“How so?”
“Your name came up.” Nolan leaned forward. “Specifically, Senator Harshman asked Caroline if she’d disqualify herself based on her ‘relationship’ with you.”
Startled, Sarah felt her skin tingle with anxiety. “Because I was her clerk?”
“Harshman left it open.” Nolan’s tone remained dispassionate. “When it comes to Supreme Court nominees, the Senate can be brutal. Harshman forced Caroline to deny bias, or any reason she couldn’t sit in Tierney.
“Your case is growing tentacles. File for rehearing, and politically Caroline’s only choice—other than recusal—is to vote against you. And if she’s selected to hear reargument, and votes with you, I don’t think Kilcannon could save her. Or would want to.” Pausing, Nolan finished, “It’s no secret that Caroline and I weren’t exactly soul mates. But it would be good to have the new Chief Justice be a former partner of Kenyon & Walker. And too bad if we kept her from it.”
Silent, Sarah absorbed the shock of unintended consequences: the course she chose could threaten Caroline’s chances or, because of that, lessen Mary Ann’s. Quietly, she said, “I’ll have to think this over. But I guess my situation’s like Caroline’s. However she might vote, she can’t shirk her duties. And neither can I.”
“Consider that, Sarah—carefully.” Nolan’s voice was low. “You’ve become part of a very clever dynamic which Harshman—and probably Gage—has set up for you and Caroline. Depending on what one or both of you does, they improve their chance of influencing the outcome of the Tierney case, or of keeping Caroline off the Court. In political terms, either suits them fine.”
Once more, Sarah wondered whether Nolan’s awareness of the Senate was more intimate than he admitted, and whether he was bearing a message from those who pulled the strings. She felt herself teetering between naïveté and paranoia.
“Thank you,” she said simply. “It’s good to have your advice.”
Mary Ann was curled on Sarah’s couch, tears coming to her eyes. The court’s opinion slipped through her fingers and scattered on the rug.
“I thought he loved me,” the girl mumbled.
“Your father?”
“Tony. I never knew …” Mary Ann shook her head. “My parents. The baby. What this judge says about me. All because I slept with him.”
There was no point sharing her own worries, Sarah thought. Compounded by shame and disbelief, Mary Ann’s burden was bad enough—it might be crushing to mention Caroline, or the complexity of Sarah’s role.
“Don’t blame yourself,” Sarah said. “Whatever mistake you made, you don’t deserve what’s happened.”
Mary Ann massaged her stomach, as though feeling for the baby inside. Softly, she answered, “Then nobody does.”
The room fell silent; when the telephone rang, Sarah ignored it. “You’ve got two and a half months left,” she said at length. “Maybe less, if you deliver prematurely. We’ve got to decide what to do.”
Eyes downcast, Mary Ann was slow to react. “What choices do I have left?”
“Only three. Petition for rehearing. Petition the Supreme Court. Or deliver by means of a classical cesarean section.”
For a long time, Mary Ann said nothing. Sarah let her mind drift to the world which enveloped them—the unanswered phone messages, many regarding Caroline; the media clustered below; the demonstrators with their signs and slogans.
At last, Mary Ann looked up at her. “I still want you to help me.”
Then there it was. Sarah was, after all, her lawyer. “That leaves the Supreme Court,” she answered. “Or taking the time to try for a rehearing first.”
Mary Ann touched her eyes. “What do you think?”
The answer was now clear to Sarah. Without Caroline on the Supreme Court, their chances of winning seemed dim. Rehearing held out a bit more hope and—should Mary Ann not deliver prematurely—the time consumed might be long enough for Caroline’s confirmation. The political perils of rehearing could not be Mary Ann’s concern.
“We should petition the Ninth Circuit,” Sarah replied. “Soon.”
SIX
EIGHT DAYS later, Caroline Masters sat in her chambers, watching C-SPAN.
On television, the hearing room appeared less daunting than she remembered it. She supposed this was akin to the difference between playing football—the sweat and effort and danger of mischance—and merely viewing it on the screen. But the tension of the hearing was fresh in her heart and mind.
