Mr. Justice

Mr. JUSTICE

SCOTT  DOUGLAS   GERBER

Mr. JUSTICE

Copyright © 2011 by Scott Douglas Gerber.

Cover Copyright © 2011 by Sunbury Press. Cover design by Lawrence von Knorr
.

NOTE: This is a work of fiction. Names, characters, places and incidents are the product of the author’s imagination or are used fictitiously, and any resemblance to actual persons, living or dead, business establishments, events or locales is entirely coincidental.

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FIRST SUNBURY PRESS EDITION

Printed in the United States of America

May 2011

ISBN
978-1-934597-35-4

Published by:

Sunbury Press

Camp Hill, PA

www.sunburypress.com

Camp Hill, Pennsylvania   USA

Also By Scott Douglas Gerber

Fiction

The Law Clerk:  A Novel

The Ivory Tower:  A Novel

Nonfiction

A Distinct Judicial Power: The Origins of an Independent Judiciary, 1606-1787

The Declaration of Independence:  Origins and Impact
(editor)

First Principles:  The Jurisprudence of Clarence Thomas

Seriatim:  The Supreme Court Before John Marshall
(editor)

To Secure These Rights:  The Declaration of Independence and Constitutional Interpretation

For my brothers and sisters

(Better late than never)

“We are very quiet there, but it is the quiet of a storm center.”

             
—U.S. Supreme Court Justice Oliver Wendell Holmes Jr.

PART I

Advice and Consent

CHAPTER 1

Lights from TV cameras blazed like the summer sun. Still cameras popped and hissed like firecrackers on the Fourth of July. Reporters packed together as tightly as teenagers in a speed-metal mosh pit flooded the hearing room.

Professor Peter McDonald nevertheless felt alone in the world. It didn’t matter that
he
was the focus of all the attention. It didn’t matter that
he
was only moments away from the start of his confirmation hearing to become an associate justice of the Supreme Court of the United States.

It was every law professor’s dream to serve on the Supreme Court—every law professor but Peter McDonald, that is. It might have mattered to him once, but nothing had mattered since Valentine’s Day—the day on which his beloved wife Jenny and his precious daughter Megan had been ripped from his life by an assassin’s bullets … bullets that had been meant for
him.

Peter McDonald—Phi Beta Kappa graduate from Harvard College, Order of the Coif recipient at Yale Law School, former law clerk to the chief justice of the United States, youngest professor awarded tenure in the history of the University of Virginia School of Law, most frequently cited constitutional law scholar in the nation—had met the former Jenny O’Keefe on the first day of their first year of college. Peter was a “legacy” at Harvard: his father, grandfather, and great-grandfather all had attended the famed Ivy League institution. Jenny, in contrast, was a scholarship student from South Boston—a “Southie,” as locals were called. She was the first member of her family to attend college, let alone graduate from the most prestigious college of them all.

Peter and Jenny came from different worlds, but Peter knew he was a goner the instant Jenny walked into Introduction to American History on that crisp day in September and sat in the seat directly across the classroom from him.
She
didn’t seem to notice
him
, but
he
noticed
her
. And
she
certainly noticed that. How could she not? He spent most of the semester stealing awkward glances at her from behind his textbook.

Eventually, after more than a few false starts—“Uh, Jenny, what did the professor say about the Articles of Confederation?”; “Er, Jenny, did the professor say whether the midterm is open book?”; “Excuse me, Jenny, can I xerox your notes?”—Peter McDonald somehow managed to convince Jenny O’Keefe to have a cup of coffee with him. And, eventually, coffee somehow turned into lunch, lunch somehow turned into dinner, dinner somehow turned into a weekend on Cape Cod, a weekend on the Cape somehow turned into summer jobs in the same city, and summer jobs in the same city somehow turned into a marriage proposal—a proposal that turned into the happiest twenty years of Peter McDonald’s life.

The last five years had been the best. After fifteen long years of trying—fifteen years of near-bankruptcy inducing visits to fertility clinic after fertility clinic and down-to-the-minute time management of their procreative activities—Peter and Jenny McDonald became the proud parents of Megan Mallory McDonald.

