Protect and Defend (78 page)

Still, this was not all that worried Sarah. Two days before, Mark Flom had said to her, “People can argue all they want. But when it’s all said and done, there are times when this procedure is necessary.

“It’s also quite difficult—not many doctors can do it. With every week, it becomes that much harder. The Tierneys have made it two
months
harder, on us all.”

Now, while the extraction of the fetus proceeded, Sarah was overcome by the consequences—not only to Mary Ann, but to others. Glancing at her watch, Sarah calculated that it was past ten in Washington, and that the Senate had begun debating whether to advise and consent to the nomination of Caroline Clark Masters as Chief Justice of the United States.

Distractedly, she read her
New York Times
. On the eve of the vote, the lead article reported, it was unclear whether Macdonald Gage had the forty-one votes needed to support a filibuster. If not, both Gage and President Kilcannon presently were at least two votes short of the fifty-one required to defeat or sustain the nomination. A final complicating factor was Senator Chad Palmer: despite the avalanche of reporting which surrounded his daughter’s death, no one knew whether Palmer would emerge from his seclusion.

No, Sarah thought, she could not blame Clayton Slade for calling. But this was the last piece of Mary Ann’s public exposure—that, after all the trauma she had suffered, the
outcome of the Masters nomination might hinge on the condition of her fetus.

Above all, Mary Ann was who Sarah cared about. It had been easy for Sarah to become who she was: her parents were secular, liberal, enamored of their daughter’s intellect and independence. But Mary Ann’s courage—and stubbornness—were almost inexplicable. In two months, Mary Ann had become so central to Sarah’s life that she both resented this responsibility, and would not have passed it on to anyone. Now she wished—for both the girl’s sake, and her own—that she believed there was a God to pray to.

Sarah closed her eyes.

An hour passed. Staring at the floor, Sarah heard Dr. Flom approaching.

With trepidation, she stood. Still in surgical dress, Flom looked exhausted; perhaps he, too, had suffered from the weight of his public involvement.

“How is she?” Sarah asked.

“Fine. Still unconscious from the anesthetic, of course.” He paused. “The delivery was normal, Sarah. Mary Ann can have more children. Which was the point of the exercise, after all.”

Feeling a shudder of relief, Sarah hesitated. “And the fetus?”

A look of gravity crossed Flom’s fine features, and he slowly shook his head. “Hopeless. When I sutured the head, to drain it, there was almost nothing there. No way he could have lived.”

Arms folded, Sarah swallowed, looking down. For a moment, she fought to control her emotions—there was one decision yet to make, and no time to ask Mary Ann. Once again, she weighed her obligations to her client, to Caroline Masters, and, in a sense, to the President.

“If I authorize it,” she said, “are you willing to make that public?”

Flom smiled faintly. “It seems to be of some moment, doesn’t it. And not just to Mary Ann.”

A
T TEN O’CLOCK
, the President and Clayton Slade began watching the Senate debate on C-SPAN.

They sat in an interior conference room, with a telephone at Kerry’s right hand. For the moment, they had done all they could; the two greatest imponderables—Mary Ann Tierney’s abortion, and Chad Palmer’s actions—were beyond their control. In the hope that Chad would turn on Gage, they had delayed leaking the FBI report until a few minutes before: the story would not appear until tomorrow, giving Chad one day to act on his own.

That he would do so was Kerry’s fervent wish. “Following Gage makes senators feel practical,” Kerry observed to Clayton. “Following Chad makes them feel they’re more like
him
.”

But all he knew was that Chad was in the Senate, having arrived in grim silence to a horde of media. For now, Macdonald Gage held the floor, beginning his last assault on Caroline Masters.

“Look at him preen,” the President murmured. “How convenient it must be to have no conscience.”

Macdonald Gage stood in the well of the Senate.

