Supreme Ambitions (21 page)

Not long after Justice Keegan's funeral on Friday, news articles started appearing about the search for his successor. President LaFount had reportedly drawn up his shortlist of possible nominees and would be interviewing a half-dozen contenders. Journalists covering the Supreme Court—Robert Barnes, Emily Bazelon, Joan Biskupic, Jess Bravin, Jan Crawford, Tom Goldstein, Linda Greenhouse, Ken Jost, Dahlia Lithwick, Adam Liptak, Tony Mauro, Jeffrey Toobin, Nina Totenberg—floated their own shortlists. Bloggers started dissecting the lists, arguing over the respective strengths and weaknesses of the contenders, and commenters on message boards dug into the blog posts. It was the legal world's version of Oscar season, full of speculation by pundits and campaigning by partisans (including former clerks to the possible nominees).

With Judge Stinson out of town, in a different time zone, and not checking in very much—presumably she was too busy preparing for her interview with the president—my co-clerks and I decided to have lunch outside of chambers. On Wednesday we went to Il Fornaio, an Italian restaurant—a chain restaurant, but an upscale one—in Old Pasadena. I liked that it was reasonably priced, with entrees under $20, and I could take home half of my pizza and reheat it for dinner later.

We luckily landed a somewhat private table near the back of the relatively busy restaurant. This allowed us to gossip about SCOTUS candidates without fear of being overheard. Back when he did Beneath Their Robes, Amit wrote a story about some clerks to Justice Greenberg who
were overheard talking about a pending opinion while out at an Indian restaurant in D.C.; after the item appeared, the clerks got scolded by their boss. So we were mindful of confidentiality—especially after the stern talking-to we got from Judge Stinson before she left town.

After our food arrived, Amit started the discussion.

“So,” he said, leaning forward with obvious relish, “who's it going to be?”

“Our boss?” asked Larry. Perhaps because Judge Stinson was the only candidate he knew of. His shirtfront was covered with a constellation of focaccia crumbs.

“It would be nice to have a Boaltie on the Court,” James said, slicing into his rotisserie chicken. “It would enhance the value of my degree. And the value of a Stinson clerkship.”

“I don't know,” I said, adopting my usual protective pessimism—discounting the likelihood of a desired outcome so as not to jinx it. “There seems to be a lot of talk this time around about it going to someone who's not already a judge—a senator, a governor, a cabinet official.”

“That's just talk,” Amit scoffed. “Every time there's a vacancy, everyone says, ‘Oh, the president should nominate a politician! We need political experience on the Court!' But it hardly ever happens—it hasn't happened in years—and for good reason. The Court has political elements, but it's primarily a legal rather than political institution. And the people best positioned to serve on a legal institution are people with legal rather than political experience. It's also more risky to nominate a politician. Why go for a politician when you have so many qualified jurists already serving on the circuit courts?”

“Well, among judges, Steve Collins of the Eighth Circuit is getting buzz,” I said. “People like that he's from the midwest rather than the Acela corridor. Joan Biskupic and Tony Mauro think he has the edge.”

“He's well regarded,” said Amit, “but young. The same goes for Jeff Stuart and Ray Kelton on the Sixth Circuit, and Neal Gosford on the Tenth Circuit. Brilliant former SCOTUS clerks who come from flyover country—coastal qualifications, heartland appeal. But they need more
judicial experience. LaFount might want to save them for later—like when Hannah Greenberg's seat opens up. At least that's what Jan Crawford thinks, and she has very good sources in conservative circles.”

“So who does Crawford think is the favorite?” asked James. He had neatly segregated the rosemary potatoes that came with his chicken and was barely touching them, keeping with his low-carb diet.

“Her sources say Rashida Williams of the D.C. Circuit,” I said. “Currently on the most prestigious circuit court, previously on the California Supreme Court. Smart, African American, a woman …”

“And unconfirmable,” Amit said. “I agree with Jeff Toobin: put a typewriter in front of her and she turns into a loose cannon. Hard-core libertarians support Williams because of all these speeches and articles of hers criticizing the New Deal, but there's no way she gets past the Senate. If a D.C. Circuit judge gets it, Brent Kirkpatrick is most likely.”

“How about that Latino judge in the Fifth Circuit?” asked James. “He's on a lot of the shortlists.”

“Ramon Guerrero,” Amit said. “I have a law school classmate clerking for the Fifth Circuit who tells me Guerrero is gay.”

“Who cares?” asked Larry, between mouthfuls of his sausage and broccoli rabe pizza. “Does that crap still matter?”

“To the religious right it might,” James said. “And they have a lot of sway on judicial issues.”

“The hard right might care if Guerrero were out, but he's not,” Amit said. “His main problems are that he's a little old and he has some random dissents and concurrences in his past—affirmative action, abortion—that could come back to haunt him.”

