Protect and Defend (11 page)

Kilcannon cocked his head. “So you didn’t make this sacrifice for the sake of my great crusade?”

Caroline smiled briefly. “I owed you that, of course. But I’ll admit it’s not the most compelling consideration. I’ve known my daughter much longer.”

Kilcannon’s eyes grew hooded. For some moments, he was quiet.

“But suppose,” he said at last, “you
were
to explain all this in public. To many people, the decisions you’ve made would make you seem human and attractive.” The same hint of a smile flickered. “It might even leave pro-life Republicans somewhat at a loss for words.”

Sadly, Caroline prepared herself to deal the last blow to her ambitions. “I’m not a politician, Mr. President. But I’m not obtuse. So I thought the question might come up.

“This is the confessional age in public life—no sin is too private to confess, no trauma too devastating to exploit. If your opponent had trotted out one more dying relative or Ritalin-afflicted child, I’d have voted for you twice. I’m just glad you defeated him before his guppy expired.”

At this, Kilcannon laughed aloud. “I take it you don’t approve.”

“Not a bit.” Caroline sighed. “Honestly, I want this job so much that, in a moment of weakness, I might make myself as big a mountebank as he was. But I don’t think it’s how public life should be—for anyone.

“For me, there’s an absolute prohibition against letting the
chips fall where they may: my commitment to the chips.” Her voice softened. “I won’t undermine everything my daughter believes about her life. If that’s not enough, I promised her parents—because that’s what they are—I never would.”

Kilcannon considered her. “One could argue that your daughter deserves to know.”

Caroline found that his matter-of-factness made this most personal of discussions easier to bear. “One could, Mr. President. Selfishly, I wish she did: it’s very hard to love a child in secret, and pretend that she’s my niece. But I have no right to change that.” Caroline hesitated, then finished. “Not even to be Chief Justice.”

That would do it, Caroline supposed—it was late, the President was tired, and she was of no further use. The moment of renunciation felt even worse than she’d imagined.

“And yet,” Kilcannon said coolly, “you were willing to be nominated. Which means you were prepared to assume the risk that your daughter
would
find out—as long as you had satisfied your personal sense of honor, and we were willing to assume the risk.”

Caroline flushed. The analysis was sharp as a stiletto: in that moment, she grasped how tough Kilcannon could be, and how difficult to delude.

“True,” she admitted. “It’s foolish, perhaps even hypocritical. Perhaps I always
wanted
her to know. But more than that I wanted the job very badly.” Her voice became self-mocking. “Why
not
me, I kept asking myself. It isn’t fair. The country deserves my talents. Maybe no one but the President need ever know. All the way stations to self delusion.

“But the other truth is this, and I can’t leave without saying it—I’d have made a damned good Chief.”

Kilcannon cocked his head again. “And why is that?”

“For all the reasons Roger Bannon wasn’t. To Bannon, the people he affected weren’t real, but chess pieces in some mental game of his own invention.

“All his arid nonsense about deciding cases the way the founding fathers would have—some of them owned slaves, for Godsake, and their wives couldn’t vote. American politics in the eighteenth century wasn’t driven by mass media and the power of money. The social sciences, including those which explore the impact of parenting and poverty, barely existed.
Modern medical science didn’t exist at all. All of which are central to how we view the law today.

“Were they alive, the men who framed the Constitution would understand that. It takes a mind like Roger Bannon’s to reduce them to flies in amber.”

“Bannon,” the President countered, “would say that law should be based on fixed principles. Or it’s nothing but the whims of the intellectually rootless.”

Caroline shook her head. “We’re judges, Mr. President. We’re supposed to apply the law, not make it up as we go along. But cases don’t occur in a vacuum.

“The Supreme Court in 1896 believed that segregation was fine—that ‘separate but equal’ was not only possible, but all we owed the descendants of slaves. By 1954, the Court could comprehend the withering effects of racial discrimination and therefore that the Constitution, properly interpreted, barred one group of citizens from using the law to degrade another.

“There’s a lesson in that. But some of Bannon’s allies on the Court seem to have forgotten it.”

“Well,” Kilcannon said, “now I can dispatch someone to remind them. It’s one of the pleasures of victory.”

“And I’m very glad of that, Mr. President. I’m just sorry it can’t be me.”

