Protect and Defend (46 page)

“By
what
measure?” Now Steele’s voice was etched with contempt. “Let’s define
your
standard.

“If some doctor finds a one percent chance of infertility, he can abort a fetus moments from birth.

“If a doctor believes terminating a healthy eight-month-old fetus will brighten a mother’s mental outlook, he may.

“If his youthful patient finds some prospective ‘abnormality’ distressing, then the fetus is expendable.”

“No,” Sarah protested. “That’s not—”

“
No?
” Steele persisted in a relentless tone. “Doesn’t your argument come down to this: that
any
minor can abort
any
viable fetus if she finds her pregnancy upsetting?”

Desperate, Sarah glanced at the others. But Klopfer was watching Steele as though deferring to his better, and Dunnett remained expressionless. “You’ve yet to hear my argument,” she told Steele. “With respect, it’s not the argument you’ve invented for me …”

“Really.” Nettled, Steele overrode her, voice tight with anger. “Then the fact that I extrapolated it from your brief must betray my waning powers of perception.” Abruptly, he seemed to catch himself, choosing a more reasonable tone. “Does it occur to you, Ms. Dash, that having sex sometimes involves consequences—even hard ones? Or is the purpose of this court to serve as a
very
belated morning-after pill?”

With this, Joseph Dunnett intervened at last. “In the course of answering,” he told Sarah pleasantly, “you might offer up those arguments you’ve yet to make. You only have five minutes remaining.”

Turning, Sarah addressed herself to Dunnett. “Thank you,
Your Honor. The central point is this: a law which forbids Mary Ann Tierney to protect herself from a classical C-section by aborting a fatally impaired fetus violates
Roe v. Wade
—”

“Are you quite certain,” Steele interrupted, “that the fetus
is
impaired?”

Once more, Sarah prepared herself to respond. Then she noticed Carl Klopfer, his silent nod seconding Steele’s question, and knew that she had lost.

O
N THE DAY
of the Tierney argument, Judge Caroline Clark Masters made her first appearance before the Senate Committee on the Judiciary.

The Old Senate Caucus Room was airy, ornate, redolent of history and past confrontations between prior nominees and this committee. Caroline sat at the witness table, facing a single row of eighteen senators who looked down on her from a raised bench. Crowded behind her were the media; her White House support team; a few members of the public; and— seated in the first row, to reaffirm her as a heterosexual— Jackson Watts.

By mutual agreement, Betty and Larry had not come, nor had Brett, the unwitting source of their shared anxiety. Caroline found her sister’s absence a further relief, one less thing to worry about; at this, the climactic moment of her career, Chad Palmer and his colleagues impelled her full attention.

Dressed in a severe blue suit, she mustered her characteristic air of poise which, today, masked an apprehension unrelieved by her depth of preparation. The White House had briefed her on each senator, and she knew their predilections well. Palmer would be neutral but helpful; Vic Coletti, sitting to Palmer’s immediate left, would ask prescripted questions
directed to her strengths; to Palmer’s right, Paul Harshman fixed her with a gelid stare which confirmed him as her chief antagonist. Sitting beside Caroline, the senior senator from California, Betsy Shapiro, spoke her last graceful words of introduction.

After Caroline testified, a parade of favorable witnesses, agreed upon between Senator Palmer and the White House, would endorse Caroline’s acumen and humanity. But none of them would matter unless Caroline, in the three days set for her appearance, survived other senators’ probing for reasons to oppose her.

The stakes for Palmer, she well knew, were almost as high. He had accelerated the hearings over Gage’s objections, and worked with the President to protect Caroline’s secret from discovery. The first sin had riled many of his colleagues; the second—if discovered—might derail his own ambitions to be President. Yet Palmer appeared outwardly serene: with his chiseled film-star features, his bright blond hair barely touched by gray, he seemed perfect for the cameras poised to broadcast the proceedings. And despite the worries he must have, these hearings—as Clayton Slade had pointed out—gave Palmer an opportunity to impress himself on the press and the public as a potential President of the United States, more statesmanlike than the partisan Macdonald Gage. If in the process he helped Caroline become Chief Justice, then both might be well served.

