Protect and Defend (9 page)

“Our three biggest clients in Silicon Valley have politically active women as General Counsel. According to Pat, in the last year those three women sent us intellectual property and securities fraud cases generating twenty-six million in fees. I
worked closely with the General Counsel of Worldscope on two of those cases, and she’s deeply involved with pro-choice issues.”

Nolan had erased all expression from his face; only his eyes, dark and unblinking, betrayed displeasure. At length he said, “Let’s go through the basis for your challenge.”

“It rests on the right to privacy,” Sarah said promptly. “
Roe v. Wade
extended that right to include a woman’s right to choose. But the Supreme Court’s 1992 decision in
Casey
also made it clear that Congress can limit abortion after ‘viability’
unless
it is necessary to protect the life or health of the mother. In 2000, the Court reaffirmed that decision in
Stenberg v. Carhart
.”

Pausing, Sarah saw that Nolan listened keenly. “The big controversy,” she continued, “is whether ‘health’ includes
mental
health. A companion case to
Roe, Doe v. Bolton
, suggests it does. But pro-life advocates argue that this would legalize abortion on demand right up to the event of birth—that ‘mental health’ is simply an excuse.”

Sarah sat back. “That’s at the heart of Mary Ann Tierney’s dilemma. The Supreme Court has never clearly resolved whether ‘health’ includes threats to
mental health
—such as forcing a fifteen-year-old girl to have a baby without a brain. Or even whether
physical health
includes a small but measurable chance of not having further children.”

Nolan raised his eyebrows. “What about all the cases on ‘partial birth’ abortion? Don’t
they
affect this?”

Sarah shook her head. “In
Stenberg v. Carhart
, Nebraska tried to ban a specific procedure it called ‘partial birth abortion.’ The Supreme Court overturned the law because it applied to both pre- and postviability procedures; because the particular procedure outlawed was too vaguely defined; and because it provided no exception for the mother’s health. The Protection of Life Act is Congress’s first attempt to get around
Carhart
.

“Until now, no statute has given a parent the right to flat-out prevent a minor’s abortion by any technique, even after viability, unless there’s a narrowly defined medical emergency which expressly
excludes
emotional damage
or
fetal defects—no matter how severe. That’s what this statute does:
past viability, a court can permit abortion
only
if a continuation of the pregnancy is ‘likely’ to cause the mother’s death, or to ‘greatly impair
her physical
health.’

“Any doctor who now performs an abortion on Mary Ann Tierney without the consent of a parent, or permission of a court, faces two years in prison and the loss of his right to practice medicine. That means this girl is stuck.” Despite her sleeplessness, Sarah felt a renewed energy. “What I believe,” she finished, “is that it violates Mary Ann’s right of choice for a parent
or
Congress to force her to have
this
child under
these
circumstances. That’s the case I want our firm to bring.”

Nolan frowned. “That’s very different than suing a landlord who denies hot running water to an indigent old woman.”

“I agree,” Sarah answered. “It’s also more important to more women. Starting with Mary Ann Tierney, and including some of our clients.”

Nolan placed a pen to his lips, appraising her in silence. Meeting his gaze, she forced herself to wait him out—this, too, was a test which many others had failed.

“Where would you find the obstetrician?” he finally asked. “And the psychiatrist?”

“The University of California at San Francisco,” Sarah responded. “According to the pro-choice groups I talked to, some of the country’s top specialists are here, who’ve served as expert witnesses in other abortion cases. I’m sure I could reach them within a couple of days.”

Once more, the swiftness of her response seemed to give Nolan pause. “You’re authorized to go that far,” he said at last. “And no farther. After that I’ll consider whether to trouble our Executive Committee with this. But I’ll tell you something right now—they might let pro-choice groups help write your briefs and round up your witnesses. But they will
never
let our firm take them on as co-counsel.”

He was giving her time and reason to back off, Sarah knew—to fail to find expert support, or simply to lose her nerve. That way the decision would not be traceable to him; Nolan had not become the firm’s head without navigating between competing forces in a way that conserved his power.
But she also knew that, from this moment, John Nolan would wish her ill.

She left his office, with Votek at her shoulder. She restrained herself from thanking him, sarcastically, for his support. It was his job to keep her from unsettling Nolan’s world, and he had failed; Sarah knew that their relationship would never be the same.