Kilcannon considered. “So am I,” he said at last. “I’ve even waded through the enormous briefing book Adam Shaw sent over. It was very impressive—including your opinion on limiting campaign contributions. I wouldn’t mind a short tutorial on
that
, to help me assess whoever I do appoint.”

That she would not become Chief Justice, Caroline decided, left her freer to speak. “I
know your
position,” she answered. “You propose to bar interest groups or the wealthy from buying influence through giving either political party these enormous contributions. But legally, you encounter a formidable argument: that the First Amendment makes those contributions a form of ‘speech’ that you can’t touch.

“We don’t regulate speech lightly. But one can argue that special access for interest groups drowns out the voices and cheapens the votes of ordinary citizens: How many people can give the Democrats a million dollars to ensure that
you
listen when they exercise ‘free speech’?” Caroline flashed a smile. “Not that you’d be influenced, of course.”

“That’s only the Republicans,” Kilcannon said with irony. “I’m above it all. The teachers’ unions and trial lawyers have no claim on
me
.”

“Naturally. But some people may have missed that. No matter who they vote for, they believe, neither party cares about them. And so they’ve just stopped voting. Which is how democracy—in the real sense—begins to flicker out.

“That’s the cost of treating interest groups as the torch-bearers of First Amendment liberties.” Pausing, Caroline said emphatically, “Still, it’s not a simple question. No judge with any integrity would promise you a result. You shouldn’t choose anyone who does.”

“It’s tempting.” Abruptly, the President stood, hands in his pockets, as though he had forgotten all concerns but his own. “For the country to change, the Court has to change. I mean to root out this system of legalized bribery where all of us sell pieces of the government like shares of stock. But I can’t do it by myself.” Suddenly he stopped, giving Caroline a look of wry self-deprecation. “I sometimes give soliloquies. Like Hamlet.”

As she was meant to, Caroline smiled at this. But there was no escaping the scope of his ambitions, or that, like Theodore or Franklin Roosevelt, he tended to see the institutions of government—even the Supreme Court—as extensions of himself. It was fascinating, and a little unsettling.

“I enjoy soliloquies,” she responded gently. “But the justices don’t work for you, and the role of a Chief Justice is not to dictate change.

“If you simply find a Chief who’ll help keep the other justices
open
to change, you’ll have done well. Even if the result isn’t always what you want.”

For a moment, Kilcannon looked surprised. Then he grinned in rueful self-knowledge. “Oh, I know, I know. Sometimes.”

This did not require an answer. All at once, their meeting was at an end.

Caroline stood, extending her hand. “Thank you, Mr. President. You were generous to see me.”

“Thank you, Judge Masters.” Kilcannon hesitated, then added softly, “I regret our current political climate more than you know, and all the more for meeting you. But what you’ve said is very helpful.”

Outside, an aide was waiting. Caroline left, confident she would never see him again.

T
HE SECOND TIME
Sarah Dash met Mary Ann Tierney was in a cramped, windowless office at San Francisco General Hospital.

It was a Saturday, but the urban tragedies who washed up at a public hospital—the AIDS-afflicted, the drug-ridden, the homeless, the maimed—did not receive days off. Mary Ann’s frightened eyes registered what she had seen: to Sarah, she looked like a sheltered girl who had taken a detour through purgatory, and now wondered where she was.

“I’m sorry,” Sarah said. “I know this isn’t easy. But we’ll need witnesses if we’re going to court. And I wanted you to see a counselor from the clinic.”

Mary Ann appeared barely to comprehend this. Sarah did not add the rest—that, no matter what the psychologist and obstetrician said, her firm might not take the case.

The girl studied the paper Sarah had placed in front of her. “Do I have to sign this?” she asked.

She sounded less resistant than dazed. “Our firm needs it,” Sarah answered. “And so do I.”

Mary Ann looked up at her. “Why?”

“Bringing a lawsuit is a huge step, Mary Ann. If I don’t make sure this is what
you
want, then I shouldn’t be your lawyer.”

“But I
want
you to be.”

Even her plaintive tone of voice filled Sarah with doubt. “Please,” Sarah told her, “read it carefully.”

