Protect and Defend (8 page)

“Because Carreras may not be with us long.” Kerry turned to Adam Shaw. “Didn’t he just have an operation?”

Adam nodded. “Throat cancer. He’s a smoker. His friends
say the doctors got it all. But why risk a new Chief dying on you? Besides,” Shaw added dryly, “it would send the wrong message to our young people.”

“Any argument about that, Clayton?”

“No. But at least let’s get Carreras’s medical records before we write him off.”

“There’s another reason,” Kerry answered. “On some issues I don’t
want
‘moderation’—guns, for example. Now that they’ve collected billions from suing tobacco companies, our pals the trial lawyers are after the gun manufacturers. I know that some of these corporate ambulance chasers are as greedy as the people they sue. But my point of view’s Darwinian: if they run the gun industry out of existence, it’s a victory for our species. I don’t want my new Chief Justice getting in their way.”

The blunt assessment brought a smile to Shaw’s lips. “There’s no way to be sure, Mr. President. But if permitting suits against the merchants of death is one of the criteria, I’d pick Masters over Carreras. Unless he’s truly bitter at Joe Camel.”

“
I
would be,” Kerry said softly, “but you know how vindictive I am. I’m the kind of person who remembers that the gun lobby spent over three million dollars trying to defeat me.”
Not to mention
, he did not add,
how my brother died
.

Clayton shifted in his chair. “That’s fine in this room,” he said with equal quiet. “But not for the Court. The longer I’m in politics, the more I’m struck by the importance of personality. This Court needs a consensus-builder, like Carreras. Masters is the wrong look for Chief—liberal, single, an outsider to the Court.”

Kerry turned to Adam Shaw. “How about her written decisions? Does she draw a lot of dissents?”

“Relatively few. Even though the Ninth Circuit, where Masters sits, is sharply divided between liberals and conservatives.”

“That suggests she has
some
social skills,” Kerry said wryly. “At least for a woman without a life.”

“Oh, she’s had a life,” Adam responded. “Her mother died in a car wreck when she was twelve—drove off a cliff. Her father was a state court judge in New Hampshire and, it seems, a bit of an autocrat. It appears they were estranged: in her
early twenties, Masters moved to California and put herself through law school. And never came back.”

Kerry considered this. “We all have our fathers, I suppose. I assume the last administration checked all that out.”

“Of course. And found no problems.”

“I would hope not,” Clayton interjected. “If you want to consider her, Mr. President, why not as an associate justice. You can elevate someone who’s been there for a while, like Justice Chilton. He knows the other justices, and
we
know he’s on our side.”

“He’s also constipated,” Kerry shot back. “Have you ever talked to him, Clayton? It’s the nearest thing to eternity you’ll experience on earth, and he’s got the soul of an actuary. He’s part of the
problem
over there.” Kerry’s voice turned wry again. “You must really be worried to float Chilton. You think I’m falling in love with the idea of a woman Chief.”

“Are you?”

“Not yet. And I’m far from committed to Caroline Masters—two days ago, I barely recalled that she existed. But making a woman Chief Justice would send an important message: women still have a ways to go, and I’m determined to get them there. Let Gage chew on that awhile.”

Turning to Adam Shaw, Kerry said, “I want Masters back here for a meeting—Clayton, Ellen Penn, and you. No one else. No leaks. Your office gets up everything you need. Then you grill her until there’s nothing left to know.

“If your meeting with Masters goes well enough, I may want to see her.”

Clayton’s brow furrowed. “Seeing her,” he interjected, “is tantamount to selecting her. We’d be accelerating the whole process.”

“That’s why we need secrecy.” Kerry paused for emphasis. “I want to find out if Masters has got it, and I don’t want Gage to know about it. Or anyone.”

Clayton stood. “I’ll call her myself, Mr. President.”

“It’s
Iowa
, Aunt Caroline.” Even over the telephone, Caroline could imagine Brett Allen pulling a face. “It’s flat, and it’s cold.”

“New Hampshire’s cold,” Caroline retorted. “You’ve been flash frozen your entire life. That’s why I wanted you to apply
to the creative writing program at Stanford, where they have palm trees.”

“It would have been nice,” Brett agreed. “And I could have seen you more. But the program here is the absolute best.”

