by David Lat
1. Jurisdiction is an abstraction and a technicality. It does not go to the merits of a legal issue.
2. Whether a ban on gay marriage is constitutional will come before the federal courts eventually; it’s only a matter of time. It is better for both California and the country for this important issue to be decided sooner rather than later.
3. I am merely a law clerk. Unlike the judge, who was nominated by the president and confirmed by the Senate, I do not have the power under the Constitution to decide “cases and controversies.”
4. As a law clerk, I perform a “clerical” role—not unlike my cousin in the Philippines who works in a shoe store.
5. My paramount duty as a law clerk is to carry out the will of my judge. I am an extension of my judge. Blaming a law clerk for how a case is handled would be like blaming a secretary for errors or false statements in a brief simply because the secretary happened to type it up.
6. As her law clerk, I owe Judge Stinson a duty of confidentiality. Because she has directed me to keep the jurisdictional issue in Geidner confidential, I must remain silent unless and until she says otherwise.
7. Some might say that issuing an opinion in a case where there is no jurisdiction is inconsistent with “the law”—but as I’ve learned during my clerkship, “the law” is simply what judges happen to say it is.
8. The notion of “the law” as pure and objective, as an independent identity—as something divorced from considerations of power, politics, and personality—is a theoretical construct. The real world works in far more complex ways.
9. Judge Stinson is an excellent judge, and she would make an excellent justice. If keeping silent about the jurisdictional defect in Geidner would help advance her Supreme Court candidacy, that weighs in favor of silence.
10. I am an excellent law clerk, and I deserve a Supreme Court clerkship. If keeping silent about the jurisdictional defect in Geidner would help advance my Supreme Court clerkship prospects, that weighs in favor of silence.
And then I crumpled up the piece of paper and threw it away.
40
About a week later, while I was eating Häagen-Dazs chocolate chip cookie dough from the pint and half-watching the 11 o’clock news, my phone rang. It was the judge. I was tempted to let it go to voicemail—the judge, after all, was the cause of the anxiety I was attempting to eat—but old habits die hard. And given the late hour, I guessed the call was urgent.
“Good evening, Judge,” I said, muting the television and putting down the ice cream.
“Hello, Audrey. What are you up to right now?”
“Nothing much. I just got home”—my trying to play the role of industrious law clerk, logging long hours in chambers—“so I’m having a late dinner.”
“Excellent. Listen carefully. I need you to pack an overnight bag with two or three days’ worth of clothing, including business clothing. Bring the Armani suit we bought for your Keegan interview. I will come to your apartment to pick you up in less than half an hour. That’s all.”
Click. No opportunity for me to ask questions or object. Feeling sudden shame, as if the judge had somehow seen me stuffing my face with ice cream, I put the lid back on the pint and threw it into the garbage. Which reminded me: after all my stress eating over the past week, could I still fit into that suit?
I remembered how the judge quoted Thoreau when she bought it for me—“beware of all enterprises that require new clothes”—and I approached my closet with anxiety. If the suit didn’t fit, there would be no time to get it altered. I said a silent prayer as I gingerly removed the suit from its Armani garment bag and tried on the skirt.
Snug, but wearable. Too bad I couldn’t afford Spanx, I thought, as I tossed some ugly underwear purchased at J.C. Penney into my rollerboard suitcase.
I had no idea what to wear for this late-night adventure with the judge. Fearing that jeans might be too casual, I went for a business-casual look, donning gray slacks and a pale blue shirt.
I had just finished packing when I heard a knock at the door. I looked through the peephole and saw a broad-shouldered African American man in a suit.
“Who is it?” I asked.
“Miss Coyne, my name is Reginald. I’m driving you and Judge Stinson to the airport.”