The room was quiet with tense expectancy. Quickly turning, Caroline shared a fleeting look with Jackson. Chairman Palmer glanced at the Democrats to his left, his fellow Republicans to his right, then smiled down at Caroline.

“Do you have a statement, Judge Masters?”

The polite question had a wry undertone: in front of Caroline were five typewritten pages, words of confidence mixed with the appropriate humility, and carefully vetted for distribution to the press.

“I do,” Caroline replied in a calm, clear voice, and her hearings were under way.

Her statement was followed by Palmer’s own, a reasoned disquisition regarding the Senate’s duty of inquiry and the standards expected of a Chief Justice.

This, too, was theater, designed to impress their larger audience while reassuring his colleagues that Palmer would not passively acquiesce to Caroline’s confirmation. And for the next several hours, Palmer and Caroline played a foreordained game of thrust and parry, where Chad attempted to pin her down to positions, and Caroline politely but eloquently pleaded a jurist’s obligation to maintain an open mind.

This reached its climax when Palmer grilled her regarding the jurisprudence of abortion: watching, Paul Harshman registered his frustration through scowls and shakes of the head which Caroline and Palmer pretended not to notice.

“It seems,” Palmer observed at last, “that you’re not inclined to repeal
Roe v. Wade
. However much you may doubt its reasoning.”

Caroline paused, choosing her words with care. “I do believe, Senator Palmer, that there’s a right to privacy. Unless judges are careful not to substitute their prejudice for precedent, law descends from principle to bias. With that in mind, I must await the particular cases which come before me.”

Palmer’s look of faint amusement seemed to acknowledge that, however hard he tried, she was playing her part as written. “Very well,” he said briskly, “let’s turn to cameras in the courtroom.

“In the Carelli case, you allowed gavel-to-gavel coverage on CNN. Yet many believe that television contributed to the circus atmosphere of the O. J. Simpson trial. Where do you stand now?”

“Pro,” Caroline answered promptly. “Properly regulated, televised trials educate the public. For example, its response to the Carelli trial led to the admission of prior rapes as evidence of the accused’s predisposition to commit the rape in question. Which, in turn, allows us to protect future victims.”

This, too, was expected: Palmer’s question enabled Caroline to stress her concern with law enforcement, while addressing a subject important to many women. “But what about the Tierney case?” Palmer asked.

Caroline shook her head. “Absolutely not,” she said bluntly. “The privacy of a minor trumps television. Whatever educational value it may have is far outweighed by the sheer cruelty
of dissecting this girl and her family for the sake of our enlightenment—or entertainment.”

At this, Paul Harshman frowned again: in his moral code, Caroline suspected, Mary Ann Tierney deserved whatever shame accrued to her, and Caroline’s expression of sympathy might suggest a pro-abortion bias. Glancing at Harshman, Chad Palmer inquired, “But if you were Chief Justice, Judge Masters, would you advocate television in the Supreme Court?”

Caroline nodded. “There, I would. Generally, the more the public knows about how our institutions work, the better. There’s great misunderstanding of how the Court makes its decisions. It’s time to let the sunshine in.”

Of course, Caroline told herself wryly, if the sunshine in the Tierney case extended all the way to the private maneuvering of her own court, the public would see how human judges really are. But Palmer nodded his satisfaction. “I agree,” he said amicably. “Would you also agree that it’s time for lunch?”

Caroline smiled. “I’m as hungry, Senator Palmer, as you want me to be.”

Despite the ripple of laughter that followed, Paul Harshman did not smile.

It was midafternoon before Harshman could commence his questioning.

From the beginning his tone was cold. “Senator Palmer, I must say, questioned you with great courtesy. But I’m not satisfied with your responses regarding the rights of the unborn.”

He stopped, his silence demanding a comment from Caroline. “I regret that,” she said simply. “I thought we were discussing the right to privacy.”

Arms folded, Harshman craned his neck to peer down at her. “Do you believe, Judge Masters, that the unborn have a right to life?”

Unbidden, a thought leapt to Caroline’s mind:
I believed my daughter did
. The nearness of Brett to her consciousness, and conscience, evidenced a fear she could not suppress. Pausing, Caroline retrieved the answer she had rehearsed.

