“How?” Ben asked. “Keyes has to call a Democratic senator next. He indicated he was going to move to Senator Dawkins, since he’s the senior Democrat on the committee. And we know he’s friendly.”
“And a friendly witness is a good thing. But it’s still Keyes’s playground. He’ll come up with something.” He leaned closer to Ben. “You’re going to have to be ready. And be tough. Tougher than you’ve been so far, if you don’t mind my saying so.”
Ben liked to think he was thick-skinned and above taking offense at constructive criticism, but he wasn’t sure this was all that constructive. “I’m doing my best out there.”
“Don’t give me that ‘doing my best’ crap. That’s what children say. It’s a way of making excuses for failure.”
“Excuse me? Where do you get—”
“You’re playing in the big leagues now, Kincaid, so you’re going to have to act like it.”
“If you’ll recall, I didn’t want this job in the first place!”
Sexton tugged at his three-piece suit. “I don’t care if you did or you didn’t. You’re there now and it’s too late to make changes. It would be perceived as a sign of weakness. And you’re already fighting a wimp image.”
Ben bristled. “Look, here in Washington, you may think it’s always best to come on like a two-ton pile of bricks, but in my experience, most people respond better to a calm and reasoned approach.”
“That’s our problem.” He paused. “Your experience doesn’t mean crap here.”
Ben clenched his teeth. “No one is persuaded by somebody who acts like an asshole.”
“You’re not trying to persuade anyone. Tad is!” Sexton shook his head. “Damn it, Ben, you’ve got to stop thinking like a trial attorney. This is a whole new arena. Tad is the one who has to be calm and reasonable. You should act like an asshole. You’re there to be his asshole. An attack dog in heat. You fight the fight so he doesn’t have to. You protect him.”
“I have protected him.”
“Bull. You left him hanging out to dry, morning and afternoon. He saved himself.”
Christina stepped forward. “That’s more than a little harsh. I totally disagree.”
Sexton acted as if she weren’t there. “Did you think that was bad out there today, Kincaid? Let me tell you something—that was nothing. Kid-glove stuff. They were going easy on you because they thought the nomination was dead in the water. Now that they know we have a little fight left in us, they’ll likely bring up the murder.”
“We can deal with that.”
“How? Your investigator has nothing. Listen to me, Ben—I was at the press conference when that woman’s corpse was uncovered. So were Gina and Charles. We saw the expressions on people’s faces. It doesn’t matter whether the police have linked Ray to the crime. It’s a blot on his record. A serious problem.”
“I don’t think they’ll play that card.”
“Then you are living in a dream world. Now that Tad has had a good day, made a good impression, they’ll be pulling out all the stops. Firing with all chambers. Shooting with—”
“I don’t mean to interrupt the stream of manly metaphors,” Ben said, “but I don’t need you to tell me that we face some tough opposition. I’ve known that from the start.”
“I have, too,” Roush said, stepping between them. “So cool it, both of you, okay? I’m the one whose butt is on the line. We need to be fighting our opponents, not each other.”
“And on that note,” Christina said, deftly joining the effort to change the subject as soon as possible, “am I the only one who heard that the lovely Senator Matera of Wyoming was seen with the leader of the Christian Congregation yesterday?”
Hammond sat up. “Richard Trevor? I hadn’t heard that. Who’s your source?”
Christina fluttered her eyelashes. “Oh, I get around.”
“Been here a few months and she’s got better intel than my senior staff.” He gave Ben a direct look. “Hang on to that lady.”
“I will. I mean, I want to. I mean—” Ben pressed two fingers against his forehead. “You know what I mean.”
“I for one wouldn’t object to a little clarification,” Christina said, lips pursed.
Ben slouched lower into his seat.
“So Trevor and Matera are talking. Probably wooing a replacement Supreme Court nominee. And I have a pretty good idea who that will be.” Hammond batted his finger against his lips. “I have to tell you, Tad. This isn’t good news.”
“What’s the problem?” Roush asked. “I’m the one with the nomination.”
“For the moment,” Sexton said. “But the Christian Congregation represents a huge voting bloc, and they’re not all nutcases who think God sends hurricanes to Florida to punish gays and career women, either. If both the President and the President’s biggest pocketbook are backing the same nominee, and the powers that be know it, they’re going to be fighting even harder to kill this nominee. They’re going to aim for the head. Fire with both barrels. Charge like—”
“Yes, yes, we know,” Ben said, cutting him off. “They’ll go nuclear.” He turned to Christina. “Any idea whether Judge Haskins is interested?”
“In an appointment to the Supreme Court? I think we have to assume he is.”
“I saw him give a press conference with his wife and the mother of that baby he saved, and he indicated otherwise.”
“No one wants to be overt about it,” Gina Carraway said. “These are judges, not politicians. Presidents usually avoid anyone who appears to be campaigning for the job. On the other hand, if the President needs a candidate who is sure to be confirmed quickly and without objection, he could hardly do better than the man who saved a baby from a burning building. Never mind arguing about judicial qualifications and deliberative theories; most Americans don’t really understand what appeal judges do anyway. As soon as the President starts calling him a ‘bona fide American hero,’ he’ll be unstoppable.”