It was the apogee of his power, a day on which he would challenge the President himself. All one hundred senators were present, and the galleries were packed yet hushed. Vice President Ellen Penn presided from the rostrum, signaling the administration’s resolve, if called upon, to break a fifty-fifty tie; as Gage well knew, the Vice President’s office in the Senate, a perquisite of her office, had become the center of feverish lobbying by the President’s congressional team and
Ellen Penn herself. On Gage’s behalf, Paul Harshman stood ready to organize the forty-one votes needed to sustain a filibuster, and keep the Masters nomination from coming to a vote. The day would call upon all Gage’s stamina and guile; he must banish his concerns about the President, his qualms about Kyle Palmer, his worries about her father, sitting silently behind him.

Standing in the first row, Gage turned to speak to his colleagues. A piece of paper with scribbled notes lay on the varnished mahogany writing desk once used by Henry Clay. But he did not need prompting; he knew the points he wished to make, the passions he needed to arouse, and would simply let this flow. The only awkwardness lay in the first few sentences.

Reining in his tension, he turned toward Chad.

“Before I begin, I wish to note the presence of the senior senator from Ohio, who has come to discharge his public duties despite the personal tragedy which has befallen him.” Now Gage faced Palmer directly. “To the condolences we’ve all expressed, I’d like to add your colleagues’ admiration. You honor us, Senator Palmer, by being here.”

Pausing, Gage hoped that the tone of welcome, the unfeigned note of sympathy, would reach his wounded rival; as always, but never more uncomfortably, his rivalry with Palmer was commingled with respect. Yet the only reaction he could detect was a faint smile so fleeting and ambiguous that Gage could not decipher it, followed by a look of surprising keenness from a man whose loss remained graven on his face.

Dismissing his worry, Gage turned to his wider audience, the senators and galleries. The silence was complete.

“The time has come,” he told them, “to decide whether Judge Caroline Masters should preside over our nation’s highest court.

“This is not a time for partisan speeches—our responsibilities are far too grave for that. Just how grave, I submit, the judge herself has made quite clear.

“The Tierney decision—Judge Masters’s single most important ruling—tells us what to expect from her.

“It is an expression of judicial arrogance. It rejects the bipartisan will of Congress, and of the American people. It disregards the sanctity of life. It eschews the wisdom of the founding fathers in exchange for a radical philosophy in
which judges know best—even when it comes to taking lives.”

Abruptly, Gage’s voice became quiet, mournful. “In the world of Caroline Masters, God alone knows who and what we will lose. Who among the innocent lives we have striven vainly to protect would find a cure for cancer, or bring peace to a grieving world. How many among them would give a family joy as children and, in the ripeness of time, love children of their own …”

In the conference room, Kerry Kilcannon watched intently.

“
How many more children
,” Gage continued, “
however ‘flawed’ in the view of others, might remind us of our obligation, with a reward and richness all its own, to cherish those less fortunate …
”

The door to the conference room opened. Kit Pace appeared and placed a single piece of paper before the President.

Silently, he read it.

“Get this to Senator Hampton,” the President directed.

Gage felt himself gaining momentum, his words and thoughts coursing with a passion added to their force. “And how many parents,” he asked, “will be deprived of their right to participate in a minor’s most important moral decision because Judge Masters—not the family—knows best?

“But I will say no more about this. For the reason to reject this nominee transcends her judicial philosophy, however inimical to our deepest religious, moral, and constitutional traditions. And, I might add, however offensive to her prospective colleagues on the Court.”

With slow deliberation, Gage sought out his ultimate audience, the four undecided Republican moderates—Spencer James of Connecticut; Cassie Rollins of Maine; George Felton of Washington; and Clare MacIntire of Kansas—speaking to each of them in turn.

“In judging the personal life of another,” he told Clare MacIntire, “one must exercise compassion and restraint. None of us is perfect; none of us entitled to cast the first stone. But when a judge’s personal conduct also leads to questions regarding her reliability and truthfulness, we are entitled—we are
compelled
—to examine that conduct.”

As he spoke, Senator MacIntire, small and dark, frowned and looked away—wondering, Gage expected, whether she could withstand a primary challenge funded by the Christian Commitment if she voted for Caroline Masters. Turning to Spencer James, Gage continued, “All of us, I’m sure, respect Judge Masters’s personal decision that having a child out of wedlock is preferable to taking a child’s life—even as we wish that her decision in the Tierney case did not reject this belief so cruelly and completely, in the name of a procedure so barbaric.

