Why Haven’t White Supremacists Held A New Charlottesville? Meet Roberta Kaplan.
By Helen Chernikoff July 1, 2018
Last July, white supremacists like Mike Peinovich and Richard Spencer were in the final throes of planning for what became known as “Charlottesville.” The months since the inauguration of President Trump in January 2017 had been filled with triumphs for him and his fellow travelers, racists of various stripes who operated mainly online. They felt they had helped Trump get elected. With him in the White House, they started to see themselves as a true movement. To begin the process of moving off the web and into real life, they decided to engineer a big, splashy event, a march they billed as a protest against the planned removal of a statue of General Robert E. Lee in downtown Charlottesville.
They deployed their full arsenal of websites, podcasts, social media accounts and even private computer servers. The “Unite the Right” rally, which commandeered the Virginia city last August, was the product of all this hard work. For 24 hours, that colonial college town became a battleground overrun with men who considered themselves soldiers, bearing their chosen insignias: swastikas or Confederate flags.
The Charlottesville event achieved its stated purpose of bringing the haters together. It also had the consequence — surely unintended by Peinovich and friends — of rousing against them a new and formidable enemy. Her name is Roberta Kaplan. She’s a Jew, a lesbian and one of the country’s most celebrated trial lawyers. She wears pantsuits and a Star of David necklace. In her home state of Ohio, she helped Hillary Clinton campaign before the 2016 election.
Kaplan is a walking, talking combination of things that piss Peinovich and his ilk off, and she knows it. In March, she sat down with the Forward in her new law firm’s stylish offices on the 71st floor of the Empire State Building to talk about Sines v. Kessler, the lawsuit she’d filed against Charlottesville’s alleged leaders. “What do they say about me on Twitter?” Kaplan asked rhetorically and gleefully, in her booming voice. “They call me a chubby lesbian kike! I say I’m definitely chubby, I’m definitely a lesbian, I’m definitely Jewish.”
Roberta Kaplan Image by Courtesy of Roberta Kaplan
Kaplan and several colleagues, including lawyers in both New York and Virginia, are representing Elizabeth Sines, a University of Virginia law school student, and nine other plaintiffs. Sines saw the car ramming that killed protestor Heather Heyer and claims she is still traumatized, afraid even in her own home. Another plaintiff is Hannah Pearce, a member of Charlottesville’s Beth Israel synagogue. On August 12, armed men stood outside the synagogue, talking about bombing it and burning it down. The suit names Jason Kessler, one of the rally’s alleged lead planners, and 24 more defendants, including Peinovich.
If in Charlottesville, white supremacists wanted real life, in Kaplan, they got it, plus possible consequences. Her plan is to use the law to make them pay for what happened in Charlottesville, even if it means garnishing their wages, and to make sure they don’t ever do anything like that again.
White supremacists hate the elite, and Kaplan is nothing but. From a private school in suburban Cleveland to Harvard College, Columbia Law School, white-shoe law firm Paul, Weiss and the Supreme Court bar, her affiliations are all exclusive. Her most high-profile achievement to date, United States v. Windsor, has been persuading the Supreme Court that the Defense of Marriage Act (DOMA) was unconstitutional, and winning for LGBTQ Americans like herself the right to marry.
DOMA “was about the equal dignity of gay people,” Kaplan told the Forward. “The Charlottesville case is also about equal dignity. It’s just about different groups of people. I don’t think the issues are all that different.”
JEWISH OR GAY? YES.
Kaplan, 51, came out to her parents in 1991, right after she graduated from law school. That JD was the fulfillment of a lifelong dream — she says that she and everyone around her suspected from the time she was a toddler that someone who talked so much was a born lawyer.
Her father and mother were in town to visit, but the mood soured when her mother started to gripe about New York City’s Gay Pride Parade, which had blocked their way as they were trying to get to Kaplan’s tiny studio apartment, as Kaplan relates in “Then Comes Marriage,” the book she wrote about the DOMA case.
Kaplan tried to shut the conversation down as her mother ranted on about “mobs” of gay people until her mother turned to look at her closely. “‘Are you gay or something?’” she asked.
