Supreme Ambitions

by David Lat

  “Amit, don’t play games with me. I’m not one of those pimply teenagers you used to spell circles around in your bees. You know as well as I do that Judge Stinson is no Judge Polanski. She has never had more than one of her clerks at the Supreme Court in a single term.”

  Amit looked up at me pleadingly. I wasn’t wearing heels, but I sure felt like I was, feeling tall and powerful as I loomed over Amit.

  “There’s a first time for everything?” he offered. “Judge Stinson is getting lots of positive buzz from being mentioned as a possible justice. There’s a chance that this could be the year she sends more than one clerk to the Court.”

  “I can’t take that chance. I need to maximize my own odds of landing a SCOTUS clerkship—which means getting you out of the picture.”

  Amit knew he was defeated, as if he had heard the dreaded ping that sounds when someone gets eliminated from a spelling bee.

  “I can’t believe this,” he said, shaking his head. “You’re blackmailing me. This is completely unethical and wrong.”

  “Not as unethical as what you did. I’m actually doing this for your own good. And for the good of the Court. Anyone who has the poor judgment to do what you did should not be allowed anywhere near the justices’ chambers.”

  “You’re an evil bitch.”

  “I’m going to pretend I didn’t hear that. You will go in and talk to Judge Stinson on Monday morning, telling her that you’re withdrawing all your Supreme Court clerkship applications. Then, in the afternoon, you will send her an email confirming the conversation. You will bcc me on that email. I want the proof that you followed through on our agreement.”

  Amit nodded.

  “I underestimated you,” he said. “I knew you were smart, but I never expected you to be this ruthless.”

  “I’m just doing what needs to be done. To be a successful professional woman, you need to be a little monstrous.”

  23

  What were all these news trucks doing outside the courthouse? It looked like a crime scene as I walked up South Grand Avenue. It took me a minute to realize that they were here for us—for the Ninth Circuit. This morning the court would be hearing oral argument in Geidner.

  After a brief stop in chambers, I headed straight down to court. Courtroom 3 was already almost full, even though it was the largest courtroom—the ballroom back when the building was a hotel. The judges’ bench was vast, able to fit a dozen chairs instead of the usual three—and this wasn’t even the full bench, because a curtain was drawn to hide two additional rows of seating. When the curtain was open, Courtroom 3 looked like a legislative chamber. This courtroom, along with one up in San Francisco, was designed for the possibility of a so-called “super en banc,” featuring all active judges of the court—almost 30 in all—hearing a case at the same time. A super-en-banc hearing had never happened in the history of the Ninth Circuit, but it was good to be prepared.

  This courtroom, while less attractive than the more intimate Spanish Room, at least had superior seating. The long benches, upholstered in a red-orange fabric, were surprisingly comfortable. I seated myself between James and Jeremy, with James on my left and Jeremy on my right. When James slid over on the bench so that our legs were touching, I didn’t move away; the contact increased my nervous excitement.

  “This will be a fun argument,” Jeremy said. “We know where your boss stands and where Deleuze stands. It all comes down to Hagman.”

  Judge Richard Hagman, a senior-status judge appointed by the first President Bush, was known for being pro-business in civil cases and tough on defendants in criminal cases. His views on social issues like same-sex marriage were largely unknown.

  “Hagman is definitely the swing vote,” James said. “Hard to predict on something like this. But Audrey did write a great bench memo.”

  “Of course she did,” Jeremy said. “Good training for when she becomes a foot solider to Justice Keegan in his war against the homosexual agenda!”

  “How do you know what my bench memo recommended?” I said. “Maybe I came out in favor of striking down Prop 8.”

  “Ha,” Jeremy said, “that’s a good one. But I actually do know what your bench memo—or should I say, the ‘Chambers of Judge Stinson’ bench memo—recommended. My spies are everywhere.”

  “And what else did your spies have to say about the memo?” I asked. “Did they say it was a good memo?”

