Protect and Defend (13 page)

“That’s me. I think even Chad’s impressed.”

With that, they began walking again. “So you’ve really decided?” Lara asked.

“Almost.”

She gave him a pained look. “Does Clayton know?”

“Not yet.” Kerry kept his voice soft. “I’m saving it for a surprise.”

Lara glanced over at him. “But you think it’s the right thing to do.”

“Everything about her checks out. Plus she’s got character to burn, and tremendous force of personality—without which, in all immodesty, I wouldn’t be where I am.” He paused. “I didn’t run because I like the sound of ‘Hail to the Chief.’ I intend to change things. I think Caroline Masters can change the Court.”

“And Clayton’s reservations …”

“Concern her personal life. He’s afraid it may only whet the appetite for scandal.” The ice covering the reflecting pond, as Kerry gazed at it, was black as onyx. “I understand that this is a risk. But I think there’s a deep craving for a president who insists that we judge a person’s life with compassion, and as a whole. In fact, I wish that Masters would let us make that case. Though I respect her reasons.”

How can you not?
Kerry felt Lara thinking. “But if she got it out,” she responded slowly, “and the reaction wasn’t too negative, you’d be insulated.”

“It’s more than that. It may sound callous, at least where her daughter’s concerned, but I think this works for us even if her opponents bring it out. I’m not sure Masters understands this, but the rest of us could profit politically, even if she loses.” Kerry turned to her again. “Sooner or later we’ll need to take a stand against using a public figure’s private life to destroy him. The politics of scandal has to stop, and the facts involving Caroline Masters are a better platform than most.

“I’d lose the right-wing zealots who want to force pregnant
girls to have babies, then kick them out of the National Honor Society for being mothers. But I can live with that.”

Lara withdrew her hand, walking with her head down, hands thrust in her pockets. “But there’s something you
can’t
live with,” she said under her breath. “The facts involving us. That’s why we’re taking this walk.”

Kerry touched her arm. “We’re taking this walk because I miss you. And because I wanted to know what you think.”

Lara shook her head. “Please, Kerry—I made the choice I made, and now I get to live with it. But I don’t want to be a part of your calculations.”

Her eyes, dark and luminous, held, for Kerry, a painful beauty. “Chad’s worried about Mac Gage,” he answered. “And Mason Taylor. He’s right to be.”

“Because it’s hard to keep secrets. Only Chad doesn’t know
whose
secret you worry about protecting.”

Kerry could find nothing to say.

“I haven’t met her,” Lara said after a time. “I’ve only seen her on TV, during the Carelli trial. To me, she came across as smart, elegant, and a little supercilious—a bit too Waspy to evoke all the compassion you seem to feel for her. But maybe
that’s
not about her, either.”

“What do you mean by that?”

Lara turned away. “Well, she had the baby, didn’t she?”

“Lara.” Kerry’s throat felt tight. “For Godsake, let it be …”

“Let me finish.” Drawing closer, she gazed up into his face. “Politically, I don’t know what is the smartest thing for you to do. I can’t know how choosing her will affect us. I’m not even clear about why you’re doing this—principle, or something far more practical and subtle, which has to do with protecting me in ways that Clayton hasn’t thought of. Maybe you even mean to inoculate me by sacrificing Masters, so that people get sick of your opponents dragging private lives into politics. And now you’re wondering if I can live with that.”

Even now, Kerry thought, her prescience and directness sometimes took him by surprise. He touched her face. “I don’t want to lose you, Lara.”

“Then you have to accept something—the people who hate you will
always
be after us, no matter what you do. There’s no
way you can protect me—or us. The only thing you control is who you are.”

Kerry studied her—honest, brave, and a little angry. “Be yourself, Kerry,” she said softly. “And never, ever ask me anything like this again.”

For a moment, Kerry wanted to hold her. And then he remembered their guardians, watching in the darkness.

“Let’s go home,” he said.

S
HE MIGHT
be present in body, Caroline Masters acknowledged to herself, but her spirit was absent without leave.

Caroline and ten of her colleagues, all men, presided over the marbled courtroom of the United States Court of Appeals for the Ninth Circuit. From the podium before them, a lawyer for the State of California attempted to explain why an indigent prisoner, who claimed to have been beaten and sodomized by his cellmate with metronomic regularity, had no right to their attention. That the state was compelled to explain at all was Caroline’s doing.

