The Confirmation (45 page)

“Marco! Marco! Marco!” the crowd shouted in unision.

Long let them calm down, retaking their seats. “As long as half of you don't start shouting, ‘Polo,' we're alright,” he joked to loud laughter. Long flashed a wide, relaxed smile.

The speech, twenty-one minutes in length and salted with hard-edged rhetoric, was sure to dominate the news. Jay's strategy was to “bracket” the committee hearings in the Senate at the beginning and end of every day, stealing Penneymounter's thunder. When Long finished working the rope line, he came through the blue curtain backstage, catching Jay's eye.

“Well?” he asked, his eyes searching.

“Outstanding, Mr. President,” said Jay.

“You sure?”

“What do you want to hear?” replied Jay. “You laid an egg?”

“I want the truth,” Long fired back.

“Sir, the truth is we have this crowd,” said Jay. “We need the vote of one Democrat on Judiciary. If we don't get it, we fought the good fight, but we'll lose.”

Long walked briskly to the presidential limo in the underground garage as they talked. “A lot of people think the presidency is state dinners, Camp David, and flying around on Air Force One. In fact, it's all about the math. Fifty percent plus one on election day, 51 in the Senate, 218 in the House. Simple as that.”

“Or in our case, 37 percent on election day,” joked Jay.

Long chuckled. “Touché,” he said.

JOE PENNEYMOUNTER TOOK HIS seat and banged the gavel at 9:30 a.m. on the dot with theatrical flair. Everyone scrambled to their seats. “This hearing of the Committee on the Judiciary of the U.S. Senate will come to order,” he boomed. “We will begin with questions in thirty minute intervals in order of seniority.” He stared down at Diaz, who took his seat alone at the witness table. “Judge Diaz, good morning,” he said with a weak and hollow smile.

“Good morning, Mr. Chairman,” replied Diaz.

“Judge, thirty minutes may seem long, but the time will fly, especially for a witness as learned and well informed as you,” Penneymounter said smoothly, hoping Diaz would drop his guard if he showered him with flattery. “With your permission, Judge, I'd like to dive right into the heart of a matter on the minds of millions of Americans. We have a right to know what you believe. So let me ask you directly: do you believe there is a right to privacy in the Constitution?”

Everyone's back straightened and ears perked up. Reporters made sure their Pearlcorders were turned on.

“I do, Senator,” replied Diaz, his eyes steady. “That right to privacy extends across a wide range of areas in the law and the Constitution, and it is protected in a variety of ways. In the
Loving
case, the Court found it protected the right of persons of different races to marry. In the
Lawrence
case, the Supreme Court held it governed certain sexual conduct within private, consensual relationships. In
Griswold
and
Eisenstadt
, the Court ruled it covered access to a full range of reproductive health options, including contraception.”

Penneymounter, wearing reading glasses, scanned a piece of paper with questions. “Do you believe the right to privacy is found in the liberty clause of the Fourteenth Amendment?”

“Yes,” said Diaz. “The right to liberty involves more than restricting the government's ability to place restraints on physical freedom and personal property. It also involves what might be called less tangible forms of privacy.”

“You've cited
Griswold
,” said Penneymounter, impatient with Diaz's lecture. “As you know, the
Roe
court relied heavily on
Griswold
in holding that privacy protection extended to a woman's right to all reproductive health options. Without committing to how you would rule on abortion cases, do you have any reservations or concerns related to that sequence in the development of the court's precedent from
Griswold
to
Roe
to
Casey
?”

“Senator, those are the court's precedents,” said Diaz in a professorial tone. “I have no
a priori
agenda to modify them. I have previously stated my strong belief in the importance of
stare decisis.
But to comment on a specific case, in my view, would be inappropriate.”

“Judge, this is fascinating. You've spoken about a number of cases, including
Brown v. Board
and
New York Times v. Sullivan,
and the lineage of those precedents,” pointed out Penneymounter. “Yet when anyone asks about a woman's right to choose, you seem to suffer from a selective attack of judicial conscience. With all due respect, I find it unconvincing.”

