But Harshman did not seem mollified. Caroline felt herself, as tired as she now was, hovering on the edge of a misstep which might enrage him further. Glancing at Palmer, she lightly touched her ear.
Noting this, Palmer turned to Harshman. “Excuse me,” he inquired pleasantly, “the Chair is wondering how much more you have for Judge Masters.”
In obvious anger, Harshman spun on Palmer. “Are you trying to cut me off, Senator?”
The accusation did not, in Palmer, occasion a change of tone, or even expression. “Not at all. I’m just asking how much time you need to finish.”
“Hours,” Harshman snapped. “Maybe days. Judge Masters wants us to make her the leader of the highest court in the land. Yet her studied evasions raise so many unanswered questions that I can’t predict in good conscience when I’ll be through.”
“In that case,” Palmer suggested with an unruffled air, “why don’t we adjourn until tomorrow at ten, out of courtesy to the witness. Seeing how it’s already past four-thirty.”
Harshman glared at him, resentful and plainly anxious to continue. “That’s only fair, Mr. Chairman,” Vic Coletti smoothly interjected. “It’s been a long day for all of us.”
The passive subject of this tense exchange, Caroline could only watch, wondering whether it might be better to go on, and what Paul Harshman—given the night to work and reflect—might present her with tomorrow.
“Fine,” Harshman told his colleagues with a sudden indifference, and the first day of hearings was over.
FOUR
AT NINE O’CLOCK the next morning, a messenger brought the panel’s opinion to Sarah’s office.
Sarah flipped to the last page and, with more anger than surprise, saw “Judgment Affirmed.” The opinion was unanimous.
Composing herself, Sarah reviewed the decision more carefully.
Steele’s language was cool, surgical, and crafted to survive challenge. Late-term abortion, Steele ruled, is not protected by Roe absent a substantial threat to physical health, which requires more than the mere risk of infertility. “Mental health” is a code word for abortion on demand. And the parental consent provision has the benign effect of promoting family consultation; only when a family cannot agree need a court determine whether a minor can abort a viable fetus. Only the final paragraph was harsh:
“It makes no sense,” Steele wrote, “to invalidate an act of Congress because a fifteen-year-old girl, having displayed the lack of mature judgment necessary to become pregnant, rejects the guidance of two exemplary parents because her own child may turn out to be—according to her latest exercise of judgment—unsatisfactory.
“If that were our standard, we would have no standards at all.”
Heartsick for Mary Ann, Sarah wondered how she would receive this, and how much more the girl could take.
Mace Taylor was sampling the coffee in Macdonald Gage’s office when an aide delivered a fax with a cover page headed “From the office of Judge Lane Steele.” Gage felt a deep but quiet pleasure, the flow of events beginning to conform to his design. “It’s Steele’s decision,” Gage told Taylor wryly. “His valentine to Caroline Masters.”
Taylor did not smile. “Is it good? Saunders told me Steele reamed the girl’s lawyer.”
Intent, Gage read without looking up. Reaching the end, he murmured, “We’d better make sure Harshman gets this. He’s been waiting to put Judge Masters in a vise.”
At noon, Paul Harshman entered the third hour of his second day spent questioning Caroline Masters.
The first two hours had been a standoff. Frustrated, Harshman asked, “Are you a judicial activist, Judge Masters?”
Caroline repressed a smile: to confess to “judicial activism” would be, in Harshman’s view, on a par with embracing evangelical lesbianism. “No,” she answered simply.
Irritation showed in Harshman’s narrowed eyes and rising voice; plainly he had expected to provoke a deeper anxiety. “No?” he repeated. “Then explain your decision in the Oregon case, holding that the First Amendment doesn’t protect political speech.”
Chad Palmer’s expression became keen. “All we held,” Caroline corrected, “is that Oregon struck a proper balance between unlimited ‘free speech’ for the wealthy—like giving a million dollars to a political party—and public concern that the donor is buying influence. Our court simply followed the Supreme Court’s precedent in the Missouri case …”
“Which is ill-conceived,” Harshman snapped, “and due to be overruled.”