“What about Judge Polanski? Could he get it over our boss?” I asked. My vegetarian pizza was delicious—and because I was still upset over losing out on the Keegan clerkship and stressed over whether I'd get another shot at clerking for the Court, I didn't care about the carbs.

“He has some advantages,” Amit said. “He's more brilliant than the judge. He has the Polanski Mafia working behind the scenes for him—they're at the White House counsel's office, and the Senate Judiciary
Committee, and the Office of Legal Policy at the DOJ. But he has disadvantages too. Some people view him as less predictable than Stinson, less consistently conservative—occasionally he ‘libs out' on some issue he gets a bee in his bonnet over. We know how unreliable he can be when it comes to en banc votes.”

“Judge Polanski is conservative but principled,” I said. “He ‘libs out' when he feels the law requires a liberal result.”

“Presidents prefer predictable over principled in SCOTUS nominees,” said Amit. “And Polanski's a white male, which doesn't help.”

“So it sounds like our boss has a good shot?” said James. “As conservative as they come, but with the whole ‘attractive half-Asian female' thing going for her?”

James talking about attractive half-Asian females caused me to look down at my pizza and study the positioning of the eggplant slices.

“The problem is that she's seen in some quarters as being insufficiently conservative,” Amit explained. “Look at some of the conservative blogs and message boards—Red State, Free Republic, Bench Memos. There's distrust of her among the social conservatives.”

“Why would that be?” James said. “I don't think I've ever seen a ‘liberal' vote from her. You could even argue that she's
too
conservative.”

“It's purely a perception problem,” Amit said. “Some conservatives think of her—mistakenly, of course—as a ‘California' conservative. It might be because the Ninth Circuit's liberal reputation as a court has rubbed off on her, even though she's one of the judges trying to keep its excesses in check. It might be because she's an Asian woman, and people expect an Asian woman to be liberal—Polanski doesn't have the same problem, even though he's a Ninth Circuit judge too.”

Amit paused, enjoying his conversational authoritativeness, and speared some fusilli with his fork.

“But again, it's pure perception,” he concluded. “Nothing that one good opinion couldn't fix.”

“So I'm guessing you would all like to hear about my interview with President LaFount at the White House.”

Judge Stinson grinned girlishly. We had completed the business portion of the Monday meeting and had reached the point where we would normally recount how our weekends had gone. But nobody was interested in what movie Larry had seen on Saturday night or how far James had run on Sunday morning.

“It went very well, knock wood,” said the judge, rapping her delicate knuckles against the conference room table twice. “I met last Wednesday with White House staffers, the vice president, and the president. The meetings lasted for about six hours in total, including an hour with the president—a very gracious and personable man, far more charming than the media gives him credit for. I had met him before socially, through Robert, but only briefly. This was my first extended interaction with him.”

“What did you talk about?” Amit asked.

“Mainly my background and upbringing. President LaFount seemed favorably impressed by my life story.”

“So you didn't talk about the issues?” said Amit.

“Not with the president. I had the sense that he wanted to know about me as a person—my values, my character, my journey through life. After the interview, he gave me a tour of the family quarters of the White House. He showed me a handwritten copy of the Gettysburg Address
and the Lincoln Bedroom—which Robert and I had stayed in years ago, although I didn't mention that to the president. A real treat.”

“And he didn't ask you any questions about your judicial philosophy?” asked Amit, with almost impertinent aggressiveness.

“No, not at all. When I met with the vice president and the White House counsel, they asked me some general questions about my judicial philosophy and my approach to deciding cases. But nobody asked me about specific issues like abortion or affirmative action or gun rights. It was clear to me that they were already very familiar with my jurisprudence and my track record on the bench. And I don't think they would want to create a record of having any kind of ‘litmus test' for a nominee.”

Amit nodded, seemingly satisfied.

“Now let me ask some questions of you,” Judge Stinson said. “I'm sure you've all been following the media coverage of the possible nominees. What's being said about me?”

“The coverage of you has been very positive, Judge,” I said. “People seem impressed by your qualifications, your judicial experience as both a trial and appellate judge, and the diversity you would bring to the Court as an Asian American woman.”

“And what about the criticism? What should I watch out for? My husband hired a political consultant to advise us, and this consultant suggests that—contrary to what one might expect—the greatest danger to my nomination comes from the right, not the left. His research seems to indicate that my biggest challenge would be getting the nomination over the objection of the hard right—and that if I can get the nomination, I would then have smooth sailing.”