The en banc hearing was a rarity: eleven appellate judges, a majority of the court’s active members, convened to rehear a case previously decided by the customary panel of three. The author of that opinion, Judge Lane Steele, sat three places to Caroline’s right, looking ascetic, intellectual, and, on this day, quietly furious at Caroline Masters. In Steele’s view, the courts were congested by frivolous petitions from prisoners with rich imaginations and too little to do. His overall solution was elegant—to read into a poorly written federal law technical requirements so complex and obscure that most prisoners without lawyers would never meet them.
Its consequence here had been to reject the plea of the supposed inmate-victim—who had sued to impel the prison to protect him—without determining whether his charges of abuse were true.

Caroline’s role had begun unobtrusively enough. Indignant, her law clerk had brought the decision to Caroline’s attention. Rather than call for a rehearing, Caroline had written Steele and his two colleagues, gently asking that they reopen the case and appoint a lawyer for the inmate. “If,” Caroline had ventured, “it is true that Mr. Snipes has no claim because he sued the warden but not the guards, he should at least be permitted a lawyer to help him question the wisdom of such a rule.”

Steele’s response had been a curt refusal. At this point, Caroline had suggested to her colleagues that the case be reconsidered. That a majority of judges agreed accounted both for the rehearing and Steele’s air of deep unhappiness.

But today Caroline had no heart for this. The death of her aspiration to be Chief Justice had left her distracted and depressed: the night before, trying to concentrate on the papers filed by the inmate’s appointed counsel, she had been forced to remind herself that disappointment did not excuse indifference. It had not helped much—then, or now.

With unwonted detachment, Caroline took in the scene before her. Having been battered by Steele in his opening argument, the prisoner’s court-appointed lawyer, a young man barely out of law school, looked apprehensive; now, the state’s lawyer, a blocky young woman named Marcia Lang, argued her case with stolid doggedness. Behind them, sitting on varnished benches, were two black women who, Caroline supposed, must be the inmate’s sister and mother. Another hour of justice in America.

“We believe,” Marcia Lang was saying, “that this inmate asks far too much.”

Steele leaned forward, his high forehead and half-glasses suggesting, to Caroline, a scholar of long-dead languages. “In short,” interjected Steele with his usual precision, “your position, Ms. Lang, is that this court is not required to dispense legal advice to assist inmates in suing the state.”

Lang nodded briskly. “That’s correct, Your Honor. Mr.
Snipes insists not only that you allow him to refile his petition, but tell him which defendants to include. We contend that he’s obliged to inform himself of the law’s requirements before invoking it.”

This was vintage Steele, Caroline found herself thinking— a puppet show, in which he led the party he favored through the arguments he wished to make. “And would you also contend,” Steele continued, “that the sheer volume of these petitions impels us to impose at least some minimal standards before hearing them?”

“We would,” Lang answered. “Prisoners’ rights petitions burden our office
and
your court.”

The smugness of the colloquy roused Caroline from her revery. “Just as,” she found herself interjecting, “sodomy might fairly be considered to burden Mr. Snipes.”

Surprised, the Assistant Attorney General turned to Caroline. “You assert,” Caroline continued, “that Mr. Snipes can’t get redress for brutality because he didn’t include prison guards in his petition. Where in the statute does it say ‘include the prison guards—or else’?”

Lang hesitated, “It doesn’t, Your Honor. But that’s a reasonable interpretation of this court’s decisions.”

“Reasonable to whom? Is it reasonable to reject this man’s petition without telling him why? Or how to fix that—”

“It seems to me,” Steele interrupted, “that we cannot function as a partisan of one side or another. Wouldn’t you say, Ms. Lang, that’s what this prisoner is asking?”

“I agree, Your Honor.”

Caroline glanced at Steele: though restrained by custom from confronting a colleague in open court, he was using Lang as a prop to do precisely that. Caroline turned to Lang again.

“Then you would also agree,” Caroline said, “that this judicial game of hide-and-seek will prevent us from determining whether Mr. Snipes has been beaten and sodomized. Or from protecting him if he has been.”