  “Actually,” said Jeremy, flashing a mischievous grin, “they said it was an amazing memo. An intergalactic memo.”

  “Seriously?”

  “Not quite,” Jeremy said. “But yes, your memo apparently impressed Deleuze and her clerks. Not enough to change Deleuze’s mind, of course, but enough to worry her over where Hagman might come out.”

  “That’s nice to hear,” I said. “But I wouldn’t call it my memo. It came from the Stinson chambers. And I had a lot of help on it.”

  I subtly nudged James with my left leg; he returned the nudge.

  “All rise! The judges of the United States Court of Appeals for the Ninth Circuit.”

  We all stood as the panel members filed in and took their seats. Judge Stinson, the most senior active-status judge on the panel, took the center seat and presided.

  The courtroom deputy banged her gavel. “The United States Court of Appeals for the Ninth Circuit is now in session.”

  “Good morning, ladies and gentlemen,” Judge Stinson said—somewhat grandiosely, as if welcoming everyone to an evening at the theater. “Let us proceed with this morning’s calendar and the case of Geidner v. Gallagher. Mr. Sawyer, you may begin.”

  “Thank you, Your Honor. May it please the court. My name is Gregory Sawyer, and I represent the appellants. They are the official proponents of Proposition 8, which amends the California constitution to provide that only marriage between a man and a woman is valid or recognized in the state …”

  “Mr. Sawyer,” Judge Stinson said, “before you proceed to the merits, let’s discuss jurisdiction—something of an obsession of mine. Does this court have jurisdiction? Do your clients have standing to prosecute this appeal, since the governor and attorney general actually agree with the district court’s ruling and did not appeal?”

  “Judge Stinson, your status as a stickler for jurisdiction is well known to all who practice before this court.”

  “Indeed,” said the judge. “Call me a juristickler!”

  The courtroom laughed at Judge Stinson’s well-delivered quip.

  “Fortunately, Your Honors wisely certified a question to the California Supreme Court …”

  “Thank you for recognizing our wisdom, Mr. Sawyer!”

  More laughter. The judge knew how to work a crowd.

  “… concerning whether my clients under California law have enough of an interest in Proposition 8’s validity to defend its constitutionality in court, including in an appeal. The California court answered that question in the affirmative.”

  This seemed to satisfy the panel. The judges posed a few more questions to Sawyer about jurisdiction, but with all the enthusiasm of toll takers. And the jurisdictional issue was, in a sense, like a tollbooth—something that had to be passed through before picking up speed. Which is what the argument did upon reaching the main issue: the constitutionality of Proposition 8 and its ban on same-sex marriage.

  “And now, with the court’s permission, I’d like to turn to the merits. The people of California, as well as the people of many other states, are currently engaged in a profound public debate over the meaning and purpose of marriage. The importance of this debate cannot be overemphasized, given the significance of the institution of marriage—an ancient and venerable institution, one that the Supreme Court has described as ‘fundamental to the very existence and survival of the human race.’ After a full, fair, and extensive public discussion, the people of California enacted Proposition 8, resolving—at least for now—the definition of marriage under California law. And this is what the democratic process is all a
bout, the ability of we the people to decide for ourselves …”

  “Mr. Sawyer,” interrupted Judge Deleuze, “could we the people of California ban interracial marriage through a ballot proposition?”

  “No, Your Honor.”

  “And why not?”

  “Because that was previously decided by We the People, capital ‘W’ and capital ‘P’—in the United States Constitution. The Supreme Court has declared state bans on interracial marriage to be inconsistent with the 14th Amendment …”

  “How is this different? How is Proposition 8 not a flagrant violation of both equal protection and due process?”

  “Well, from an equal-protection standpoint, there is simply no rational basis for denying a mixed-race couple the right to marry. There is simply no …”

  “The rational basis test is the weakest level of scrutiny,” Judge Deleuze said. “Throughout the history of our nation, gay and lesbian Americans have been subjected to the most awful and invidious forms of discrimination. Why shouldn’t a law denying the right to marry to gay and lesbian couples be subject to heightened scrutiny? Hasn’t this court already held that sexual orientation–based laws are subject to heightened scrutiny?”