“
But
”—here Gage’s voice rose sharply—“what do we say to all the young people on whom we urge abstinence and respect for marriage? What do we say to those we ask to reject the scourge of promiscuity and illegitimacy, youthful experimentation with drugs and alcohol, and the risk of sexually transmitted disease?”

Gage became conscious of how close this might cut to Chad Palmer’s private anguish, the remembered pain of raising Kyle. A surreptitious glance revealed only Chad’s stony gaze, directed not at Gage, but at some indeterminate middle distance. Gage decided to change his emphasis as smoothly as he could.

“What do we tell them,” he asked, “about truthfulness? And
how
can we tell them that a woman who has concealed her past—which many of us deem perjurious—is fit to preside over a legal system based on the universal obligation to tell the truth when sworn to do so, ‘so help me God’?”

Kit Pace entered the room again. Briefly glancing at the television, she murmured, “Hokey, but effective.”

The President looked up. “Did you get to Hampton?”

“His Chief of Staff. He says Palmer’s asked to make a statement. He wants to use Chuck’s time.”

“Do you know what for?”

Kit shook her head. “No one does. But Chuck could hardly refuse …”

“
What do we tell them
,” Gage continued, “
about a judge who rules against the sanctity of life, and in favor of a close friend—the lawyer with whom, only a few weeks before, she shared a private dinner at her home …
”

*  *  *

Now Gage faced the galleries, conscious of the millions more who were watching. “In the end, with firmness and clarity, we must say this.

“That her philosophy is alien.

“That her misrepresentations are unworthy.

“That her judicial temperament is questionable.

“That her integrity is compromised.

“That she is
not
fit to be Chief Justice.” Gage’s voice rose once more. “That to insist on her confirmation is an act of imperiousness and carelessness from which it is our duty as senators—our solemn obligation—to protect the American people.

“The President should never have nominated her. He should never have persisted after all that we have learned. But he has.” Pausing, Gage surveyed his colleagues. “And so it falls to us to tell him this: no man—or woman—is above the law. And no woman—or man—should exercise the power of law unless they are fit to do so.”

With this, an oblique reference to Kerry’s use of the FBI, Gage reached his peroration.

“This is a democracy, and we must face our obligations unafraid. We
must
, if we are men and women of integrity, reject this nominee.”

Without more, Gage sat, to an outburst of applause from the galleries, which Ellen Penn gaveled to a ragged halt. He had done his part, he thought with satisfaction—no leader in his memory could have opened this debate as effectively as he just had.

“The Chair,” Ellen Penn said crisply, “recognizes the Senior Senator from Illinois.”

With his accustomed air of scholarly calm, Chuck Hampton slowly stood. But he must surely feel the tension of the moment, Gage reflected; it was the Minority Leader’s duty to speak first on behalf of Caroline Masters.

“I would like to begin,” Hampton said, “by reading a wire report from the Associated Press.”

His listeners stirred with surprise and, in the case of Macdonald Gage, tension. “It is a statement,” Hampton continued, “by Sarah Dash, attorney for Mary Ann Tierney.”

Adjusting his glasses, Hampton commenced reading.

“
‘This morning, Mary Ann Tierney underwent the procedure to terminate her pregnancy, to protect her ability to have children in the future
.

“
‘That procedure is now complete. The attending physician, Dr. Mark Flom, confirms that the fetus had no cerebral development, and no hope of surviving …’
”

There were murmurs from the galleries; in consternation, Gage glanced at Clare MacIntire, and saw her rapt attention as Hampton read on.

“
‘To further establish the medical facts, we have requested the performance of an autopsy
.

“
‘As for Mary Ann Tierney, the procedure was successful. Her capacity to bear children is no longer at risk. For this, we are grateful to the American judicial system, without which she would not have been free to make this difficult—but plainly justified—decision …’
”

Breaking the tension, Kerry Kilcannon laughed aloud.

“That should give Gage pause,” he said to Clayton. “Did
you
tell her to say all that?”