“Your Honor, there are standards …”

“Whose standards? I certainly don’t find them in this law—or anywhere.” Caroline’s voice was cold. “Just for Judge Steele’s enlightenment, and my own, you don’t
know
whether Mr. Snipes’s rather graphic assertions are true or not, do you?”

Lang hesitated, looking to Steele.

“Answer the question,” Caroline snapped. “Please.”

Lang planted her feet. “Not on the current record.”

“But you do know that Mr. Snipes’s petition states that his mistreatment can be verified by a prison doctor.”

“It
says
that, yes.”

“And you also know the conditions at this particular prison are so abominable that a lower court is considering whether to place it under federal supervision.”

Lang’s jaw seemed to tighten. “That hasn’t been done yet.”

Caroline sat back. “Then this court must hope it will be, if we adopt your position. At least those of us who consider systematic sodomy to involve more than some abstract legal theory—however interesting, or mysterious, its origins.”

To Caroline’s left, her friend and mentor, Judge Blair Montgomery, bent his white head forward to conceal a smile. The enmity between Steele and Montgomery was legendary: Caroline’s sharpness, unusual for her, no doubt delighted Montgomery. She told herself to ease off.

Steele stared at her with open dislike. “Isn’t it true,” he demanded of Lang, “that the statute in question was drafted expressly for the purpose of limiting the number of prisoners’ rights petitions?”

Lang seemed to rally. “Yes, Your Honor. The legislative history makes that clear.”

“And, if in doubt, shouldn’t we interpret its language in light of that purpose?”

“Absolutely.”

From her raised bench, Caroline watched the two black women follow this exchange in bewilderment. Congress passes ill-written laws, she thought, and then judges interpret them, with all our biases and deficiencies—including, today, the distraction of a crushing disappointment. And then people like Orlando Snipes have to live with the mess we may have made. Whatever else Snipes deserved, and whatever forces had made him who he was, she owed him the hope of fairness.

“Isn’t it also true,” Caroline asked in a more reasonable
tone, “that Mr. Snipes didn’t know he could even
raise
these points until this court granted a rehearing on its own initiative, then appointed a lawyer to help him?”

Lang’s eyes flickered toward Steele. “I believe so …”

“And that without our intervention, his voice would not be heard today? Or, perhaps, ever.”

Lang hesitated then shrugged in acquiescence. “I suppose that’s true.”

Caroline leaned forward. “Then perhaps you can explain to me why a process which conceals from Mr. Snipes the means of protecting himself from sexual assault, and
then
conceals his right to question that concealment, is consistent with the ends of justice.”

Once more, she saw Blair Montgomery’s wisp of a smile. Montgomery seemed as certain as Caroline was, watching the state’s lawyer struggle for an answer, that the court would reject Judge Steele’s ruling. She did not look forward to still more years with Lane Steele as her colleague.

But Montgomery was inured to this. As the hearing ended, and they exited the courtroom, Montgomery murmured from behind her, “You certainly pulled the wings off
that
particular fly. It was a pleasure just to listen, for once.”

Caroline shrugged. “Bad day, Blair. I let him get to me.”

Her clerk, Christine, was waiting by the conference room, looking intensely anxious. “What is it?” Caroline inquired with some surprise. “We’re about to take a vote.”

Eyes bright, Christine motioned her aside. “It’s the White House,” she whispered. “The President is calling for you.”

T
WO BLOCKS
from Saint Ignatius High School, a few short hours before going to court, Sarah Dash waited in her car for Mary Ann Tierney.

Sarah had the jitters—too much coffee, too little sleep. The six days since their last meeting had passed quickly, spent consulting pro-choice groups who litigate abortion cases regarding every conceivable issue, lining up the witnesses they suggested, and, most nerve-racking, marshaling support to persuade the managing partner. She had done this in a way which was bound to infuriate him, but represented her best hope: by informing the women partners of the medical evidence that supported Mary Ann. This had engendered emotions which startled even Sarah, culminating in a closed-door meeting between the female partners and John Nolan. Excluded, Sarah knew only that the women had been blunt and insistent, exposing tensions within the firm which until now had been muted. When Nolan summoned Sarah to his office, granting her permission to represent Mary Ann, he made little effort to conceal his anger—or that he blamed Sarah for bringing disharmony to Kenyon & Walker.