  Greg Sawyer, despite being a seasoned appellate advocate, seemed rattled. Even though Judge Deleuze’s questions were not unexpected (and meant largely for the ears of Judge Hagman as swing judge), she asked them with chilling intensity and obvious hostility.

  “Well, Your Honor, the precedent you’re referring to, the Witt case, I believe, is, you see, somewhat …”

  “Actually,” interjected Judge Hagman, quietly and thoughtfully, “I wonder whether the conventional equal protection framework works all that well here, given the nature of the ‘right’ involved. Can we really say that ‘the right to marry’ is being denied to a particular group when, in essence, this case is all about the meaning of the right itself? Isn’t it the position of your clients, Mr. Sawyer, that the right to marry does not include—and has never included, at least in the history of our nation—the right to marry someone of the same gender?”

  “Exactly, Judge Hagman. That is exactly our position, Your Honor.”

  James elbowed me and smiled; the point just made by Judge Hagman came straight from my bench memo. Judge Deleuze scowled, furiously shuffling through a mountain of papers in front of her, while Judge Stinson smiled with her eyes.

  “Even if we were to hold that rational basis applies,” Judge Deleuze said, “how was there any rational basis for Proposition 8? The extensive record in this case amply demonstrates that this enactment arose out of pure animus—out of nothing more than prejudice against gays and lesbians.”

  “I would respectfully disagree, Your Honor. There is a rational basis to support the California electorate’s decision to reaffirm the traditional definition of marriage. Sexual relationships between men and women—unlike sexual relationships between men and men, or women and women—naturally produce children. As a result, society has a vital and special interest in those relationships, which bring the possibility of unplanned and unwanted pregnancy.”

  This argument did not go over well with Judge Deleuze. She swiveled her chair so that its back faced Greg Sawyer—an astonishingly rude gesture for the genteel world of appellate advocacy.

  “I don’t think I disagree with you on that, Mr. Sawyer,” Judge Hagman said. “But maybe there’s a more basic point here. We can go back and forth over pregnancy and procreation, and over which environments are best for raising children, and over how long we’ve had the traditional definition of marriage and why. But at the end of the day, is this a debate for the federal courts, or for California? Traditionally, marriage has been the province of the states, not the federal government. And if this is a debate for California, isn’t it a debate for the people of California? Don’t we as judges owe both sides the right to that debate, without interference, so both sides will feel that they got a fair shake?”

  Another argument paraphrased from my bench memo—James elbowed me again, and I pressed my leg harder against his in response. I was trying not to smile, but it wasn’t easy. We wouldn’t know until Judge Hagman cast his vote, but it seemed quite likely that I had made a difference. I just hoped it was in a good way.

  24

  The next morning, I immersed myself in the statutory intricacies of SORNA, the Sex Offender Registration and Notification Act. It was a big comedown from the excitement of oral argument in Geidner, but it accurately reflected the rhythms of life inside the federal courts. Major matters of constitutional law jostled up against cases whose subject matters were boring, distasteful, or both—like SORNA.

  I was in the middle of familiarizing myself with the “travel” element of SORNA when my office phone rang. Grateful for the interruption, and seeing from the display that it was Judge Stinson calling from her cell phone, I picked up before the second ring.

  “Audrey, please meet me outside in front of the courthouse.”

  “I’ll be right down, Judge.”

  What could this be about? And why was I the only clerk being summoned? I grabbed a legal pad and pen—going to see the judge without these items would be like showing up to a drug deal unarmed—and rushed downstairs.

  When I stepped outside, the judge was sitting inside her red Jaguar coupe, parked at the curb with the engine running. I approached, still puzzled, as she lowered the passenger-side window.

