Mr. Justice

by Scott Douglas Gerber

  The assistant dean, a woman in her late fifties who looked an awful lot like Kelsi’s favorite aunt—round face, pear-shaped build, constant smile, compassionate eyes—brushed a loose strand of hair from Kelsi’s concerned face. She said, “Yes. But it’s not what you think. The dean was hoping you would say a few words about the professor from a student’s perspective.”

  Kelsi never had been one for speaking before large groups of people. In fact, she shared the preference for death over public speaking that opinion polls showed the majority of Americans favored. (Death over public speaking.) Her aversion to talking in front of crowds explained most of her curriculum choices; she tended to avoid, except for bar exam preparation purposes, courses that were courtroom-oriented (Evidence, Trial Advocacy, Criminal Procedure, etc.). This time, though, she decided to face her fear. This time, it was about something—about someone—larger than herself. “I’d be honored to say a few words.”

  Dean Diego Rodriguez was addressing the audience of law faculty, staff, and students. Dean Rodriguez reflected the commitment—some called it an obsession—the nation’s colleges and universities had to diversity. He was a competent man—he had done pretty well at a pretty good law school, his practice and clerkship experiences were respectable, and he had published two or three decent pieces of legal scholarship—but many of the candidates against whom he had competed for the deanship at the University of Virginia School of Law had accomplished more than he had. Much more. But they weren’t Hispanic or gay. He was both. As a result, the other candidates hadn’t had a chance against him in the hiring process, especially given that only 10 percent of the law professors in the United States identified themselves even in part as conservative. Indeed, as one lonely legal conservative had colorfully quipped, “Just as it was said in late-nineteenth-century England that the Anglican Church was the Conservative Party at prayer, American colleges and universities today were the Democratic Party at play.” They weren’t much interested in hiring straight WASP men to work at—let alone lead—their institutions of higher education.

  The dean sang Peter McDonald’s praises. He said that McDonald was what every law professor should aspire to be: a terrific colleague, a world-class scholar, and a teacher who actually cared about his students. Then he glanced over at Kelsi Shelton. Their eyes met, and she appeared ready to address her peers. The dean said, “I’ve asked Kelsi to say a few words to you about Professor McDonald. As most of you know, Kelsi is Professor McDonald’s research assistant. She has been helping him prepare for his Supreme Court confirmation hearing. Few know him better than Kelsi does. I think it’s more appropriate, particularly under current circumstances, for her to say a few words about Professor McDonald than it is for me to go on and on about him. And believe me, as a dean, I know how to go on and on.”

  Awkward laughter came from the audience.

  Then Dean Rodriquez said, “Kelsi.” The dean smiled warmly as Kelsi approached the podium.

  Kelsi had received no advance warning that she would be speaking to an auditorium full of people. She certainly wasn’t dressed for the occasion. She was wearing typical law student attire: jogging shoes, jeans, and an oversized sweatshirt with the school’s logo embossed across the chest. Unlike most law students, however, she still looked like she had just stepped off the runway of a Paris fashion show. Only a handful of people could make a sweatshirt look like high style. Kelsi Shelton was one of them. And only a handful of people could address a standing-room-only crowd on a moment’s notice. Unfortunately, Kelsi Shelton was not one of them.

  She clutched the podium for support. Even then, her hands were quivering like a rabbit about to be slaughtered for stew. “H … hi,” she said.

  Her classmates couldn’t help but sense her discomfort. Many of them called out, “Hi, Kelsi!” It was like a greeting at an Al-Anon meeting.

  A brief smile spread across Kelsi’s beautiful face. “I only found out about five minutes ago that I was supposed to say something today. I haven’t prepared anything, obviously.” She glanced over at Dean Rodriguez and then returned her attention to the audience. “The dean asked me to say what it’s like to work for Professor McDonald.” She made sure to speak in the present tense. Professor McDonald wasn’t dead… . “It’s great. He’s brilliant, hardworking, and very considerate. He always makes sure that I’ve got more to do than just xeroxing and filing. He says he wants me to learn something, not simply assist him with what he needs to get done. Even now, during his confirmation hearing, he’s always talking to me about the process and about the Supreme Court’s role in the justice system. Believe me, he’s got plenty of things to worry about, but he worries about me, about whether I’m learning something. So, all I can really say is that Professor McDonald is the best boss I’ve ever had, and the best teacher. It’s been my privilege to work for him.”