On the surface, the intervening days had been quiet and uneventful. Caroline owed this to Chad Palmer: in private, Palmer had squelched Paul Harshman’s proposal to subpoena Sarah Dash, arguing that it would seem spiteful and gratuitous. Far more ominous, the FBI had uncovered what it called a “rumor“—that sometime in the 1970s, on Martha’s Vineyard, a young woman resembling Caroline Masters had delivered a baby girl.
For Caroline, several nights of broken sleep ensued. But the “rumor” remained a passing remark on a scrap of paper, seen only by two members of the committee—Palmer and Vic Coletti. As before, the chairman had used his prerogative to keep all other senators, including Gage and Harshman, from reviewing the FBI’s raw data. To help ensure this, he had discouraged the FBI from pursuing the “rumor” any further.
Senator Palmer’s final achievement had been to resist the pressure from Gage and Harshman to prolong the hearings. Now, as Caroline watched, he looked calmly at the Republicans on his right, then the Democrats on his left. With deceptive blandness, he directed the clerk to call the roll.
“All those who favor sending the nomination to the full Senate with a favorable recommendation, please signify by saying ‘yes.’ All opposed, by saying ‘no.’”
Thirteen in favor, Palmer had predicted to Kerry Kilcannon. As the voices called out in turn, Caroline counted: to Palmer’s right, four out of nine said yes, as did all eight Democrats to his left.
Paul Harshman pronounced an emphatic “No,” followed by four of his party colleagues. The ten Republicans—again as Palmer had foreseen—were equally divided when Palmer added his “Yes.”
In the same even tone, the senator announced, “By a vote of thirteen to five, the committee forwards the nomination of Judge Caroline Masters to be Chief Justice with a favorable recommendation.” Only then did Caroline emit a sigh.
She had made it to the full Senate without mischance. All that remained was for Macdonald Gage, as Majority Leader, to schedule a vote.
When her private line rang, she answered it herself.
“Congratulations,” Clayton Slade said without preface or, to Caroline, any discernable elation.
Am I missing something? she wanted to ask. Instead she answered, “Thank you. And the President.” Pausing, she added, “Please thank Senator Palmer, as well.”
“Palmer did hold half the Republicans on his committee,” Clayton observed. “That wasn’t easy. But if they split like that on the final vote—which, as of now, is reasonable to expect— you’ll be confirmed by roughly seventy-five to twenty-five. Not terrific, but good enough.”
“What would make it better?”
“Nothing. The question is what would make it worse.” Clayton’s tone remained level. “Your statement of impartiality was helpful. But Gage will sit on this awhile; to him and people like Harshman, you smell like a liberal, and they want more time and latitude to keep digging through your life. So if you see any controversy coming, and can reasonably avoid it, do that.”
Clayton Slade was far too discreet to suggest that she recuse herself from a specific case, or vote in a particular way. But his message was clear: don’t help Mary Ann Tierney if you want to be Chief Justice, or even to avoid any more scrutiny of your personal life. Caroline suspected that the President had approved this word of caution, and was using Slade as his buffer.
“If I see trouble coming,” Caroline said in a noncommittal tone, “it’ll have to find me.”
For a long moment, Clayton was silent. “Good,�
�� he responded coolly. “The President’s got a lot riding on this. As do many others.”
Including Brett, Caroline thought. When she hung up, her relief at the committee’s vote had faded.
“Congratulations,” Blair Montgomery said with a fair show of cheer. But his smile was perfunctory and, though raising his wineglass to mark the moment, he seemed distracted.
They occupied a corner table at Ovation, a carefully appointed restaurant with the decor of an Edwardian club, and tables spaced to facilitate private conversation. The suggestion that they dine here had been Blair’s.
Caroline touched her glass to his. “Thank you,” she answered. “Maybe the worst is over.”
This last remark was a probe—which, from the look in her mentor’s blue eyes, he recognized as such. At length, he said, “Steele’s motion panel turned down Mary Ann Tierney’s rehearing petition, of course. Which leaves pending her request for a rehearing en banc.”