“So we have to make sure he never gets a chance to be nominated,” Ben said quietly.
“Yes,” Sexton concurred. “That’s what you have to do.”
Thanks, Ben thought, drumming his fingers on the table. I always work best under pressure. Not.
26
Senator Dawkins spent the first few minutes of the day’s session hurling some of the softest softballs ever lobbed in the marbled walls of Capitol Hill. He began by asking Roush questions about his background: growing up in a poor—that is, economically challenged—family of coal miners in West Virginia, putting himself through college and law school, and eventually rising to the D.C. Circuit Court of Appeals. Then he took Roush through a guided tour of his judicial record, sparing him the immodesty of bragging about himself by doing all that dirty work for him.
“I was particularly moved by the language you used in the Smoot case when you upheld the states’ rights of eminent domain.” He quoted the opinion, reading from his notes. “ ‘We must always remember one paramount lesson from our constitutional studies: the Bill of Rights was not created to bestow powers to the federal government, nor even to individuals. It was conceived, drafted, and executed to ensure the continuance of the most sacred principle of federal law—that all rights not expressly given to the federal government are reserved to the states.’ ”
“Thank you, sir,” Roush said, bowing his head slightly. “I thought that was a pretty good line myself.” A spattering of laughter followed.
Of course, Dawkins had not chosen to talk about states’ rights by accident, as Ben well knew. He was reminding all those present that despite the opposition of his party, this nominee was a Republican, sufficiently conservative to attract the President’s attention in the first place. States’ rights was a good way to do it, since it was a catch phrase Republicans had used for decades to promote political agendas that could not be identified by their true name.
“Now if we may,” Dawkins continued, “I wanted to discuss your somewhat controversial dissent in State
v. Victor.”
“I only dissented in part,” Roush clarified. “To some of the language in the majority opinion. I concurred in the result.”
“Just so. But your dissenting opinion does appear to leave open the possibility that, despite Supreme Court precedent to the contrary, you believe there are at the very least some instances in which the death penalty might be unconstitutional. Could you please explain what you meant?”
This discussion, too, had been prearranged. Ben and Sexton both agreed that his position on the death penalty was likely to be targeted by the Republican opposition. It would be the next item on the agenda, now that they had done about all they could with his professed homosexuality without appearing totally bigoted. So Sexton made the strategic decision to have the issue first raised by a friendly source. It wouldn’t prevent other committee interrogators from treading the same ground, but it might make them appear redundant.
“I can explain what I said in the context of that particular case,” Roush replied, “but as I indicated earlier, I can’t prejudge future cases or consider hypothetical applications of the opinion. My point was simply that the Constitution forbids cruel and unusual punishment.”
“Point of order,” Senator Matera said, interrupting. “Isn’t there direct Supreme Court precedent stating that the death penalty does not offend that passage of the Constitution?”
Ben grabbed the mike. “I believe this is Senator Dawkins’s turn to ask questions.”
Matera smiled. “I was merely interposing a point of order, Mr. Kincaid. You need to study your procedure if you’re going to continue to appear at this hearing.”
Well, Sexton wanted him to be an attack dog, Ben thought. Here goes nothing. “A point of order is a request for a procedural clarification addressed to the chairman of the committee. What you just asked was a substantive question addressed toward the nominee. By no stretch of the imagination could that be a point of order. What you did was what my mother used to call by its technical term: butting in.”
The laughter in the gallery only made it sting the worse. Matera’s back stiffened. “Did your mother teach you to be disrespectful to United States senators, Mr. Kincaid?”
“No, ma’am. Did your mother teach you how to take turns?”
Matera slid back into her chair, a thin smile on her face. Ben wanted to think he had perhaps earned a small measure of the woman’s admiration—but he doubted it.
Roush recovered his microphone. “Regardless of who asks the question, I think we all know that the Court has flip-flopped on this issue. First the Supreme Court abolished the death penalty, citing the cruel and unusual punishment clause. A few years later, a newly reconstituted court reversed that opinion.”
“And would you have the Court flip again?” Dawkins asked.
“Absolutely not. Again, I can’t prejudge a case that isn’t before me. But I have spoken earlier of the great importance of stability and continuity in the law. Sudden reversals such as the one I just described undermine the law and diminish people’s confidence in the judiciary.”
“Getting back to the original question, sir: what was the point you were trying to make in the Victor dissent?”
