Supreme Ambitions (8 page)

Walking into work on Monday morning of calendar week, I saw a familiar vehicle parked in front of the courthouse: a minivan painted red, white, and blue. It was the taxicab of Pervez, who was sitting in the driver's seat and talking on his cell phone. I waved and made eye contact with him; I then started to walk away, not wanting to interrupt his call, but he gestured to me to wait.

After he finished his call, I approached on the passenger side, and he lowered the window.

“Hi Pervez,” I said. “What brings you here?”

“Hi Audrey. I just dropped off my cousin. He has a case here today!”

I said to myself: proceed with caution. We had been warned repeatedly at the law clerk orientation not to talk too much about our work with outsiders or to reveal information about our cases (except for information that was already a matter of public record).

“What's the case about?” I asked.

“Immigration. They want to deport him. “

Hamadani—of course. My friend Pervez, whom I thought of as just “Pervez,” was Pervez Hamadani, as his driver identification card on the dashboard reminded me. His cousin was Ahmed Hamadani, the journalist from Baluchistan. What were the odds?

“We do get many immigration cases here,” I said, trying to engage in conversation without saying anything substantial.

“My cousin has serious enemies back in Pakistan. Friends and col
leagues of his have been killed. You don't think they would deport him, do you?”

“That's up to the three judges hearing his case. I'm just a clerk.”

“You don't think the judges are biased against immigrants?”

“No,” I said, “these are federal judges, the best legal minds in the country. I'm sure they'll decide his case based on the law.”

“I hope they are fair,” Pervez said. “If my cousin gets sent back to Pakistan, he's a dead man.”

As I headed into the courthouse, I reflected on what Judge Stinson had told me last week when we reviewed
Hamadani
: judging is not easy work. I believed that ruling against Pervez's cousin was the right decision under the law, but I now felt more uneasy about the possible practical consequences. I would need to get over such feelings if I wanted to be a successful law clerk; as the judge had told me, we don't decide cases based on sympathy.

After a quick stop in chambers to drop off my bag and grab a legal pad and pen, I headed down to the courtroom for the oral arguments. They took place in what everyone called the “Spanish Room,” a little cave of a courtroom that got its name from an abundance of dark carved wood and elaborate cast-iron ceiling grilles, both done in Spanish colonial style.

The courtroom, small and low-ceilinged by courtroom standards, did not have a jury box or any other space in the well of court for law clerks, so we had to sit in the gallery with the public, mostly lawyers whose cases had not been called yet. The gallery was packed when I arrived—Amit must have arrived early, since he had a prime spot in the first row—so I headed for a middle pew where Jeremy and James were sitting. Jeremy was speaking just a little too loudly for the room, which was suffused with a prehearing hush, and telling James a story that for some reason required Jeremy to put his hand on James's knee.

Jeremy looked up when I arrived and removed his hand from James's knee.

“Hello, Miss Audrey, nice of you to join us,” Jeremy said, looking at
his vintage gold Rolex.

“It's only 9:25. Court doesn't start for five minutes.”

“Tell that to Amit,” James said. “I think he got here before nine.”

A few minutes later, the grandfather clock near the entrance to the courtroom hit 9:30. The courtroom deputy cried out, “All rise! The judges of the United States Court of Appeals for the Ninth Circuit.”

I felt a chill go through me as I stood along with everyone else for the entrance of the three judges. It felt like the start of Mass. Important things were about to happen. After the judges filed in, the courtroom deputy banged a gavel and declared, “The United States Court of Appeals for the Ninth Circuit is now in session.”

“Good morning,” said Judge Gottlieb, Jeremy's boss, as he sat down in the center of the bench. “Please be seated.”

Everyone in the gallery sat down. After waiting for the room to quiet, Judge Gottlieb spoke again, in a deep, growling voice—fitting given his status as the Ninth Circuit's liberal lion, I thought.

“We will now hear argument in case number 11-72333, Hamadani versus the Attorney General.”

A young, trim lawyer approached the podium. We could see him only from behind; he held himself with confidence. Remaining at counsel table was a dark-haired man I guessed to be Ahmed Hamadani.

“Mr. Soloway,” said Judge Gottlieb, “you may proceed.”

Hamadani's lawyer uttered barely a few sentences—his introduction of himself to the court, his reservation of time for rebuttal—before Judge Stinson interrupted him. People new to the world of appellate advocacy might have found this rude, but I knew from both my reading and from my moot court experience that this was standard.

