Protect and Defend (47 page)

Silent, Chad Palmer turned to Harshman.
She’s beaten you
, Palmer’s expression seemed to say.
Quit making us look like zealots
.

Harshman said, “Ten years ago, Judge Masters, you ran for election as a state court judge—correct?”

At once, Caroline discerned his intentions. Calmly, she answered, “Yes.”

“And isn’t it also correct that you were supported by the Harvey Milk Democratic Club, a group of gays and
lesbians?
”

His deliberate emphasis on the final word, Caroline reflected, was remarkably unsubtle. “That’s true.” Fleetingly, she smiled. “As well as by the Chamber of Commerce and, I believe, the Fraternal Order of Police …”

“Do you support the lesbian lifestyle, Judge Masters?”

Caroline paused again, this time to suppress her anger. “My role as a judge isn’t to support ‘lifestyles,’ Senator. And the term ‘lesbian lifestyle’ has no more meaning to me than ‘police lifestyle.’

“My job is to be fair, which is all I ever promised anyone. The fact that so many diverse groups supported me suggests that I was.”

Harshman cocked his head. “You have no children, correct?”

The directness of the question startled her.
Does he know?
Caroline wondered. Quickly, she groped for an innocuous evasion. “I’ve never been married, Senator.”

Tense, Caroline awaited the next fateful question, or perhaps Harshman brandishing an ancient birth certificate. Instead, he asked, “Then how can you appreciate the special problems of parents?”

Through an act of will, Caroline restrained herself from telegraphing her relief. “You and I,” she answered, “aren’t people of color. But I hate to think that the only experiences we can imagine, or care about, are those we share in common.”

This time it was Harshman who paused; Caroline’s response, a veiled jab at Harshman’s opposition to affirmative action and third-world immigration, left him visibly annoyed. He checked his notes and, bristling with renewed aggressiveness, leaned forward again.

“Do you support, Judge Masters, the right of all Americans to keep and bear arms?”

No
, Caroline wanted to answer,
I support the right of all Americans to keep and arm bears
. Stifling her dislike, she answered, “I believe those rights are protected by the Second Amendment …”

“But do you mean to respect those rights, Judge Masters? Or to narrow them?”

It was time to stop trimming, Caroline thought. “What I have very little respect for,” she answered, “is extremism. I question those advocates of gun control who pretend that the Second Amendment doesn’t exist. I also question those who say that a two-hundred-year-old amendment, referring to a ‘well-regulated militia,’ means that we can never regulate cop-killer bullets, cheap handguns, or the assault weapons too often used to slaughter children.”

Harshman stiffened. “The
problem
isn’t guns—it’s the murderer who uses them. Once we start chipping away at the Second Amendment, where would you draw the line?”

Guns don’t kill people
, Caroline thought to herself,
slingshots do. And lesbians
. She cautioned herself to conceal her contempt, as well as her sheer bemusement that any state could choose this humorless and angry man to represent them. “Drawing lines,” she answered, “is the job of Congress—”

“And reviewing those lines,” Harshman interrupted, “will
be your
job.
If
you’re so fortunate to be confirmed.”

“True,” Caroline answered mildly. “I simply note that the right to life does not end at birth.
And
that—just as for viable fetuses—Congress may have the right to protect the ‘born’ from psychopaths who acquire guns at will, or weapons the founding fathers never dreamed of …”

From behind her came a sudden spattering of applause. As Senator Palmer banged the gavel, Harshman flushed, reminding Caroline to leave him with his dignity intact. “You raise an important question,” she added in a more deferential tone, “the particulars of which I can’t prejudge. In the case of any law, the Court’s duty is to scrutinize with care its effect on Second Amendment rights.”

But Harshman did not seem mollified. Caroline felt herself, as tired as she now was, hovering on the edge of a misstep
which might enrage him further. Glancing at Palmer, she lightly touched her ear.

Noting this, Palmer turned to Harshman. “Excuse me,” he inquired pleasantly, “the Chair is wondering how much more you have for Judge Masters.”

In obvious anger, Harshman spun on Palmer. “Are you trying to cut me off, Senator?”

The accusation did not, in Palmer, occasion a change of tone, or even expression. “Not at all. I’m just asking how much time you need to finish.”

