Dear Stu:

This is going to be fun. Before too long, I hope, we can talk about what really interests me, which is that sex is back at work–and that might just be fine, if we could just learn to respect each other. My students wear unbelievably short skirts to interviews and assert the right to flirt to equalize things with the guys, who talk about sports. I think they might be right. So, first Anita and Paula, and we can fight about who is consistent, and who has bad motives, and then on to what matters.

Let me begin. I don’t really think of either of these as sexual-harassment cases, if you want to know the truth. What troubled me in the Anita Hill-Clarence Thomas affair was less what he said to her a decade ago (you know me, I would’ve laughed and told him to get lost, but she’s not me, and he was chair of the Equal Employment Opportunity Commission–which makes him pretty “shabby” in my book, but wouldn’t disqualify him from a seat on the Supreme Court) than what those senators did to her, and how Clarence Thomas–a man I thought unqualified to serve on the Supreme Court–responded by playing the race card and turning himself into the victim of a racially motivated attack. I wouldn’t want Johnnie Cochran to be on the Supreme Court either.

The Republican senators didn’t have the guts to stand up there and say, “Look, even if this guy made jokes about tits and pubic hair a decade ago, so did a lot of us, and some still do, and some women like it and some don’t, and if he knew you didn’t, he should’ve stopped. But that’s not enough to disqualify him from serving on the court.” Instead, they paraded around piously saying how awful it would be if it were true, and then proceeded to attack her as a nut and a slut. That’s what made me angry. Then, in came Clarence Thomas the next day, the victim of the high-tech lynching of an uppity black. This from a guy who would not have been sitting there, had he not been George Bush’s “up yours” to the civil-rights community and African-Americans. Yuckeroo.

And Paula Jones? The woman who took a first-name reference in a conservative publication (the only institution involved, by the way, that she hasn’t sued) and turned it into a federal case and a career. She doesn’t need my help, Stu, and she doesn’t deserve it. She’ll get her day in court, but she shouldn’t get to hold the presidency hostage. I read your careful piece, and one and only one thing became clear to me: This is just one more political assault on the president, politically motivated and politically pursued. You can’t tell me this woman didn’t know whom she was hiring as a lawyer, whom she was allying herself with, whom she was using, and who being used by. Do you truly think her that stupid? I have more respect than that, at least. Everyone in Arkansas knows who Cliff Jackson is, for goodness sake. These are the people who have fought against civil-rights laws that protect women.

And the president? You convict him for hiring a good lawyer and pursuing a strategy of delay. Of course. He has to hire a good lawyer. Do you really think this was going to go away on its own? A woman charging that the president asked for a blow job in a hotel room is not a story that would disappear if he didn’t hire a good lawyer. And even if every word of it is untrue, it’s the last thing you want to have to deal with; depositions in which you’re asked about distinguishing marks. In an election year? That’s not evidence of guilt.

But what if she’s telling the truth? What about those witnesses?

Here’s my law professor’s answer:

First, I don’t believe that the “facts” she has alleged are sufficient to state a cause of action under Title VII (whose statute of limitations she missed), much less the old civil-rights statutes that she’s trying to invoke. (Do you think Congress was thinking of such incidents when it passed the Ku Klux Klan Act after the Civil War?) There is no quid pro quo alleged, and hostile-environment cases require a pervasive pattern of severe harassment. Moreover, there is a substantial factual dispute in the accounts you report as to whether any advances were “welcome,” and under the Supreme Court’s decisions (which I don’t happen to like very much), all the “big hair-big flirt” stuff will come in under welcomeness.

Second, even if the facts alleged were sufficient, civil suits against the president should be stayed during the course of his presidency, at least in the absence of extraordinary factors (somebody dying, irreparable injury, etc.)–not present here. I can give you Kathleen Sullivan and my brief on this for the circuit court. She wrote it, and it was very persuasive, but we’ll lose everybody else. The brief relates to the issue pending in the United States Supreme Court–whether Jones’ cause of action should be stayed until after Clinton’s term. I think it should be. I think this position is not only good for the country, but also respects the importance of the electoral process. Jones’ claim–if you call it that–arose before the 1992 election. A rule that says that if you want to sue the president, do it before he gets elected or wait till his term is done is one that encourages valid claims to be brought before the election, when they can be considered by the electorate, not afterward. This doesn’t mean the president is above the law, just that if you want to take him to court, you do it before he becomes president.

Here’s the other piece:

So what.

It’s “shabby,” as you put it. I don’t disagree.

But sexual encounters among people who work with each other are not against the law, and the fact that you and I may not be having them anymore doesn’t mean everyone else is ready to give them up.

If a colleague said to me, “Should I come on to a student in my class?” you know what I’d say: “Don’t do it. True love can wait a semester.” I’d tell him to be careful, and not do it, not just because of the dangers of misunderstanding, legal action, etc., but because I really do believe that such relationships are fraught with all kinds of dangers of abuse of power.

And if my daughter someday says to me, “If a man you barely know invites you to a hotel room alone in the middle of the afternoon or the night or any other time of day, what should you do?” it won’t take me long to explain “no” in a hundred languages.

But there’s no law saying he can’t ask, and there’s no law saying she can’t go, and in my surveys of the world, no one but old fogies like us seems interested in someone else enforcing such rules, even if they are the best ones to live by. After all, where else do you meet people?

So what if Jones is telling the truth? She flirted and caught his eye, and the trooper asked her if she wanted to come upstairs, and she did, and they had some kind of encounter (this is he said-she said land, I’m not touching it), and she said no, and he said (this is according to her) that he didn’t want to make her do anything she didn’t want to do, and to have her boss call him if there was any problem with her being late, and that was that, and she never heard from him again. He asked. She said no. He said OK. She left. He got elected, and appointed Ruth Bader Ginsburg and Steve Breyer to the Supreme Court, signed the Family Leave Act, vetoed the partial-birth abortion ban. …

All the best,
Susan
From: Stuart Taylor Jr.
To: Susan Estrich
Posted Saturday, Nov. 9, 1996, at 3:30 AM ET

Dear Susan,

I only wish that the ethical advice our president gets from his cronies was as good as the advocacy he’s getting from you–and for free. He might not have so many scandals.

Nonetheless, I’m not crying “uncle” just yet, if only because I never entirely grew out of my infantile male horror at the prospect of losing to a girl (especially one I’ve lost to before). So here’s a point-by-point (sort of) response, drawing from the version of my article published in the American Lawyer, which (brevity not being my strong suit) is almost 10 times as long as SLATE’s abridged version and now needs registration.

1. I’m all for short skirts, I don’t talk about sports, and I’d be glad to approve of respectful flirtation, etc., at work, but I’m not sure my wife Sally would want me saying that (let alone thinking it), so let’s keep it between ourselves.

2. Anita Hill: I’m delighted to hear that you don’t think of her complaints about Clarence Thomas as a sexual harassment case, if only because I love finding myself to your left on a women’s issue–as I did earlier this year in the VMI case in the Supreme Court. It’s almost as good as being called a “liberal journalist” by the Wall Street Journal editorial page.
But I digress. I think that if Anita Hill told the truth, the whole truth, and nothing but the truth about Clarence Thomas–which I don’t believe for a minute, for reasons I’d be glad to detail–it would amount to a rather clear case of sexual harassment by a boss. Not as bad as many, perhaps, but bad enough.

3. Clarence Thomas: I agree that Thomas was not qualified for the Supreme Court, and I share your distaste for the way he played the race card. But I don’t judge him as harshly as you, because I think that he believed sincerely (and with some reason) that his ideological adversaries were trying not only to block his confirmation, but destroy his good name with vicious lies. That includes Anita Hill. None of us knows for sure what happened between them, but we all have our hunches. Here’s mine, based on all of the evidence I’ve seen: At worst, Thomas asked Hill for a date or two, and perhaps made some off-color remarks about pornography or whatever, doing so repeatedly (if he did) only because (as even some Hill partisans admit) she never made it clear to him that such talk was unwelcome.

Then, 10 years later, while he is under attack from all sides, Hill–a woman who had sought and received favors from him for years–shows up on national television, depicting him as an overbearing, porn-crazed sexual harasser. If he had responded by saying, “Gee, I only asked her for a couple of dates, and I thought she liked joking about pornography,” it would have been seized upon by liberal feminist groups as a virtual admission that he was a sexual harasser, and he might well have gone down in disgrace.

This view of the facts qualifies somewhat my distaste for the response that Thomas did choose–and even for his possible (but still unproven) decision to commit perjury–telling some little white lies (by denying everything) in an effort to save himself from Hill’s big, evil lie.