The airport? I reached into my bedside table and grabbed my passport—which luckily I had just renewed, in anticipation of a postclerkship vacation—and pocketed it, before opening the door and introducing myself to Reginald. His right hand went immediately from shaking mine to grabbing my suitcase; with his other hand, he grabbed my briefcase-like purse. By the time I turned off the lights and locked my apartment, he was halfway down the stairs. When I reached the bottom of the stairs, my bags were already in the trunk, and Reginald was holding open the rear door of a black Cadillac stretch limousine. I climbed in next to Judge Stinson, who was looking comfortable in jeans—probably $500 jeans, but jeans nevertheless—and we drove off.
“Audrey, I’m sorry I was a bit cryptic on the phone; I wanted to give you the good news in person. Let me put it to you this way: tonight we’re flying to D.C.”
“So does that mean …”
“My family is coming too—Robert and the girls are meeting us at the airport.”
“… you’re being nominated to the Supreme Court?”
“Insightful as ever,” the judge said with a laugh, “which is why I’ll be so glad to have you as one of my first law clerks. And why I wanted to bring you to Washington, to be present when President LaFount announces my nomination tomorrow morning.”
“Tomorrow morning?” I looked at the time on my phone; it was almost midnight. “Haven’t all the redeye flights left already?”
“Don’t be silly—do you think I’d fly commercial to accept my Supreme Court nomination? Larry’s father is lending us his Bombardier Global Express jet. We’ll arrive in D.C. in time for the 11 a.m. press conference.”
We stopped at an intersection and I looked out the window. The message board of a Baptist church caught my eye: “Silence Is Consent.” I looked away and settled back into the comfortable leather seat. I had never ridden in a limousine before—and I liked it.
In less than half an hour, the limousine came to a stop, and Reginald opened the door for us.
“That was quick,” I said.
“This isn’t LAX,” Judge Stinson said. “This is Van Nuys, the airport for private-jet people. It’s less congested and more discreet. Celebrities love it for the anonymity—which suits our purposes today too.”
Within minutes of arriving—we didn’t have to pass through any metal detector or body scanner, but simply showed identification to a man who looked half-asleep—the judge and I were boarding the Krasner jet. Robert waved to us from the rear of the plane, where he sat with the Stinsons’ two teenage daughters, who seemed passed out. Judge Stinson took one of the seats at the front of the plane and directed me to sit next to her.
“Would Mr. Stinson like to sit up here?” I asked. “I’m happy to go to the back of the plane.”
“Oh no, he’s back there looking after the girls. And he and I see each other enough. I’d rather sit up here with you.”
A young blonde woman who seemed entirely too happy for the late hour approached us with a tray of flutes.
“Some champagne, Your Honor? Miss Coyne?”
By this point in the experience, I was not at all surprised that she somehow knew my name.
“Thank you, Amanda,” the judge said, picking up one of the glasses. “Audrey, you should have some, so we can toast. And it will help you sleep. We need our beauty rest. Even on a private jet, redeyes can still be rough.”
I picked up a flute, and the judge and I touched glasses.
“To world conquest,” Judge Stinson said, looking right into my eyes.
I took a sip, a small sip, because I had no intention of getting drunk. I remembered how Lucia and I toasted to “world conquest” before she boarded the redeye that preceded her ill-f
ated interview with Justice Keegan.
“Isn’t this just lovely?” said the judge, sipping from her champagne and reclining her seat. “It makes hiring Larry almost worth it.”
41
The next morning, clad in my tight Armani suit, I found myself in the East Room of the White House, waiting for my boss to emerge with the President of the United States. In the past 24 hours, I had experienced several firsts: my first limousine ride, my first flight on a private jet, and my first visit to the White House. Even though I hadn’t gotten much sleep on the plane ride, I felt wide awake—due to the excitement of being here, in the White House, about to watch history being made.