“Anything for art, I suppose. That short story you sent me was superb.”

“Really?”

“Yes. I’ve satisfied my appetite for stories where some deracinated male crawls out of bed, brushes his teeth, spends five pages deciding whether to leave his apartment, then doesn’t. You’re the literary hope of your generation, Brett.”

The young woman laughed. “And you’re biased, Aunt Caroline.”

Caroline smiled to herself. “I hope so,” she answered, and then her gray-haired assistant cracked open the door.

“I’m sorry, Judge Masters. But there’s a call on line two. From the White House, he says.”

Surprised, Caroline stared at Helen, then said hastily to Brett, “Hang on, okay?” Of Helen, she asked dryly, “And who might ‘he’ be? Surely not President Kilcannon yet again.”

Helen shook her head in apparent awe. “Clayton Slade. The President’s Chief of Staff.”

Caroline felt the first pinpricks of nervousness. “I’d better take this,” she apologized to Brett. “Can I call you right back?”

“Sure. I’ll be here until four, your time.”

“It’ll be sooner,” Caroline answered, and said good-bye. Looking back to Helen, she directed quietly, “Please close the door behind you.”

For a few seconds, Caroline gathered her thoughts. Then she pushed the flashing light on her telephone, drew a breath, and said, “Mr. Slade? This is Caroline Masters.”

“Good afternoon, Judge Masters.” Though amiable, Clayton’s tone was formal. “I’m sorry to interrupt you.”

“Not at all,” she answered. “When you called, I wasn’t dictating the Ten Commandments. Just exchanging gossip with my niece.”

This produced a perfunctory chuckle. “In any event,” Clayton said bluntly, “your name came up this afternoon. The President would like to know if you’re willing to be considered for a seat on the Supreme Court.”

Caroline closed her eyes. It was the moment she had hoped for, and feared. And far more astonishing in the event than in the imagining. “As an associate justice?” she managed to ask.

“No, Judge Masters. As Chief.”

Caroline gathered herself. “In either case,” she answered, “please tell the President that I’d be honored. And that I’m grateful for the compliment implied.”

“I’ll tell him that. What he hopes is that you’ll come to Washington as soon as possible. You’ll be meeting with the Vice President, the White House Counsel, and me.”

Ellen Penn had done this, Caroline realized. And it was serious.

Standing, she began to pace. “Is three days soon enough?” she asked.

Placing down the phone, Caroline sat, inert. A half hour passed before she recalled that Brett, who consumed her thoughts, was waiting for her call.

“I’
VE READ
your memo,” John Nolan told Sarah, “but I’d like to hear it from you. Given that you want our firm to challenge the Protection of Life Act.”

The chairman of Kenyon & Walker was a man of carefully calibrated reactions. His deep voice was typically emotionless; his saturnine mien—black eyes, dark hair, broad face— had a mandarin indecipherability. The result was that the smallest note of sarcasm, a hardening of the eyes, could be as intimidating as someone else’s rages. Nolan was a big man, with a reputation built on a devastating skill at cross-examination and an utter lack of sentiment; sitting next to
Sarah, Scott Votek seemed diminished, a witness rather than a participant.

“To start,” Sarah answered, “it won’t take that much time. It can’t.”

Nolan’s eyebrows shot up. “Unless you go to the Supreme Court.”

A faint sardonic undertone reminded her of what she dared suggest. But Sarah had prepared herself: she had spent the night in Kenyon & Walker’s library, parsing the statute; reviewing the procedural rules for the three federal levels—the District Court, the Ninth Circuit Court of Appeals, and the Supreme Court; reading every relevant case on abortion and parental consent. “Even then,” Sarah answered, “the statute requires a District Court ruling within ten days. An emergency appeal should take about three weeks. Ditto the Supreme Court.”

“And Miss Tierney is already five and a half months pregnant. By the time you’re through, her fetus is seven and a half months old, at a minimum.” Nolan’s tone was flavored with distaste. “That makes your position rather unattractive, doesn’t it.”

A sense of unreality hit Sarah hard: they were sitting in Nolan’s corner office, with its panoramic view of the San Francisco Bay, talking about a pregnant girl with Olympian detachment. It helped transform her nervousness to passion.