“Counselor,” she said, “didn't the Board of Immigration Appeals find numerous inconsistencies in your client's application for asylum?”

“No, Your Honor,” he said with impressive calm, “I would not call them ‘numerous.' And they are not, upon closer inspection, true inconsistencies. The board identified a few purported inconsistencies, but all can be explained. First, there was confusion over the identity of a jour
nalist who was murdered in March 2009 and that journalist's relationship to my client. The board concluded …”

As he proceeded to clarify the problems that the BIA had identified in Hamadani's asylum application, Jeremy leaned over to me and whispered, “This guy's good.”

Judge Arthur Hollingsworth, an elderly conservative judge from Oklahoma who was sitting on the panel as a visiting judge, interjected: “These points you are now making, were these raised in your brief?”

“Yes, Your Honor. They appear under the second point of our argument section, starting at page 18.”

“Counselor, you raised all these arguments in your excellent brief,” Judge Gottlieb said. “The board did a poor job of making a record in this case. Why should we accord any deference to the BIA given its sloppiness?”

“With all due respect to the board,” Lionel Soloway said, “we do not believe it is entitled to great deference. But even giving the board deference, its adverse credibility finding must be overturned for lack of support.”

Loyola Larry entered the courtroom through the door near the front of the gallery, attracting stares from practically everyone except Soloway, who was focused on his argument. Larry ambled toward the back of the room, not at all self-conscious about his tardy entrance.

As Soloway continued to score points, deftly fielding hostile questions from Judges Stinson and Hollingsworth while graciously accepting softballs from Judge Gottlieb, Jeremy bounced his leg up and down and smiled. Meanwhile, I stared down at the deep blue carpet, filled with growing anxiety.

Had I made the wrong recommendation in my bench memo? I had tried my best, and I had acknowledged the case was close and difficult. If my recommendation was wrong, I hoped that the judges would ignore it.

I was glad to be “only” a clerk and not a judge. I believed what I had told Pervez that morning: the judges would make the right decision.

“Good morning, everyone,” Judge Stinson said, starting up the Monday morning meeting after the calendar week. “Are we ready to get back to work?”

Even though the clerkship year essentially revolved around the eight or so oral argument calendars—preparing for the calendar, hearing the cases during the calendar, and writing up the opinions after the calendar—the calendar week itself was actually pleasant. We had done so much work in advance that there wasn't that much to do during the argument week itself. In the morning, we'd watch oral argument, and in the afternoon, we'd draft memorandum dispositions—straightforward rulings, generally just a few pages, written for the specific parties and not binding precedent. We got to leave chambers before seven in the evening. But now that week was over.

After the usual discussion of our weekends, we plunged into the docket and the status of our cases. When we got to
Hamadani
, the judge paused the discussion.

“Audrey, congratulations,” she said. “The analysis of your bench memo carried the day. We got the vote of Judge Hollingsworth. Judge Gottlieb will dissent. Also, in case you missed it, the
Los Angeles Times
had an article yesterday about it. Looks like your first case is quite the drama.”

“I did see the article, Judge. It was very sympathetic toward Hamadani.”

“Excessively so, in my view. But that's the media for you. They have a very unsophisticated understanding of the law. They think that whatever they
want
to happen, as a matter of personal opinion, just
has to be
the law. Hello,
Los Angeles Times
, that's not quite how this all works!”

We all laughed.

“Now, we don't let the media influence our decision making, which would be improper,” the judge continued. “But the public is watching this case, and Judge Gottlieb will write a strong dissent, so we need to write our opinion with great care.”

“Absolutely, Judge.”

“Of course,
all
of our opinions are written with great care, right?”

We chuckled dutifully—law clerks as judicial laugh track.

Following review of the existing cases, we turned to discussion of the new cases that had just arrived in chambers.

“There is one case that you should not assign amongst yourselves as usual,” the judge said. “I will personally decide who will work with me on
Geidner
.”

“What's that case about?” Larry asked.

The judge sighed; Amit rolled his eyes. Larry didn't know about
Geidner
because he didn't come into work the prior weekend (or any weekend), which is when Amit and James and I had talked about it.

“
Geidner
is an appeal from the ruling of a district court here in Los Angeles that struck down Proposition 8, California's ballot proposition banning same-sex marriage,” said Judge Stinson, sounding like a first-year law student who got called upon in class. “Judge Amanda Nathanson held that the ban violated both the Due Process and Equal Protection Clauses of the 14th Amendment. Now the proponents of the ban are appealing, although the official defendants—the governor and the attorney general—are not.”