Megan looked almost exactly like her mother. She had a wall of chestnut hair, sparkling green eyes, a face full of freckles, and a smile that could make an angel sing. She also had her father wrapped around her little finger. All she had to do was ask, “Daddy, can I … ?” and McDonald would answer, “Yes, sweetheart.” He didn’t need to hear the end of her question. The answer was always, “Yes, sweetheart.” In fact, McDonald spent as much time as he could with Megan. Perhaps more time than he should, those who had long been championing his rise to the top kept telling him. But he wouldn’t listen to them. He cared more,
far
more, about Megan and Jenny than he did about securing a high-level government post—including one on the Supreme Court of the United States.

CHAPTER 2

“All rise!” the clerk called out.

The nineteen members of the Senate Judiciary Committee were led into the hearing room by Alexandra Rutledge Burton, the senior U.S. senator from, in her favorite phrase, “the great state of South Carolina.” Burton was a legend on Capitol Hill. With a thick mane of silver hair, a Grecian profile, and shoulders as broad as those of the All-American basketball player she once was, the senator looked every bit the force of nature she was reputed to be. But those who knew her best—the handful of managing partners in D.C.’s most influential law firms, the CEOs of Wall Street’s most highly capitalized corporations, the editors in chief of the nation’s most widely circulated newspapers—understood that the senator hadn’t recovered from the trauma of witnessing her grandson commit suicide after being rejected for admission to her home state’s flagship institution of higher education.

My grandson had dreamed of attending the University of South Carolina since he was nine years old,
Senator Burton had written in an op-ed piece for the
Charleston Post and Courier
six months after her grandson’s death.
He wasn’t interested in applying to Harvard, or Yale, or some other fancy New England college. He was a South Carolina boy through and through. He never missed a Gamecocks’ football game. His bedroom was chock-full of SC memorabilia. He bled garnet and black. He wanted to follow in his parents’ footsteps. They had met at SC. He wanted to follow in
my
footsteps.

A flattering photograph of the senator’s grandson separated the paragraphs of her article. The text continued:
My grandson’s tragic death has revealed more powerfully than anything could that affirmative action—what is best described as “reverse discrimination”—has profound human costs. Academic administrators continually trumpet the importance of “diversity” in our nation’s colleges and universities, but what about the more qualified applicants who are denied admission to those same institutions solely because of the color of their skin? Make no mistake about it,
Senator Burton continued,
my grandson was more qualified than many of the minority students who were granted admission to the university ahead of him. My grandson graduated with a 3.6 grade point average from Charleston High School and scored in the top 15% on the Law School Admissions Test. Three-quarters of the minority students in this fall’s entering class—the entering class my grandson should have been a part of—have GPAs
of
less than 3.0 and LSAT scores in the fortieth percentile or below. Where’s the justice in that? Where’s the justice for my daughter and son-in-law, who have lost their only child to his own hand? Where’s the justice for my grandson?

Burton assured her readers that she wasn’t writing the op-ed to exact some sort of revenge on the university.
After all,
she reminded them,
I am a proud alumna of SC. Rather, I am writing to announce to the nation that I am behind my daughter and son-in-law one hundred percent in their appeal of the U.S. District Court’s recent decision dismissing their lawsuit against the university on the grounds that, one, the U.S. Supreme Court held in 2003, in
Grutter v. Bollinger
, that “diversity” in the student body is a “compelling” interest and, two, colleges and universities may consider race as a factor when deciding which applicants to accept.

The senator then addressed the elephant in the room—namely, why she hadn’t used her considerable influence to guarantee her grandson’s admission to SC.
To be honest,
she wrote,
I didn’t think he needed my help. That goes to show how naive I was about how aggressively reverse discrimination is being practiced by college admissions officers today. Moreover, I felt it would be inappropriate for me to pressure the university. My grandson, God rest his soul, agreed. In fact, he begged me not to intervene. He was a young man of uncommon integrity—he omitted any reference to me whatsoever on his application—and we will miss him dearly.
The senator closed her opinion piece by writing:
As the saying goes, we will take my grandson’s case “all the way to the Supreme Court” if we must.