Protect and Defend (49 page)

When her private line rang, she answered it herself.

“Congratulations,” Clayton Slade said without preface or, to Caroline, any discernable elation.

Am I missing something?
she wanted to ask. Instead she answered, “Thank you.
And
the President.” Pausing, she added, “Please thank Senator Palmer, as well.”

“Palmer
did
hold half the Republicans on his committee,” Clayton observed. “That wasn’t easy. But if they split like that on the final vote—which, as of now, is reasonable to expect— you’ll be confirmed by roughly seventy-five to twenty-five. Not terrific, but good enough.”

“What would make it better?”

“Nothing. The question is what would make it worse.” Clayton’s tone remained level. “Your statement of impartiality was helpful. But Gage will sit on this awhile; to him and people like Harshman, you smell like a liberal, and they want more time and latitude to keep digging through your life. So if you see any controversy coming, and can reasonably avoid it, do that.”

Clayton Slade was far too discreet to suggest that she recuse herself from a specific case, or vote in a particular way. But his message was clear: don’t help Mary Ann Tierney if you want to be Chief Justice, or even to avoid any more scrutiny of your personal life. Caroline suspected that the President had approved this word of caution, and was using Slade as his buffer.

“If I see trouble coming,” Caroline said in a noncommittal tone, “it’ll have to find me.”

For a long moment, Clayton was silent. “Good,” he responded coolly. “The President’s got a lot riding on this. As do many others.”

Including Brett
, Caroline thought. When she hung up, her relief at the committee’s vote had faded.

“Congratulations,” Blair Montgomery said with a fair show of cheer. But his smile was perfunctory and, though raising his wineglass to mark the moment, he seemed distracted.

They occupied a corner table at Ovation, a carefully appointed restaurant with the decor of an Edwardian club, and tables spaced to facilitate private conversation. The suggestion that they dine here had been Blair’s.

Caroline touched her glass to his. “Thank you,” she answered. “Maybe the worst is over.”

This last remark was a probe—which, from the look in her mentor’s blue eyes, he recognized as such. At length, he said, “Steele’s motion panel turned down Mary Ann Tierney’s rehearing petition, of course. Which leaves pending her request for a rehearing en banc.”

Putting down the glass, Caroline gazed at the china place setting, tented fingertips grazing her lips. “How soon,” she asked, “will it come up for a vote?”

“Very soon. Given the girl’s condition, it’s an emergency.”
Sipping his Bordeaux, Judge Montgomery added mordantly, “Rather like a petition from an inmate two days from execution. Although who the victim might be in this case depends on one’s point of view.”

Caroline was quite certain how Blair Montgomery would vote and that, among his fellow judges, he would do all he could to secure Mary Ann Tierney a prompt rehearing. She was also certain that this was not his purpose here.

“So,” Caroline said, “you think we’ll vote on her petition before the Senate votes on me.”

“I
know
so.” Montgomery swirled the red liquid in its generous, pear-shaped glass. “If I were inclined to conspiracies, I might think that Lane Steele’s haste in ruling was meant to put you in a bind. Unless it suggests an unwonted sensitivity to the Tierney girl’s dilemma.”

“Oh,” Caroline said with a smile, “I always figured Lane for the baby’s father.”

“Now there’s a vision.” At once, Montgomery’s answering smile vanished. “Rather than attacking Steele, those who support Ms. Tierney would do well to argue that her petition presents issues of national importance, to which a majority of our court should speak. That’s their best chance to get Mary Ann a rehearing. But the vote will still be close.”

It was her day for elliptical admonitions, Caroline reflected. Blair’s overt warning contained two unspoken ones: that Caroline’s vote could be decisive, and therefore that she must choose between self-interest and her sympathy—if any—for Mary Ann Tierney’s legal arguments. To this Caroline added one further consideration—a judge’s individual vote on Mary Ann’s petition would not be public. Only if rehearing were granted, and Caroline were named at random to the en banc panel, could the Tierney case entangle her in controversy.

Yet Caroline suspected that Blair pondered complications of his own. Though ordinarily he would seek her vote in favor of rehearing, he did not wish to jeopardize her confirmation. But if Caroline were inclined to oppose Mary Ann’s petition, Blair would far prefer that she recuse herself beforehand.