“Okay, I get it,” Larry said. “The gay marriage stuff.”

“Yes, exactly—the gay marriage ‘stuff,'” Judge Stinson said, with barely concealed pique. “This case concerns a politically charged issue and presents many … complexities.”

We all knew—well, everyone except Larry knew—what the judge was alluding to. Gay marriage was a hot-button issue, and the 2012 presidential election was just a few weeks away, making for a volatile political climate. The opinion polls suggested the election would be very close, and gay marriage could possibly affect the voting, at least in certain swing states.

“This case must be handled with delicacy and finesse,” the judge said. “How it is handled could affect my … future prospects. I would not mind if this case could be, shall we say, placed on the back burner for a time.”

We all knew what this meant too. If the Republican nominee, businessman Craig LaFount, won the presidential election, the judge could be a Supreme Court nominee—provided that her work on a controversial case didn't derail things. A case like
Geidner
was dangerous. If the judge handled it in too liberal a way, she could upset conservatives, including some of the people who might have a say in selecting the next SCOTUS nominee in a Republican administration. If the judge handled it in too conservative a way, she could alienate some Democrats—who controlled the Senate, and who would probably still control the Senate after the election. So the judge just wanted
Geidner
to go away until after the election. If something significant happened in the case before the election, then
Geidner
specifically, or gay marriage more generally, could become a campaign issue—with unpredictable consequences.

“This is a very important and interesting case, certainly one of the most important to come across my desk during my time on this Court. And it involves sensitive issues that some of you might be uncomfortable handling, perhaps because of strong personal views one way or the other. So let me ask: are all of you willing to work with me on this case if chosen?”

I nodded vigorously—working closely with the judge on a headline-making case like this represented a huge opportunity to get into her good graces—and then looked around the table to see who else was volunteering. James and Larry and Amit were also nodding, but Amit
looked uncomfortable as he did so. Did he have some deep objection to gay marriage, perhaps on religious grounds? Did he want the assignment so badly that he couldn't bear the thought of
not
getting it?

“Very well,” the judge said. “Here is a homework assignment for everyone. Take a look at the briefs and record in
Geidner
, and come to next Monday's meeting with a recommendation for how I should handle it. The clerk with the best recommendation will be the one to work with me on this case.”

 

I spent the next few days trying to come up with a masterful idea for what to do in
Geidner
, but nothing occurred to me. And because of how the judge had structured her request for advice as a contest of sorts between the clerks, I didn't discuss it with Amit or James (or Larry, obviously). But I could tell that the case was on everyone's mind.

On Saturday afternoon, I took a break from work for my driving lesson with Harvetta. After a poolside lunch of homemade sandwiches (neither of us wanted to spend for brunch), Harvetta drove us out to the parking lot of the Pasadena High School in her ancient gray Honda Civic. The vast asphalt expanse, baking beneath the California sun, was deserted.

The driving lesson did not go well—at all. I had great difficulty with the concept of brakes, both the regular brakes, which I applied too forcefully, and the parking brake, which I kept forgetting to disengage. After I made her poor car lurch for the tenth time, Harvetta reached over, turned off the ignition, and touched my forearm.

“Audrey, is everything okay? You seemed a little out of it at lunch. Now you seem super-stressed. And I'm not sure it's just from the driving.”

“You're right,” I said. “I'm stressed about some work stuff, that's all. Sometimes I just can't believe how much responsibility we have as clerks. We're barely out of law school and we're working on these major cases that affect people's lives.”

“Yeah. I'm working on a death penalty case right now. And you guys have that appeal in the gay marriage case coming up.”

It was like Harvetta read my mind. The fact that there was an appeal going to the Ninth Circuit was public, but the fact that Judge Stinson was on the panel was not, so I had to be careful. But I was curious to hear her views.

“Oh, yes, the
Geidner
case. Any thoughts on that?”

“Well, it's kinda fucked up—fucked-up weird, not fucked-up bad. There's a tricky jurisdictional issue there. Because the governor and attorney general ain't appealing, do the proponents of the ballot initiative have the standing to defend Prop 8?”

“The law in this area is less than clear.”

“It's as clear as a puddle of shit, is what it is.”

