Supreme Ambitions (16 page)

What were all these news trucks doing outside the courthouse? It looked like a crime scene as I walked up South Grand Avenue. It took me a minute to realize that they were here for us—for the Ninth Circuit. This morning the court would be hearing oral argument in
Geidner
.

After a brief stop in chambers, I headed straight down to court. Courtroom 3 was already almost full, even though it was the largest courtroom—the ballroom back when the building was a hotel. The judges' bench was vast, able to fit a dozen chairs instead of the usual three—and this wasn't even the full bench, because a curtain was drawn to hide two additional rows of seating. When the curtain was open, Courtroom 3 looked like a legislative chamber. This courtroom, along with one up in San Francisco, was designed for the possibility of a so-called “super en banc,” featuring all active judges of the court—almost 30 in all—hearing a case at the same time. A super-en-banc hearing had never happened in the history of the Ninth Circuit, but it was good to be prepared.

This courtroom, while less attractive than the more intimate Spanish Room, at least had superior seating. The long benches, upholstered in a red-orange fabric, were surprisingly comfortable. I seated myself between James and Jeremy, with James on my left and Jeremy on my right. When James slid over on the bench so that our legs were touching, I didn't move away; the contact increased my nervous excitement.

“This will be a fun argument,” Jeremy said. “We know where your boss stands and where Deleuze stands. It all comes down to Hagman.”

Judge Richard Hagman, a senior-status judge appointed by the first President Bush, was known for being pro-business in civil cases and tough on defendants in criminal cases. His views on social issues like same-sex marriage were largely unknown.

“Hagman is definitely the swing vote,” James said. “Hard to predict on something like this. But Audrey did write a great bench memo.”

“Of course she did,” Jeremy said. “Good training for when she becomes a foot solider to Justice Keegan in his war against the homosexual agenda!”

“How do you know what my bench memo recommended?” I said. “Maybe I came out in favor of striking down Prop 8.”

“Ha,” Jeremy said, “that's a good one. But I actually do know what your bench memo—or should I say, the ‘Chambers of Judge Stinson' bench memo—recommended. My spies are everywhere.”

“And what else did your spies have to say about the memo?” I asked. “Did they say it was a good memo?”

“Actually,” said Jeremy, flashing a mischievous grin, “they said it was an
amazing
memo. An
intergalactic
memo.”

“Seriously?”

“Not quite,” Jeremy said. “But yes, your memo apparently impressed Deleuze and her clerks. Not enough to change Deleuze's mind, of course, but enough to worry her over where Hagman might come out.”

“That's nice to hear,” I said. “But I wouldn't call it
my
memo. It came from the Stinson chambers. And I had a lot of help on it.”

I subtly nudged James with my left leg; he returned the nudge.

“All rise! The judges of the United States Court of Appeals for the Ninth Circuit.”

We all stood as the panel members filed in and took their seats. Judge Stinson, the most senior active-status judge on the panel, took the center seat and presided.

The courtroom deputy banged her gavel. “The United States Court of Appeals for the Ninth Circuit is now in session.”

“Good morning, ladies and gentlemen,” Judge Stinson said—some
what grandiosely, as if welcoming everyone to an evening at the theater. “Let us proceed with this morning's calendar and the case of
Geidner v. Gallagher
. Mr. Sawyer, you may begin.”

“Thank you, Your Honor. May it please the court. My name is Gregory Sawyer, and I represent the appellants. They are the official proponents of Proposition 8, which amends the California constitution to provide that only marriage between a man and a woman is valid or recognized in the state …”

“Mr. Sawyer,” Judge Stinson said, “before you proceed to the merits, let's discuss jurisdiction—something of an obsession of mine. Does this court have jurisdiction? Do your clients have standing to prosecute this appeal, since the governor and attorney general actually agree with the district court's ruling and did not appeal?”

“Judge Stinson, your status as a stickler for jurisdiction is well known to all who practice before this court.”

“Indeed,” said the judge. “Call me a juristickler!”

The courtroom laughed at Judge Stinson's well-delivered quip.

“Fortunately, Your Honors wisely certified a question to the California Supreme Court …”

“Thank you for recognizing our wisdom, Mr. Sawyer!”