Walking through the halls—the thick carpets, the shiny glass and marble of success—Votek said, “You’re making a huge mistake.”

She did not turn. “Which mistake was that?”

“You positioned him, Sarah.” Pausing, Votek lowered his voice. “He won’t forget. If we somehow take this case, your only chance of surviving is to win it.”

T
HE DAY
would have seemed bizarre, Caroline thought, had she more time to think about it.

As it was, she was tense and watchful. She had spent the last five hours in a hotel suite near the White House, registered as “Caroline Clark,” while one friend, Ellen Penn, and two strangers, Adam Shaw and Clayton Slade, grilled her about the most intimate details of her life and career. But that did not account for her discomfort.

It was now two o’clock, and the room was littered with soft drink cans and service trays. Caroline had long since taken the others’ measure: Ellen, warm and encouraging, was her advocate; Shaw—courtly, smooth, and unrelenting—was determined to protect the President; Clayton Slade simply wanted Kilcannon to choose someone else. His questions, though sparing, seemed intended to ferret out details which might make her harder to confirm. That his lack of success
was reflected in Ellen’s increasing animation only made Caroline more uneasy.

“From your record,” Adam Shaw inquired, “I gather you believe in a constitutional right to privacy.”

“Not for me, obviously. Or else I would have left by now.”

The small joke produced a chuckle from Ellen, a smile from Shaw, and from Clayton Slade, nothing. Caroline faced him directly; in this marathon test, “privacy” was a code word for abortion rights, and a slip could end her chances. “The right was established in
Griswold v. Connecticut
. I think it was reasonable for the Court to infer that we have a zone of privacy, and therefore that the State of Connecticut could no more bar married couples from using condoms than tell them which ones to use.

“But privacy is an amorphous concept and, like freedom of speech, it’s not absolute. Whether the right prevails in a given case depends on what
other
interests are at stake.” Pausing, Caroline smiled briefly. “As I’ll tell Senator Palmer should I be lucky enough to meet him.”

The dry aside did, at last, produce a look of amusement from Slade. An unspoken reality was that no one could ask Caroline point-blank where she stood on abortion: they did not want to pin her down, for fear that Palmer’s questioning might elicit this fact, and also wished to see whether she was agile enough to avoid this trap on her own. This was the new reality since the Senate had pilloried Robert Bork—it was better to believe nothing than too much. Then Slade asked bluntly, “Have you ever terminated a pregnancy, Judge Masters?”

Caroline stiffened. The startling question, offensive on its face, could be directed at several things—her beliefs; whether she had secrets the opposition might uncover; whether she was heterosexual. “You tempt me,” she answered quietly, “to say it’s none of your damned business. Because I happen to believe that kind of question isn’t—or shouldn’t be—the price of a seat on the Supreme Court.”

Clayton stared at her. “In theory I agree with you. But I didn’t make the rules. So let me assure you that it is.”

His tone was distinctly unapologetic. It made Caroline wonder, yet again, about the character of the man Slade worked for. And about her own: after all, she was still here.

“No abortions,” she said at last. “Not even one.”

“Have you ever been engaged, Judge Masters?”

“No.” Caroline’s smile, she knew, barely masked her resentment.

“Are you in a relationship?” he asked. “Currently, I mean.”

This was enough. “What you mean, Mr. Slade, is, ‘Are you gay or straight?’”

The crisp coolness of her answer caused Ellen Penn to smile, and Adam Shaw to glance at Slade. The Chief of Staff folded his arms. “That’s your question, Judge Masters. It wasn’t mine.”

“Then I’ll answer both questions,” she rejoined. “Am I heterosexual? Yes. It’s like being right-handed: because I was born that way, I got spared a lot of nonsense from people who think it’s the only way to be.

“Am I spectacular about it? No. Typically, I keep the doors closed.”

Ellen, she saw, quickly glanced at Slade. “Do I have a relationship?” Caroline continued. “Yes. Unfortunately at long distance—with Jackson Watts, a state court judge in New Hampshire. We dated in college, and met again several years ago.”

“Do you plan to marry?” Clayton asked.

