The Judge Who Stole Christmas (21 page)

TUESDAY, DECEMBER 19

By Tuesday afternoon Jasmine started to panic. Twenty-four hours had passed since the phone call with Arginot. In another twenty-four hours she had to file her brief. That deadline had kept her at the library until it closed at midnight, when she shifted to her apartment, where she worked the rest of the night. Still, she was making little progress. She would write a few pages, throw them out, do some more research, then repeat the process. At this rate Thomas Hammond would lose by default.

The case seemed simple enough—can a town display a manger scene on the town square along with other symbols of the holiday season? That question had already been answered affirmatively by the Supreme Court. But the town and its attorney had fumbled this matter so badly that it was almost impossible to construct a good argument on behalf of Thomas.

If the town had initially included the manger scene as part of a much broader display of Christmas traditions, they would have been fine. The case would have been virtually identical to
Lynch v. Donnelly
, where the Court held that the crèche had a secular purpose—depicting the historical origins of a national holiday—and therefore didn't violate the establishment clause when it was displayed alongside other symbols of the season. But the original display in Possum had included only the manger scene, a Christmas tree, and an unmanned Santa Claus sleigh. And the display was managed by the mayor's own church, a fact that Harrod would undoubtedly emphasize to show that a reasonable observer would view it as an endorsement of the Christian religion.

The town's attempt to remedy the situation—Operation Xmas Spirit—had its own set of difficulties. According to Ichabod, Possum had shown its true religious purpose when it first displayed the crèche pretty much by itself. Judge Baker-Kline ruled that this original purpose tainted even the Operation Xmas Spirit display, despite the fact that the new display had more things secular than it did religious.

To make matters worse, Jasmine was not even sure that she could raise these issues about Ichabod's first two rulings on
her
appeal. Thomas was not in jail because of the original display or the Operation Xmas Spirit display—he was in jail because he kept setting up his own display. Under the
Capitol Square Review
case, Thomas should have been allowed to set up a religious display in a public arena using the same application and permitting process that everyone else had used. But that was the problem. Thomas hadn't been treated the same. He had been given preferential treatment and granted a permit only
after
he had already set up the crèche.

What a mess,
Jasmine thought. She rubbed her eyes and stared at her laptop screen.

Her cell phone vibrated. Though she had made a rule not to answer any calls or check voice mail until she filed her brief, she glanced at the caller ID out of curiosity. Area code 212. Pearson Payne or some New York talk-show producer. It was the third time today someone had called from a New York City area code.

Jasmine let the call kick into voice mail and then, knowing she would regret it later, started checking her messages. There were eight, three from Pearson Payne. He didn't sound happy.

She rubbed her face and settled back to work, but she couldn't get her mind off the calls. You couldn't refuse to call back a man as powerful as Pearson Payne, though she really didn't want to deal with him right now. The publicity on the case had continued, with Christian leaders calling for spontaneous displays of manger scenes everywhere—church property, private homes, town squares. Jasmine was pretty sure that Reverend Hester was still using the controversy to raise boatloads of money, though she didn't have time to check.

Pearson would not be happy. But still, she owed him a call.

She grabbed her cell phone and walked outside the library into the frigid late-afternoon air. She knew that Pearson would still be in his office—New York firms get their second wind at 5 p.m. She dialed the number and closed her eyes.

“Pearson Payne's office.”

“Hi, this is Jazz Woodfaulk returning Mr. Payne's calls.”

“One moment please.”

When Pearson came on the line, Jasmine braced for an explosion. Instead, Pearson asked about the case and seemed genuinely interested as Jasmine explained her predicament. He quizzed her about the hearings in front of Judge Baker-Kline and made a few suggestions about how to argue the appeal, mostly things Jasmine had already considered. She told him how panicked she was about filing a brief tomorrow that she hadn't really even started.

“Sounds like a loser, Jazz. You really ought to withdraw.”

“I can't, Mr. Payne. Not now.”

Pearson paused for a long time and Jasmine knew what was coming.

“Well, that's a call you've got to make. I admire your tenacity, you know that. And you'll have a great future at some law firm. But unfortunately, it won't be with us. It wouldn't be fair for me to bring you in here after this case. Half my partners would be gunning for you from day one. It's hard enough to make partner when you come in with a clean slate. Under these circumstances, you wouldn't stand a chance. And, Jazz, I like you too much to put you through that.”

Though she saw it coming, the words still hit hard. “I understand, Mr. Payne. Thanks for being a straight shooter with me.” Even as she spoke, Jasmine marveled at the great lawyer on the other end of the phone.
He
was revoking
her
job offer, but somehow he had
her
thanking
him
!

She heard a quick beep from his phone. “Jazz, I just got another call that I've got to take. Good luck on that appeal.”

“Thanks, Mr. Payne.”

“I'm sorry.”

“I know.”

She stared at the phone for several seconds before heading back into the library. First the WNBA and now New York City. But she didn't have time to feel sorry for herself. She could host a pity party later. She had a deadline less than twenty-four hours away.