“According to
Roe
and
Casey
,” she told Harshman, “they
do. Once the fetus is viable, Congress can regulate—or ban—abortion. Subject only to the woman’s life or health.”

Harshman held up a hand. “‘Health’ can mean something,” he said cuttingly, “or anything the pro-abortionists want it to mean. What does it mean to you?”

They were dangerously close to the Tierney case. “I’ve not had to decide the question,” Caroline answered. “And ethically, I can’t prejudge it …”

“Come now, Judge Masters. Under the Constitution, does ‘health’ include
mental
health?”

Caroline could almost feel the gaze of Clayton Slade, watching her on C-SPAN. Carefully, she formed her answer. “In a footnote to
Doe v. Bolton
, a companion case to
Roe
, the Court suggested that a woman’s mental health is a factor to be considered. But in the three decades since, the Court has never amplified this point—or even addressed it. Which, to me, makes it an open question.”

Harshman’s eyes narrowed in frustration. “Do you support a constitutional amendment to ban abortion?”

Do you think I’m fool enough
, Caroline wanted to say,
to answer
that
one?
“I support the right of the people, through their representatives, to amend the Constitution. That’s how women got the right to vote …”

“But
do
you support an amendment protecting life?”

“That’s a political question, Senator, not a legal one. As a judge, my job is to follow the Constitution—including any amendments. Expressing a personal bias on abortion is antithetical to that.”

“
Do you believe
,” Harshman persisted in an angry tone, “that parents have the right to consent to the abortion of their minor daughter? Or to refuse consent?”

This was, unambiguously, an effort to commit her on the Tierney case. “The Supreme Court says they do,” Caroline answered. “The Court has consistently upheld a parent’s right to consent to a previability abortion. Provided that a minor
without
consent then has the right to persuade a court that she’s mature enough to decide for herself, or that an abortion is otherwise in her best interests—”

“Loopholes,” Harshman interjected, “which judges routinely use to rubber-stamp a child’s abortion regardless of
what her parents say. Are
you
saying
that’s
sufficient to protect life?”

Caroline looked at him evenly. “I’m saying it’s the law …”

“But you concede, Judge Masters, that Congress has the right to protect a fetus
after
viability. Does Congress
still
have to provide these gaping loopholes for any minor child who wants to abort a viable fetus?”

Caroline smiled. “The outside world has a way of intruding, Senator—even for those of us preoccupied with this hearing. It’s my understanding that, even as we speak, a panel of my colleagues is sitting to determine the constitutionality of the Protection of Life Act.

“The Tierney case may well come before the Supreme Court. Moreover, I think it unseemly to give my three colleagues on the Ninth Circuit advice they’ve neither asked for nor require.”

Thwarted, Harshman leaned back, conferring with a slim, blond-haired woman Caroline presumed to be his aide. He nodded to her, then turned to Caroline again. “The questions aren’t
that
novel, Judge Masters. In
Stenberg v. Carhart
, the Supreme Court struck down a state law barring partial-birth abortion of viable fetuses. Do you agree with that?”

Caroline’s voice took on a slight edge. “Whether I agree or disagree doesn’t matter. The Supreme Court has already ruled.”

Harshman bored in, jabbing the lectern with his finger. “But do
you
believe
those
rulings mean that the Protection of Life Act must also be struck down?”

“No,” Caroline answered bluntly. “The Nebraska law in
Stenberg
made no allowance for a mother’s health, and so the Court found that it unduly burdened the right to an abortion established in
Roe
and affirmed in
Casey
—for abortions
before
viability as well as after. In addition, Nebraska purported only to ban
certain
late-term procedures but—in the Court’s view—defined them so vaguely that a doctor might not know he was performing a criminal act.

“The Protection of Life Act responds to
Stenberg
—one might think of it as the second generation of such laws—and applies to
all
postviability abortions, and
only
postviability abortions. No doctor can be confused by
that
.” Pausing, she
concluded mildly, “So the Tierney case presents different questions. To which, as I’ve already said, I cannot speak.”