A fiancé, Caroline realized, was much better than a boyfriend—especially at Senate confirmation hearings. “Not now,” she answered. “We both have our careers. The virtue of that, from your perspective, is that it leaves us little time for other involvements. So whatever we are is all there is.”

Clayton gave her a long, enigmatic look. Shaw edged forward, as though to signal that this exchange had lasted long enough. “Four years ago,” Shaw said to Caroline, “you filled out forms for the White House, Judiciary, the FBI, and DOJ, covering every aspect of your life to date—from your family, to your state of health, to whether you’ve abused drugs or alcohol. Were your answers truthful?”

“Yes.”

“And they remain so in all material respects?”

“Nothing’s changed.”

“Then before we wind this up, Judge Masters, I’d like to know whether there is anything we haven’t covered—
anything at all—which would embarrass the President if he put your name forward as Chief Justice.”

There was no choice but to answer, Caroline knew. And, truly, never had been. She owed this much to Ellen Penn, and, though she did not know him, to Kerry Kilcannon.

Turning to Ellen, Caroline drew a breath. “I’d like to talk with you,” she said. “Alone.”

Sarah fidgeted in her office, waiting for the phone to ring.

For the last two days she had tried to calm Mary Ann Tierney, fearful of her own parents and what Sarah’s firm would do; for the last several hours, consumed by a deposition she was forced to defend, Sarah had run from the conference room during breaks to find another message from the head of obstetrics at UCSF. Three rounds of phone tag had made her frantic.

When the phone rang, she snatched it up at once.

“Sarah? It’s Allen Parks. Long time no speak.”

Allen was so far from her thoughts that it took a moment for his name to register—her former constitutional law professor, with whom she spoke about once a year. “Allen, how
are
you?”

“Harried, actually—I’ve taken a job with Adam Shaw, the White House Counsel. I never knew what busy was.”

Was this a job offer? Sarah wondered. “If you’re calling to complain,” she answered, “
I’m
too busy to be sympathetic. Swamped, in fact.”

Allen laughed. “Then I’ll get right to it. One of my jobs is to review the files on people being considered for appointive office, or maybe some commission or another. I was riffling through some folders and got to Caroline Masters.”

Sarah sat straighter. “What’s Caroline up for?”

“Nothing specific, as far as I know. But we’ve got a host of jobs to fill, and I remembered that you clerked for her. It gave me an excuse to call.”

Allen was a careful man, Sarah recalled; his explanation, even his tone, were artfully casual. But perhaps what he said was true.

“Okay,” she said. “To get right to it, Caroline’s terrific—a wonderful writer, great to work for, and the best legal mind I’ve run into. Except for you, of course.”

“How is she on the issues?”

“Which ones?”

“I suppose we’re interested in the usual Democratic panoply—immigrants’ rights, labor, gender equity, campaign reform.”

Quickly, Sarah reflected. “Good on all of them. Her last opinion on campaign reform suggests that limiting these enormous contributions to political parties from interest groups, like the gun lobby, is constitutional. That’s the President’s position, I know.”

“What about choice?”

Sarah hesitated. “I’m sure she’s fine,” she assured him. “But she’s never had a case.”

“What does she say in private?”

“To me? Nothing.”

There was a first, significant silence. “At
all
?”

The disbelief in his voice underscored the importance of the question and, in Sarah, stirred the first, unsettling doubt about Caroline’s views. “Caroline’s not exactly Chatty Cathy,” she answered firmly. “But you won’t find any evidence she’s not pro-choice.”

Again, Allen was briefly silent, then resumed his casual tone. “Okay, Sarah. Thanks. And, please don’t make too much of this—we’ve got hundreds of names in the hopper, and as many interest groups clamoring for their pets. But that’s a good reason, if you don’t mind, not to mention this to anyone.”

“Sure.”

As quickly as Allen had broken her thoughts, he left her with them.

Distractedly, Sarah stared out the window, watching a Japanese freighter, loaded with cars, ease beneath the Bay Bridge toward Oakland. Caroline, she decided, must be on some sort of preliminary list for the Supreme Court. From what Sarah knew of these things, names came and went, briefly flirting with history, then vanishing forever. Still, in another frame of mind, Sarah would have called Caroline right away, to ask what else she might have heard. She would do that, soon— even though their conversation of two nights ago seemed to have happened in another life.