The girl did this so intently that she reminded Sarah of the times when her own parents had chided her not to read too quickly. At last Mary Ann looked up and said, “It’s all true. Can I sign it now?”

Once more, Sarah was struck by Mary Ann’s oscillation between vulnerability and challenge. Quietly, she answered, “Before you do, I’d just like to know how you are doing. That matters, too.”

Tears sprang to the girl’s eyes. “I’m just
so
scared, Sarah. I don’t know what’s going to happen to me.”

This, Sarah suspected, was by far the truest expression of how Mary Ann felt. “What about your parents?”

Mary Ann shook her head. “It’s so hard to live with them now. Like we’re enemies, and they don’t know it. I feel like this
spy
.”

So had she, Sarah reflected, when she had been fifteen. But her truancies were small—a brief experiment with dope, furtive petting with a boyfriend. Nothing like this.

“Where do your parents think you are?” Sarah asked.

“At a mall, with Bridget. Looking for birthday presents for my mom.”

Sarah suppressed a wince—within the strictures of belief, the Tierneys seemed to rule with a light hand, and now Sarah was party to deceiving them. But the alternative was to make this girl their property, and the doctor and psychologist were waiting.

“Yes,” Sarah said, “you can sign the form.”

Several hours later, when Mary Ann was gone, Sarah sat at the same conference table facing Dr. Jessica Blake, the psychologist, and Dr. Mark Flom, a specialist in obstetrics who performed late-term abortions. Both Flom and Blake had faced these issues before; both had received death threats; both had gone to court to seek protection. She did not need to mention the risk involved in speaking out for Mary Ann Tierney.

“Well?” Sarah asked.

Blake, a trim, scholarly woman with wire-rim glasses and an incisive manner, inclined her head toward Flom. “You first.”

To Sarah, Flom’s white hair, fine features, and abstracted look were more suggestive of a poet than a doctor, but his tone was crisp. “I understand the power of belief systems,” he answered, “all too well. But I can’t believe Jim McNally— or any doctor—would be so sanguine once they saw the sonogram.”

“Bad?”

“This is not just hydrocephalus—it’s severe hydrocephalus.

“There’s water in the ventricle system inside the fetal cortex. It operates to compress and destroy brain tissue and, in the process, prevents us from determining by ultrasound whether there’s a chance of tissue developing normally.” He frowned, creating grooves in his slender face. “But when you can’t see
any
cortical tissue—as here—the prognosis for the fetus is dismal.”

Sarah nodded. “Her doctor said as much.”

“Any doctor would. But here’s what offends me—the notion of delivering a fetus with a head like a bowling ball by means of C-section.

“Unlike the usual procedure, which is more limited, a classical C-section requires a large vertical incision which opens up the entire uterus. Aside from the emotional trauma to a fifteen-year-old girl, that carries a risk of blood loss, infection, pulmonary embolism, and, in rare cases where something goes wrong, a hysterectomy—risks
twenty times
that of a normal delivery.”

Blake turned to him. “But is that the only risk to reproductive capacity—a medical error?”

“I wish it were.” Flom grimaced with distaste. “This is a small-boned adolescent. Another risk is a measurable chance, albeit relatively small, of uterine rupture in future pregnancies, leading to the death of the fetus and the removal of the entire uterus.”

“Mary Ann’s doctor,” Sarah ventured, “puts the risk at five percent.”

“So that’s to be ignored?” Flom’s voice filled with disdain. “But I suppose five percent is good enough for government
work. Which illustrates the problem with letting those idiots in Congress practice medicine—either they don’t know what they’re doing, or they don’t give a damn about this girl. Or both.”

“Is there any chance that, under the Protection of Life Act, a judge would let her terminate?”

“It’s hard to see it, Sarah. Under the law, the condition of the fetus doesn’t matter, only that it’s ‘viable.’ I question whether you can call
this
baby viable, given how slim its chances are. But what doctor will want to risk prosecution based on that assumption? And forcing her to have a C-section won’t establish that a ‘substantial medical risk’ of physical harm is likely. Just much more likely than before.” Flom folded his hands in front of him. “No doctor I know wants to be stripped of his license, sent to prison, and sued by the parents for whatever money he’s got left. If you want me—or anyone—to terminate this pregnancy, you’ll have to get the Protection of Life Act thrown out.”