  Clay Smith sat in the back of the auditorium and listened to Kelsi Shelton commend Professor McDonald to the UVA law school community. Clay, a first-year student at the law school, shared Kelsi’s high regard for Professor McDonald, but he also shared his Uncle Earl’s desire to see the professor’s nomination to the Supreme Court go down in flames. Unfortunately, killing Kelsi was part of the plan to ensure it did.

  CHAPTER 25

  The doctors and nurses rushed around the emergency room as if someone’s life depended on them. It did.

  “Charge the paddles to two hundred!”

  “Stat!”

  “Clear!”

  Dr. Morris Tanenbaum, the president’s personal physician and the man trying to bring order to the chaos, applied the paddles to Professor Peter McDonald’s chest in an effort to shock McDonald’s heart back into rhythm. It didn’t work.

  “Charge to three hundred!” Nothing. No response. Still flat-line. “Four hundred!”

  Perspiration dripped from underneath the doctor’s surgical mask. The thought of losing any patient was nerve-wracking enough, but this patient was the president’s choice for a seat on the most powerful court in the world.

  Finally, a heartbeat. Finally, the monitor resembled a mountain range rather than a desert floor.

  A spurt of applause filled the room. Everyone knew what was at stake.

  Dr. Tanenbaum handed the paddles to the head nurse, pitched his soiled mask and gloves into the wastebasket in the corner, and headed for the waiting area to brief the president’s chief of staff. “Good job,” he said to the ER team as he exited the room.

  Jim Westfall was popping a piece of nicotine gum into his mouth when the doctor arrived to update him.

  Dr. Tanenbaum said, “I’m glad you’re staying off the cancer sticks, Jim.”

  Cigarettes were every doctor’s taboo. They were like going all in against the house at an Atlantic City casino.

  Westfall said, “I’m trying, Doc. I’m trying. But I must be chewing two packs of this stuff a day.” He held up the pack of nicotine gum. Only one stick remained.

  “Better two packs of gum than two packs of cigarettes.”

  The president’s chief of staff and the president’s personal physician were both busy men. The former got straight to the point. “How’s Professor McDonald? Is he going to pull through?”

  Dr. Tanenbaum traced a long finger across his balding pate. “It’s too early to tell. He went into cardiac arrest a few minutes ago, but we were able to get his heart back into a proper rhythm.”

  “Cardiac arrest! He was shot, not fat!”

  “A lot of things can cause a heart attack, Jim. You’re right. He was shot. But the gunshot put his system into shock, and that put too much stress on his heart. The result, unfortunately, was cardiac arrest. It’s not uncommon.”

  Westfall popped the final piece of nicotine gum into his mouth. His jaw was as tight as a slingshot. “What’s the prognosis? What should I tell the president?”

  Doctors didn’t like to be put on the spot, and Dr. Morris Tanenbaum was no different from any of the others. However, the person asking the ques
tion through his right-hand man, Jim Westfall, was very different: he was the president of the United States.

  Dr. Tanenbaum said, “The prognosis isn’t good, I’m sorry to say. The gunshot wound was bad enough, but a heart attack is always dangerous. On the plus side, Professor McDonald is a relatively young man, and he kept—keeps, sorry—himself in good shape. He looks more like thirty-five than forty-five.”

  “So you’re saying that the president should find another nominee?” Westfall was devastated at the prospect. McDonald was the perfect nominee—until he got shot, that is.

  “It’s not my place to say that, obviously. But as a doctor, and as a friend to the president, it is my place to say that this particular nominee might not be alive to serve.”

