Protect and Defend (29 page)

“Good morning, Senator.” Beneath the tone of dry judicial dignity, Gage heard a veiled eagerness. “It’s good to talk with you again. You’ll remember we met late last summer, at Bohemian Grove.”

Glancing at Mace Taylor, Gage gave him a smile which was half grimace. Taylor leaned closer to the speaker box, eyes narrowing with a speculative shrewdness.

“Of course, Lane.” That Gage could modulate his southern baritone like a Stradivarius was part of his pride, and his voice infused this use of Steele’s given name with welcoming and warmth. “A pleasant respite from my many burdens. Including the chance to visit with you.”

“Yes.” The dry voice conveyed a guarded pleasure. “For me, as well.”

Glancing at Mace Taylor, Gage gave an even more cynical smile and mouthed “Masters” clearly enough for Taylor to nod. “So,” Gage said with a mixture of respect and jocularity, “you riding herd on that pack of visionaries out there, helping your brethren—and sistren—follow the tenets of our founding fathers?”

“Would that I could, Senator. With the people he put here, the last president didn’t make that easy. Neither, I fear, will this one.” There was a brief pause, and then Steele added with near reverence, “We could surely use more judges with Roger Bannon’s qualities of mind.”

Like you
, Gage thought sardonically. Though Steele was edging toward his chosen subject, the Majority Leader decided not to help him; waiting was more decorous, and gave Macdonald Gage more leverage. “Judges like Roger Bannon are in short supply,” he answered pleasantly. “Except, I’m informed, for you.”

There was silence; the rote courtesy stalled conversation, pushing Steele into a corner. “Thank you,” Steele said at last. “I suppose, in a way, that Roger is what compelled me to call. I imagine you’ve begun to focus on his successor.”

With these words, Taylor’s expression, amused up to now, became keen. “We’ve been forced to,” Gage responded, “with indecent haste. Thanks to Kerry Kilcannon.”

“Yes.” There was another pause, and then Steele struck a note of candor and concern. “Frankly, that surprised me.”

Once more, Gage smiled at Taylor. “The haste?” he asked Steele with seeming innocence. “Or the appointment?”

“Both.” A brief cough echoed through the speakerphone. “Normally, I’d remain silent.”

“Of course. But this is Roger Bannon’s successor, and our next Chief. Unless the Senate decides otherwise.”

“Not a light responsibility.” This time Steele’s silence seemed deliberate, a signal of reluctance and propriety. “Your staff might want to stay alert to new decisions. Those not yet issued.”

Taylor was still, Gage noticed, except for his unconscious rubbing motion of the thumb and forefinger of one hand. “Is there a particular decision?” Gage asked.

He should use a watch, Gage reflected, to time Lane Steele’s silences. “There’s an en banc opinion coming next week,” Steele answered, “
Snipes v. Garrett
. The opinion broadens a prisoner’s right to sue beyond what, in my view, Congress intended in last year’s legislation. Its failings exemplify that a judge should interpret an act of Congress, not rewrite it.”

“Especially if the rewrite favors criminals.” Picking up a desk pen, Gage scrawled
Snipes v. Garrett
on a legal pad. “Still,” he added in a weary tone, “it’s the kind of adventurism we’ve come to expect from all too many judges on your circuit.”

“True.” Necessity seemed to make Steele less hesitant. “But not, one hopes, from the next Chief Justice of the Supreme Court.”

Taylor’s smile, more to himself than at Gage, suggested worldly amusement at an ambitious man’s pretence of reluctance. “Do tell,” Gage said in tones of wonderment. “Do tell, Lane.”

“She’s a protégé of Blair Montgomery’s, the most radical member of our court. Montgomery wrote the opinion, but
she
called for the rehearing
and
signed on. My dissent points out the manifest weaknesses of their reasoning.” Pausing, Steele said with measured sadness, “Some judges try to be scholarly; others lack the requisite detachment. Her first job was representing hard-core criminals, as a public defender,
and that seems to have become her religion. She’s certainly cool toward religion as most of us understand it.”

“A secular humanist, in other words. Pornography in the classroom, but never prayer.” Seeing Taylor tilt his head in inquiry, Gage asked, “How’s she on abortion?”