When Kaplan said yes, her mother “simply walked to the edge of the room and started banging her head against the wall. Bang. Bang. Bang.”
Roberta Kaplan was a talkative toddler and a born lawyer. Image by Courtesy of Roberta Kaplan
Her parents were liberals, her mother a feminist. Yet Kaplan says that their notion of Jewish womanhood entailed creating the same kind of family she grew up in: suburban, with a husband who would father children.
Hence her mother’s head banging, and Kaplan’s own fear that she would have to choose between being Jewish and being a lesbian.
“I remember thinking when I first came out ‘What’s more important to me, my Jewish or my gay identity?’ It’s not a question anybody should have to answer,” she said.
Kaplan and her mother did not speak for months, but they ultimately reconciled with the help of her father and grandmother. Over the next decade, both Kaplan and her mother grew more comfortable with the fact that she was gay, and the young lawyer’s career flourished. Kaplan dated and had girlfriends, and she made partner at Paul, Weiss at age 32. Then, during Rosh Hashanah services at Congregation Beth Simchat Torah, the LGBTQ synagogue in Manhattan, she met Rachel Lavine.
They fell in love, as “Then Comes Marriage” has it, spending “romantic evenings heatedly arguing about the relative political power of the Mensheviks versus the Bolsheviks during the Russian Revolution.” (Lavine said Kaplan would have been a Bolshevik, just because she needs to win. Kaplan was not happy.)
By the time the two married in 2005, Kaplan says her mother was thrilled to participate in what Kaplan calls their Big Gay Wedding. The pair married in Toronto, as it wasn’t legal in New York, and then again the next week in a traditional Jewish ceremony conducted by Jan Uhrbach, a Conservative rabbi, in defiance of the movement’s then-ban on gay marriage.
They celebrate Shabbat and attend services, when Kaplan’s work permits it, at the Conservative Synagogue of the Hamptons, where Uhrbach is the rabbi.
“Robbie takes Judaism very seriously, she takes Torah study very seriously,” Uhrbach said. “I know prayer is important to her, but she’s also interested in high-level learning.”
Kaplan and Lavine have each made a Haggadah, the book that’s read through and discussed at the Passover Seder. “Rachel and I come from different traditions. Her Haggadah is much more progressive, socialist, and mine is much more traditional and frummy,” Kaplan said.
Their son, Jacob Kaplan-Lavine, is 11. He says he wants to be a rabbi.
“He said, ‘I like the outfits,’” Kaplan said. “And I said, ‘What are you talking about?’ And he said, ‘I really like the black fur hats,’ And we were like, ‘Um, excuse me, I don’t think you’re going to be that kind of rabbi.’”
A JEWISH LAW FIRM
After clerking for a judge after law school, Kaplan joined Paul, Weiss. It was founded by Jews in 1875, when high-society anti-Semitism made the most prestigious law firms reluctant to hire them.
Kaplan was mainly there for the training.
“It was the best litigation shop in the country, full of these incredible strong, intellectual, independent thinkers,” she said. “I wanted to be a great litigator.”
During the trial that culminated in the overturning of the Defense of Marriage Act, Roberta Kaplan and her spouse, Rachel Lavine (head of table left and right respectively) held a Seder in a hotel conference room. Image by Courtesy of Roberta Kaplan
Kaplan likes to reveal that her bat mitzvah portion included the famous injunction, “Justice, justice you shall pursue.” She did not, however, choose the law to crusade for causes. She’s a legal geek who revels in the intricate corporate work — such as suits between hedge funds and accounting firms — that would bore and/or enrage a starry-eyed idealist.
“My wife always says I have this amazing ability to persuade myself that all my clients, whoever is my client, have done nothing wrong,” Kaplan said. “I know people say I’m crazy when I say this, but I don’t distinguish at all really between my corporate clients and the plaintiffs in Charlottesville or Edie Windsor. My job is to believe in the rightness of their cause and get them justice.”