“Hours,” Harshman snapped. “Maybe days. Judge Masters wants
us
to make
her
the leader of the highest court in the land. Yet her studied evasions raise so many unanswered questions that I can’t predict in good conscience
when
I’ll be through.”

“In that case,” Palmer suggested with an unruffled air, “why don’t we adjourn until tomorrow at ten, out of courtesy to the witness. Seeing how it’s already past four-thirty.”

Harshman glared at him, resentful and plainly anxious to continue. “That’s only fair, Mr. Chairman,” Vic Coletti smoothly interjected. “It’s been a long day for all of us.”

The passive subject of this tense exchange, Caroline could only watch, wondering whether it might be better to go on, and what Paul Harshman—given the night to work and reflect—might present her with tomorrow.

“Fine,” Harshman told his colleagues with a sudden indifference, and the first day of hearings was over.

A
T NINE O’CLOCK
the next morning, a messenger brought the panel’s opinion to Sarah’s office.

Sarah flipped to the last page and, with more anger than surprise, saw “
Judgment Affirmed
.” The opinion was unanimous.

Composing herself, Sarah reviewed the decision more carefully.

Steele’s language was cool, surgical, and crafted to survive challenge. Late-term abortion, Steele ruled, is not protected by
Roe
absent a substantial threat to physical health, which requires more than the mere risk of infertility. “Mental health” is a code word for abortion on demand. And the parental consent provision has the benign effect of promoting family consultation; only when a family cannot agree need a court determine whether a minor can abort a viable fetus. Only the final paragraph was harsh:

“
It makes no sense
,” Steele wrote, “
to invalidate an act of Congress because a fifteen-year-old girl, having displayed the lack of mature judgment necessary to become pregnant, rejects the guidance of two exemplary parents because her own child may turn out to be—according to her latest exercise of judgment—unsatisfactory
.

“
If that were our standard, we would have no standards at all
.”

Heartsick for Mary Ann, Sarah wondered how she would receive this, and how much more the girl could take.

Mace Taylor was sampling the coffee in Macdonald Gage’s office when an aide delivered a fax with a cover page headed “
From the office of Judge Lane Steele
.” Gage felt a deep but quiet pleasure, the flow of events beginning
to conform to his design. “It’s Steele’s decision,” Gage told Taylor wryly. “His valentine to Caroline Masters.”

Taylor did not smile. “Is it good? Saunders told me Steele reamed the girl’s lawyer.”

Intent, Gage read without looking up. Reaching the end, he murmured, “We’d better make sure Harshman gets this. He’s been waiting to put Judge Masters in a vise.”

At noon, Paul Harshman entered the third hour of his second day spent questioning Caroline Masters.

The first two hours had been a standoff. Frustrated, Harshman asked, “Are you a judicial activist, Judge Masters?”

Caroline repressed a smile: to confess to “judicial activism” would be, in Harshman’s view, on a par with embracing evangelical lesbianism. “No,” she answered simply.

Irritation showed in Harshman’s narrowed eyes and rising voice; plainly he had expected to provoke a deeper anxiety. “No?” he repeated. “Then explain your decision in the
Oregon
case, holding that the First Amendment doesn’t protect political speech.”

Chad Palmer’s expression became keen. “All we held,” Caroline corrected, “is that
Oregon
struck a proper balance between unlimited ‘free speech’ for the wealthy—like giving a million dollars to a political party—and public concern that the donor is buying influence. Our court simply followed the Supreme Court’s precedent in the
Missouri
case …”

“Which is ill-conceived,” Harshman snapped, “and due to be overruled.”

She had a decision to make, Caroline knew. The subtext was Chad Palmer’s proposed law forbidding such contributions, bitterly opposed by those who had mortgaged themselves to interest groups—notably the Christian Commitment and the NRA—in exchange for money to finance their campaigns. “‘Judicial activism,’” Caroline calmly rejoined, “would be to ignore Supreme Court precedents. Or to lobby for promotion by pledging to overrule them.”

Though blandly delivered, her answer was so pointed that the spectators emitted nervous laughter, and Palmer’s quick smile seemed to further stoke Harshman’s outrage. “‘Judicial activism,’” Caroline concluded, “treats law as the tool of
one’s political beliefs. I agree with you that judges should
apply
the law, not reinvent it.”