More laughter. The judge knew how to work a crowd.

“… concerning whether my clients under California law have enough of an interest in Proposition 8's validity to defend its constitutionality in court, including in an appeal. The California court answered that question in the affirmative.”

This seemed to satisfy the panel. The judges posed a few more questions to Sawyer about jurisdiction, but with all the enthusiasm of toll takers. And the jurisdictional issue was, in a sense, like a tollbooth—something that had to be passed through before picking up speed. Which is what the argument did upon reaching the main issue: the constitutionality of Proposition 8 and its ban on same-sex marriage.

“And now, with the court's permission, I'd like to turn to the merits. The people of California, as well as the people of many other states, are
currently engaged in a profound public debate over the meaning and purpose of marriage. The importance of this debate cannot be overemphasized, given the significance of the institution of marriage—an ancient and venerable institution, one that the Supreme Court has described as ‘fundamental to the very existence and survival of the human race.' After a full, fair, and extensive public discussion, the people of California enacted Proposition 8, resolving—at least for now—the definition of marriage under California law. And this is what the democratic process is all about, the ability of we the people to decide for ourselves …”

“Mr. Sawyer,” interrupted Judge Deleuze, “could we the people of California ban interracial marriage through a ballot proposition?”

“No, Your Honor.”

“And why not?”

“Because that was previously decided by We the People, capital ‘W' and capital ‘P'—in the United States Constitution. The Supreme Court has declared state bans on interracial marriage to be inconsistent with the 14th Amendment …”

“How is this different? How is Proposition 8 not a flagrant violation of both equal protection and due process?”

“Well, from an equal-protection standpoint, there is simply no rational basis for denying a mixed-race couple the right to marry. There is simply no …”

“The rational basis test is the weakest level of scrutiny,” Judge Deleuze said. “Throughout the history of our nation, gay and lesbian Americans have been subjected to the most awful and invidious forms of discrimination. Why shouldn't a law denying the right to marry to gay and lesbian couples be subject to heightened scrutiny? Hasn't this court already held that sexual orientation–based laws are subject to heightened scrutiny?”

Greg Sawyer, despite being a seasoned appellate advocate, seemed rattled. Even though Judge Deleuze's questions were not unexpected (and meant largely for the ears of Judge Hagman as swing judge), she asked them with chilling intensity and obvious hostility.

“Well, Your Honor, the precedent you're referring to, the
Witt
case, I believe, is, you see, somewhat …”

“Actually,” interjected Judge Hagman, quietly and thoughtfully, “I wonder whether the conventional equal protection framework works all that well here, given the nature of the ‘right' involved. Can we really say that ‘the right to marry' is being denied to a particular group when, in essence, this case is all about the
meaning
of the right itself? Isn't it the position of your clients, Mr. Sawyer, that the right to marry does not include—and has never included, at least in the history of our nation—the right to marry someone of the same gender?”

“Exactly, Judge Hagman. That is exactly our position, Your Honor.”

James elbowed me and smiled; the point just made by Judge Hagman came straight from my bench memo. Judge Deleuze scowled, furiously shuffling through a mountain of papers in front of her, while Judge Stinson smiled with her eyes.

“Even if we were to hold that rational basis applies,” Judge Deleuze said, “how was there any rational basis for Proposition 8? The extensive record in this case amply demonstrates that this enactment arose out of pure animus—out of nothing more than prejudice against gays and lesbians.”

“I would respectfully disagree, Your Honor. There is a rational basis to support the California electorate's decision to reaffirm the traditional definition of marriage. Sexual relationships between men and women—unlike sexual relationships between men and men, or women and women—naturally produce children. As a result, society has a vital and special interest in those relationships, which bring the possibility of unplanned and unwanted pregnancy.”

This argument did not go over well with Judge Deleuze. She swiveled her chair so that its back faced Greg Sawyer—an astonishingly rude gesture for the genteel world of appellate advocacy.