The East Room, despite its vastness, put me in mind of an egg: its main colors were white and yellow. The paneled walls and plastered ceiling were a rich cream, while everything else—the chandeliers, candelabra, standing lamps, and heavy curtains—was gold. The light palette made the huge room feel even larger. Perhaps the darkest thing in the room, but surrounded by a gold frame, was Gilbert Stuart’s iconic portrait of George Washington, dominated by black and red hues. Walking past it as I entered the room, I couldn’t help but shiver in amazement.
Keeping with the color scheme, rows and rows of gilt chairs with white cushions filled the room, facing toward a flag-flanked podium. The podium stood in the doorway that connected the East Room to the central hall. It struck me at first as odd to locate the podium in the doorway, until I thought about it more practically: it allowed for grand entrances, with dignitaries walking down a long red carpet to the podium, and similarly dramatic departures.
Most of us were seated by 10:30. I sat quietly by myself, since I didn’t know anyone else there. I recognized several people in the room—the attorney general, the solicitor general, the White House counsel, White House correspondents for several television networks, and even Justice Wilson—but nobody that I knew personally. We had arrived at our hotel—the St. Regis, a few blocks away from the White House—together, but the Stinsons had gone over ahead to meet with President LaFount prior to the press conference.
I was surprised by how noisy the room was. The press conference wasn’t starting for another half hour, but given the grandeur of the room and the importance of the occasion, I expected something like the hush of a church before the start of services. Instead, the TV crews were noisily setting up equipment, staffers were rearranging seats to accommodate latecomers, and people were (awkwardly) attempting to circulate among the tight rows of seats, extending greetings to each other. It was exciting to see the attorney general chatting with the solicitor general, then chatting with the White House counsel a few minutes later. Welcome to Washington.
Shortly before 11 o’clock, the room finally quieted. At 11 o’clock on the dot, President LaFount and the Stinsons entered the room. The president took the podium, Judge Stinson stood beside him, and Robert and the girls moved off to the side of the room, where they stood underneath the portrait of George Washington.
“Good morning,” President LaFount said, looking like the businessman he once was, in a navy suit and gold tie. “Today I am pleased to announce my nomination of Judge Christina Wong Stinson as associate justice of the Supreme Court of the United States.
“Judge Stinson is one of the finest and most highly respected judges in the country. As a lawyer in private practice, as a trial judge, and as a judge on the United States Court of Appeals for the Ninth Circuit, she has demonstrated both a technical mastery of the law and a deep commitment to justice.”
I wasn’t so sure about her “technical mastery of the law.” As she herself liked to emphasize, she was a CEO, not a technician.
“Judge Stinson is fair-minded and principled, approaching each case with an open mind, and deciding it based on the law—not based on politics or her own personal preference, but the law of the land. These qualities will serve her well on our nation’s highest court.”
How open-minded was the judge? I thought about her unbroken streak of votes against immigrants in asylum cases—including Hamadani, a case involving a journalist with a very strong claim not to be sent back to Pakistan, a case she managed to save from rehearing en banc through behind-the-scenes lobbying of her colleagues.
“Judge Stinson has traveled a long and remarkable road to where she sits today. Born Christina Wong, she grew up in a working-class neighborhood in the Inland Empire region of California. Her father, an immigrant from China, drove a taxicab, and her mother worked as a nurse. But young Christina worked hard and took advantage of our nation’s great public school system. She graduated as the valedictorian of her high school before going on to UCLA, which she graduated from summa cum laude, and UC Berkeley’s Boalt Hall law school, where she served on the law review. So if confirmed to the Supreme Court, she would add some much-needed diversity—as the only graduate not from the Ivy League!”
The audience laughed, but the point also had some truth to it. The fact that Judge Stinson had graduated from an elite but public law school could only help.
“After graduating from Boalt Hall, Christina made her first foray into government service, serving as a law clerk to the late Judge Jonathan Coppersmith in Los Angeles. She then joined one of America’s great law firms, Gibson Dunn & Crutcher, where she made partner. In more than 15 years at the firm, she handled a wide range of cases, at both the trial and appellate levels, and performed a remarkable amount of pro bono work. Numerous organizations recognized and honored her as one of California’s leading lawyers.