“That’s rather hard to pin down, like so many things about her. One
knows
what she must believe. But without an opinion with her name on it, there’s no way of confirming it.”

As Gage watched, Taylor inclined his head toward the television in the corner of Gage’s office. “What about this girl’s case,” Gage asked, “the one who wants to abort a six-month-old fetus? Doesn’t that come to your court next?”

Again, there was a long, chaste silence. “One aspect already has,” Steele said at last. “I’m presiding over the emergency motions panel. We just turned down her lawyer’s appeal to keep her name out of the media, finding that question clearly within the discretion of the trial judge.” There was another pause, and then Steele spoke with new boldness. “However distasteful, I think the public will profit from facing the reality of abortion—that we refuse a human fetus the same protection the SPCA accords to wayward cats. And any woman who proposes abortion so close to birth, including a fifteen-year-old, should do so for all to see.”

To Gage, the last remark sounded like an audition, a harbinger of pointed opinions and ringing dissents were Steele granted the proper platform. “Does this have any implications for your colleague?” Gage inquired.

This time Steele’s quietude was intended, Gage supposed, to signal both reluctance and judicious thought. “Not in the
normal
course,” he answered carefully. “Even were she to continue here, we have a complement of twenty-one judges. And, normally, the panel of three are picked at random …”

His voice trailed off. “But?” Gage asked.

Gage sensed Steele picking his way through a verbal minefield; perhaps the speakerphone made him even more wary. “This girl’s three months from childbirth,” the judge answered. “Procedurally, any appeal would have to be an emergency, brought before our emergency motions panel.”

“The one you’re on.”

“Yes. Until the end of the month.”

Gage glanced at Taylor. “And the emergency procedure’s different?”

“By rule. Our panel can take the case itself, or assign it to another.”

Sitting back, Gage stared at the ceiling. “But,” he ventured carefully, “even were the case assigned to a panel which included
her
—however that might happen—now that she’s got her eyes on the prize, she’d probably find a reason to recuse herself. So, from my perspective, it’s better that the Protection of Life Act be upheld. Speaking as a senator, of course, not a judge.”

Steele chose not to answer directly. “There’s only one other way,” he observed in even tones, “for her to hear this girl’s case—even in theory. Other, that is, than as Chief Justice of the Supreme Court.”

Gage, too, felt himself becoming more cautious. “And what’s that?”

“After a panel’s decision, a party, or a judge of our court, can ask that the case be reheard en banc, by eleven of our twenty-one active judges—as happened in the Snipes case I mentioned. Or, in a rare case, by
all
of them.” Steele paused, then finished. “The odds of either outcome are long. But in a constitutional question as important as this, a little less so.”

“How long would such a process take?”

Gage could imagine Steele calculating time. “On an emergency motion,” he said at length, “and under the provisions of this statute, a hearing and rehearing would consume about a month.”

“But Masters could recuse herself.”

“She
could
, yes. After that, the only recourse for the losing party is a petition to the Supreme Court. Which the Court, in its discretion, can either grant or refuse.”

Taking Gage’s legal pad, Taylor scrawled “How long for
that?
” and held it up to Gage.

Gage repeated the question. “A week,” Steele answered. “Perhaps a little more.”

Soundlessly, Gage placed down the pad. “Without a Chief Justice, wouldn’t you guess that the current Supreme Court would split four to four on whether the Protection of Life Act should be upheld?”

Yet again, Steele paused. “It’s not for me to speculate, Senator. But such a split would dramatize the impact of choosing the next Chief wisely.” Pausing, Steele added, “Even your question underscores the gravity of this appointment. Which, after considerable reflection, moved me to pick up the telephone.”

Once more, Taylor smiled at Gage across the desk. In a pious tone, Gage told Steele, “I count on your patriotism, Judge. And you can count on my discretion.”

Switching off the squawk box, Gage said to Taylor, “Amazing—the name Caroline Masters never crossed his lips. Like writing in disappearing ink.”

Taylor shrugged. “That was a job application, Mac. He thinks you may become President, and he wants to be on the Court.”

Though Gage found this flattering, its truth was too obvious, and too commonplace, to require comment. “She won’t keep on deciding cases,” he observed. “Let alone one like this. The moment Tony Kennedy was nominated to the Court—from that same damn fool circuit—he made like an ostrich.”

