Protect and Defend (48 page)

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.”

S
ARAH 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 isn’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.”

“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.”

E
IGHT 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.