  “Hop in,” she called out.

  “Good morning, Judge,” I said, getting into the front passenger side and buckling my seat belt.

  “We’re taking a little field trip today, Audrey. We’re going shopping!”

  “Great!”

  I hoped my feigned enthusiasm convinced Judge Stinson. The propriety of a midday shopping trip didn’t bother me, since it was being led by my boss, but the news filled me more with anxiety than excitement. First, I didn’t like relating to familiar people in unfamiliar settings, and a shopping trip with Judge Stinson qualified. Second, I had no money to spend—my modest law clerk salary covered my living expenses and student loan payments, but not much beyond that—and I suspected that we weren’t going to Loehmann’s.

  “We have some things to celebrate,” the judge said, putting the car into drive. “And we have some things to discuss. And I have some things to pick up at Giorgio Armani in Beverly Hills. So I thought this would be a good way of hitting multiple birds with a single stone.”

  “Sounds good.”

  “And you deserve a break. I know how hard you’ve been working over the past few weeks, on Geidner and all your other cases. You promised me during your clerkship interview that you would work hard for me, and you have kept your promise. I might not always comment on how hard you work—honestly, I take it as a given that my law clerks will work hard—but rest assured that I notice and appreciate it.”

  “Thank you, Judge. That means a lot to me.”

  And I meant what I said. This was so much more than a perfect score on a second-grade math quiz or a victory in a high school debate tournament; this was a nationally respected judge praising my work ethic.

  The judge glided through a stop sign, then made a wide turn onto South Grand Avenue. I wasn’t a good driver, and I could recognize a similar lack of skill in Judge Stinson.

  “So the first thing we have to celebrate: Beneath Their Robes has gone dark. Which is a relief, since it sounded like the writer was working on some kind of hatchet job about me.”

  “Yup, that’s right. The site has been taken down completely.”

  “Now, please don’t mistake me; I have nothing to hide, so I wasn’t terribly afraid of any so-called exposé. But it might have generated modest controversy. And given certain—shall we say, sensitivities—I don’t want any controversies right now.”

  The judge braked for a red light—sharply—and I lurched forward, before being pulled back by the tightening of the seat belt. Judge Stinson wanted to converse, but I wanted her to focus more on the road.r />
  “Absolutely,” I said. “People can seize on the most ridiculous things when trying to oppose someone for high office.”

  I hadn’t mentioned the words “Supreme Court nomination,” nor had Judge Stinson, but we understood each other perfectly.

  “The demise of Beneath Their Robes—do I have you to thank for that, Audrey?”

  The question caught me off guard. My conversation with Amit about it had taken place several weeks ago, followed by all the craziness with Geidner, and so I hadn’t thought about how to explain the situation to the judge—without outing Amit as Article III Groupie, of course, since that was part of the bargain we had made.

  “I don’t think so, Judge,” I said slowly. “My last email contact with her was telling her that I couldn’t answer her specific questions about you because of my duty of confidentiality as a law clerk.”

  That was technically true. My confrontation of Amit, A3G’s alter ego, had taken place in person, not over email.

  “So what do you think prompted her decision to take her blog down?”

  “Hmm … I think she was afraid that her true identity was about to be discovered. Howard Bashman wrote on his How Appealing blog that he suspected the author of Beneath Their Robes was a federal government employee. A few days later, BTR vanished. So I think Bashman was onto something and A3G got scared that she was about to be outed.”

  Again, technically true—and maybe even more than technically. I wouldn’t have figured out that Amit was behind Beneath Their Robes if not for Bashman’s comment about A3G working for the federal government. Yes, I was omitting my role in all of this—but I had to, in order to honor my deal with Amit.

  “Do you think,” said Judge Stinson, craning her neck out to the right as she sloppily switched lanes, “that Beneath Their Robes might return?”

  “Absolutely not,” I said, this time with more confidence. “I think we’ve heard the last of Article III Groupie.”