“There’s also what Steele said about timing,” Taylor rejoined. “If we could hold up the vote on Masters, this girl’s abortion case might turn out to be useful. If only to dramatize that the new Chief could be the tie-breaker.”

“What would help
there
,” Gage cautioned, “is for Palmer to stall the hearing. He’s been too damned noncommittal.”

Taylor sipped his coffee, frowning. “If you still don’t want to play hardball, this criminal case could help us. The committee staff should dig into her cases, maybe her time as P.D.—give our allies something to point out to Palmer while we put her life under a microscope. I still think she’s maybe a dyke, this beard of a boyfriend notwithstanding.”

Though he agreed, Taylor’s remark touched a nerve in Gage; however practical it might be, recourse to the personal was too easy for Mace Taylor. As so often before, it reminded Gage that, in politics, riding the tiger—especially in the guise of Taylor—had its own distinct risks.

After a moment, Gage switched on his squawk box again. “Let’s call Paul Harshman,” he said. “He’s our best friend on Judiciary.”

*  *  *

“I’ve got Mace with me,” Gage began. “What’s going on with Palmer?”

The junior senator from Idaho issued a soft, disgusted expletive. “He’s being himself, the Lone Ranger. Narrowing the inquiry by sitting on the staff and the FBI. He’s even using his power as chairman to keep us from seeing the FBI’s raw data, including interview notes. As usual, only God—and the great Chad Palmer—knows why.”

Taylor slid his chair forward. “We don’t need the staff, Paul. If we somehow could get the raw data, I can find investigators to follow up. There’s money for that.”

Gage glanced at him sharply. To his ears, Taylor had come perilously close to suggesting that a senator, a ranking member of Palmer’s committee, try to get to the FBI by going around Palmer. On the other end of the squawk box, Paul Harshman remained silent.

“Let’s talk about nailing Palmer,” Gage interjected, then glanced at Taylor in admonition. “Politically, that is.”

F
ROM THE
witness stand, Mary Ann’s doctor, James McNally, spoke like a peer to his friend Martin Tierney. To Sarah, Mary Ann looked diminished yet defiant, like a teenager being chastised by her elders for some selfish act. But, in this case, she had become a moral object lesson for millions to witness; though a technician focused the television camera on her doctor, the broadcast no longer censored her face or name. And though Sarah might have invoked the physician-patient privilege to keep McNally from testifying against Mary Ann, his advice was central to her case.

“I brought Mary Ann into the world.” Speaking softly, McNally turned his level gaze toward the girl. “I care about her deeply. But, as an obstetrician, my role now is to care for both Mary Ann
and
her child. I simply can’t support her claim that an abortion is medically necessary and, for that reason, it conflicts with my obligations as a doctor—morally and ethically.”

Though admitting no doubt, McNally’s tone expressed more sadness than anger, and he seemed to impress Judge Leary. The two men even resembled each other, though McNally was older and bulkier. Sarah took an instant dislike to him.

“For what reason,” Tierney asked, “did you conclude that an abortion was not warranted?” His voice was more a worried father’s than an inquisitor’s; it was easy to imagine the two friends in the quiet of McNally’s office.

“To borrow from the Protection of Life Act,” McNally answered gravely, “this child does
not
constitute a ‘substantial medical risk’ to Mary Ann’s life or health.”

“What
would be
a substantial risk?”

“Preexisting conditions, as a rule. Cancer, which cannot be treated during pregnancy; heart defects; high blood pressure, which can lead to renal failure; diabetes, which may cause blindness or kidney failure.” Once more, McNally glanced at Mary Ann with an air of sadness and reproach. “Even with these potential difficulties, many women proceed with the pregnancy to see if the threat materializes. But Mary Ann has none of them.”

To Sarah, his tone of certainty—of judging the painful choices of pregnant women—translated as far too smug and patriarchal. She noted this for cross-examination.

“Obviously,” Martin Tierney said, “we’re
also
concerned about our daughter’s ability to bear more children.”

It was not a question, but testimony; however much he despised the cameras, Martin Tierney seemed acutely aware of his role as father in a domestic drama. Nodding, McNally said, “I know you are, Martin. But even Dr. Flom concedes it is highly unlikely that a classical C-section would compromise fertility.”