4. The Republican senators: Sure, some of them went way overboard. But were they worse than Clinton crony James Carville, who said of Paula Jones: “You drag $100 bills through trailer parks, there’s no telling what you’ll find”?
Would you have wanted all the senators to take on faith Hill’s weakly corroborated claims against a man with no reputation for such conduct–as did Ted Kennedy, the one who had the bag over his head during the Hill-Thomas hearing? I prefer the course chosen by Sen. Specter; while his pompousness is hard to take, he did a pretty good cross-examination of Hill, and thus succeeded in exposing at least one instance of what I consider to be attempted perjury by her. (You want details? Coming right up.)

5. Paula Jones: As the American Lawyer’s version of my article shows, she had good cause for concern that the mention of “Paula” by the American Spectator (which she didn’t sue because her lawyers plausibly advised her she had no case against it)–quoting a Clinton bodyguard’s depiction of her as one of Clinton’s compliant conquests–would get back to her friends, family, and others in Little Rock, and might even endanger her marriage.

“She’ll get her day in court”? Not until 2001–seven years after she filed suit–if the president and his amici (including you) have their way.
“Hold the presidency hostage”? This is the only civil damage suit in U.S. history filed against a sitting president for personal conduct. So the floodgates of litigation aren’t exactly swinging open. While the president’s time is a precious national resource, how much of his time would it take for the courts to allow Jones to compel discovery from other witnesses? Or for Clinton himself to confirm or deny under oath–either in a carefully limited deposition, or in written answers, which his lawyer could prepare for his signature–Jones’ allegations of what he did to her in the space of a few minutes on May 8, 1991?
“Politically motivated”? By all accounts, Paula Jones is a political ignoramus, and her first lawyer–a badly overmatched solo practitioner in Little Rock named Daniel Traylor–is a self-described “yellow dog Democrat.” And contrary to your suggestion, Cliff Jackson has never been Jones’ lawyer and barely knows her. Rather, Traylor approached Jackson after flubbing pathetically an attempt to reach the White House to settle the case; Jackson suggested that one way for Traylor to get publicity that might put pressure on Clinton to settle her claim would be to go public at a right-wing conference in Washington; and Traylor foolishly took that advice, causing Jones a credibility problem that has dogged her ever since.

Is Jones stupid? I don’t know, but I don’t think it was a disgrace for an unsophisticated woman with a legal complaint to follow her hapless yellow-dog-Democrat lawyer Traylor’s bad advice.

(By the way, I called Cliff Jackson and read him your characterization of him as one of “the people who have fought against civil-rights laws to protect women.” He laughed, and responded that he was a longtime supporter of civil rights and women’s rights, and that he had won a $20 million jury verdict for a woman in 1991 in a sex-discrimination suit against Texaco–which Jackson called a “white boys’ club” that treats women and minorities disgracefully. This was the largest such verdict in history, he says, until the trial judge overturned it. I think you might like Cliff, if you ever meet him.)

6. President Clinton: I don’t fault him for hiring a good lawyer. I do fault him for choosing a defense strategy of smearing Paula Jones–who was willing to settle for a no-cash public apology–as a lying, money-grubbing slut; and of using nondenial denials to convey the impression (without ever specifying under oath, or at all) that she is lying even about those of her allegations that Clinton knows to be true; and of claiming an immunity so breathtaking in its sweep as to provoke a federal-appeals court to proclaim, with evident distaste, that “the Constitution . . . did not create a monarchy.”

7. Law professor’s answer: Whether or not Jones’ claims (if true) state a legally sufficient claim for monetary damages is debatable. My law professor source says they do. But I think this point is a diversion. Indeed, if things like Title VII’s 180-day statute of limitations are dispositive, why did anybody listen to Anita Hill’s 10-year-old allegations of far less serious conduct?
The reason people listened–and should have listened — is that Hill’s allegations, if true, bore on Clarence Thomas’ character, and thus on his fitness to be on the Supreme Court (in my view, if not yours). People should also listen to Paula Jones–and, of course, to any evidence the president may advance to refute or discredit her, of which he has offered virtually none so far.

(By the way, the reason Jones did not sue sooner, she plausibly says, was fear of losing her job working for a Clinton appointee, and fear that nobody would believe her; she says she would never have sued had she not been depicted in print as a supposed Clinton conquest, and then blown off by all the president’s men as a liar. Wouldn’t that have pissed you off too?)
(And no, I don’t think Congress was thinking about such incidents when they passed the KKK Act. So what? Do you think they were thinking about abortion when they passed it? Or women’s rights to equal treatment by states? And aren’t all major Supreme Court decisions on both of these issues based on the same KKK Act, along with the same 14th Amendment on which Jones relies?)

8. “So what if she’s telling the truth”? I might agree if I bought your summary of the facts: “He asked. She said no. He said OK. She left.”
Here’s my summary, based on Jones’ complaint, which tracks the accounts she gave to her friends and sisters (respectively) 10 minutes, 90 minutes, a few hours, and a day after the event:

Then-Gov. Clinton sent his state-trooper bodyguard to interrupt Jones, then a 24-year-old, low-level employee, at her work station in a Little Rock hotel and fetch her to his suite upstairs; she agreed to go, hoping perhaps to get a better job, and hardly expecting to see the governor expose himself; once he had her alone, Clinton first reminded her that he was the boss of her boss; then he “took Jones’ hand and pulled her toward him,” prompting her to remove her hand and retreat several feet; then he approached again, put his hand on her leg and started sliding it toward the hem of her culottes, while trying to kiss her on the neck; then, after being rebuffed a second time, he “lowered his trousers and underwear, exposing his erect penis, and asked Jones to ‘kiss it’ “; and finally, when she expressed horror, he pulled up his pants, he looked at her sternly and said, “You are smart. Let’s keep this between ourselves.”
As Jones said when she filed her lawsuit, “This case is about the powerful taking advantage of the weak.”

One last thing: As I detailed in another recent article, Clinton’s alleged conduct, as outlined above, would be a federal crime under the interpretation of another post-Civil War civil-rights statute that is propounded in briefs filed in another pending Supreme Court case (U.S. vs. Lanier) by all the usual feminist groups–and by the Clinton Justice Department too.
That’s not my view of the criminal law. But it’s the president’s. And he’s stuck with it.

With best wishes,
Stuart
From: Susan Estrich
To: Stuart Taylor Jr.
Posted Tuesday, Nov. 12, 1996, at 3:30 AM ET

Dear Stuart:

Are you really to my left on this one? I’m not sure it’s a straight line any more, from left to right. I am very proud to call myself a feminist, but it doesn’t mean that the woman is always right and the man is always wrong. I have a son, too. Someday, he might even want to go to a same-sex school.

But give me this: I think enough of women in general, and of Paula Jones, in particular, to assume that she is not a blithering idiot. I’m not talking about the hotel-room business, just the last two years, when she went from being a first-name reference deep in an article in a conservative publication (that she didn’t sue, as I’ve mentioned before) to a household name in every publication, entirely of her own doing. If the reference so humiliated her, as she told you, why did she embark on a path whose only end could be to ensure that every human being in America would know who she was? If she didn’t want to be the next Gennifer Flowers, why did she follow in her footsteps? If she wasn’t interested in a career out of this, why have a book deal in your lawyer’s contract? Was she really the victim of every single man she has dealt with–all the lawyers and consultants, the Rev. Falwell, even?

But here I am, getting dangerously close to doing what I hate most. What angers me is that sex has become just one more weapon in the anti-Clinton business, which is what Clarence Thomas, no doubt, thinks about how it was used against him. It doesn’t do the case of victims of serious abuse, of whom there are many, any good to see both sides alternate between overlooking allegations of “shabbiness” or wrongdoing on the one hand, and overstating them on the other.

Remember Gary Hart, who “lied” about adultery, and then everybody piously pretended that it was a character flaw and not sex that did him in? The truth is suicide, even if it really isn’t so terrible. If Bill Clinton had looked into the television camera, the way you and Paula wanted him to, and said he was sorry, the tape would’ve been in every Republican ad this fall. The best defense of Clarence Thomas is that given the environment, he had little choice but to play the race card, because to admit that he asked the woman out a few times, and maybe told some jokes, but she was an adult and never complained–if he’d said that, he wouldn’t be on the Supreme Court.

The worst of it is, women pay the price coming and going. If allegations can kill you, and if even a piece of the truth is unutterable, then the only alternative is to destroy the woman. Anita Hill may not be a hero, but she didn’t deserve to be victimized. What Justice Thomas’ defenders did to Anita Hill is what many of the president’s defenders have done to Paula Jones (although I admit to having been blissfully unaware of her nude shots for an ex-boyfriend in Penthouse till I read it in your fabulously researched and written, but ultimately unpersuasive, piece). Men are spared the burdens of our hypocrisy by destroying women. Who made these rules?