Harshman flushed, stymied by a statement with which he could not quarrel. “You began your career,” he said flatly, “defending accused murderers, rapists, robbers, and child molesters. Frequently you sought their acquittal on the basis of so-called police misconduct—illegal searches and the like. But most of those people were guilty, weren’t they?”

Caroline smiled faintly. “I certainly hope so.”

Harshman’s head snapped forward, as though offended by her flippancy. “Why would you say
that?
”

“Because most of them were convicted.”

There was more laughter, less apprehensive than before. “That vindicates the police,” Harshman snapped, “doesn’t it? And exposes your pro-criminal bias as unfounded.”

Now Caroline did not smile. “The simple truth, Senator, is that most people a criminal lawyer defends
are
guilty. If most were innocent, this country would be Libya—or China. The accused in those countries
have
no rights. Which makes injustice possible.”

Harshman shook his head in disgust. “That’s a far cry from getting a child molester acquitted on a technicality, leaving him free to molest again. Do you remember
that
case, Judge?”

Caroline did, all too well: the face of his alleged victim, the man’s stepson, had haunted her for years. “I do, Senator. The judge—a former prosecutor—concluded that the police had coached the boy so thoroughly that he could not be believed …”

“After you asked him to so rule.”

Caroline felt tense: the most difficult aspect of a lawyer’s life, and the hardest to explain, was that upholding the rights of the guilty helps prevent the conviction of the innocent. “Under the Constitution,” she said, “we protect defendants against coerced confessions and fabricated evidence. Sometimes that means that we free the guilty with the innocent. I wish that we, as humans, were capable of perfection. But we’re not—”

“That must be why,” Harshman interrupted, “you support these endless habeas corpus petitions that keep prisoners on death row for decades.”

Caroline cocked her head. “I support the death penalty, fairly applied. But in numerous cases DNA testing has proven that men awaiting execution are innocent. Typically poor, black men—often with inadequate representation.” Her voice became ironic. “One lawyer was drunk throughout the trial. His finest hour was when he fell asleep.

“His innocent client came within three days of execution. And killing the innocent is murder, whether committed with an ax or by the State of Illinois …”

Harshman’s eyebrows shot up. “Your compassion does you credit, Judge. But your devotion to prisoners’ rights transcends death penalty cases. Are you familiar with
Snipes v. Garrett
?”

Of course
, Caroline mentally answered.
I read it again last night, certain that you’d bring it up
. “It’s a recent en banc case. Our court held that an inmate who claimed that he was beaten and sodomized should be given a chance to prove that—”

“Specifically,” Harshman cut in, “you voted with Judge Blair Montgomery—a noted judicial activist. Despite a dissent by Judge Steele which correctly cited the intent of Congress to limit frivolous suits by inmates.”

Caroline shifted in her chair, trying to relieve the ache in her lower back. “Anyone who knows California’s prisons,” she answered, “had reason to worry that Snipes
was
being abused. The majority of us shrank at turning away a semiliterate prisoner because he failed to name the right defendants on the first try …”

“Don’t you hold these people to
any
standards, Judge? Or did being a convicted felon give him more rights than the rest of us?”

Harshman’s obtuse, badgering tone had begun to fray Caroline’s patience. “The man was sentenced to twenty years in prison. But that doesn’t mean he deserves anything he gets there.” Pausing, Caroline added softly, “Twenty years of sodomy, Senator, falls outside the sentencing guidelines.”

The last remark caused Harshman’s face to redden. From the body language of his colleagues, conveying a studied neutrality, Harshman was gaining no ground. Turning to Harshman, Palmer raised his eyebrows in silent inquiry.

Frowning at his notes, Harshman seemed relieved when the blond aid materialized at his shoulder, placing some papers in front of him. As she whispered, Harshman listened intently, and then, apparently revitalized, faced Caroline again.

“This morning,” he informed her, “your court affirmed Judge Leary’s opinion in the Tierney case, upholding the Protection of Life Act
and
the grandparents’ right to protect their unborn grandson. Seems like Mary Ann Tierney’s only recourse is to petition your court for an en banc rehearing—like in your Snipes case—or go to the Supreme Court. Would you agree?”