“It’s simple, really. The majority opinion took the position that the death penalty is always constitutional and within the power of the state. I simply made the point that, while there was no reason to believe it was unconstitutional in the case at bar, it was possible that the death penalty might be applied so inconsistently, or might be obtained so fraudulently, that it would constitute cruel and unusual punishment—the position taken by virtually every other highly industrialized nation on the planet. We’ve all heard about the capital convictions obtained in Oklahoma based upon evidence that was falsified by a forensic scientist who sacrificed her conscience in pursuit of her boss’s quest for a high execution rate. We know more than a hundred people have been released from death row because DNA evidence proved they did not commit the crime of which they were convicted. We’ve seen the studies that show that minorities are given the death sentence at a vastly higher rate than white defendants. We saw the governor of Illinois commute the sentence of every single prisoner on death row due to irregularities in the system. At some point, the Supreme Court might have to consider whether the state is required to establish some degree of certainty before it executes. We know a conviction is no guarantee of guilt. Maybe each state should establish an ombudsman or watchdog committee to oversee the process. Maybe the forensic evidence in capital cases should be double-checked by independent agencies. Those are matters for state legislatures to consider. My point was simply that, absent guarantees of fairness and accuracy, it was possible that a particular execution might be deemed cruel—because guilt was obtained by fraud—or unusual—because the sentence was applied disproportionately due to reasons of race or sexual preference.”
“Sounds to me like judicial activism of the worst kind,” Matera interjected.
Ben reached for the mike, but Roush responded before he had a chance to object. “That is exactly what this is not, ma’am. I specifically said that these are matters for the legislature to consider. The role of the appeals judge would simply be to consider whether the guarantees that lie at the heart of the Constitution are being observed.”
“Would those be the guarantees at the heart of the Constitution,” Matera asked, “or somewhere in the penumbra?”
“If I may be so bold as to interrupt the distinguished senator from Wyoming,” Dawkins said, “I was under the impression that this was my time with the nominee.”
“Well, when I hear activist balderdash like that,” Matera ranted, “I just can’t contain myself.”
“You’ll have to,” Dawkins said. “Because I’m not done.”
“Tell us the truth, Judge Roush,” Matera said, charging ahead. “You’re planning to repeal the death penalty first chance you get, aren’t you? That’s your secret agenda. One of them, anyway.”
Attack dog, Ben reminded himself. Attack dog. “I’m instructing the nominee not to answer.”
“Because you’re afraid of what he might say?” Matera asked.
“Because you do not have the floor, ma’am.”
Matera turned toward Senator Dawkins. “Will the senator from Minnesota yield the floor?”
“I will not,” Dawkins replied succinctly.
“Are you planning to filibuster?”
“I am planning to finish taking my turn.”
“Well, I’ve had about all of these touchy-feely-friendly questions I can stand.”
“I didn’t care much for the questions you asked yesterday, either, madam. But I still managed to keep my mouth shut while you asked them.”
“Mr. Chairman,” Matera said, “may I pose an interlocutory voir dire examination to clarify this point before Senator Dawkins proceeds with his questioning?”
May she pose a what? Ben thought. That wasn’t in the copy of Robert’s Rules of Order that he read.
“I’ll allow it,” Senator Keyes replied.
Dawkins appeared outraged, but Matera plowed ahead before he had a chance to say anything.
“Mr. Roush, I—and all of America, I think—would like a straight answer. Are you planning to repeal the death penalty?”
“I’m not planning to do anything,” Roush answered, “except consider the cases that come before the Court and rule on them to the best of my ability.”
“Can you promise that you will not attempt to repeal the death penalty—a penalty which, I might add, sixty-eight percent of all Americans favor?”
“It would be gross—” He glanced across the room at media-savvy Gina. “—er, wildly inappropriate for me to answer that question.”
“I’ll take that as a ‘no.’ ”
“You will take it the way it was given,” Roush shot back, his voice rising. His eyebrows knitted together. “You are asking me to predict how I would rule on a hypothetical case that is not before me, not before anyone—because it does
n’t exist.”
“All I’m asking for is a straight answer.”
“Mr. Chairman,” Ben said, jumping in, “this is not any kind of voir dire examination. This is harassment.”
“Oh, the nominee looks like he’s doing just fine to me,” Keyes said calmly. “But I think it might be time to return the questioning to Senator Dawkins.”
“Point of clarification,” Matera said, not giving Dawkins a moment to inhale.
“Very well,” Chairman Keyes said, with a touch of feigned weariness.
“Judge Roush, is your fanatical opposition to the death penalty based upon your fear that your boyfriend will be the next person who gets it?”
The Caucus Room erupted. Not just the press, but almost everyone in attendance gasped, whispered, cheered, booed, or raced for the door. On a side monitor, Ben could see that the camera was moving in for a close-up of Roush. He was trying to remain calm, but for perhaps the first time in the entire proceeding, he was losing the battle. Sparks of anger seemed to leap from his eye sockets.
“I have been instructed by counsel not to discuss the tragic death that occurred at my home—”
“I don’t care what your lawyers said,” Matera snapped back. “A woman was found dead in your garden, and it looks like your longtime homosexual lover killed her.”
“He did not,” Roush replied, clipping off each word.
“How do you know? Were you with him in the garden?”
“I know.”
“If he didn’t,” Matera said, “the only other person who could’ve done it was you.”
“That’s not true, there were hundreds of—”
“Listen to me, both of you,” Ben said, snatching the microphone away. “You are not supposed to be discussing this. We have been told not only by counsel but by the police—”
“I think the American people have a right to know!” Matera said, pounding the bench. “They have a right to know who we’re putting on the Supreme Court. A murderer’s accomplice? Or the murderer himself!”
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