Protect and Defend (50 page)

This baldly stated, Kerry guessed, the question was less rhetorical than exploratory: Clayton had begun to wonder about Kerry’s own sympathies in the Tierney case, and was reminding his friend—in case a reminder was needed—to curb them. “She shouldn’t,” Kerry said coolly. “For many reasons. Beginning with the fact that she owes me, and what she owes me for. Which is why she won’t be reckless.”

“I’ve known him forever,” Clayton told his wife that night. “But here I am still worrying about him, and then he stops me short.”

They lay in the dark, in the commodious comfort of their Tudor house in South Orange, so deeply woven into the fabric of their family—the laughter of their twin girls, the death by accident of their only son—that they had decided hours before not to part with it. “How?” Carlie asked him.

“The way he looked when he said it. He likes Masters for her integrity, and probably
dislikes
the Protection of Life Act—though he won’t say. But his eyes were absolutely cold.

“He’s staked too much on her. And he’s thought out to the core why she won’t get herself in trouble over Tierney: that she’s afraid for her daughter. And that’s just fine with him.”

“And that surprises you?” Carlie’s voice held its own trace of wonder. “Most times, I just want to put my arms around Kerry and hug him. Now and then I can even see the lonely little boy peek through, the one who loved his mother, feared his father, and lived in his brother’s shadow. But other times he scares me a little.”

Head on the pillow next to Carlie’s, Clayton fell quiet, a signal of assent. “But we’re still with him,” he said at last.

“True.” Carlie’s dry chuckle was that of a spouse privileged to speak the truth. “Because we love him, warts and all. And because you want your own place on the Court.”

The next morning, Blair Montgomery appeared in Caroline’s chambers. With a jerky motion—disgust combined with advancing age—he tossed some papers on her desk.

Alarmed, she asked, “What’s this?”

“Another gem of legal reasoning, a good deal less amusing than the last. Lane Steele’s request for rehearing by all twenty-one active judges. Immediately.”

He did not have to name the case. Silent, Caroline stared at the papers. “I’ve never seen this,” she said at last.

“I’ve been here since 1975, Caroline, and we’ve always held the normal en banc first.” Abruptly, Montgomery sat. “Steele’s rationale, like mine, is the overwhelming import of the issue. But to him it’s so important that—if we hear it—all twenty-one of us should speak to it, rather than a mere eleven drawn at random.”

“Bizarre,” Caroline said slowly. “You’d think he’d simply oppose you.”

“You would, wouldn’t you. But then
you
might not be forced either to recuse yourself, or participate.” Montgomery frowned. “There’s no way to prove that, of course. And no other explanation, though I’d have credited him with more integrity.”

Leaning forward, Caroline rested her forehead on the fingertips of one hand. She made no effort to conceal her dismay.

“Before our dinner,” she told him, “Slade called me to suggest caution, in the voice of a cop reading a defendant her rights. He also mentioned that Gage was holding up the vote.”

“So I guess I don’t have to draw you a picture.”

“No.” Still Caroline did not look at him. “What’s the likely vote on Tierney’s petition?”

“For rehearing en banc, as opposed to by the full court? My guess is ten to ten—the same as Steele’s, I expect.”

“That’s without me?”

“Yes.” Montgomery paused. “Steele complicates it a bit. Now we’ll have two votes tomorrow—on my request, and his.

“If our colleagues who favor rehearing came to believe what I believe about him, they might vote for rehearing by eleven judges, but not all twenty-one. But it’s a hard thing to accuse a colleague of colluding in Supreme Court politics. And, when it comes to Steele, even my most fervent admirers sometimes doubt my objectivity.”

For the first time, Caroline looked up at him. Softly, she said, “I don’t doubt your insight, Blair. And I’ve never doubted your wisdom.”

Though Montgomery gave her a self-deprecating smile, his tone was serious. “Your only flaw, Caroline. I’ve seen no others.”

In this moment, Caroline felt the depth of her mentor’s kindness. It seemed to strip her of defenses, the need to conceal her own vulnerability and fears. Except for those regarding Brett, which Blair Montgomery did not know.

“As a judge,” she asked with real despair, “what would you do?”