Even as Paul, Weiss rakes in the revenue, it’s famous for its commitment to pro bono work, in which lawyers do public interest cases on the firm’s time. That’s why Kaplan got to represent Windsor, who died last fall. Kaplan sued the federal government for the estate tax Windsor had been forced to pay upon the death of her wife, Thea Spyer, because the United States did not recognize their marriage. When the Supreme Court ordered the return of the money, it also declared the Defense of Marriage Act unconstitutional.
Coincidentally, right after coming out, Kaplan went to see Spyer, who had worked as a therapist specializing in LGBTQ issues. Working for Spyer’s widow felt bashert, Kaplan wrote in “Then Comes Marriage.” Kaplan and Lavine had been forced to marry in Canada, just like Windsor and Spyer, and Kaplan had to formally adopt Jacob — enduring slights, disrespect and cluelessness from nurses and social workers along the way.
After the DOMA victory, the Conservative Synagogue of the Hamptons celebrated by commissioning the composition of a new piece of music that is set to verses from Psalm 85: “Kindness and truth have met; righteousness and peace have kissed. Truth will sprout from the earth, and righteousness will look down from heaven.” A framed copy hangs in Kaplan’s office.
The victory against DOMA on Windsor’s behalf was a public relations and professional coup for Kaplan and Paul, Weiss. Yet in the years since Kaplan had entered the profession, she felt that law had changed in ways that concerned her.
All of the top firms, like Paul, Weiss, had become increasingly focused on competing with each other on the basis of “profits per partner,” said David Lat, a lawyer and founder of the blog “Above the Law.”
In 2016, Paul, Weiss earned profits per partner of $4.4 million. To keep that number going up, corporate firms must take on more and more of the field’s biggest cases, such as takeover fights and class-action lawsuits. Those big jobs justify rates of up to $1,200 per hour from partners like Kaplan, Lat said. But they also squeeze out a lot of the more interesting, less lucrative work.
“This is one of my pet peeves,” Kaplan said. “There’s this huge pressure to specialize in a way that I don’t think is frankly helpful. It doesn’t provide for that meaningful a life as a litigator, and I don’t think it’s in the client’s best interest.”
Roberta Kaplan and Rachel Lavine married in a traditional Jewish ceremony. Image by Courtesy of Roberta Kaplan
It also limits the amount of public interest work any big firm can take on, Lat said.
As Kaplan was mulling these issues, Donald Trump was elected president. She was a high-profile Clinton supporter and would have been thrilled to work in her administration.
When Clinton lost, Kaplan realized the United States under Trump would need more public interest lawyers, said Sharon Nelles, a long-time colleague and friend of Kaplan’s who worked with her on the DOMA case.
Also last July, while Peinovich and others were allegedly hard at work organizing Charlottesville, Kaplan announced that she was leaving Paul, Weiss to start her own firm, Kaplan & Company.
“She’s going to fight Nazis and fight for LGBTQ rights and make some money at the same time,” Nelles said, about Kaplan starting her own firm. “Since she told me she was going to do it, I knew she was going to do it.”
The firm’s commercial clients include Airbnb, T-Mobile and Pfizer.
On the public interest side, it’s representing a woman sued for defamation by Hollywood producer Brett Ratner after she shared her #MeToo story. And it’s taking on the state of Mississippi, representing the Campaign for Southern Equality in its fight against a “religious freedom” law there that permits the denial of goods or services to LGBTQ people.
KAPLAN V. MIKE E.
And, of course, there’s Sines v. Kessler.
“In the world we are in today,” Kaplan said, meaning in a Trump administration, “it’s unlikely that the civil rights division of the [Department of Justice] would come in and do it on their own, which is ideally who you’d want to do this case.”
Attorney General Jeff Sessions is prosecuting James Fields, Jr., the alleged perpetrator of Charlottesville’s fatal car ramming, and called the incident “domestic terrorism.” But Kaplan thinks there’s a lot more to do.
She grew up at a time when Jewish education was heavily focused on the Holocaust. She went through a phase when she read about it obsessively, but she never thought Nazis would be a part of her reality.