“No,” she retorted. “It demonstrates how cynical this statute is in theory, and how cruel in practice. Congress takes a girl with sound medical and emotional reasons to abort, and makes those problems two months worse—because the courts are ‘protecting’ her from herself. The plain effect is to make underage girls have babies, and to place them at more risk.

“Among the risks in this case is that Mary Ann Tierney will have a hideously defective child, and never have another. I don’t think that’s right, do you?”

A small frown dismissed this question as too emotive. “What’s ‘right’ may seem clear to you. But some of my partners believe that Congress can, and
should
, limit a fifteen-year-old’s ability to abort a viable fetus simply because
she
considers the consequences of her own sexual conduct— pregnancy—distressing.

“Nor do they think it’s ‘right’ to finance a lawsuit which offends their own beliefs just because a fifth-year associate wants them to. Especially when pro-abortion activists would be pleased to take your place.”

To Sarah, Nolan’s speech was more devastating for its absence of inflection. She felt her own voice rise. “This girl is living with two pro-life parents. I don’t think she can hold out if we send her somewhere else.”

Nolan raised his head, as though to scrutinize her from greater heights. “In that case, how would you answer the charge of improper influence—that this is
your
lawsuit, not hers? And that you’ve separated an impressionable girl from a loving family to serve your own political agenda.”

This was meant to silence her, Sarah knew. “The way you would with any minor,” she came back. “First, I’d ask the court to appoint a
guardian ad litem
to speak for her best interests—”

“A counselor from the women’s clinic?” Nolan interjected. “From your memo, she doesn’t appear to have some favorite pro-choice aunt.”

Sarah ignored this. “Second,” she persisted, “I’d engage a psychologist who specializes in adolescents, to testify that Mary Ann understands what she is asking the court to do, and that she believes it’s best for her.

“Third, we hire an independent expert—an ob-gyn—to confirm that the medical risks of carrying this fetus to term are real, and that Mary Ann hasn’t exaggerated them as an excuse to end an unwanted pregnancy.

“Fourth, we have Mary Ann sign a client consent form which sets out how she met me, the reasons for her desire to terminate, and that she has asked us to bring the suit.” Pausing, Sarah softened her voice. “I’m not proposing that we let a teenage girl delude us, or open ourselves to charges of ‘improper influence.’ Or to let anyone use that as an excuse.”

For the first time, Nolan looked nettled—as much by her readiness to answer, Sarah thought, as by her implicit challenge. “One of the reasons I came to Kenyon & Walker,” she said evenly, “is that we do pro bono work. If we put other pro bono cases up for a vote, some of the partners wouldn’t like
them
, either.” Briefly, she inclined her head toward Votek.
“I’m sure
Scott
doesn’t like it when we represent polluters against the EPA, for money. But we do it—because it’s profitable, and because even polluters have a right to representation.

“Whether one agrees with Mary Ann or not, as a principle of our profession even a teenager has the right to challenge a law. That she’s so powerless makes the principle more compelling.”

“I know something about principles.” Nolan placed both palms flat on his black walnut desk, head jutting forward like a prow. “If our commitment to pro bono weren’t real, Sarah, you wouldn’t have spent so many hours at it. That work is financed by the same partners who have principled reservations about
your
principles—as well as those who, foreign as it may seem, think they have the ‘right’ to keep you from offending clients.”

“The partners who believe in the Protection of Life Act,” Sarah retorted, “will be adequately represented by the United States Department of Justice. And the ones who worry about offending clients should ask themselves, ‘Which clients?’”

Nolan’s gaze became a stare. “What do you mean?”

Sarah hesitated, preparing herself. In the respectful tone of a subordinate, she said, “I’m concerned about clients, too. So I asked Pat Kleiner and some of the other women partners what the effect would be of turning down this case …”

“How would
that
get out?”

Sarah shrugged. “Who knows? But the
American Lawyer
has been all over us since we supposedly fired a female associate for an affair with a married partner. Two weeks ago— when they pointed out that we’re the only firm in San Francisco still paying for its partners’ memberships in clubs that exclude women—they brought that story up again. That makes us vulnerable to more bad publicity, and to questions from some of our clients.”

Beside her, Scott Votek shifted in his chair. It was a reminder, if Sarah needed it, of the risks she was running. “What clients,” Nolan asked, “do you suppose would care?”