Now Blair, too, seemed burdened. Gazing at the floor, he fell silent, then looked up at her at last.

“As a judge of this court,” he said simply, “I want you to vote in favor of Mary Ann Tierney.

“As someone who cares about the future of our highest court, I want you to become Chief Justice.” His voice softened. “And as your friend—which, to me, is more important than anything else—I want you to do what you think best for you. And what you best can live with afterward.”

Caroline felt a tightness in her throat. At length she said, “I suppose, at least, that I should read the papers. I’ve got the night to decide.”

S
HORTLY AFTER
ten o’clock at night, Caroline finished her last cup of black coffee.

She sat in her kitchen, papers spread on the marble counter. Randomly, her mind moved between the case at hand and the vision, as tangible and tantalizing, of all that lay before her.

She could do such good. She had imagined herself on the Supreme Court—though for years it had seemed a foolish dream—for most of her adult life. A life without a family and which, by accident and design, had become dedicated to being the best lawyer, then the finest judge, she could be.

And now the dream was very near reality. “The Masters Court,” scholars would call it: for the next quarter century, Caroline could help shape the laws for generations after.

And who better? she thought without false modesty. She could bring to bear all her training in the law, and all her experience of life. For though many saw her as a patrician, she had started in the law at its seamiest and most gritty—defending those molded by poverty and abuse—and had lived a far more complex life than they knew. She felt the impact of law on ordinary people much too keenly to imagine the Supreme Court as a temple, or the rendering of justice a mere exercise of intellect. A judge’s fidelity must be to law, but also to fairness, for those it touched were not pieces on a chess board.

And that was the problem here.

From the polished words in front of her had emerged a picture of a fifteen-year-old girl, who because of the binding force of law would represent other girls. Yet Mary Ann Tierney had become incidental, the plaything of forces much larger than herself—the President, Macdonald Gage, and the warring interests they represented—all focused on whether
Caroline Masters would become Chief Justice. And now the girl’s only hope might rest in Caroline’s hands.

Could Caroline—even if she tried—judge fairly? It was a difficult case and, despite herself, Caroline resented Sarah Dash for placing it before her. Sarah was not obtuse: she would understand all too well the consequences to Caroline. And though the risks Sarah herself had taken—hostility within her firm, a lifetime supply of enemies outside it—were considerable, the risk she asked of Caroline was enormous and immediate. This was Caroline’s chance; to destroy it might turn all that had gone before to ashes.

Yet Sarah had done no more than Caroline would have, had Mary Ann Tierney come to her. Sarah had played her role as advocate, and now asked Caroline to play hers—as judge. Four years ago, Caroline Masters had taken an oath to serve as a judge of the Ninth Circuit Court of Appeals and, as best she could, to render justice. The resentment Caroline felt toward Sarah was, in truth, a resentment of the obligations she herself had assumed and, conversely, of her own desire to shirk them. And this quandary was where she questioned her objectivity as a judge.

At bottom, she had no other grounds for avoiding the Tierney case. Caroline could claim that Harshman’s questions in themselves raised an “appearance” of bias which she should avoid. But, in truth, Caroline would cut Sarah Dash no slack. And though she also could assert that the case might come before her as Chief Justice, it was moving far more quickly than Caroline’s confirmation, even if Macdonald Gage were not wedded to delay. So while these might serve as excuses, that was all they were.

This, at last, brought Brett Allen, ever present, to the surface of her mother’s thoughts.

Caroline did not know, in the clash of contending forces, what dangers the Tierney case might pose to Brett. But Caroline’s ambitions now had made her powerful enemies, whom the President and Chad Palmer had kept at bay at some risk to themselves. If she placed herself on the side of Mary Ann Tierney, her enemies would be enraged, and her friends might no longer be willing to protect her—or Brett. Given all that Kerry Kilcannon had done for her, and Chad Palmer as well, Caroline would hardly blame them.

But that placed Brett’s future in her hands. Caroline did not know what the truth—that Betty was not her mother, or Caroline her aunt—would do to Brett. But Caroline’s decision to have her, and then to give her up, had led to a lifetime of deceptions, and now Caroline had no right to unravel them. What would she have done, she wondered now, had she foreseen all this at the moment of Brett’s birth?