She had a decision to make, Caroline knew. The subtext was Chad Palmer’s proposed law forbidding such contributions, bitterly opposed by those who had mortgaged themselves to interest groups—notably the Christian Commitment and the NRA—in exchange for money to finance their campaigns. “‘Judicial activism,’” Caroline calmly rejoined, “would be to ignore Supreme Court precedents. Or to lobby for promotion by pledging to overrule them.”
Though blandly delivered, her answer was so pointed that the spectators emitted nervous laughter, and Palmer’s quick smile seemed to further stoke Harshman’s outrage. “‘Judicial activism,’” Caroline concluded, “treats law as the tool of one’s political beliefs. I agree with you that judges should apply the law, not reinvent it.”
Harshman flushed, stymied by a statement with which he could not quarrel. “You began your career,” he said flatly, “defending accused murderers, rapists, robbers, and child molesters. Frequently you sought their acquittal on the basis of so-called police misconduct—illegal searches and the like. But most of those people were guilty, weren’t they?”
Caroline smiled faintly. “I certainly hope so.”
Harshman’s head snapped forward, as though offended by her flippancy. “Why would you say that?”
“Because most of them were convicted.”
There was more laughter, less apprehensive than before. “That vindicates the police,” Harshman snapped, “doesn’t it? And exposes your pro-criminal bias as unfounded.”
Now Caroline did not smile. “The simple truth, Senator, is that most people a criminal lawyer defends are guilty. If most were innocent, this country would be Libya—or China. The accused in those countries have no rights. Which makes injustice possible.”
Harshman shook his head in disgust. “That’s a far cry from getting a child molester acquitted on a technicality, leaving him free to molest again. Do you remember that case, Judge?”
Caroline did, all too well: the face of his alleged victim, the man’s stepson, had haunted her for years. “I do, Senator. The judge—a former prosecutor—concluded that the police had coached the boy so thoroughly that he could not be believed …”
“After you asked him to so rule.”
Caroline felt tense: the most difficult aspect of a lawyer’s life, and the hardest to explain, was that upholding the rights of the guilty helps prevent the conviction of the innocent. “Under the Constitution,” she said, “we protect defendants against coerced confessions and fabricated evidence. Sometimes that means that we free the guilty with the innocent. I wish that we, as humans, were capable of perfection. But we’re not—”
“That must be why,” Harshman interrupted, “you support these endless habeas corpus petitions that keep prisoners on death row for decades.”
Caroline cocked her head. “I support the death penalty, fairly applied. But in numerous cases DNA testing has proven that men awaiting execution are innocent. Typically poor, black men—often with inadequate representation.” Her voice became ironic. “One lawyer was drunk throughout the trial. His finest hour was when he fell asleep.
“His innocent client came within three days of execution. And killing the innocent is murder, whether committed with an ax or by the State of Illinois …”
Harshman’s eyebrows shot up. “Your compassion does you credit, Judge. But your devotion to prisoners’ rights transcends death penalty cases. Are you familiar with Snipes v. Garrett?”
Of course, Caroline menta
lly answered. I read it again last night, certain that you’d bring it up. “It’s a recent en banc case. Our court held that an inmate who claimed that he was beaten and sodomized should be given a chance to prove that—”
“Specifically,” Harshman cut in, “you voted with Judge Blair Montgomery—a noted judicial activist. Despite a dissent by Judge Steele which correctly cited the intent of Congress to limit frivolous suits by inmates.”
Caroline shifted in her chair, trying to relieve the ache in her lower back. “Anyone who knows California’s prisons,” she answered, “had reason to worry that Snipes was being abused. The majority of us shrank at turning away a semiliterate prisoner because he failed to name the right defendants on the first try …”
“Don’t you hold these people to any standards, Judge? Or did being a convicted felon give him more rights than the rest of us?”