When it comes to issues of morality and sexuality, there is an unholy alliance between the most radical feminists and the most conservative traditionalists, in opposition to the rest of us, who’d like to make sexual judgments for ourselves, looking to the government to enforce our right to make choices rather than make them for us.

Some women use sex to get ahead, and some women don’t. Men, too. Some women play these games better than others. Some hate them. Some want to learn to play them better. If I had any entrepreneurial instinct, I’d be writing the workplace equivalent of The Rules about how you get to the top by not sleeping with the boss, but making him want to sleep with you, or some such thing. So be it. The only solution is autonomy. You can try, but you can’t take advantage.

Have you ever wondered why women don’t hate Bill Clinton? Here he has this wife we all admire, and first there’s Gennifer Flowers, then Paula Jones. Yet, this election saw the biggest gender gap in history, fueled by the “soccer moms”–the middle-class women whom you’d expect to have very little patience for “other women,” much less ones with the extra time it takes to even have big hair.

Here’s my theory. I believe our president genuinely likes women. He liked his mother. He may or may not be attracted to big hair. But he doesn’t abuse people. He doesn’t harass people. He doesn’t have to, and it’s not his style.

I’m not so sure about Clarence Thomas.

Here’s my hypo.

Imagine you’re 25 again, an associate on a business trip, at a hotel with a senior partner, a great-looking, smart woman in her 40s, who chats with you early in the evening, and later sends word that she’d love to have you come up to her room for a drink. You check around. She’s married, but there’s talk. You go up to her room. Once inside, she sits next to you on the couch, unbuttons her blouse, revealing her breasts, and tells you she would like you to kiss her. You decline. She accepts your answer, tells you if you’re late with tomorrow’s assignment, to tell the senior associate to get in touch with her. As you leave, she says she trusts you’ll keep this to yourself. You do. She does. You move to another city, and live happily ever after.

Oh yes, and here’s hypo No. 2. Angry woman boss. There’s a religious young guy in the office, very, very square. The boss loves to make him uncomfortable by telling him what nice buns he has, making sex jokes, and talking about her period in front of him. And she’s a feminist lawyer, no less.

Whom do you like less?

All the best,
Susan
From: Stuart Taylor Jr.
To: Susan Estrich
Posted Friday, Nov. 15, 1996, at 3:30 AM ET

Dear Susan:

Your Nov. 11 letter reminds me of an old lawyers’ saying, which I adapt as follows: “If the law is against you, pound on the facts. If the facts are against you, pound on the law. If both law and facts are against you, pound on the table–or change the subject.”
It seems to me that you are doing what a good lawyer does when the law and facts are against her.

Specifically, unless I’ve missed something, you have not challenged any of the factual assertions or logical deductions made in my article.
Instead, you have taken potshots at Paula Jones’ credibility–while lamenting that women who make such accusations are “victimized” because people take potshots at their credibility. You have also said that you like the president and his wife and his attitude toward women and his policies and his appointments; have characterized some of my points erroneously; and have made some general points about the sexes–e.g., that same-sex schools are OK, and that feminism shouldn’t mean “that the woman is always right and the man is always wrong”–which I heartily agree with, but which have very little to do with the specific claims made in my article.

You have also taken a position on the Anita Hill claims that seems to me to be inconsistent with what you said about Hill’s claims in 1991, when, for example, you told Ted Koppel that “Anita Hill’s charges were very serious”; wrote in the L.A. Times that “Anita F. Hill’s story of sexual harassment” involved “abuse of power” by Clarence Thomas, that the challenges to Hill’s credibility illustrated “the endurance of sexism in the law,” and showed that the senators “still do not get it”; and wrote in the Houston Chronicle that “many women tolerate harassment [because] they need their jobs,” and that “if she is telling the truth, he does not deserve a seat on the Supreme Court.” You also expressed outrage at the senators’ initial decision not to have a public hearing on Hill’s complaints.
Now, on the other hand, you say that “I don’t really think of either of these [Hill’s or Jones’] as sexual-harassment cases, if you want to know the truth,” and that what Thomas allegedly said to Hill “wouldn’t [by itself] disqualify him from a seat on the Supreme Court.” And you put your name on an amicus brief urging the Supreme Court to rule that Paula Jones should not get a hearing until the year 2001 (if ever).

What you have not done is confront or rebut specifically the evidence that I cited in support of the conclusions and opinions stated in my article.

I respond to your specific points below, but first, some questions:

1) My main conclusions (as stated on the cover of the American Lawyer) are that “Paula Jones’ claims against President Clinton are far stronger than the media has let on–and far stronger than Anita Hill’s against Clarence Thomas.” Do you disagree, and, if so, why?

2) Do you mean to suggest–when you impeach Paula Jones’ credibility and assert that the president “doesn’t abuse people” and “doesn’t harass people”–that Paula Jones is a liar and a false accuser?

3) If so, do you also mean to suggest that Pamela Blackard (who is, by the way, a real “soccer mom,” very proud of her 5-year-old son’s first goal), and Debra Ballentine, and sisters Lydia Cathey and Charlotte Brown, are all liars too? All four have said that Jones told them contemporaneously, and in considerable detail, that Clinton had exposed himself and asked for oral sex after she had rebuffed his earlier advances. Is this a diabolical conspiracy by five mendacious women to get the president?

4) Do you disagree with the following analysis (from my article): “[T]here are only three logically possible scenarios: that Jones lied in a most convincing manner, and in stunning, Technicolor detail, to both Blackard and Ballentine, on May 8, 1991, and to her sisters soon thereafter; that Blackard, Ballentine, and both sisters later conspired with Jones to concoct a monstrous lie about the president; or that Jones’ allegations are substantially true”? Which scenario seems the most plausible to you?

5) If the evidence suggests at least a strong possibility that Jones’ allegations are substantially true, how does that square with your assertion that the president “doesn’t abuse people” and “doesn’t harass people”?

6) You wrote: “The truth is suicide, even if it really isn’t so terrible. If Bill Clinton had looked into the television camera, the way you and Paula wanted him to, and said he was sorry, the tape would’ve been in every Republican ad this fall.” Does this mean that it’s OK with you if the president has instructed his lawyers and other representatives to make false statements about what happened and what he recalls, and thus to smear Paula Jones as a liar?

7) Are you confident that the president was telling the truth when he said (through his lawyer Bob Bennett) that he “has no recollection of ever meeting this woman”?

8) Do you think that Anita Hill told the truth, the whole truth, and nothing but the truth?

9) Does your current view that Anita Hill’s complaints do not make a real sexual-harassment case mean that every major feminist group in the country was wrong to make such a big fuss about her claims–along with Pat Schroeder, Barbara Boxer, Barbara Mikulski, Carol Moseley Braun, Ted Kennedy, Charles Ogletree Jr., Susan Deller Ross, Judith Resnick, Judith Lichtman, Catharine MacKinnon, Gloria Steinem, Carol Gilligan, Toni Morrison, Barbra Streisand, Donna Shalala, Eleanor Smeal, Patricia Ireland, Anna Quindlen, and many others (including Susan Estrich)?

10) What about Hillary Rodham Clinton’s celebration of Hill at a 1992 ABA award luncheon for having “transformed consciousness and changed history with her courageous testimony” against Thomas?

11) Don’t you see even a teeny-weeny inconsistency between the vociferous advocacy of Anita Hill’s cause–and especially her right to a hearing–by all of the groups and people mentioned above, and the fact that not one of them has lifted a finger for Paula Jones, or objected to the president’s effort to prevent her from getting any kind of a hearing until the next millennium?
I’ll make you a deal: If you will answer all my questions, without (or before) changing the subject, I will agree to answer any questions you may wish to ask me.

In response to specific points in your most recent letter:

I disagree with the seeming implication in your second paragraph that Jones’ courting of publicity is devastating to the credibility of her allegations about Clinton’s conduct. It has some bearing only on whether she has been entirely candid about her motives for going public. And it is far from clear that she has lied on that score, if you look closely at the vagueness of what she has said about her motives, and at exactly what she did–and when and why she did it.
The first thing she did was hire a lawyer who tried to contact the White House to seek a settlement–perhaps an apology. He got nowhere. She then followed the lawyer’s (and Cliff Jackson’s) bad advice to hold a press conference at a right-wing political conference, in the hope of generating publicity that might put pressure on the White House to settle. That flopped–and various Clinton aides publicly dismissed her story as a pack of lies and her, as a liar and a trailer-park tramp. This made her understandably angry. It was at this point that she accepted invitations to appear with the only people interested in listening to her–right-wingers like Jerry Falwell and Pat Robertson. And it was a bit later that she filed suit–after Clinton had spurned her offer to settle for a no-cash apology.