“Skokie happened when I was a kid,” she said, referring to the planned 1977 neo-Nazi march through Skokie, Illinois, a Chicago suburb. The march ended up happening in Chicago instead.
“As bad as it was, it was just a peaceful protest. If you had told me that something like that would happen on the streets of an American city, I would have told you that you were crazy. So does it surprise me that we have to do this? Yes. Does it surprise me that given the need, that I would do this? No.”
Roberta Kaplan and her prom date both went on to careers that included LGBTQ activism.
Kaplan followed news about the Charlottesville rally closely. Unlike the aborted Skokie and Chicago marches, it was violent. It killed one person, injured dozens, terrified hundreds — and got her thinking about legal theories right away. Could one of them be used to hold the march’s organizers responsible for the harm it caused? She made a phone call to a friend, a well-known writer who lived in the area; within 72 hours, Kaplan was on a plane to Charlottesville. She asked her friend Karen Dunn to partner with her on the case, because Dunn had served as a prosecutor in Virginia. By mid-October, Kaplan, Dunn and local lawyers had filed Sines v. Kessler.
The lawsuit accuses Charlottesville’s organizers of conspiring to bring about a campaign of violence and intimidation under the pretext of planning an ostensibly peaceful exercise in free speech. That is, a bunch of racists planned a violent march, not a march that just happened to get violent. The distinction is crucial.
“A lot of these guys are like overgrown, immature young men who kind of live in their parents’ basement and in the past, they just communicated with each other,” Kaplan said. “For whatever reason — some would say it had to do with the presidential campaign — they felt compelled to come out of the basement, which they have a right to do, but also to plan and commit violence motivated by their ideology. A shorthand way of thinking about what we want here is that they should go back into their basement and communicate on chat rooms rather than hurting or even killing people.”
That’s why, on May 24, Kaplan and Peinovich found themselves in the same place: Charlottesville’s federal courthouse. The city has historic court buildings nestled adorably on “Justice Park.” This isn’t one of them. It’s big and modern and sits on a busy road next to a hotel. On that morning, television reporters gathered to try to film the case’s big names, including Peinovich, known as “Mike E.” He’s the founder of “The Daily Shoah” podcast, which mocks political correctness and propagates anti-Semitic conspiracy theories. Peinovich is representing himself.
Outside, the weather was gorgeous, with ample sunshine and just a hint of the coming summer heat. The town was quiet. Mr. Jefferson’s University of Virginia had held its graduation ceremonies just six days earlier, and the students had left town. Pedestrians ambled down Heather Heyer Way, which was named for the 32-year-old woman who died in the car ramming, toward the cafés, restaurants and shops of the downtown mall. Just a few blocks away sits Emancipation Park (formerly Lee Park), the site of that Robert E. Lee statue that supposedly instigated the Unite the Right rally in the first place. The City Council had voted to remove it, but in March a group of citizens has sued to stop the action, so it still stands, its base wrapped in layers of orange plastic, until the courts decide what to do with it.
Inside, Peinovich and several lawyers for the defense sat on one side of the courtroom while the plaintiffs — Kaplan, her colleagues and their clients and supporters — sat on the other.
Kaplan and her co-counsel were on the judge’s left. Behind them sat several more rows of sober-suited lawyers, and behind them were the plaintiffs and their friends and family: a laughing, chattering, hand-shaking gaggle that included a range of skin tones, green hair and two female clergy, a Christian and a Buddhist, in official attire.
The purpose of the hearing was several defendants’ “motion to dismiss”; they’d asked the judge to call a halt to the case before it even really got started. According to them, they were a bunch of activists who’d planned a march that got out of hand. In other words: No violent conspiracy to see here. The judge would listen to their argument, hear Kaplan and her co-counsel’s response, and decide. He said he would do so “reasonably soon,” but nobody knew what that meant.
Across the courtroom, Peinovich sat slumped at the desk reserved for the defense, head down, cheek stubbly, navy blazer straining at the torso. A little less than a year ago, he’d been in front of a crowd of reporters and supporters at McIntire Park, holding forth about white genocide, David Duke at his side.