WEDNESDAY, DECEMBER 20

It came in an e-mail a few minutes after ten . . . and it came none too soon. Jasmine had to blink twice before she opened it, still punchy from getting only a few hours' sleep on Tuesday night after none at all on Monday. She was in the midst of throwing her appellate brief together, a disjointed hodgepodge of ideas and cases that barely convinced her and certainly stood no chance of weathering the scrutiny of the Fourth Circuit. Despair had yielded to a grim determination to file something by the deadline, even if she would be embarrassed to attach her name to it.

She was in the library, hooked up to the school's wireless Internet, when the e-mail message flashed on her screen. Like phone calls, she had been ignoring her e-mails, but this one drew her like a tropical oasis after two long days in the desert. The sender was Pearson Payne, but it might as well have been a direct delivery from heaven.

As you know, we require a fair amount of pro bono work from our associates at Gold, Franks. And since we really aren't that busy right now, I asked a few of our best young guns to take a stab at drafting your appellate brief last night. Hope this helps. By the way, Scooter says hi.

Merry Christmas, Pearson Payne

Adrenaline pumping, Jasmine double-clicked on the Word document. It was a twenty-five-page brief, properly formatted and edited to comply precisely with Fourth Circuit guidelines. The signature page contained a line for both Jasmine and Arginot. She wanted to kiss the laptop.

She skimmed past the index of authorities cited—lots of impressive-looking case law—and began reading.

Issue Presented: Can a federal judge rule Christmas unconstitutional?

Summary of Argument: In a prior case upholding the right of a city to display a manger scene, the Supreme Court noted that the First Amendment does not require total separation of church and state. The government's job is to accommodate religion, not eradicate it. “We are a religious people whose institutions presuppose a Supreme Being,” the Court reminded us, quoting language from one of its own prior opinions upholding government-paid chaplains.

Our history is replete with references to our religious history and traditions: our national motto “in God we trust,” the Pledge of Allegiance's “one nation under God,” our national holidays, and the oath taken by every witness sworn in by our federal courts—“so help me God.” As Justice Douglas once observed, accommodation toward all faiths, and hostility toward none, has honored “the best of our traditions” and “[respected] the religious nature of our people.”

The issue here is whether a single federal judge can ignore centuries of tradition, along with a controlling opinion of the United States Supreme Court, and declare illegal a pivotal part of a time-honored national holiday. If the manger scene is illegal, can the Christmas holiday itself be far behind? Let's not pretend. Christmas is by its very nature religious, commemorating the birth of Jesus Christ, the central historical figure of the Christian faith. Under our Constitution, there's nothing wrong with that. The First Amendment does not require that federal judges replace a religious society with an atheistic one.

This court should reverse the Order of the District Court declaring the manger scene unconstitutional and thereby invalidate Mr. Hammond's contempt citation for failure to comply with that order. Our Republic has flourished despite Christmas celebrations and manger scenes for more than two hundred years. Or perhaps, in part, because of them.

It can certainly survive one more.

Jasmine stopped reading, inspired by the rhetoric. She had been so caught up in the details of the case that she had lost sight of the big picture. It took these New York lawyers, who probably didn't even believe in Christmas, to show her what was really at stake. They were right. This wasn't about how many secular symbols Possum put on its town square alongside a manger scene—the so-called three reindeer rule.

This case was about Christmas. Vote it up or down. That had to be her message to the Fourth Circuit. And it took an agnostic New York lawyer, who probably worked straight through Christmas himself, to reveal this to her.

She would finish reading the brief, sign it, deliver it, and get a few hours' sleep. But first she typed an e-mail to Pearson Payne, thanking him for what he had done.

I wish there was some way I could repay you,
she wrote.

A few minutes later, she received his reply.

There is. Win the case.

THURSDAY, DECEMBER 21

At precisely 2:00 p.m. on Thursday, the three judges assigned to the Hammond case took their seats high on the dais and the clerk called the Fourth Circuit Court of Appeals to order. Jasmine took her position behind the podium, spread her materials in front of her, and grabbed both sides of the lectern. Within minutes she was fielding questions like a seasoned veteran.

Justice Otis Clarence, an African American Bush appointee who attended law school after a brief stint in the NFL, dominated the early questions. He pitched softballs at Jasmine, his bias evident for all to see.

“Why isn't this case controlled by
Lynch
?” he asked. “It seems to me that just because the city in
Lynch
had a few more secular decorations around the crèche doesn't make its display substantially different from the one in Possum.”

“I agree, Justice Clarence. The Court in
Lynch
said that the crèche depicts the historical origins of a national holiday. As such, it served a secular purpose, not a religious one.”

Justice Langley Williams, a nerdy-looking judge well into his seventies, furrowed his brow. “Didn't
your client
say it had a religious purpose?”

“He doesn't speak for the town, Your Honor.”

“But he does attend Sunday school with the mayor. And they did pray for people who visited the crèche.”