“Her time at the firm was important for another reason as well: while at Gibson, she met a dashing young lawyer by the name of Robert Stinson, and they eventually married. Robert, as some of you may know, is one of the nation’s top talent agents. Maybe he can help find some work for me after I’m done here in the White House!”
Laughter. It was a bad joke, but the first rule of Washington is always to laugh at the president’s jokes.
“Robert is here with us today, together with the Stinsons’ two daughters, Megan and Alexandra,” said President LaFount, gesturing toward them under the Washington portrait. “I’m sure you must all be very proud.
“In 2004, President Bush nominated Christina Wong Stinson to the federal district court in Los Angeles—the court where she began her public service career as a law clerk. Her nomination received bipartisan support. After several years of distinguished service as a trial judge, Judge Stinson was elevated to the Ninth Circuit Court of Appeals, our nation’s largest and busiest appellate court, once again with bipartisan support.
“Now, the Ninth Circuit isn’t everyone’s favorite court. People like me, who consider ourselves severely conservative, often find ourselves at odds with some of the Ninth Circuit’s decisions. But during her tenure on the Ninth Circuit, Judge Stinson has done her best to curb some of that court’s … excesses. She has demonstrated, time and again, in opinion after opinion, a passionate commitment to the rule of law.”
Commitment to the rule of law? I tried not to think of the Geidner case and the jurisdictional defect we were hiding. Thinking of Geidner at this moment felt like thinking about sex during church.
“A passionate commitment to the rule of law—a perfect description of the jurisprudence of Justice Aidan Keegan, whose passion you could see in so many of his opinions. He held strong views, which he expressed in strong fashion. It’s impossible to replace Justice Keegan, a giant of the law who has had such a major effect on how we interpret the Constitution. But in nominating Judge Stinson as his successor, I have chosen a nominee who shares his passion for the law—and, ultimately, the people ruling themselves through law, rather than being ruled by unelected judges.”
By all accounts, Justice Keegan had a passion for the law; it’s why he loved arguing about substantive legal issues when interviewing clerkship applicants, or when writing dissents. Harvetta Chambers had a passion for the law; she read law review articles in her free time, after all. I wasn’t sure about Judge Stinson—did she have a
passion for the law, or a passion for the prestige, pay, and perks associated with success in the law? (I wondered the same thing about myself sometimes.)
“Nominating justices to the United States Supreme Court is one of a president’s most important responsibilities. I gave a great deal of thought to this nomination, and I considered several very fine contenders. What ultimately put Judge Stinson at the top of my list was a decision you might have heard of, in a recent case called Geidner v. Gallagher.”
So much for trying not to think about Geidner. In that moment, I was glad I hadn’t eaten breakfast.
“The Geidner case involves a challenge to California’s Proposition 8, a ban on same-sex marriage that was supported by a majority of the people of California. Now, same-sex marriage is a highly controversial and important issue. If you read Judge Stinson’s superb opinion in Geidner, which I urge you to read if you haven’t done so already, you will see her passionate commitment to the rule of law, her deep understanding of the proper role of judges in our nation, and her recognition that a judge’s job is to interpret the law—not to make the law, or to reach out and decide things that judges have no business deciding.”
Like, for example, cases where they lack jurisdiction?
“I’m confident that the United States Senate will be as impressed as I was by Judge Stinson’s impeccable record, judicial temperament, and unmatched honesty and integrity. And I urge the Senate to act swiftly on this critical nomination, especially since the Supreme Court is in the middle of its term—a very important term, filled with many cases with profound implications for our country.
“Judge Stinson, thank you for agreeing to serve, and congratulations on your nomination.”
President LaFount stepped aside, and Judge Stinson took the podium. She was wearing the dark charcoal Armani suit that we had picked up together—the one that she liked because it was “conservative, not California”—and it was perfect for the occasion.