“I don't think I disagree with you on that, Mr. Sawyer,” Judge Hagman said. “But maybe there's a more basic point here. We can go back and forth over pregnancy and procreation, and over which environments are
best for raising children, and over how long we've had the traditional definition of marriage and why. But at the end of the day, is this a debate for the federal courts, or for California? Traditionally, marriage has been the province of the states, not the federal government. And if this is a debate for California, isn't it a debate for the
people
of California? Don't we as judges owe both sides the right to that debate, without interference, so both sides will feel that they got a fair shake?”

Another argument paraphrased from my bench memo—James elbowed me again, and I pressed my leg harder against his in response. I was trying not to smile, but it wasn't easy. We wouldn't know until Judge Hagman cast his vote, but it seemed quite likely that I had made a difference. I just hoped it was in a good way.

The next morning, I immersed myself in the statutory intricacies of SORNA, the Sex Offender Registration and Notification Act. It was a big comedown from the excitement of oral argument in
Geidner
, but it accurately reflected the rhythms of life inside the federal courts. Major matters of constitutional law jostled up against cases whose subject matters were boring, distasteful, or both—like SORNA.

I was in the middle of familiarizing myself with the “travel” element of SORNA when my office phone rang. Grateful for the interruption, and seeing from the display that it was Judge Stinson calling from her cell phone, I picked up before the second ring.

“Audrey, please meet me outside in front of the courthouse.”

“I'll be right down, Judge.”

What could this be about? And why was I the only clerk being summoned? I grabbed a legal pad and pen—going to see the judge without these items would be like showing up to a drug deal unarmed—and rushed downstairs.

When I stepped outside, the judge was sitting inside her red Jaguar coupe, parked at the curb with the engine running. I approached, still puzzled, as she lowered the passenger-side window.

“Hop in,” she called out.

“Good morning, Judge,” I said, getting into the front passenger side and buckling my seat belt.

“We're taking a little field trip today, Audrey. We're going shopping!”

“Great!”

I hoped my feigned enthusiasm convinced Judge Stinson. The propriety of a midday shopping trip didn't bother me, since it was being led by my boss, but the news filled me more with anxiety than excitement. First, I didn't like relating to familiar people in unfamiliar settings, and a shopping trip with Judge Stinson qualified. Second, I had no money to spend—my modest law clerk salary covered my living expenses and student loan payments, but not much beyond that—and I suspected that we weren't going to Loehmann's.

“We have some things to celebrate,” the judge said, putting the car into drive. “And we have some things to discuss. And I have some things to pick up at Giorgio Armani in Beverly Hills. So I thought this would be a good way of hitting multiple birds with a single stone.”

“Sounds good.”

“And you deserve a break. I know how hard you've been working over the past few weeks, on
Geidner
and all your other cases. You promised me during your clerkship interview that you would work hard for me, and you have kept your promise. I might not always comment on how hard you work—honestly, I take it as a given that my law clerks will work hard—but rest assured that I notice and appreciate it.”

“Thank you, Judge. That means a lot to me.”

And I meant what I said. This was so much more than a perfect score on a second-grade math quiz or a victory in a high school debate tournament; this was a nationally respected judge praising my work ethic.

The judge glided through a stop sign, then made a wide turn onto South Grand Avenue. I wasn't a good driver, and I could recognize a similar lack of skill in Judge Stinson.

“So the first thing we have to celebrate: Beneath Their Robes has gone dark. Which is a relief, since it sounded like the writer was working on some kind of hatchet job about me.”

“Yup, that's right. The site has been taken down completely.”

“Now, please don't mistake me; I have nothing to hide, so I wasn't terribly afraid of any so-called exposé. But it might have generated modest
controversy. And given certain—shall we say, sensitivities—I don't want any controversies right now.”

The judge braked for a red light—sharply—and I lurched forward, before being pulled back by the tightening of the seat belt. Judge Stinson wanted to converse, but I wanted her to focus more on the road.

“Absolutely,” I said. “People can seize on the most ridiculous things when trying to oppose someone for high office.”

I hadn't mentioned the words “Supreme Court nomination,” nor had Judge Stinson, but we understood each other perfectly.

“The demise of Beneath Their Robes—do I have you to thank for that, Audrey?”

The question caught me off guard. My conversation with Amit about it had taken place several weeks ago, followed by all the craziness with
Geidner
, and so I hadn't thought about how to explain the situation to the judge—without outing Amit as Article III Groupie, of course, since that was part of the bargain we had made.