Harshman’s obtuse, badgering tone had begun to fray Caroline’s patience. “The man was sentenced to twenty years in prison. But that doesn’t mean he deserves anything he gets there.” Pausing, Caroline added softly, “Twenty years of sodomy, Senator, falls outside the sentencing guidelines.”
The last remark caused Harshman’s face to redden. From the body language of his colleagues, conveying a studied neutrality, Harshman was gaining no ground. Turning to Harshman, Palmer raised his eyebrows in silent inquiry.
Frowning at his notes, Harshman seemed relieved when the blond aid materialized at his shoulder, placing some papers in front of him. As she whispered, Harshman listened intently, and then, apparently revitalized, faced Caroline again.
“This morning,” he informed her, “your court affirmed Judge Leary’s opinion in the Tierney case, upholding the Protection of Life Act and the grandparents’ right to protect their unborn grandson. Seems like Mary Ann Tierney’s only recourse is to petition your court for an en banc rehearing—like in your Snipes case—or go to the Supreme Court. Would you agree?”
At once Caroline was on edge; Blair Montgomery had been right to warn her. “So it would seem,” she answered.
A grim smile appeared on Harshman’s face. “Then would you also agree, Judge Masters, that you should disqualify yourself in any such proceeding?”
Pausing, Caroline tried to guess where he was headed. Coolly, she inquired, “On what grounds?”
“Bias.” Harshman’s tone was accusatory. “Specifically, your relationship with Mary Ann Tierney’s lawyer.”
Caroline was taut with fury: Harshman had been careful to leave “relationship” undefined. “You refer,” she responded, “to the fact that three years ago Sarah Dash served as my law clerk. Our rule is that—absent unusual circumstances—the need for recusal ends one year after the law clerk’s term of service.”
Once more Harshman produced a knowing smile. “Define ‘unusual circumstances,’ Judge Masters.”
Caroline’s mind flashed back to her meeting with Macdonald Gage, his elliptical reference to Sarah. “‘Unusual’ means just that. A familial relationship, for example, or an economic one …”
“Or,” Harshman interjected idly, as if possibilities were only now occurring to him, “if the judge and the lawyer were romantically involved?”
Caroline forced herself to smile. “That,” she answered, “would certainly suffice.”
“What about the appearance of a relationship which strikes others as too close?”
What “appearance” did he mean, Caroline wondered, and how might he decide to twist it? Answering, her voice was tighter than she wished: “A judge’s ‘relationships,’ Senator, are very often rooted in his or her professional life—law school classmates, law partners, others whom we’ve worked with. Including former clerks.” Seeing Harshman raise his eyebrows, Caroline spoke more firmly. “But I am a judge, and my job is to be impartial. If I were so sentimental and weak of mind that regard for a former clerk would sway me, I’m unfit for the job.
“I’ve no opinion about the Tierney case. I’ve never watched it on television. I’ve never discussed it with anyone. That’s what’s required of a judge.”
“So what you’re saying,” Harshman persisted, “is that there’s no personal factors which would keep you from ruling fairly. Either on your court, or as Chief Justice.”
With appalling swiftness, Caroline saw the trap into which she had fallen. If she backtracked, she would be admitting her “closeness” to Sarah and, in Harshman’s reading, her sympathy for—even her collusion in—Sarah’s cause. But if her answer was “yes,” she would open herself to possible involvement in any en banc petition, or to becoming the potential swing vote in the Supreme Court itself—at whatever cost to her chance of confirmation. The sudden attentiveness of the other senators, particularly Palmer, betrayed that they perceived this as well.
Cautiously, Caroline ventured, “Nothing I’m aware of …”
“Wouldn’t you be ‘aware,’” Harshman asked with incredulity, “of any reason a fair-minded person might consider grounds for bias?”
Caroline squared her shoulders, “I’m aware of the facts,” she said succinctly. “I’m aware that I’m unbiased. The only bias I can’t account for belongs to others.”
Harshman’s smile became enigmatic, but his eyes were keen with pleasure. “That’s all I have, Judge Masters. For now.”