Some of the assertions in your fifth paragraph–that “women pay the price coming and going,” and that “Anita Hill [was] victimized [as] many of the president’s defenders have done to Paula Jones,” and that “[m]en are spared the burdens of our hypocrisy by destroying women”–fail, in my view, to distinguish between legitimate probing for weaknesses in an accuser’s credibility, on the one hand, and deliberately mendacious smear campaigns, on the other.

In any sexual-harassment (or acquaintance-rape) case involving two people alone in a room, we must either take the accuser on faith (thereby employing a conclusive presumption of guilt) or probe the accuser’s credibility, by qualifying our sympathy for the victim she claims to be with skepticism for the liar she might possibly prove to be. Many feminists took the position in the Hill-Thomas case (but not in the Jones-Clinton case) that “women don’t make up this sort of thing,” and that “you just don’t get it” if you adhere to the presumption of innocence. I can’t believe that this is your view, even though your fifth paragraph might lend itself to that interpretation.

Finally, your two hypos: Taking the facts as you posit them, I might give you the answer you’re looking for; I like the woman in No. 2 the least–but only because your first hypo diverges radically from the Jones-Clinton allegations.
A law-firm associate on a business trip with a partner has a pre-existing relationship that might lead the partner to hope that a sexual overture would be welcome, and would lead to more than a purely physical encounter between two complete strangers; in contrast, it is undisputed that Clinton and Jones had never met before his alleged overtures to her. Moreover, the partner-associate relationship, while unequal, is less unequal in terms of power than the relationship between the governor of a state and a low-level clerical employee of the governor’s subordinate. And the partner in your hypo did not send a cop to fetch the associate; did not interrupt the associate’s performance of his job during working hours; did not make any further advances after being rebuffed; did not expose the portion of her anatomy most analogous to an erect penis; did not tell the associate that this was the portion of her anatomy she wanted kissed; and did not say that “she trusts you’ll keep this to yourself” with the same menacing tone that Jones claims Clinton used.

As for your hypo No. 2, it’s closer to the mark, as an analogy to the Hill-Thomas allegations. But the evidence taken as a whole, in my view, suggests that Hill very probably embellished, and may have lied wholesale. I think it improbable that Thomas repeatedly made offensive comments to her knowing that she would be offended.

So with reference to the facts, rather than your two hypos, I adhere to my view that “the evidence supporting Paula Jones’ allegations of predatory, if not depraved, behavior by Bill Clinton is far stronger than the evidence supporting Anita Hill’s allegations of far less serious conduct by Clarence Thomas.”
Of course, you may disagree with my view of the evidence, in either or both cases. Do you? Which brings me back to the questions posed above.

With best wishes,
Stuart
From: Susan Estrich
To: Stuart Taylor Jr.
Posted Saturday, Nov. 16, 1996, at 3:30 AM ET

Dear Stuart:

The more I read your typically carefully argued response, the more I’m left with this question (I will answer yours, I promise): Who is the villain here? Paula Jones claims she was harassed. She’s allied herself with the Clinton attack dogs and the conservative movement in America–she did, I assume, know who Jerry Falwell was–and she’s got more help than she needs and more press than she deserves, and she’s likely to make more money off this than she ever would have in life. She is very unlikely to win in a court of law, since I do believe, and you’d at least concede it’s arguable, that the facts she alleged are insufficient to state a claim. Besides, when it comes right down to it, this is one of those cases where truth is inevitably elusive: It is ultimately what he said and what she said, and the way such credibility issues inevitably get resolved (by attacking the woman as a nut or slut) is both likely to succeed, just based on what I read in your article, and as ugly as anything that happened 10 years ago.

So, what are we fighting about?

Are you after feminists for not embracing Paula Jones?
She doesn’t need me, and I refuse to take the bait. She has allied herself with people who preach hatred against decent people because of their sexual orientation, for starters. She is trying to bring down a president who will do more about the things I care about than anyone else I know who could get elected. I like Bill Clinton. I think that she’s exaggerating about what happened to her, at best. I think that treating all incidents of shabbiness in the same category as serious sexual harassment risks pushing it all under the rug, and I’d invoke the Army as proof on that one. I want the system to be fair to women, not to victimize them, but I also want it to be fair to men. I want it to be there for legitimate and serious claims of abuse, not pushed over in the backlash against criminalizing shabby behavior.

Are you after the press for not publicizing Paula Jones?
For not, say, putting her on the cover of a national legal publication with a full-color photograph and a 15,000-word piece written by America’s premier legal journalist?

For not sponsoring a dialogue about her in SLATE magazine?
Is there anyone in America who doesn’t know who Paula Jones is? My God, you can’t tell me that the press hasn’t covered her charges in greater detail than, say, Republicans blocking progressive judicial appointees–a subject which outrages me much more, and doesn’t earn anybody the cover of anybody’s magazine. Do you remember the woman from San Diego, the most widely respected judge of the superior court there, by everybody, whose nomination to the federal district court had to be withdrawn because of Republican opposition based on the fact that some years before, she had awarded custody to the same sex partner of a child’s parent, after the parent died. Remember her? What was her name? I don’t remember. Nobody forgets Paula Jones.

There are two kinds of media in this country: the conservative media, and the nonconservative media. The conservative media–i.e., the Wall Street Journal editorial page–has a side and plays it; they only attack my friends. The nonconservative media attacks everybody. There are lots of liberals in the media, but there is no liberal media. Besides, all those liberals work for conservative bosses–or at least politically sensitive ones, which is certainly lucky for Clarence Thomas this week (the plug having been pulled on Strange Justice, the Clarence Thomas story as a movie).

Me for being inconsistent?

I don’t even pretend to value consistency, if you want to know the truth. It’s honesty I strive for. I teach the same subjects year in and year out–criminal law, sex discrimination, and undergraduate law and politics. I try to think of them fresh each year, pushing myself always to challenge whatever solutions I came to the year before, to see if they hold, to use whatever wisdom and experience comes from life and age and thought to see if I understand things better. Otherwise, I’d be a lousy teacher. I’ve been teaching the gender course for 10 years (I didn’t start till I had tenure, since the course isn’t considered serious by some); my thinking has surely changed in many areas, particularly since I began looking to the future through the eyes of my son, three-and-a-half years ago, as well as my daughter.

Having said that, I’ve probably been more consistent in my views on Anita Hill than some other things you could find. Here’s the story, and what those quotes mean.

I happened to be home riding my exercise bike when Anita Hill had her first news conference at the University of Oklahoma, so I watched it. I had two reactions.
First, what a jerk Clarence Thomas is, a conclusion I’d already reached. Here’s a guy who wouldn’t be where he is but for affirmative action, and opposes it; who’s seen his own family forced to depend on welfare, and denounces welfare recipients; the only man in America who claims never to have had a discussion about Roe vs. Wade (such an obvious lie); a guy with a randy reputation (the porno stories were all around) who has made common cause to become the black poster boy of the conservative right wing, that stands opposed to civil liberties. What Anita Hill said about him fit right in. Here was an obviously naive and traditional woman, a black woman, the low person on the totem pole, and he chooses her as his foil, tells jokes he knows will shock her at her expense. Step on the only one beneath you. Hypocrisy. Again. What a guy.
Second, they’re going to eat her alive. Lunch. This woman has no idea what is about to happen to her. But I do. This is where my two lives collide. I’m probably one of the few people who is equally expert at both how you get victimized by the system as a victim of sex abuse, and by the Bush campaign team as a political opponent. She is going to get killed.

So I sat down and wrote a piece whose basic audience was the Senate Judiciary Committee, for the New York Times I think (you don’t have to look it up, it’s just part of the story), that argued that whatever they did, they shouldn’t let the hearings that were about to begin amount to a victimization of the alleged victim. Don’t attack her, I said. Understand that women don’t always react to sex abuse the way men might expect them to, and that doesn’t mean they’re lying. Tom Donilon, an old friend of mine from politics and a trusted Biden adviser, had been brought in by Biden to help put together the hearings, and he called me and asked if I would talk to Sen. Biden about the argument I was making in the piece. Sure. So the day before the hearings opened, I had a very long conversation with Joe Biden about not putting this woman on trial, and not letting the hearing degenerate into a pious attack on her. We seemed in such complete agreement that I remember him asking me if I’d write his opening statement, and me saying no because I had decided that I was only going to write what I believed, under my own name. Momentous moment. Donilon reassured concerned women, as did I, that I was among those who’d had a lengthy conversation with Biden, and that he got it.

The next day I turned on my TV and I was horrified. I watched this woman get attacked by a bunch of pompous, pious Republican hypocrites (led by Arlen Specter, trying to cozy up to the right in his state), and it still makes me mad. Biden seemed, at best, afraid to offend. The lesson I learned in the 1988 campaign–painfully, by the way, and over and over–is that when you’re in the middle of a fight, you fight back, you don’t opine about whether fighting is right.