  CHAPTER 26

  The nurse studied the monitors above Peter McDonald’s bed. She entered the data onto the patient’s chart. She returned to her chair in the corner of the room.

  Normally, the nurse would have left to check on her other patients. But McDonald wasn’t a normal patient; he was her only patient. Nominees to powerful government posts always got special treatment. Dr. Tanenbaum had made that point clear beyond cavil at the beginning of her shift.

  Peter McDonald had never wanted special treatment, though. All he had ever wanted was to be a teacher and scholar.

  McDonald loved being a law professor. He loved almost everything about it. Sure, he disliked the infighting among many of his colleagues over petty issues such as who got which office or who stood before whom in the commencement processional, but the joy he felt working with bright young students and writing about legal issues that affected almost every facet of American society more than offset the bullshit that was faculty politics.

  McDonald was often asked which he enjoyed more, teaching or writing. He always answered, “It’s impossible to say. I love the give-and-take with my students in the classroom, but I also love to bury myself in the library to research and write.” He would usually smile and add, “It’s like being asked to choose between chocolate cake and apple pie. They’re both delicious.”

  McDonald could still remember his first day in the classroom. He had always been a relatively shy person—that was one of the qualities that had endeared him to his wife—and he had spent the morning alternating between putting the finishing touches on his lecture notes in his office and kneeling over the toilet in the faculty bathroom. He didn’t throw up, but he came close on more than a couple of his mad dashes down the hallway.

  There wasn’t a sound when he entered the classroom. Students with a new teacher were like the family dog with a new pet—suspicious and apprehensive but full of hope and wonder. There was plenty of poking and prodding in both scenarios.

  “Good morning,” McDonald could remember saying. At least he hadn’t lost the use of his voice. “This is Constitutional Law. I’m Peter McDonald.” He had his eyes glued to his notes for even that perfunctory introduction. “I’d like to begin this morning with Chief Justice John Marshall’s opinion in Marbury v. Madison.” He lifted his eyes from his notes to discover a roomful of students staring at him from behind their casebooks and coffee cups. His knees buckled a bit. He suddenly realized that he wasn’t much older than most of his students. He suddenly remembered that he had graduated from law school himself only two years earlier. But given the fact that he had spent those intervening two years in prestigious clerkships—the first year with a judge on the U.S. Court of Appeals for the D.C. Circuit and the second with the chief justice of the United States—the appointments committee at the University of Virginia School of Law had deemed him qualified for the position. At the moment, McDonald couldn’t have disagreed more with the committee’s decision. It was almost as if the PGA Tour had declared him eligible to play in the Masters because he had once played a round of golf at Augusta National.

  “Can anyone tell me the facts in Marbury?”

  Dead silence.

  McDonald could hear the proverbial pin drop.

  A hand raised slowly from the back of the room.

  It was like the sight of a pool of water to a man stranded alone in the desert.

  McDonald—Professor McDonald—glanced down at his seating chart and called on the student by name.

  CHAPTER 27

  Peter McDonald survived that memorable first day in the classroom. In fact, he eventually became one of the most innovative and popular teachers on the UVA law faculty. It had taken a while, but he had gotten there. Writing had come quickly to him, however.

  Most law professors were lawyers, not scholars. In other words, they didn’t have advanced training in traditional academic fields such as history, political science, or economics, but they knew how to argue. And boy, did they like to argue. Most of them didn’t care that they didn’t know as much about a subject as they needed to know before they could comment on it intelligently: They could simply assert that they were an expert in the field.

  The best example of this phenomenon was what was known in academic circles as “law office history.” Law professors had spent an inordinate amount of time over the years writing about what the “framers” of the U.S. Constitution had thought about particular legal questions. The place of religion in public life was a frequent subject of debate. “The framers intended a strict ‘wall of separation’ between church and state,” a noted Yale Law School professor had written in an article published in the Yale Law Journal. “Religious activities have no place in our public schools. Prayer certainly doesn’t.”