“Truth to tell,” she said bluntly, “I don’t know how I’d vote. I didn’t watch the trial, and I haven’t read the briefs. Only Steele’s opinion.”

“What did you make of it?”

“Typical. But that doesn’t mean, in this case, that he’s wrong.”

Blair’s smile was more than a little wintry. “True. But consider the odds.”

Finishing her wine, Caroline did not answer; the conversation had gone as far as she wished. Perceiving this, her friend turned to other topics.

Only after dessert did he reach into his briefcase. “I ran across something yesterday,” he said with a casual air. “One of my all-time favorite opinions,
Pierce v. Delamater
—legal reasoning at its finest. At least in 1847.”

“What was the issue?”

Blair smiled. “Whether a Judge Greene Bronson, after being promoted to an appellate court, could review his own decision.”

Caroline raised her eyebrows; once more, their conversational minuet was edging toward the Tierney case. “How did it turn out?” she asked.

Picking up the pages, Judge Montgomery donned his glasses and commenced reading with mock solemnity:

“
‘There is nothing which makes it improper for a judge to review his own judgments. If he is what a judge ought to be— wise enough to know that he is fallible, and therefore ever ready to learn; great and honest enough to discard all mere pride of opinion, and follow truth wherever it may lead; and courageous enough to acknowledge his errors …’
” Pausing, Montgomery interjected, “and here’s the kicker—
‘he is then the very best man to sit in review upon his own judgments. If right at first, he will be confirmed in his opinion; and if wrong, he will be quite as likely to find it out as anyone else …’
”

“How very male,” Caroline ventured dryly. “Who wrote the court’s opinion?”

Blair’s smile flashed. “Judge Greene Bronson—who then affirmed his own decision, removing all doubt as to its rightness. Otherwise, he probably wouldn’t have been able to live with himself.” Her mentor’s eyes sparkled at this paradigm of judicial folly. “The poor plaintiff, Mr. Pierce, foreswore a petition to the Supreme Court. He might have feared it would provoke Bronson’s elevation to Chief Justice.”

Caroline laughed at this. “As upright as he was,
Chief Justice
Bronson might have reconsidered.”

“No doubt. Fortunately, I don’t believe this is the law anymore. But I thought you’d find the opinion an amusing oddity.”

And useful, Caroline thought, for its implicit suggestion of another means of escape: to claim that she should recuse herself from any case which might later come to her as Chief.

“Thank you,” Caroline answered. “It is.”

“B
LAIR
M
ONTGOMERY
,” Judge Steele said, “is pushing for a rehearing en banc. Which puts Masters on the spot.”

To Macdonald Gage, Steele’s voice sounded tentative; though Gage assured the judge that no one else was present, Gage’s squawk box plainly made him nervous.

“Suits me,” Gage said comfortably. “Still, how stupid can she be?”

“She’s not stupid, Senator. But our vote on the petition isn’t public. And you can never underestimate her arrogance and self-regard.”

Or yours
, Gage thought. “Oh, I’ve seen it,” he assured the judge. “She won’t be making Paul Harshman’s Christmas card list this year. So what are the chances this rehearing petition gets granted?”

In the silence, Gage felt Steele’s hesitance; reluctantly, the judge was edging away from his pose as cloistered jurist, drawn by ideology and ambition into Gage’s design. “In my count,” Steele said at last, “we’re evenly divided, or within a vote or two. But even if she participates—and even if the petition’s granted—only eleven out of twenty-one of us will be drawn to hear the case.”

Gage glanced at the memo on his desk, reviewing his Chief of Staff’s research. “Refresh my memory,” he said with seeming casualness. “Been years since I practiced law, and that was in Kentucky. But I recall you saying that your circuit provides for a rehearing en banc by
all
the active judges?”

“That’s extremely rare.” Steele stopped abruptly, as though the thrust of Gage’s question had just now overtaken him. “I can only recall three or four instances. Also, a vote on a full court en banc call would be taken, and a hearing by all of us held, only
after
a decision by the eleven-judge en banc court.”

“But,” Gage asked cautiously, “could you skip the eleven-judge hearing and go straight to the full court?”