FIVE
SARAH WAS weighing hard choices when the chairman of Kenyon & Walker appeared in her office.
Without ceremony, John Nolan said, “I’ve read the Steele opinion.”
Sarah was surprised; Nolan, too, must have had it messengered. “Not great,” she answered.
Nolan sat down with the leisurely air of a man who intended to stay. “What Steele managed to do, Sarah, is bring out everything that’s unattractive about Mary Ann’s desire to abort this child. Which a good many of my partners mention with regularity.”
Even on this difficult day, Nolan did not bother to feign compassion. Waiting him out, Sarah said nothing.
“How well,” Nolan asked, “do you think you’ve served your cause?”
The question was not merely condescending, but pointed. Tired, Sarah tried to control her frayed emotions. “It’s not my cause,” she said evenly. “It’s Mary Ann’s.”
“And yours. Or you wouldn’t have pushed us so hard to take it. At this juncture, some mature consideration of the outcome is in order.”
This nettled Sarah too much to hide it. “When there is an outcome, I’ll consider it.”
Nolan settled deeper in the chair, as though to overcome her by his sheer adamantine power. “The best lawyers,” he answered, “review the endgame before they get there. I’m not referring to the partners you’ve antagonized, but to your impact on the pro-choice movement.
“This morning, the Ninth Circuit upheld the Protection of Life Act: it now applies to the roughly twenty percent of the country covered by the circuit. If you lose in the Supreme Court, the act will be the law for every minor in America.” Nolan folded his arms, speaking with the authority his peers found so impressive. “You chose a weak case, Sarah—a girl with two respected parents, and a claim of ‘physical harm’ which is too thin to prevail. So you lost. If you force the Supreme Court to uphold this law, a girl with a more attractive claim will have no chance to prevail. The ruling in Tierney will be the law for everyone.”
This troubled her greatly, Sarah conceded. To Nolan, she said, “I don’t represent the pro-choice movement. If I drop this now, my client goes to term …”
“A sacrifice which prevents her from making binding precedent—at least in the forty or so states outside the Ninth Circuit’s jurisdiction. Don’t you have any discretion here, Sarah? Are you really going to let a fifteen-year-old invite the Supreme Court to make ‘bad law’ nationwide?”
Whatever else, Sarah thought, Nolan was canny and pragmatic; it might help her process of decision to hear him out. “Why do you think I’ll lose, John?”
Nolan scowled at her shortsightedness. “Caroline Masters is
n’t confirmed yet. Without her, the Supreme Court likely splits four-four in Tierney—at best.
“Someone like Macdonald Gage not only knows that, but worries that Masters might vote with you once she’s there. So he simply stalls her confirmation until the High Court’s ruled on your emergency petition. As the Court stands now, they’ll refuse to hear it. Or—if the pro-lifers have a majority— they’ll take the case and shaft you.”
Listening, Sarah recalled that Nolan had begun his career as an aide to California’s then senior senator, and retained close ties to Washington: either his assessment reflected guesswork born of experience, or more concrete information regarding Macdonald Gage’s intentions. “In that case,” Sarah answered, “I should petition the Ninth Circuit for rehearing en banc.”
Nolan’s face reflected the jaded amusement of a man one jump ahead. “Explain the virtues of that.”
“All twenty-one active judges,” Sarah answered promptly, “will vote on Mary Ann’s petition. Many—perhaps a majority—don’t share Steele’s views, and some don’t like him, either.
“If eleven of twenty-one active judges vote in favor of rehearing, then eleven are selected at random to actually decide the case. Depending on the luck of the draw, I’ve got a chance to carry six of them. Which is all we need.”
Nolan smiled. “Do your twenty-one active judges include Caroline?”
In the few hours since receiving Steele’s decision, Sarah had not fully considered this. “Unless Caroline’s been confirmed,” she answered.
“She won’t be. And you must not be answering your phone.” Nolan no longer smiled. “I just watched a little of her confirmation hearing. You’re playing with matches, Sarah.”
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