“One theme running through the cases is that state law can sometimes be relevant to the question of federal jurisdiction,” I said. “State law doesn't control the issue—federal jurisdiction is still fundamentally a question of federal law—but state law can have bearing.”

“So in this case,” Harvetta said, “does the anti-gay-marriage group that sponsored the proposition have a role under California law in defending what it sponsored?”

“Exactly. We sometimes deal with issues of California law at the Ninth Circuit—for example, when we get a case under diversity jurisdiction, or when a state-law issue is included in a case presenting federal claims—but we aren't the experts on California law.”

“You guys leave that shit to us. The California Supreme Court has the final word on California law.”

“If only there was a way for us to get your views on what California law would say about this situation …”

Harvetta paused.

“There is,” she said. “The Ninth Circuit can send the case to us, to the California Supreme Court, by ‘certifying' the standing question. I'm actually working on another case right now that involves a certified question from the Ninth Circuit. It doesn't happen
that
often, but there's an
established procedure for it—just look it up.”

“That sounds perfect,” I said evenly, trying to contain my excitement. “Given how everyone is watching the case, the Ninth Circuit needs to cross the t's and dot the i's. Sending the standing issue to the California Supreme Court is the safest thing to do.”

“Exactly. If we find standing, great, then the Ninth can go ahead and rule on the merits. If no standing, then you guys can save yourselves the time and hassle—and dodge a bullet.”

“Harvetta Chambers, you are a genius.”

“I know,” she said, grinning from ear to ear. “Now take off the god-damn parking brake and
drive
.”

 

The first half hour of the Monday morning meeting passed as quickly as an afternoon at the DMV. We didn't care about how everyone's weekends went, or the status of the draft opinions, or the matters on the en banc list. We were all waiting for one topic:
Geidner
.

Judge Stinson seemed to enjoy torturing us. After we finished reviewing all of the regular cases, which is when we should have turned to
Geidner
, she treated us to a random story about a ridiculous assignment that her youngest daughter received at school. I noticed Amit gnawing on the binding at the top of his legal pad—gross.

Finally, the moment of truth.

“I'm sure you'd love to hear more about the absurdity of elementary education today,” the judge said. “But I know you're all eager to share with me your brilliant ideas for how to handle the
Geidner
case. Larry, let's start with you.”

“Well, uh, Judge, as you were saying last week, this case is a, um, challenge to California's ban on gay marriage, and …”

“Larry, stop stalling. Do you have any clue about what I should do in this case?”

“No, Judge, sorry,” he said, as casually as if he knocked a pen out of her hand.

“James, what about you?”

“Well, Judge, what jumped out at me is the jurisdictional issue,” he said. “The appeal is being brought by the sponsors of the ballot proposition; the governor and the attorney general are not appealing. That strikes me as unusual and potentially significant. But I just noticed this as a potential issue for focus—I don't have a particular course of action in mind.”

“I do,” interrupted Amit. “Because the official defendants are not appealing the trial court's ruling, which they apparently agree with, this court should dismiss for lack of appellate jurisdiction.”

“But that would leave in place the district court's ruling,” the judge said, “effectively legalizing gay marriage throughout California, wouldn't it?”

“Yes, but I think that's the result required by law.”

Judge Stinson furrowed her brow. She wasn't thrilled by Amit's proposal—perhaps because social conservatives, whose support she would need if she wanted to be nominated to the Supreme Court by a Republican president, wouldn't approve.

“Federal judges shouldn't overturn the popular will lightly,” I said, unable to resist the chance to show up Amit. “The Ninth Circuit is already viewed as an activist court.”

“I agree,” the judge said. “At the same time, I am concerned about this jurisdictional issue and whether the proposition's sponsors have standing.”

“The standing question is complex, but I don't believe the court currently has enough information to decide it,” I said. “If you look at the Supreme Court's rulings in this area, such as
Arizonans for Official English
, you'll see dicta suggesting that whether proponents of a ballot initiative have the legal standing to defend it in court depends in part on state law. In other words, have the proponents been granted that role here under California law?”

I had everyone's attention, especially Judge Stinson's.

“So,” I concluded, “here the Ninth Circuit should certify a question
to the California Supreme Court: under the California constitution or other state law, do the proponents of an initiative have enough of an interest in the initiative's validity to defend that initiative in court when the relevant public officials decline to do so? Once the California court answers the question, then the Ninth Circuit will have enough information to rule on the standing issue as a matter of federal law. It won't have to speculate about California state law. Certifying is the safest course of action.”