So, some answers:

1. Do I think Paula Jones’ claim is stronger than the media has let on? No. If anything, it’s probably weaker. The media has already convicted the president on character grounds, as a womanizer, based on the accounts of two women neither of whose credibility has been tested in a court of law. Paula Jones is already famous. The presumption of innocence doesn’t apply to certain crimes–alleged rapist is not good on your résumé–and the president certainly doesn’t get it.

2. Do I mean to suggest that Paula Jones is a liar and false accuser?
She may be. How could anyone know for sure, one way or another? I don’t know her, but I do know the president, and the conduct she describes is totally at odds with the man I know.

In my experience in other instances of sexual abuse, there is often a tendency–particularly in cases about the line between sex and abuse–for everybody to lie, at least a little, to make themselves look better and the other party look worse. You say you screamed; maybe you didn’t. You say she said yes; maybe she didn’t say anything at all. The party who talks the most in advance of trial tends to lose, because they get caught in all the little inconsistencies that emerge in such retellings. Consider William Kennedy Smith and Patricia Bowman: She did all the depos in advance, and got into a mess on her stockings, and their whereabouts, and lost; or Mike Tyson, who tried to talk his way out of charges by talking to the prosecution and testifying at the grand jury, and ended up talking his way into prison.

So maybe she came to the room. Maybe the president came on to her. Maybe she came on to him.

3-6. Is there a diabolical conspiracy to get the president on the part of Paula Jones’ supporting witnesses? No. Probably not. Just an effort to stand up for a friend, remember as best you can what it is she told you five years ago, and defend her against other relatives and acquaintances who are saying that she is a publicity-seeking liar, who offered to be the governor’s girlfriend. Are her friends telling you today exactly what Paula told them five years ago? Who knows? These women need to be cross-examined before they convict the president. Besides, it’s hearsay anyway: They can testify as to what she told them happened, not what happened. They say: Their friend wouldn’t make this up. I say: My friend has more class than that. Whom do you believe?

What do I mean when I say that the president doesn’t sexually abuse people? Just that. This is the only case I know of where any claim of abuse has been made against him. There is a difference between sex and rape, between flirtation and harassment, between sexual autonomy and sexual coercion.

Some psychobabble, which you’re free to ignore. Rapists and harassers are not generally sexy guys who like women and step over the line. They are, in my experience, very angry men with very negative, hostile–even violent–views of women, which is why, when you’re on the receiving end, it feels like violence and not sex. It is.

7-8. Am I troubled that the president has told his lawyers to say that he doesn’t recall, etc.?

What do you want him to say? The president’s lawyer wouldn’t be a very good one if he let his client say any more than that, in advance of trial. Doesn’t the man also have the right to have the case decided in a court of law, not in a debate sponsored by the tabloids? Are you damning him for not trying the case in the press?

9-11. Anita Hill again. How dare we celebrate her? How dare she be honored by the ABA? She was the first woman to step forward on the American stage and complain of sexual harassment, and she was viciously attacked for it by a bunch of hypocritical senators and a band of political operatives who thought no more of the Supreme Court than to use it as a place for sticking it to the civil-rights community by giving them someone who was a dead ringer for Uncle Tom. The most powerful political operation of the time, the Bush attack squad, went after her tooth and nail, and she never wavered. I thought she was telling the truth. So do most Americans today, by the way. And she was hammered for it. In front of her parents. You don’t pick your fights. Hers turned out to be an important one.

12. Are we inconsistent in supporting Anita Hill and not Paula Jones? Consistent with what? With the goal of protecting women from sexual abuse? I think that goal is served by supporting Bill Clinton. I think that it is important for us, feminists in particular, to acknowledge that taking sexual harassment seriously doesn’t mean that every time a woman complains, the man should be damned. How you think about feminism is relevant.
Here’s my bottom line. I don’t want a sex police in this country, and I certainly don’t want to be a member of it. I’ll take care of my life, and let others take care of theirs. There’s plenty of very serious abuse out there, if the press is interested. I’ll give you a dozen people with worse stories to tell than Paula’s, who don’t have ideologues eager to help them. Besides, 2001 isn’t so far away.

All the best,
Susan

P.S. I think my hypos were pretty good, even if you didn’t like them. In particular, I’m surprised that you suggest that a naked breast is somehow not a good substitute for a penis. Really? Does Sally agree on this?

P.P.S. What’s good for the goose may be good for the gander, but is it good for the country? Republicans destroy the president’s reputation. Democrats destroy the speaker’s. Bork is unconfirmable, and so is Peter Edelman and probably Larry Tribe. I think there’s a value to having moderates on the court, but I also think we’ve gone too far in making good people unconfirmable. Should consistency push us down the side of a mountain?
From: Stuart Taylor Jr.
To: Susan Estrich
Posted Wednesday, Nov. 20, 1996, at 3:30 AM ET

Dear Susan:

Your last letter contains some eloquent points, some passionate points, and some points with which I passionately agree. But it also contains some telling inconsistencies, some inaccuracies, and some revealing admissions–including what strikes me as an implicit admission that President Clinton probably lied to the public about Paula Jones.
You say: “I don’t even pretend to value consistency, if you want to know the truth. It’s honesty I strive for.” I’ll address that first, since I think it goes to the heart of our disagreement.
If you mean, when you devalue consistency, merely that we should all be free to change our minds over time as we learn more and test our assumptions against experience, then of course I agree. I would not criticize you for changing your mind between 1991 and 1996 as to whether Clarence Thomas sexually harassed Anita Hill.

(I do reserve the right to criticize you if you change your mind back again, the next time similar allegations are made against a prominent Republican.)
But I think that the overall context of your letter devalues consistency in a far broader sense. I think that you suggest (or at least imply) that there is nothing wrong with using double standards to judge people and cases based on our political preferences and personal likings, without even attempting to engage in a principled analysis of the facts and the law.

I am led to this interpretation by things like the passages in which you state that you won’t help Jones because she “is trying to bring down a president [whom] I like,” and where you ask (and answer): “Are we inconsistent in supporting Anita Hill and not Paula Jones? Consistent with what? With the goal of protecting women against sexual abuse? I think that goal is served by supporting Bill Clinton. …” I also note that you closed your initial letter with this: “He asked. She said no. He said OK. She left. He got elected and appointed Ruth Bader Ginsburg and Steve Breyer to the Supreme Court, signed the Family Leave Act, vetoed the partial-birth abortion ban.”
The implicit point of all this seems to be that feminists are right to support Anita Hill and not Paula Jones–regardless of which of the two women has a stronger claim to being a victim of sexual harassment–because supporting Anita Hill helps the feminist political agenda, and supporting Paula Jones would hurt that agenda.

In other words, it seems to me that you have implicitly conceded that the positions of feminists in these two cases are fundamentally unprincipled–that they are driven by political expediency, and not by a commitment to evaluating individual claims of sexual harassment on the basis of a neutral analysis of the evidence. Please correct me if I’m misinterpreting you.

If I am even close to being right in my interpretation, then we have a very fundamental disagreement. I think that to devalue consistency in this sense is to devalue principle itself, and that it is impossible to reconcile such a devaluation with a commitment to honesty. That’s because a principled consistency (not to be confused with the “foolish consistency” that Ralph Waldo Emerson called the hobgoblin of little minds) is, in my view, the very essence of intellectual honesty, and of the rule of law.
Why was Bob Dole justly criticized for advocating a huge supply-side tax cut after a career as a deficit hawk? (It was impossible to believe that he had had a good-faith change of mind.)
Because it was inconsistent, unprincipled, and intellectually dishonest.
Why was Jack Kemp justly attacked for wanting the vice-presidential nomination so badly that he embraced immigrant-bashing proposals that he had previously assailed–like excluding the children of illegal aliens from schools?
Inconsistent, unprincipled, and intellectually dishonest.

Why is it hypocritical for conservatives–including Clarence Thomas–who preach devotion to judicial restraint and to the original meaning of the Constitution, to turn around and call for sweeping judicial abolition of all affirmative-action preferences despite the absence of support for any such “colorblind” absolutism in the original meaning of the Constitution?
Inconsistent, unprincipled, and intellectually dishonest.

Why do I regard as hypocritical the 20-some feminist groups that are simultaneously palliating what Clinton allegedly did to Paula Jones and arguing–in the pending Supreme Court case of U.S. vs. Lanier–that it is a federal crime for a state official to do the same kind of thing to a woman under analogous circumstances?

Inconsistent, unprincipled, and intellectually dishonest.
(By the way, given your suggestion that you would reserve the term “sexual harassment” for truly egregious conduct, and that you disapprove of “criminalizing [merely] shabby behavior,” may I infer that you condemn the position of the feminist groups–and of the Clinton Justice Department–in the Lanier case?)