  A Columbia Law School professor had countered that Thomas Jefferson, the author of the “wall of separation” metaphor, wasn’t even in Philadelphia in 1787 when the Constitution was being drafted. He was serving as the U.S. ambassador to France. “Jefferson’s absence aside,” the Columbia professor had penned, “there is no single entity that can be called the ‘framers’ of the Constitution… . The ‘framers’ did not have a collective mind, think in one groove, or possess the same convictions.”

  Peter McDonald, in contrast, had tried to steer clear of debates among academic lawyers about the meaning of history, philosophy, and the like. “Law professors need to concentrate on the law,” he had once said during a symposium about the state of legal scholarship. “We should leave history to the historians, economics to the economists, and philosophy to the philosophers. To make the point another way, although it makes perfect sense to ask Phil Mickelson how he hits such incredible golf shots, it seems like pure lunacy to care what he thinks about the Sixth Amendment right to counsel in a criminal trial. Believe it or not, I once heard a reporter ask him about the Sixth Amendment. It was during the time of the Michael Vick dog fighting trial. Phil stared at the reporter as if the reporter was crazy and moved on to the putting green. We should follow Phil Mickelson’s example and stick to what we know best.”

  CHAPTER 28

  Peter McDonald’s scholarship had made him famous. He was frequently invited to lecture at law schools across the nation, his articles and books were cited by other scholars in his field, and he had won numerous awards for excellence in legal research. But what made the celebrated law professor most proud was the life he had shared with his family.

  Jenny and Megan McDonald certainly had been aware of Peter’s professional success—Jenny because she was a high powered intellect in her own right and Megan because her father often brought her along on his speaking engagements—but they much preferred spending private time with him at home. Their favorite family activity was tending the garden in their backyard. None of the McDonalds possessed what could be called a green thumb—Megan’s thumb was usually brown from playing in the dirt—but there was something about trying to bring plants and flowers to life that appealed to them. Perhaps it was because both Peter and Jenny had grown up in an urban environment. Peter had been raised in Chicago, where his father was a senior vice president for a commodities firm and his mother a dentist with her own successful practice. Jenny had grown up in South Boston. Her father had work
ed for thirty years as a heating and cooling repairman. Her mother stayed home to raise the kids. About as close as either family had gotten to horticulture was a pair of flower boxes in the front windows of their respective residences.

  Cooking dinner together was Peter, Jenny, and Megan’s second favorite family activity. Cooking was something at which Peter’s and Jenny’s families had excelled growing up. Jenny’s mom had been a wonder in the kitchen. In fact, she had been renowned throughout her South Boston neighborhood for her Irish stew: a delicious concoction of lamb, carrots, potatoes, and gentle spices from the Emerald Isle.

  Peter’s father had been the gourmet in their household. His specialty was marinated Chicago strips as thick as a suburban phonebook. He also could bake a cherry pie that put Rachel Ray to shame.

  Culinary skills aside, what Peter, Jenny, and Megan enjoyed most about cooking was the time they got to spend together. Peter and Jenny were the copilots in the kitchen—they prepared the food and the table—while Megan was the gap-toothed navigator. She got to suggest the menu. Or at least Peter and Jenny liked her to believe she suggested it. They usually had to remind their young daughter that it might be nice to make something other than “humbragger and french frieds” for dinner.

  The critical care nurse rose from her chair to check the monitors again. Professor McDonald was still alive… .

  CHAPTER 29

  The young black man tied to the tree thought of Denzel Washington in the whipping scene from the movie Glory. Denzel had won his first Academy Award for his portrayal of a proud former slave who fought for the Union army during the Civil War but refused to kowtow to the white officers who led the black brigade in which he served. The young black man remembered Denzel’s character staring defiantly at his white commanding officer while being whipped for deserting his post to find shoes that didn’t cut his feet. Tears clouded Denzel’s character’s eyes as both the pain of the whipping and the memories of a lifetime of whippings flooded over him. Denzel’s character didn’t scream, though. He refused to give the white man the satisfaction.