“Yes, they are provocative people,” said one of the defense lawyers, James Kolenich, who is representing several of the defendants, including Jason Kessler, the lead defendant, and a writer for the neo-Nazi website the Daily Stormer.
“Yes, they have a far-right ideology.” No, Kolenich went on, the plaintiffs’ lawyers hadn’t proved, and wouldn’t be able to prove, that they had wanted anyone to get hurt. Kolenich, a conservative Catholic, took the case because he feels it’s his Christian duty to “oppose Jewish influence in society,” he told the Cincinnati Enquirer.
During his opening statement, Kolenich fumbled with his phone, trying to call up one of the plaintiffs’ filings. He turned to Kaplan and asked if he could borrow a hard copy from her team. She handed it over, her face neutral.
Kaplan and her team answered this line of defense by pointing to what they said was ample evidence of conspiracy the legal team had already gathered.
Image by Getty Images
For example, they have readouts from the chat platform Discord, which the rally’s alleged planners used for that purpose, posting such documents as “General Orders,” which split the city into “Friendlies” and “Enemies/Counter Protestors,” and promising “security forces to reduce the threat” presented by “hostiles.”
“I’m ready to crack skulls,” wrote one of the participants on Discord.
“We are talking here,” Kaplan told the judge, “about weeks and weeks of chatting on the internet. About how if you beat a nigger, it’s like you’re not really beating anyone. About how to fill a sock with pennies and use it as a weapon.”
If the judge would allow the case to proceed to trial, they would surely find much more, Kaplan and Dunn said.
At press time, the judge had not yet ruled on the motion to dismiss the case. According to Alexander Reinert, a professor at Cardozo, Yeshiva University’s law school, there are two reasons why the case could get dismissed: if it isn’t based on the right laws, or if there weren’t enough facts in the plaintiffs’ complaint to warrant further investigation.
A judge can dismiss anything, but the plaintiffs’ case seemed strong, he said.
The laws being used, Reinert pointed out, were passed right after the Civil War to deter acts of violence and political terror against newly freed slaves and their supporters by making the perpetrators liable for damages. One of them is the Ku Klux Klan Act of 1870.
“The Klan Act was passed for a very specific purpose at a very specific time, and this case is as close as can be to the purpose of that statute,” said Dunn at a press conference after the hearing. “The fact that we’re in 2018 and the most relevant legal precedent is the Klan Act should give everyone pause. As legal lessons go, that’s a pretty sharp one.”
If the judge does allow the suit to go to trial, and the plaintiffs win, it will take one of two possible forms, or maybe both, Kaplan said.
The plaintiffs will ask for money to compensate them for their suffering, although it’s unlikely the defendants will be able to pay the damages, Kaplan said.
That means their collective future might include years of garnished wages, a regular reminder that they overestimated their abilities and importance in Charlottesville.
The plaintiffs could also seek an injunction that would prevent these groups from planning violence. If they do it anyway, they could be held in contempt, which could lead to penalties or maybe even jail time.
IN SUMMARY
Win or lose, summer is coming. It’s a deeply spiritual season for Kaplan. Even she slows down and can take more time to go to services. Also, the season leads up to the High Holidays. Those are her favorites, she said, because they are so conducive to private prayer and connection with God.
It’s God, Kaplan said, who inspires people to act selflessly, bravely, kindly.
“As we drove to the courthouse, we drove down Fourth Street, where Heather [Heyer] was struck by the car and killed,” Kaplan said at a press conference after the hearing. “It’s a beautiful, sunny day. The pedestrian mall downtown is back to its old self. People are eating ice cream cones, and we’re heading to court to talk about a conspiracy to commit murder. It’s part of human nature to live with those inconsistencies, but they’re very, very present in my mind.”
Correction, February 26, 1:17 p.m.: An earlier version of this article referred to a neo-Nazi march in Skokie, Illinois. In fact, the march was planned for Skokie, but was actually held in Chicago.
Helen Chernikoff is the Forward’s news editor. Contact her at [email protected]
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