Estrich's essay mixes arguments with personal vouching in a way that is problematic.

Let me be clear. I think Estrich is entitled to represent whomever she wants to represent, whether it's Roger Ailes (whom she represented in his largely unsuccessful defense against sexual harassment charges), Alex Kozinski, or anyone else--whether pro bono or for money. And whether in a civil or criminal case, such defendants are entitled to have their lawyer make whatever legal and factual claims are available.

The core problem is not that Estrich is acting as a hired gun. It's that she is using her credentials as a feminist to give undeserved credibility to her very un-feminist factual and legal claims. She is saying something like this: I know it sounds like I'm making anti-feminist slut-shaming arguments but I wouldn't do that because I was the first female president of the Harvard Law Review, the first woman to run a major-party presidential campaign, the author of Real Rape, a pathbreaking book that takes acquaintance rape seriously; so if I say a woman accusing a man of sexual harassment is either fabricating or making a mountain out of a molehill, you can believe it.

The problem with playing the feminist card in this way is that you only get to play it so many times. In September 2016, as recounted in this NY Times story, feminists complained that Estrich was setting aside her feminism to defend Ailes using sexist tropes. And as the Times story also notes, Estrich's sell-out goes back to the mid-1990s, when she defended Bill Clinton's behavior in the same way.

Estrich can build a thriving legal practice defending men accused of sexual harassment if she wants to. Some of them may have good defenses and all are entitled to due process. But what Estrich shouldn't be able to do is vouch for her clients by invoking her own credibility as a feminist. At least on these issues, she doesn't have any left.