“I don't think so, Judge,” I said slowly. “My last email contact with her was telling her that I couldn't answer her specific questions about you because of my duty of confidentiality as a law clerk.”

That was technically true. My confrontation of Amit, A3G's alter ego, had taken place in person, not over email.

“So what do you think prompted her decision to take her blog down?”

“Hmm … I think she was afraid that her true identity was about to be discovered. Howard Bashman wrote on his How Appealing blog that he suspected the author of Beneath Their Robes was a federal government employee. A few days later, BTR vanished. So I think Bashman was onto something and A3G got scared that she was about to be outed.”

Again, technically true—and maybe even more than technically. I wouldn't have figured out that Amit was behind Beneath Their Robes if not for Bashman's comment about A3G working for the federal government. Yes, I was omitting my role in all of this—but I had to, in order to honor my deal with Amit.

“Do you think,” said Judge Stinson, craning her neck out to the right
as she sloppily switched lanes, “that Beneath Their Robes might return?”

“Absolutely not,” I said, this time with more confidence. “I think we've heard the last of Article III Groupie.”

“Excellent. That's all I need to know.”

We merged onto the 110 going south, where the traffic was moving along nicely—not surprising, given the mid-morning hour. The smoothly moving traffic reduced the judge's sudden braking, which reduced my nausea—a relief to me, since throwing up inside her Jaguar would not enhance the judge's opinion of me. As we drove, we made small talk—catering complications for an upcoming party she was hosting, her daughters' latest successes in violin and soccer playing, and the difficulty of finding a good nanny who was also willing to be paid on the books. Part of me wanted to ask the judge about what she thought of yesterday's
Geidner
argument—and, most importantly, how Judge Hagman had voted at the panel's conference—but I had the sense that Judge Stinson was deliberately avoiding the subject.

In about half an hour, we arrived in Beverly Hills—my first time in the world-famous city, despite having been in Los Angeles for months now. As we drove past the Electric Fountain, which I recognized from the movie
Clueless
, and then along the legendary Rodeo Drive, I openly gawked at the palm-lined streets, intimidatingly glitzy boutiques, and sidewalks so immaculate you could let a baby crawl on them. Judge Stinson mercifully opted for a garage with valet, sparing me the agony of watching her attempt to parallel park, and we started walking down the avenue.

“Welcome to Beverly Hills,” said the judge, gesturing toward Rodeo Drive's center divider, planted with a profusion of impossibly iridescent flowers. “Can you smell the floral perfume in the air? This place has spoiled me for the mall.”

“I have a feeling I'm not in Woodside anymore,” I said, imagining how my mother would react if transplanted from Queens to where I now stood.

“You've come a long way, baby,” the judge said. “And so have I. My mother couldn't have afforded a keychain from one of these stores.”

We arrived at the Giorgio Armani shop, whose square glass facade,
consisting of many smaller glass squares, made it look a little like an Apple store. But once inside, there was no mistaking it for anything other than an ultra-luxurious fashion boutique—especially given the greeting extended to the judge. We were barely inside the store when a tall, athletic woman, boasting a halo of short, perfectly golden hair—a natural blonde, or the best dye job ever—rushed over to us.

“Judge Stinson! So lovely to see you! And is this your sister?”

Shameless flattery—but delivered so earnestly, one couldn't help but admire it. The judge laughed.

“Peggy, this is Audrey, one of my law clerks. Audrey, this is Peggy, who makes sure that I look fabulous underneath my robes.”

“It's a pleasure,” said Peggy, shaking my hand with a salesperson's enthusiasm. “Are you really a law clerk? You're too gorgeous to be a legal nerd!”

Even though I recognized her effort to butter me up as a potential client—I couldn't afford anything in this store, but she didn't necessarily know that—I still blushed at the praise.

“But I suppose that could be said of Judge Stinson here too,” Peggy added. “And I was just reading the other week, she might end up on the Supreme Court?”

The judge politely demurred, but I could see she was pleased that even a layperson like Peggy knew about Judge Stinson possibly becoming Justice Stinson.

“Your Honor,” Peggy said, “if you wind up on the Supreme Court, you will be the most stylish justice by far.”