Diaz visibly bristled. “Senator, future litigants have a right to know that if confirmed to the Supreme Court, I will decide cases on the facts, the rule of law, and the governing precedents, not my personal views.” His face hardened.

“No one's asking you to do otherwise, Judge,” fired back Penneymounter. “But you had a different view when you served in the Justice Department, didn't you?” He shuffled through some papers. “I have a memorandum over your name to the attorney general.” He turned to an aide. “What exhibit is this, please?” The aide leaned forward and whispered in his ear. “It is Exhibit 11-B. In this 2003 memo you urge that a case involving partial birth abortion be used to challenge
Roe v. Wade
. So this unwillingness to address abortion is a rather convenient memory lapse for you, isn't it, Judge?”

“Senator, that memorandum summarized possible litigation strategies for the Justice Department,” said Diaz. “I pointed out that the case provided a timely opportunity for revisiting the framework of
Roe
, but I did not recommend overturning it.”

Penneymounter threw up his hands. “Judge, why would you revisit Roe
for
any reason other than overturning it? Whatever else would be the point?” He whipped off his reading glasses, holding them to his side, his facial expression telegraphing he believed Diaz was dissembling or lying.

Diaz was unfazed. “Senator, I wrote the memo to the attorney general, who held the view that
Roe
was wrongly decided. I served at his pleasure, and my job was to advance the views of the administration—”

“So you're blaming John Ashcroft?”

“No, Senator,” shot back Diaz, his jaw muscles tightening. “I'm stating that I wrote that memo in my capacity as a deputy to the attorney general, whose views on the subject were well known, who in turn worked for a president whose views were well known. Those views were not necessarily my own.”

“Judge, I would remind you that you are under oath,” said Penneymounter gravely, wagging his gavel. He paused for dramatic effect. “Is it your testimony that the memo in question, written August 18, 2003, Exhibit 11-B, in no way represented your views on
Roe
?”

Diaz glared back, doing his best to control his indignation. “Senator, my duties as a judge are entirely different from those of a political appointee—”

“It's a yes or no answer, Judge,” said Penneymounter, cutting him off.

“Senator, to impute my views to that memo is simply inaccurate.”

Penneymounter sighed loudly into the microphone. He placed his black reading glasses back on the end of his nose. After a long pause: “Judge, you're a member of an organization called Opus Dei, is that correct?”

“Yes, Senator.”

“And Opus Dei is a Roman Catholic organization with a papal prelate, which is to say it is directly commissioned by the pope, correct?”

“That is correct.” Diaz was sticking to script. His handlers at DOJ and the White House urged him not to be defensive about Opus Dei. Keep it brief, they instructed.

“Given the teachings of the Catholic Church on abortion and its doctrinal position that abortion is the taking of a human life, how can you rule on abortion cases given the strong views associated with your faith?”

“Senator, my faith concerns my personal beliefs and has never prevented me from deciding cases on the merits,” said Diaz, refusing to take the bait.

“Ah, the merits,” Penneymounter said, jumping at the phrase. “Is faith meritorious? Is it irrelevant to your duties as a judge? My understanding is that Opus Dei teaches the application of Catholic social teaching in one's lay work is a moral imperative.”

“My faith teaches me to exercise prudential judgment in the application of justice,” said Diaz. “As for my Catholic faith, to paraphrase John F. Kennedy's remarks before the Houston Ministerial Association in 1960, it would be tragic if I or any other Americans lost their right to sit on the Supreme Court on the day they were baptized.” His eyes flamed with indignation.

“Of course,” said Penneymounter, clearly deflated. “No one is suggesting a religious test here. Article X, Section X of the Constitution forbids it.” He looked at the clock in the back of the room. “Quoting John F. Kennedy may make for a good sound bite, but frankly that is a straw man. But my time is up. I yield to Senator Reynolds.”