Putting down the glass, Caroline gazed at the china place setting, tented fingertips grazing her lips. “How soon,” she asked, “will it come up for a vote?”
“Very soon. Given the girl’s condition, it’s an emergency.” Sipping his Bordeaux, Judge Montgomery added mordantly, “Rather like a petition from an inmate two days from execution. Although who the victim might be in this case depends on one’s point of view.”
Caroline was quite certain how Blair Montgomery would vote and that, among his fellow judges, he would do all he could to secure Mary Ann Tierney a prompt rehearing. She was also certain that this was not his purpose here.
“So,” Caroline said, “you think we’ll vote on her petition before the Senate votes on me.”
“I know so.” Montgomery swirled the red liquid in its generous, pear-shaped glass. “If I were inclined to conspiracies, I might think that Lane Steele’s haste in ruling was meant to put you in a bind. Unless it suggests an unwonted sensitivity to the Tierney girl’s dilemma.”
“Oh,” Caroline said with a smile, “I always figured Lane for the baby’s father.”
“Now there’s a vision.” At once, Montgomery’s answering smile vanished. “Rather than attacking Steele, those who support Ms. Tierney would do well to argue that her petition presents issues of national importance, to which a majority of our court should speak. That’s their best chance to get Mary Ann a rehearing. But the vote will still be close.”
It was her day for elliptical admonitions, Caroline reflected. Blair’s overt warning contained two unspoken ones: that Caroline’s vote could be decisive, and therefore that she must choose between self-interest and her sympathy—if any—for Mary Ann Tierney’s legal arguments. To this Caroline added one further consideration—a judge’s individual vote on Mary Ann’s petition would not be public. Only if rehearing were granted, and Caroline were named at random to the en banc panel, could the Tierney case entangle her in controversy.
Yet Caroline suspected that Blair pondered complications of his own. Though ordinarily he would seek her vote in favor of rehearing, he did not wish to jeopardize her confirmation. But if Caroline were inclined to oppose Mary Ann’s petition, Blair would far prefer that she recuse herself beforehand.
“Truth to tell,” she said bluntly, “I don’t know how I’d vote. I didn’t watch the trial, and I haven’t read the briefs. Only Steele’s opinion.”
“What did you make of it?”
“Typical. But that doesn’t mean, in this case, that he’s wrong.”
Blair’s smile was more than a little wintry. “True. But consider the odds.”
Finishing her wine, Caroline did not answer; the conversation had gone as far as she wished. Perceiving this, her friend turned to other topics.
Only after dessert did he reach into his briefcase. “I ran across something yesterday,” he said with a casual air. “One of my all-time favorite opinions, Pierce v. Delamater—legal reasoning at its finest. At least in 1847.”
“What was the issue?”
Blair smiled. “Whether a Judge Greene Bronson, after being promoted to an appellate court, could review his own decision.”
Caroline raised her eyebrows; once more, their conversational minuet was edging toward the Tierney case. “How did it turn out?” she asked.
Picking up the pages, Judge Montgomery donned his glasses and commenced reading with mock solemnity:
“‘There is nothing which makes it improper for a judge to review his own judgments. If he is what a judge ought to be— wise enough to know that he is fallible, and therefore ever ready to learn; great and honest enough to discard all mere pride of opinion, and follow truth wherever it may lead; and courageous enough to acknowledge his errors …’” Pausing, Montgomery interjected, “and here’s the kicker—‘he is then the very best man to sit in review upon his own judgments. If right at first, he will be confirmed in his opinion; and if wrong, he will be quite as likely to find it out as anyone else …’”
“How very male,” Caroline ventured dryly. “Who wrote the court’s opinion?”
Blair’s smile flashed. “Judge Greene Bronson—who then affirmed his own decision, removing all doubt as to its rightness. Otherwise, he probably wouldn’t have been able to live with himself.” Her mentor’s eyes sparkled at this paradigm of judicial folly. “The poor plaintiff, Mr. Pierce, foreswore a petition to the Supreme Court. He might have feared it would provoke Bronson’s elevation to Chief Justice.”
Caroline laughed at this. “As upright as he was, Chief Justice Bronson might have reconsidered.”