Steele thought for a moment. “It could be argued that time doesn’t permit two en banc hearings here, and that the issue is so important that the entire court should hear it. Of course, a judge would have to make the case for extraordinary action.”

Yes
, Gage thought sardonically,
a judge would
. “But if a judge
did
ask,” he said musingly, “then right up front Masters knows that if it’s granted, she’s forced to hear the Tierney case. Unless she decides to recuse herself, I guess.”

When Steele did not answer, Gage scanned the memo further. “So think along with me,” he continued in the same tone of discovery. “Seems like to stay out of trouble, Masters would
have
to recuse herself, or maybe vote against. Which increases the chance that
your
original opinion gets upheld. Am I right?”

“Yes.”

“But if she doesn’t recuse herself, and rehearing is by the entire court, she’s stuck. Then
she
has to vote to uphold your opinion—which is fine—or to declare the Protection of Life Act unconstitutional. Which, I can assure you, would change everything for her back here.”

Sitting back, Gage could hear Lane Steele thinking, could feel temptation at war with his sense of rectitude. Gage had seen this in the Senate many times.

“All that’s true,” Steele ventured at last.

Gage glanced at his watch: it was close to noon in Washington, nine in the morning in San Francisco. Steele would have all day to ponder.

“Well,” he said amiably, “thanks for walking me through the process, Judge. Just
thinking
about it is interesting.”

*  *  *

Shortly, before
Air Force One
landed in Newark, Kerry Kilcannon gazed out the window.

The perquisites of office still bemused him. As a senator, he had flown back and forth from Newark to Washington in economy class, the natural and expedient choice for the son of Irish immigrants who had not forgotten his roots. But now, though he savored his return to Vailsburg, the neighborhood of his birth, his manner of arrival seemed strange. All air traffic had stopped; below, the airstrip was cleared, and the trappings of power awaited—the Secret Service, the press, the local dignitaries competing for attention, the line of black bullet-proof limousines, the police escort. It was at once heady and disconcerting; idly, Kerry wondered how it would be the day that all of this, and all of his power, vanished in an instant.

Would it be so much a part of him that the loss would leave him empty? Given his hopes for a future with Lara, the family they might have, he assumed not. But he had begun to understand how desperate presidents became not to have their days in office foreshortened by rejection, turned to four years instead of eight.

Next to him, Clayton Slade settled into an overstuffed chair. “Remember the other time I flew with you as President?”

“Sure. To Michigan.”

Nodding, Clayton smiled. “I was first off the plane, and there were all those people waiting. It felt so heady I nearly started waving to them. At the last second, I remembered they weren’t out there waiting for
me
.”

Turning, Kerry gave him a long look: they had known each other for so long, and so well, that his friend had an uncanny gift for divining Kerry’s mood. “Oh, well,” he replied. “Consider yourself Newark’s second most beloved figure.”

“The first in Carlie’s mind, I hope. Though she always liked you, oddly enough. Considering the havoc you create.”

Kerry smiled. It was rare to have his Chief of Staff travel with him, though both men welcomed it; the reason Clayton had come with him was that Carlie, his wife of twenty-five years, had not yet found a permanent home in Washington. This was one of the many sacrifices that Kerry’s ambitions had called forth from the Slades—he was fortunate, Kerry
thought, that Carlie’s affection for him was so deep. “I always liked Carlie,” Kerry answered lightly. “But she was already taken. So I decided to be President instead.”

Like the flipping of a switch, this seemed to return Clayton to the deeper reason he had broken Kerry’s musings. Glancing at the congressman and senator from New Jersey, and finding them preoccupied with each other, Clayton murmured, “I’m a little worried about Masters.”

At once, Kerry’s mind became alert, unsentimental. “How so?”

“I delivered the message yesterday—as clearly as I could without leaving fingerprints on the scales of Justice.” Once more, Clayton looked around them. “It wasn’t that she didn’t get it. But her response was, shall we say, reserved.”

“Wouldn’t yours be? If I read her right, Caroline’s developed some attachment to the notion she’s a judge.”

Clayton frowned. “Not a foolish attachment, I hope. Why risk your credibility, and a quarter century as Chief Justice, for the sake of a fifteen-year-old girl?”