In judicial proceedings and analogous fact-finding proceedings (like Supreme Court confirmation hearings), the essence of the rule of law is to judge people on the basis of consistent legal standards and careful balancing of the evidence–not our own likes and dislikes and political preconceptions.
Why, indeed, is discrimination on the basis of sex and race wrong? Because victims are treated inconsistently, and thus unfairly, based on inborn traits that are irrelevant to their moral deserts, abilities, and accomplishments.
I think it was unprincipled of some conservatives to assume, with little attention to the evidence, that Anita Hill was lying, and that Paula Jones is telling the truth. And I think the same is true of the many liberal feminists–including all the prominent ones I can think of–who reflexively championed Anita Hill and now turn their backs on Paula Jones.
As my article details, I don’t see this lack of principle as completely symmetrical, because, in my view, Paula Jones has stronger evidence than Anita Hill, and her allegations were more serious than Hill’s.

While I appreciate the sincerity and the probative significance of your view that the conduct Jones describes “is totally at odds with the man I know,” I could give you a long list of women who would swear that the conduct that Anita Hill described was totally at odds with the Clarence Thomas they knew. On that score, I think it’s a draw; when you look to corroborating witnesses, Jones’ allegations have far more support than Hill’s.

(I assume, by the way, that your personal experience with Bill Clinton did not begin with him sending a state trooper to hustle you with a view to establishing a sexual liaison. But do you doubt the accounts of no fewer than five former Clinton trooper-bodyguards that he routinely used them for such purposes? If so, perhaps you should check with longtime Clinton Chief of Staff Betsey Wright.)
Since you bring up the importance of honesty, I can’t help wondering how you reconcile it with your admiration for President and Mrs. Clinton.

I am especially struck by your answer to my question asking whether you are “confident that the president was telling the truth when he said (through his lawyer Bob Bennett) that he ‘has no recollection of ever meeting this woman.’ ”
You could have responded, “Yes.” Instead, you answered: “What do you want him to say? The president’s lawyer wouldn’t be a very good one if he let his client say any more than that, in advance of trial.”

I found that very telling.

I don’t think you really doubt that Bill Clinton remembers very well having sent his state trooper to interrupt this low-level state employee at her workstation and summon her to his upstairs suite for the undisclosed purpose of giving him a chance to make a sexual advance.

In other words, I think that in your own mind, you probably agree with my view that Clinton is likely to be lying (through his lawyer) about this. Not just avoiding comment, but lying.

If he were to say the same thing under oath, it would probably be perjury. Which may be one reason he is trying so hard (with your help) to avoid having to testify.

What do I want him to say? I want him to tell the truth. And I certainly don’t want him telling lies.

Nor do I think that the president of the United States–especially one who is a very intelligent former law professor–should be taking orders from a white-collar criminal defense lawyer as to what to say publicly in response to a civil lawsuit accusing him of sexual harassment.
I must not have been a lawyer long enough to buy into the notion that people charged with misconduct should say whatever their lawyers tell them to say, whether it is true or not, and should never admit anything they don’t have to admit.

I really do believe in telling the truth. Even if it suggests that Clarence Thomas–whose jurisprudence I dislike, and whose behavior during his confirmation hearing I deplored–may not be as clearly a sexual harasser as almost all feminists would like to believe.

And even if it suggests that Bill Clinton–for whom I voted in 1992–is very far from being the man of integrity and character I once hoped he would be.
Honesty? While we await word on whether Hillary Rodham Clinton will be indicted for bank fraud–and/or perjury or obstruction of justice, based on one or more of the stark contradictions between her sworn testimony and other available evidence–I note what Michael Kelly, the astute (and hardly right-wing) new editor of the New Republic, wrote about the president this week, in his maiden “TRB” column:

He is of course a shocking liar. He will say absolutely anything at all. … He is breathtakingly cynical. This is a man who committed himself to a policy of making abortion ‘safe, legal and rare,’ and then vetoed a ban on the near-infanticide called partial birth abortion–and then accused critics of his action of immorality. A man who signed the Defense of Marriage Act while denouncing it as gay-bashing, then ran campaign commercials on Christian radio bragging that he signed it. A man who signed the Republican bill ending welfare as a federal entitlement, and then asked Democrats to vote him back into office on the grounds that only he could fix the wrong he had done.

By the way, while you charge Paula Jones with having “allied herself with people who preach hatred against decent people because of their sexual orientation”–presumably because she appeared on television with people like Pat Robertson, in a context that had nothing to do with gay-bashing–wasn’t President Clinton allying himself with the same people, in a far more direct and infinitely more consequential way, when he signed that Defense of Marriage Act?
More on inconsistency: It seems to me that your entire position on how we all should evaluate claims of sexual harassment (and, for that matter, rape) has a gaping contradiction right smack in the middle of it:

On the one hand, you say that it’s important “to acknowledge that taking sexual harassment seriously doesn’t mean that every time a woman complains, the man should be damned.” (I agree; I wish more of your feminist allies did.) You also say (and I agree) of Paula Jones that “this is one of those cases where truth is inevitably elusive: It is ultimately what he said and what she said.” You suspect (plausibly enough) that Jones is “exaggerating about what happened to her, at best.” And you add (reasonably enough) that the two friends and two sisters who corroborate Paula Jones “need to be cross-examined before they convict the president.”

(Of course, they won’t be examined at all until 2001 if you and the president succeed in stopping the case cold. “Doesn’t the man also have the right to have the case decided in a court of law?” you ask. Sure he does. But given his assiduous efforts to prevent any hearing in a court of law, he lacks the grounds to complain about efforts by people like me to explore the evidence as best we can.)

The principle underlying the statements quoted two paragraphs above would seem to be that the credibility of women who accuse men of sexual harassment or rape should be tested by careful probing and skeptical cross-examination, lest the men be falsely damned as harassers or rapists.
But elsewhere, and especially when talking about Clarence Thomas, you seem to suggest the opposite, tarring efforts to probe the credibility of women who make such accusations as a form of victimization–“attacking the woman as a nut or a slut.”

While confidently asserting that “I thought [Anita Hill] was telling the truth,” you condemn Sen. Arlen Specter for daring to cross-examine her–during which cross-examination he caught her lying five times on one key point (unless she just had a highly implausible failure of recollection).

And while you criticize other Republican types (as do I) for smearing Anita Hill with unsubstantiated rumors and slurs, you don’t seem to mind when a Clinton surrogate (James Carville) calls Paula Jones a trailer-park whore, or when Clinton’s lawyer (Bob Bennett) calls her sworn account “tabloid trash.”
Is this your principle: It’s OK to cross-examine (or even to smear as “trash”) accusers of men whose politics you hate, but it’s male-chauvinist victimization to cross-examine accusers of men whose politics you like?

Circling back to respond to your other specific points:

You ask, “Who is the villain here?” Bill Clinton is, unless Paula Jones is lying. I don’t disagree with your view that “she may be” lying. But it follows that even as you read the evidence, she may not be lying. My reading of the evidence is that she has made out a pretty strong factual case–and the president has come back with nothing but nondenial denials.

The evidence, I think, is what’s important here, regardless of whom she appeared with–nearly three years ago, in an ill-advised move that has not been repeated since she filed suit–and how much money she might make. (She’s made none so far, I believe, while Anita Hill reportedly has made enormous sums, from fat speech honoraria and a book contract.)

You ask, “Are you after feminists for not embracing Paula Jones?”
Not exactly. I am after them for applying a politically motivated double standard, and for making Anita Hill out to be a heroine and Clarence Thomas a sexual harasser while ignoring Paula Jones and her far more persuasive evidence of far more odious conduct by a far more powerful man.

I am also criticizing them for demanding an immediate evidentiary hearing in Anita Hill’s case, while supporting Clinton’s effort to deny a hearing to Paula Jones for at least seven years.

I note, in this regard, that while I am bashing various “feminists” here, I consider myself to be a feminist, in the old-fashioned sense of being committed to legal equality, and to the aggressive pursuit of equality of opportunity in all walks of life, for women and men alike. I have a personal stake in women’s rights, as a husband, and as the father of two soccer-playing daughters (and no sons) who will have to compete with men for good jobs–and who may be called upon to support me in my old age, given the probable impending bankruptcies of the Social Security and Medicare systems.