Diaz maintained a stoic gaze. The abortion memo nicked him, but the damage was far from fatal. There was only one problem: without the support of a Democrat, Diaz's nomination would die in committee.

CHRISTY LOVE WAS HAVING lunch with a Democratic leadership aide at The Monocle on the Senate side of the Capitol, not far from Union Station, when her cell phone went off.

“Ms. Love, I'm calling from Senator Joe Penneymounter's office,” said a woman's voice. “Please hold for the Senator.”

Christy felt her mouth go dry. She knew what the call was about, and she feared an explosion. Holding up an index finger to signal she needed privacy, she got up from the table, walking upstairs to a private room and closing the door.

“Penneymounter here,” came the senator's voice, frosty and distant.

“Hello, Mr. Chairman,” said Christy, bracing herself.

“Have you seen Merryprankster?”

“No. Why?” She feigned surprise and hoped he was buying

“They've outed Maria Solis,” said Penneymounter. He read from the web page: “Diaz's College Girlfriend Claims He Forced Her to Have Abortion.”

“Ouch,” said Christy.

“Any idea who might have leaked this?” asked Penneymounter accusingly, his voice jagged.

“No clue. If you're asking if I did it, the answer is also no,” lied Christy. Technically she was telling the truth. Christy slipped it to a friend at Democratic Study Committee, who had passed it to Merryprankster.

“It's an amazing coincidence,” said Penneymounter, unconvinced. “You're the one who told Natalie. She didn't leak it. Then you threaten to leak it if I don't call her. Two days later it's all over the Internet.” He paused. “Rather ironic, wouldn't you agree?”

“Joe, I
swear
on my mother's grave I didn't leak it,” protested Christy. “I hate Merryprankster. They're thugs. If I did leak it, I would give it to the
Huffington Post.
” It was a plausible denial. “Once the FBI got involved, too many people knew.” Christy was so nervous her hand holding the cell phone was shaking.

“I better not find out you're lying. If I do, you're finished in this town.”

“For the last time, Joe, it wasn't me.”

“Well,” said Penneymounter, shifting gears, “I have to call her now. My staff is trying to reach her, but we haven't made contact. Can you reach out to her lawyer?”

“Sure,” replied Christy. “I'll call her right now.”

“Tell her we need her client here by 10:00 a.m. tomorrow.”

“I'll charter a plane and fly her up here myself if I have to.”

“Make sure she's ready to sing for the cameras. Talk to you later,” said Penneymounter, hanging up.

Christy hung up the phone and collected herself, checking her hair and blouse. She walked down the stairs and rejoined the Democratic staffer at the table.

“What was that about?” asked the leadership aide, curious.

“Penneymounter's calling Diaz's old girlfriend to testify,” said Christy matter-of-factly. “She's gonna drop a bombshell.”

“How's that?”

“Totally between us, she's going to say he got her pregnant while they were at Yale Law, and he pressured her to have an abortion,” said Christy. “Bob Long's Hispanic altar boy turns out to be a creep.”

The staffer's jaw dropped. “You can stick a fork in Diaz. He's done.”

Christy signaled the waiter to bring the check. “I hope you're right. Sorry I have to go,” she said apologetically. “My afternoon is now shot.”

Christy regretted she was forced to leak Maria's story. She felt a twinge of guilt about it. But then she shook it off. She simply could not let Diaz be confirmed, and throwing Maria to the wolves was a small price to pay.

THIRTY-FIVE

The West Wing went on high alert when Merryprankster posted its story about Solis. In the war room the rapid-response team swung into action, decrying the leak of unsubstantiated rumors “spread by far-left interest groups,” the illegal disclosure of “uncorroborated material from a raw FBI file,” and “the politics of personal destruction.” The White House leaned into the storm. Jay put the word out there would be no more Majettes, no withdrawals; they would attack the attackers. Abandoning Diaz was not an option.