“With all due respect to the justices, that's not a high bar,” Judge Stinson said. “There's a reason they all wear black muumuus!”

“Well, Judge, you have nothing to worry about—your dresses and suits are ready. Shall we take a look?”

Peggy escorted us back to a large and elegant salon, then left to get the judge's garments. Another salesperson, a petite Asian woman who looked about my age, asked us if we wanted anything to drink. I declined, fearing I'd spill whatever I got, while the judge requested a Pellegrino.

“Here we are,” Peggy said, returning with two garments in each hand. “Which would you like to try first, Your Honor?”

“Let's start with the suits and work our way up to the dresses.”

First the judge tried on a dark charcoal suit with a skirt that fell below the knee. She looked magnificent—because of course she did.

“It's perfect,” Peggy said, as the judge studied herself in front of a three-way mirror. The Asian woman nodded in agreement.

“Audrey, what do you think?” the judge asked.

“The tailoring is impeccable,” I said—but not wanting to sound too much like a yes man (or yes woman), I added, “It's more conservative than what you usually wear, in terms of the color and the cut.”

Judge Stinson beamed.

“That's exactly what I was hoping to hear,” she said. “I want something that communicates ‘conservative,' not ‘California.'”

Next the judge donned a bright pink suit in wool crepe with long sleeves and a softly rounded neckline.

“Even better than the last suit,” Peggy gushed.

“Audrey?”

“You look amazing, Judge. The cut is still conservative, but the color is more aggressive.”

“Excellent,” she said. “I want the color to pop. I want it to be a victory suit, a suit that says, ‘Yes, I'm wearing shocking pink, and you can't stop me!'”

We all laughed. I wondered what occasion the judge was buying the suits for; she already had an extensive collection of Armani, Chanel, and St. John outfits.

After the judge tried on her two dresses—a short turquoise cocktail dress and an elaborate beaded evening gown, both beautiful—the judge turned to me.

“Okay, Audrey, now it's your turn. Let's find you a new suit!”

Yikes. I couldn't afford to buy a suit here. I briefly debated in my head whether I could buy a suit today, to make the judge happy, and then come back and return it over the weekend—but if any alterations were
required, that plan wouldn't work. Feeling the beginning of a blush in my cheeks, I leaned in toward the judge and lowered my voice.

“Judge,” I whispered, “the suits here are, um, a little beyond my price range …”

“Oh goodness, my apologies—I should have clarified beforehand. This suit is my treat.”

“But the suits here cost thousands of dollars, Judge. I can't accept such a gift.”

“Audrey, you
must
accept—I'm giving you an order, as your judge. I'll explain why later, but it's very important that you accept. Now let's see what they have in your size.”

Before I could protest further, the judge had summoned Peggy.

“We need to find Audrey a suit,” the judge said. “I'm guessing she's a size two. I was once a size two. Ah, to be young again!”

The judge herself was only a size four, but I refrained from pointing that out—I suspected she still aspired to be a size two, despite being a few decades my senior.

“What kind of suit are you looking for?” Peggy asked.

“An interview suit,” said the judge. “Classic and conservative. A ‘do no harm' type of suit. Nothing crazy.”

“Judge, this is Giorgio Armani. We don't do crazy.”

The judge and Peggy chuckled. I wasn't sure why I needed an interview suit, but I wasn't about to argue.

“Audrey, I have just the suit for you,” Peggy said. “It just came in, and it will look incredible on you.”

Peggy rushed off toward the front of the store, the judge followed, and I trailed behind dutifully.

“Take a look at this,” said Peggy. “Isn't it gorgeous?”

It sure was: a classic black suit, with notched lapels, in featherweight Italian wool. It also cost more than $2,000. I felt torn—between desire and embarrassment.

“It's beautiful,” I said politely. “But the color black—you don't find it too austere?”

“It can be,” Peggy said, “which is why folks often go for navy or dark gray when it comes to interview suits. But I don't think this will be too severe on you. There's something about the cut of the jacket and how it comes in at the waist that makes it almost girlish—still professional, of course, but definitely not the ‘I'm going to a funeral' look. Try it on; you'll see!”