But while the organizations that call themselves “feminist” once helped pave the way to equality of opportunity, they now seem to see it as passé. I’m not at all sure that the activities into which they currently pour their energies will be of any use to my daughters–or do enough good to offset the harm they do. NOW and many others seem to be in the business of propagandizing my daughters to see themselves as victims and males as oppressors–including your little son, as soon as he’s old enough to be accused of harassing a girl in kindergarten.
You ask, “Are you after the press for not publicizing Paula Jones?” Yes, in the sense that it’s inconsistent, and unprincipled, for the press to give such enormous coverage to Anita Hill, and to the various accusers of Sen. Robert Packwood, and to Tailhook, and to the current Army sexual-harassment scandal, and to every other woman who comes along with a sexual-harassment allegation against a prominent public figure (at least if he’s a Republican)–all the while giving President Clinton a free pass. And I think it unprincipled of the press to portray these other accusers in the most sympathetic and credulous of terms, while lapping up the Clinton-Bennett-Carville spin by unfairly depicting Paula Jones as a mendacious, politically motivated slut.

(Yes, Jones has gotten some more sympathetic publicity lately, from me. But one article in a legal trade journal with a circulation below 20,000, nearly three hours after she went public–and even an excerpt in a globe-straddling powerhouse like SLATE–is not much compared with the trumpeting of these other women’s allegations on all the networks and on the front pages of every major newspaper in the nation.)

You note your outrage at Republicans blocking “progressive” judicial nominees (like Judge Judith McConnell of San Diego) and the relative lack of coverage of that by the media. A fair point. But it would carry more weight had you expressed similar outrage when the Democrats did the same thing in 1992, to highly qualified Republican judicial nominees like then-Deputy Solicitor General John Roberts.

You assert that there are conservative media in this country, but no liberal media. I respectfully and emphatically disagree. I will resist the temptation to go farther down that particular tangent at the moment.
In your answer to my first numbered question, you complain that the media have made the president out “as a womanizer, based on the accounts of two women, neither of whose credibility has been tested in a court of law.” I’m not sure what your point is, since I can’t believe that you really doubt he is a womanizer–no other adult I know doubts it–and since, in any event, the allegation here is sexual harassment, not womanizing.

In your answer to questions 3-6, you don’t challenge the truthfulness of Paula Jones’ very powerful corroborating witnesses. You do assert that her “relatives and acquaintances … are saying that she is a publicity-seeking liar, who offered to be the governor’s girlfriend.” This is inaccurate.

Her friends and relatives–meaning her mother, husband, and two sisters, including Charlotte Brown, the one who questioned her motives (but not her allegations about Clinton’s conduct) in 1994–have all said they believe her account of the facts; the rather bizarre brother-in-law (Mark Brown) who said in 1994 that he thought Paula Jones was lying, and who worked with Clinton’s lawyers to discredit her, said this year that he believes Paula.

And the only person (other than Clinton surrogates) who has ever contradicted her on any particular–the one who said that she had offered to be Clinton’s girlfriend on leaving his hotel suite–is Danny Lee Ferguson, the good-ol’-boy state trooper who took her to Clinton’s hotel suite, and who is now Clinton’s co-defendant.

Ferguson, of course, was lobbied personally by various Clinton surrogates–and by Clinton himself, in phone calls in which (Ferguson has said) the president dangled possible federal jobs–when they heard Ferguson was talking to reporters about Clinton’s alleged use of the troopers to hustle women.
I doubt that Paula Jones said anything to this not-very-credible cop on leaving the Clinton suite to which Ferguson had delivered her. Why would she confide in him?

As to your hypos, my wife Sally counsels me to leave to the readers’ imagination any further drawing of analogies between various male and female body parts. I would add, however, that if you really want to talk about a law-firm hypo that closely parallels the Clinton-Jones allegations, the sexual overtures should be coming from the senior partner of the law firm; the sexual harassee should be a secretary; the time of day should be 2:30 p.m.; and the conduct inside the hotel suite should track the allegations of Paula Jones’ complaint.

And oh, yes: The senior partner should be male, and the secretary female.
Every feminist group in sight would be up in arms. And the jury would award damages somewhat above the $7.2 million (including $6.9 million in punitive damages) that a California jury awarded former secretary Rena Weeks of Baker & McKenzie in 1994, as was detailed in another cover story in the American Lawyer.
Weeks had worked for the offending partner for only 25 days; had soon left for another job; had no claim for lost wages; and her most serious allegation was that the partner had once touched her breasts, while stuffing M&M’s into her blouse pocket.

The partner did not expose himself. He did not demand sex (oral or otherwise). And he did not get a free pass from the feminists of America.

With best wishes,
Stuart
From: Susan Estrich
To: Stuart Taylor Jr.
Posted Saturday, Nov. 23, 1996, at 3:30 AM ET

Dear Stuart:

I’m probably not supposed to say this, but I thought that your last letter was really terrific. This is why it’s so much fun doing this with someone I like and respect, as opposed to the usual food fight. Halfway through reading it, I said to myself, hot damn, Stuart is really cooking. Which doesn’t mean you win.
You believe in principle. I believe in politics.

Here is what I learned in law school. I learned that if you push any legal question hard enough and far enough, principle turns into politics. No avoiding it. We live on the slippery slope. You and I were the best in our class at arguing both sides of every issue–but you could type faster, so you got the Fay Diploma, and I worked harder, so I got to be president of the Law Review. But we both got the game. “The Legal Process” cloaked the painful truth of legal realism in the strictures of process: stare decisis and reasoned elaboration took the place of those much-feared value choices. But Duncan Kennedy and his critical legal-scholar followers (known to us as the crits) made mincemeat of that. They took it apart piece by piece, proving that stare decisis only means that you follow the precedent except when you don’t; grant deference only when you do. Whose freedom of contract? What’s freedom?

I can do a better or worse job of making the argument. I can marshal points more or less effectively. Depending on the issue, you have more or less to work with. How I do it will almost surely help me persuade some people, although as presidential debate responses make clear, we tend to be convinced by the person/idea that we agree with. But when I’m fighting myself on something I know something about, no one ever wins. Like cases should be treated alike, but what makes two cases alike? What differences matter? I fight it to a standoff. And then I pick. Don’t you?

Remember Duncan’s plan. Since there is no such thing as objective merit, since it’s all politics, the janitor should make as much as the professor; admission should be by lottery, the little red book. He took everything apart and then left it there.

The fact that it ends up at politics means that how we do our politics matters. That’s where Duncan and I really parted company, and where I part company with Michael Kelly and many of our friends whose principles lead them to tear everything down and take no responsibility for rebuilding it.

But first, the rule of law. I believe the rule of law is essential to our being able to live together. It’s not a set of answers, but a way of getting them, or at least explaining them, that provides legitimacy to our decisions and affirms our faith in each other. Because I believe in the rule of law, I give Paula Jones her day in court, although I very much disagree with her. Everybody gets a day in court. If I’m pretending to be the judge (as I never would be, being happily unconfirmable), I would try to apply the same rules to her that I would if it was Anita Hill’s turn. I would try to think about the case not simply as a choice of whom I like most, but a question of what the rules should be for everybody, because I very much believe that the only way we can all live together is if we all strive to live by the same set of rules, and then trust each other to enforce them (you can tell where I live). But that’s still politics. Sexual harassment is defined according to the reasonable person, or, in the 9th Circuit, the reasonable woman. Who is she? What is the line between reasonable and unreasonable, and who gets to draw it?

Fifteen years ago, women would tell me stories of sexual harassment that would make your hair stand on end. You didn’t worry too much about drawing the line on the other side: That was the argument of the conservative judges against recognizing even the worst forms of abuse as illegal. Now I hear a mix of stories, a real mix, and sometimes I find myself explaining to young women that if they don’t like something a man is doing, they have a responsibility to say no, and to cool their jets a little bit about Playboy, and that if they’re flirting with a guy and he comes on to them, it’s not entirely his fault.
Which takes me to sexual autonomy, the only semifirm ground I can find, my best political compromise for a diverse and heterogeneous crowd. I don’t think you can prohibit sex (see the Army), and I don’t think there’s a consensus–or at least not one I share–about what’s OK and what isn’t. So I get to autonomy, my principle, a political compromise. As you report her story, when Paula Jones made clear, with words, that the advances were unwelcome, her autonomy was respected. He told her that he didn’t want her to do anything she didn’t want to do, and that if she got in trouble for being late, he would take care of it. It’s hard for me to think of another case of alleged sexual harassment where a rejected man reassures the woman that it is her choice, and that no adverse consequence will follow from saying no. In my book, that is the opposite of sexual harassment.