She had been barely twenty-two, and alone. But this memory, in turn, brought her back to Mary Ann Tierney.

The girl was much younger, her dilemma far different. But, except for Sarah, it was clear that Mary Ann Tierney also was alone. And this touched Caroline’s conscience.

Harshman was right, in his way: no judge comes to judgment without bias, be it Caroline or Lane Steele. Caroline had attempted to delude her senatorial antagonist on that point and, to some extent, herself. This case exposed that starkly—her ambitions pulled her one way; her life, another.

As for the case itself, the path of justice was by no means as clear to her as it seemed for Blair Montgomery. Morally, there was much to be said on either side. Her own decision to have Brett, while she did not see it as the paradigm for all women, had ripened into a silent love which, in retrospect, made abortion unthinkable. On a larger scale, Caroline honestly wondered whether abortion, unquestionably to her mind the taking of life, contributed to a coarsening of conscience which, over time, would make all life less valued. But neither consideration could obscure the point on which Blair Montgomery undeniably was right: the case was important— indeed, at the heart of how we define our values—and Lane Steele’s conclusory opinion, while written well, did not truly address the questions raised. The Ninth Circuit owed more.

Perhaps, Caroline told herself suddenly, she was mired in needless melodrama. This case was not about
her
and, with luck, Steele’s suggestion of rehearing by the full court would fail. And Caroline herself was far from resolved to vote with Blair Montgomery—even if, in the worst of luck, she was drawn to hear the case. If not, a vote for Blair’s suggestion— a rehearing by half the court—could turn out to be nothing more than a cost-free vote of conscience, preserving both her self-esteem and her glorious future in Supreme Court jurisprudence.

But why take the chance, when so many interests—hers, the President’s, Chad Palmer’s, and, most of all, Brett’s— might be placed at risk? Only because, Caroline answered herself, she was who she was—or, more precisely, had willed herself to become. A judge.

Still, sleepless and pursued by memory, she did not decide until morning, in the quiet of her chambers.

At four in the afternoon, Caroline received a call from the en banc coordinator, whose job it was to keep the active judges abreast of such proceedings.

“We have what you might call mixed results,” John Davis told her. “Judge Steele’s suggestion for a rehearing of all active judges failed by twelve to nine.”

She was almost free of this, Caroline thought; she guessed that Blair had voted with her to defeat Lane Steele’s request. “And Judge Montgomery’s suggestion?”

Davis hesitated; as an observer of the court, he surely understood the significance of this vote. “Ms. Tierney gets her rehearing, Judge. By a vote of eleven to ten.”

Alone, Caroline closed her eyes. She barely managed to thank Davis for his call.

For the next hour she questioned herself ceaselessly, thinking of her obligations to Kilcannon, Palmer, and Brett Allen. But it was too late for recusal: Caroline’s vote in favor had determined the fate of Mary Ann Tierney’s petition. Now her only hope was that she not be drawn for the en banc panel.

Shortly after five, John Davis called again, to give her the schedule for the Tierney rehearing. Among her ten colleagues would be Blair Montgomery and Lane Steele.

“You must have voted against Steele’s petition,” Caroline said. “Trying to keep me out of this.”

Sitting in Caroline’s office, Blair Montgomery looked old and very tired. “I wasn’t sure you’d vote at all,” he answered. “But, knowing you, I thought you might. I owed you at least that much, and I wasn’t at all convinced a full court rehearing would go the way I wanted.”

This combination of compassion and practicality underscored, for Caroline, the ambiguities of her role. “I wanted to stay out of it, Blair. But recusal seemed like cowardice.”

Her mentor’s smile was brief. “A lot that seems like cowardice to you, Caroline, is commonplace for others. What you did is admirable.”

Even this compliment, Caroline found, depressed her. “No,” she answered. “It was stupid. I just lost the lottery. Or, worse, gave back the prize.”

“Not yet.” Blair drew himself up, sitting erect in the chair, and spoke in a much firmer voice. “I don’t usually do this kind of thing. But let me tell you what your duties do
not
involve.

“First, opening your mouth at the hearing. The courtroom will be crawling with press, and I’ll have more than enough questions to keep Martin Tierney occupied.”