“No doubt. Fortunately, I don’t believe this is the law anymore. But I thought you’d find the opinion an amusing oddity.”
And useful, Caroline thought, for its implicit suggestion of another means of escape: to claim that she should recuse herself from any case which might later come to her as Chief.
“Thank you,” Caroline answered. “It is.”
SEVEN
“BLAIR MONTGOMERY,” Judge Steele said, “is pushing for a rehearing en banc. Which puts Masters on the spot.”
To Macdonald Gage, Steele’s voice sounded tentative; though Gage assured the judge that no one else was present, Gage’s squawk box plainly made him nervous.
“Suits me,” Gage said comfortably. “Still, how stupid can she be?”
“She’s not stupid, Senator. But our vote on the petition isn’t public. And you can never underestimate her arrogance and self-regard.”
Or yours, Gage thought. “Oh, I’ve seen it,” he assured the judge. “She won’t be making Paul Harshman’s Christmas card list this year. So what are the chances this rehearing petition gets granted?”
In the silence, Gage felt Steele’s hesitance; reluctantly, the judge was edging away from his pose as cloistered jurist, drawn by ideology and ambition into Gage’s design. “In my count,” Steele said at last, “we’re evenly divided, or within a vote or two. But even if she participates—and even if the petition’s granted—only eleven out of twenty-one of us will be drawn to hear the case.”
Gage glanced at the memo on his desk, reviewing his Chief of Staff’s research. “Refresh my memory,” he said with seeming casualness. “Been years since I practiced law, and that was in Kentucky. But I recall you saying that your circuit provides for a rehearing en banc by all the active judges?”
“That’s extremely rare.” Steele stopped abruptly, as though the thrust of Gage’s question had just now overtaken him. “I can only recall three or four instances. Also, a vote on a full court en banc call would be taken, and a hearing by all of us held, only after a decision by the eleven-judge en banc court.”
“But,” Gage asked cautiously, “could you skip the eleven-judge hearing and go straight to the full court?”
Steele thought for a moment. “It could be argued that time doesn’t permit two en banc hearings here, and that the issue is so important that the entire court should hear it. Of course, a judge would have to make the case for extraordinary action.”
Yes, Gage thoug
ht sardonically, a judge would. “But if a judge did ask,” he said musingly, “then right up front Masters knows that if it’s granted, she’s forced to hear the Tierney case. Unless she decides to recuse herself, I guess.”
When Steele did not answer, Gage scanned the memo further. “So think along with me,” he continued in the same tone of discovery. “Seems like to stay out of trouble, Masters would have to recuse herself, or maybe vote against. Which increases the chance that your original opinion gets upheld. Am I right?”
“Yes.”
“But if she doesn’t recuse herself, and rehearing is by the entire court, she’s stuck. Then she has to vote to uphold your opinion—which is fine—or to declare the Protection of Life Act unconstitutional. Which, I can assure you, would change everything for her back here.”
Sitting back, Gage could hear Lane Steele thinking, could feel temptation at war with his sense of rectitude. Gage had seen this in the Senate many times.
“All that’s true,” Steele ventured at last.
Gage glanced at his watch: it was close to noon in Washington, nine in the morning in San Francisco. Steele would have all day to ponder.
“Well,” he said amiably, “thanks for walking me through the process, Judge. Just thinking about it is interesting.”
* * *
Shortly, before Air Force One landed in Newark, Kerry Kilcannon gazed out the window.
The perquisites of office still bemused him. As a senator, he had flown back and forth from Newark to Washington in economy class, the natural and expedient choice for the son of Irish immigrants who had not forgotten his roots. But now, though he savored his return to Vailsburg, the neighborhood of his birth, his manner of arrival seemed strange. All air traffic had stopped; below, the airstrip was cleared, and the trappings of power awaited—the Secret Service, the press, the local dignitaries competing for attention, the line of black bullet-proof limousines, the police escort. It was at once heady and disconcerting; idly, Kerry wondered how it would be the day that all of this, and all of his power, vanished in an instant.
Protect and Defend Page 38