By my principle, the key issue in comparing the Jones and Hill situations is not how many square inches of body parts were allegedly revealed, but whether the men charged knew that the woman found the advances unwelcome and pursued them anyway. The number of corroborating witnesses doesn’t much matter if the charges, assuming they’re true, don’t amount to a lawful wrong. I’m not in the consensual sex business. What always troubled me about Anita Hill’s account was that I thought he was having fun tormenting her, that he seemed to take advantage of those beneath him. So my rule of law is to protect autonomy–which I will no doubt stick to until something so offends all of us that we say, the hell with the slippery slope, this is bad and we know it when we see it. And whether there are five votes on the Supreme Court to hold it up will depend on what it is and who has been president for the preceding four or eight years.
But as I said, I try to be honest. And I wouldn’t be honest if I said that I sat down and looked at these two cases simply as occasion to apply Susan Estrich’s rule of sexual autonomy. I’m not a judge, and, fortunately, not inclined to be one. I am person who is blessed with whatever skills and talents I have, with a strict but unknown limit on how long I’ll get to use them. I do my best. Not perfect, by a long shot. Everybody needs a lawyer, but they don’t need me. More column ideas in most weeks–more things to be outraged or happy or sad about–than there’s room for. How to pick? I know I can tear things, people, institutions down. I can find girls in almost every politicians’ past; I can find money with dubious sources in every campaign coffer; and I can find buckets full of broken campaign promises wherever I look.

Build or destroy? Fix or wallow? What is important, and what isn’t?
The week before I spoke to my daughter’s first-grade class, I was on a panel at the Reagan Library, and they gave me all kinds of paraphernalia for the kids–which was lucky, because the Dole campaign had none to give, and the Clinton campaign was only selling theirs. I told the students that President Reagan was a decent man doing what he thought best for his country, even though I disagreed with many of his decisions. Am I wrong?

I believe in the possibility of people finding common ground, and I believe that no one understands politics as compromise and common ground better than Bill Clinton. In a diverse country in which the resort to name-calling (we don’t disagree, or say that someone is wrong, we say that they’re racist or sexist or insensitive, which is sometimes true and sometimes a cop-out, but never moves an argument forward) is automatic, and the pursuit of wedge issues passes for the doing of politics, I think the pursuit of common ground is itself a value, in addition to being the only way for anyone left of the right to win.
I don’t blame Clinton for signing that disgusting gay-marriage bill–although I thought it a needless bunch of hateful demagoguery by Paula Jones’ friends. Turning gay marriage into an issue in this campaign would’ve been as smart as launching your administration with gays in the military. Was Thurgood Marshall a hypocrite for realizing that you begin the attack on legal segregation with law schools, not elementary schools? A political judgment. A strategic call. A first step. A compromise. (As for vetoing the partial-birth abortion bill, don’t get me started. … Well, you have. Do you trust women so little to think that they would abort their babies at six or seven months because they changed their minds? I talked to a woman last weekend–it would’ve been her due date–who had what some would call a “partial-birth abortion” because the doctors found, at six months, that her baby had no brain, among other defects “inconsistent with life.” How dare anyone tell her what she can and can’t do? How dare they not allow an exception for the health of the mother? This woman was a Catholic and a Republican, and she voted for Clinton.)

We took our kids to vote with us on Election Day. I told my children that Bill Clinton was a good man, not a perfect one but a good one, doing his best in a difficult job, and that most of the time, I agreed with him, and hoped he would succeed, and that I believe the country will be better off if he does. I teach my children to respect the president. I do. Do you?

All the best,
Susan
From: Stuart Taylor Jr.
To: Susan Estrich
Posted Wednesday, Nov. 27, 1996, at 3:30 AM ET

Dear Susan:

Debating with you is fun–because I do like and respect you–but it also gives me a feel for what it must have been like boxing with Muhammad Ali.
You float like a butterfly. You sting like a bee. And, when called upon to defend an indefensible proposition, you do a helluva rope-a-dope.
You fake right and then take off down the left sideline quicker than Gale Sayers. You do a better sting than Paul Newman and Robert Redford. You get more mileage out of a weak hand than Maverick. You put an innocent face on a guilty client as deftly as Johnnie Cochran. You’re tougher than Tonya, calmer than Kerrigan, and shrewder than Houdini. And if Pete Carril could make a bunch of short guys (who couldn’t jump) at Princeton look like a basketball power, you may be able to make the Clintons and their team look like the most ethical administration in history.

But not for long.

The one thing I’ve got going for me in this debate is the facts. So I can understand why you’ve largely stopped talking about them.

Your latest posting does make two points about Paula Jones, Anita Hill, and all that: 1) Even if Jones is telling the truth, then-Gov. Clinton’s conduct was no big deal because–after having this 24-year-old state employee interrupted at her work station in a hotel lobby and brought to his upstairs suite by his cop, and making two sexual advances, and encountering two polite rebuffs, and then exposing himself, and the rest–he desisted (and told her to keep quiet) when she more clearly stated that his advances were unwelcome; 2) What Clarence Thomas did to Anita Hill was worse, because it appeared to you that he was “having fun tormenting her.”

As to 1), I think that you understate the importance of the inequality in the Clinton-Jones power relationship. And you have avoided comment on the contentions by the Clinton Justice Department and some 20 feminist groups (in United States vs. Lanier) that such conduct is a federal crime, when engaged in by a state employer with power over a state employee.

As to 2), I agree that Hill’s allegations–if true–make Thomas look pretty bad (though not as bad as Clinton, in my view). But the evidence suggests to me that Hill greatly embellished what happened and may have made the whole thing up. While I can’t be sure, I don’t believe that Thomas deliberately tormented or harassed Hill.

You raise an interesting point in saying that you “part company with … our friends whose principles lead them to tear everything down and take no responsibility for rebuilding it.” I take this to mean that you think the most constructive course is to support your party’s president, the better to achieve policy goals in which you believe, rather than to dwell on his faults. My friends in the Clinton administration apparently feel the same way–even, it appears, when Clinton sells out what he once claimed to be his principles, as he has done over and over again.

I respect that point of view. But it’s not mine, and would not be mine even if I heartily approved of Clinton’s political agenda (whatever it may be this week). This is in part because I think that this president and his wife have forfeited any claim to the benefit of the doubt as far as ethics and truthfulness are concerned, and in part because I don’t think that journalists should be uncritical cheerleaders for anybody’s team.

It’s true that a relentlessly adversarial journalistic stance toward our elected leaders creates problems of its own–like public cynicism–and that we can’t expect the president to be perfect. But I think that we can expect the president to be truthful. And I think it healthier to engage in measured criticisms of deceptions by the president–whether his name be Nixon, Reagan, Bush, or Clinton–than to stifle our disgust for the greater good.

(Maybe I’m just old-fashioned, but I also think that law professors should not be urging the courts to adopt an unprecedented rule of immunity blocking all proceedings in a sexual-harassment suit against President Clinton, unless they would have taken the same position had the president been Reagan, or Bush. If, as you suggest, judges should be principled, why not law professors? Or–if we cannot expect law professors to be principled–why should we take at face value their purported arguments of principle?)

I can only note my amazement at your view that President Clinton’s decision to sign (and campaign on) what you call “that disgusting gay-marriage bill” can be defended as analogous to Thurgood Marshall’s tactical decision to attack racial segregation in a case involving a law school before he went after segregated elementary schools.

I can certainly understand you teaching your children to respect the president. I try to teach mine to respect the presidency. Since they are only 9 and 12, it’s hard to make that point while telling them exactly what I think of the incumbent president. So I avoid discussing him, unless they bring him up, in which case I answer as honestly as I euphemistically can.

On Election Day, I told my wife Sally that I was writing in Colin Powell for president. She said something to Sarah (our 12-year-old). And when we were all at the polling place, Sarah whispered in my ear, “Vote for Colin Powell.” I told her that that was a great idea, and that I would do it, because I thought he would make a better president than either Clinton or Dole. And I did.
As for Duncan Kennedy and the crits, they always struck me as nihilists with attitude–the attitude being smug self-righteousness, intellectual snobbery, and insufferable complacency. I didn’t really know them as individuals, but as a group, they seemed to me to enjoy the fruits of tenure while playing mind games with students whom they despised–most of whom were headed for law firms they despised–and while spinning safely unrealizable fantasies of redistributing income to janitors and other proletarians whom they despised even more.
You can have the crits (although I gather you may not want them). I’ll take Professor Kingsfield from The Paper Chase. He told his first-year students, “Your minds are full of mush.” The crits have done their best to whip the mush into a Derrida soufflé.

But I think we’ve about exhausted our subject. I have no quarrel with what I take to be the heart of your summation, in which you said: “You believe in principle. I believe in politics.”
On that note, I rest my case.

With best wishes,
Stuart
From: Susan Estrich
To: Stuart Taylor Jr.
Posted Wednesday, Nov. 27, 1996, at 3:30 AM ET

Dear Stuart,

Is there another word I could say that would convince anyone who isn’t already convinced? We’re supposed to leave them wanting more, aren’t we?
So how about if I just include in my thanksgiving the chance to disagree with someone I respect so much, and even try to do it with integrity and humor. Imagine what the world might be like if this were how people had public discourse.

Thanks to everyone else, too, for all the comments (and even some fan mail).

Happy holidays, love to Sally and the girls,
Susan

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