“I totally agree,” Amit said. “The biggest concerns about you seem to be coming from conservatives, social conservatives in particular. Libertarians and the business community seem comfortable with you, and progressives seem to think you're about as good as they can expect from LaFount. But social conservatives are worried that you don't have much of a track record on the issues that matter most to them. They like your immigration rulings, especially
Hamadani
, but they don't like your si
lence on abortion, religious freedom, gun rights …”

“My silence? I wish they understood how these things work. I can decide only the cases and controversies that come before me. I can't just call up the clerk of court and say, ‘Cathy, send me an abortion case!' Hopefully the public can be educated during this process.”

“Some people don't like that you're married to one of the biggest talent agents in Hollywood, which screams ‘liberal' to them. Some conservative bloggers found pictures of you and Robert attending the Vanity Fair Oscars party.”

“Well, at least I look fabulous in those photos!”

“And some of them don't like the time you represented an Asian American theater group that was facing eviction. It could end up being an asset in winning support from the left, but eviction defense work for an ethnic theater group doesn't sit well with the right.”

Judge Stinson sighed.

“That was pro bono work, performed for the Asian Pacific American Legal Center, a respected civil rights group,” she said. “In the end, the theater company vacated the premises—but because their lease was being terminated prematurely, they were entitled to compensation, which we helped them negotiate. All we did was help them assert their rights under a lease. Don't conservatives believe in the validity of contracts?”

“Judge, that makes sense,” Amit said. “I think the case—the distorted account of the case, that is—just played into their existing concerns over whether you're too close to the entertainment industry.”

“If I'm lucky enough to be chosen by the president,
I
would be the nominee, not my husband. This entire process is quite absurd. But it's the toll that must be collected, I suppose.”

“Did the president mention when he'd announce his nominee, Judge?” James asked.

“Within the next three to six weeks, it seems—which strikes me as very soon, but which historically is on the slow side. Since we're in the middle of the term rather than the summer recess, there is some time sensitivity. But President LaFount views Supreme Court appointments
as a very important part of his legacy and does not want to rush the process.”

She rose from her seat at the head of the table, signifying the end of the meeting.

“Remember: this all stays within chambers. The fact that I interviewed with the president is now public, thanks to the
New York Times
and the
Washington Post
, but anything beyond that should be kept confidential. And Audrey, I'd like to speak with you for a moment.”

After everyone else left, the judge and I adjourned to the sitting area of her office. She took her usual position in the club chair, and I perched on the couch.

“Where are we on
Geidner
? I'd like to get that opinion issued as soon as possible.”

“We're still waiting on Judge Deleuze's dissent. We circulated our draft majority about two weeks ago, before you left for Washington.”

“Marta Marta Marta,” sighed the judge. “The member of this court least likely to assist me. If she knew I wanted this opinion out quickly, I wouldn't put it past her to deliberately delay her dissent.”

“Judge, I've heard through the clerk grapevine that Judge Deleuze is actually eager to get the opinion out as well. Apparently she believes that her position will be vindicated, whether by an en banc court or the Supreme Court, and she wants this case decided as soon as possible, for the sake of all the couples it would affect. So her dissent might come more quickly than a typical dissent in a case of this importance.”

“That's good to know. But I do wish we could speed this up even more. See what you can learn through this grapevine of yours.”

The grapevine, the grapevine …

“I think I have an idea for how to accelerate the process. But it might require talking a bit about your interview with the president, as well as a little … misdirection.”

“Do whatever you think best, Audrey. I trust your judgment.”

Upon returning to my office, I picked up the phone and called my main conduit to the grapevine.

“What's the good word, Miss Audrey? Is Justice Stinson about to be inflicted upon this helpless nation?”

“Her interview with President LaFount went quite well,” I said, before providing a capsule summary of what the judge just told us about her White House meetings—and stressing how well they went.

“Ugh,” Jeremy said. “It sounds like Judge Stinson should start ordering up some new robes. She's what, a size six?”

“Don't insult her—size four, tops.”

“I need to start looking into moving to Canada. Our country does not need Justice Christina Wong Stinson—as big a conservative hack as Keegan, only without the brilliance.”

The comment angered me, but I held my tongue. I had a mission to accomplish.

“Well, I wouldn't pack your bags for the Great White North just yet. Judge Stinson has a decent shot, but there are still … concerns.”

“Like what?”

“She's worried about
Geidner
. Same-sex marriage is such a hot button issue, and she could be vilified by the left for issuing an opinion upholding Proposition 8. At the very least, it could complicate matters for her nomination—and right now the last thing she wants is controversy.”

“Interesting …”

“So she's hoping that she can just wait it out and get nominated before she has to issue the opinion. She wouldn't have long to wait—apparently the president wants to announce his nominee in the next few weeks.”

“I told you earlier, Deleuze wants
Geidner
out quickly.”

“That's a concern. But it's a major, complex case. We probably won't get Deleuze's draft dissent for a few weeks. Then we'll have to revise the majority opinion to respond to the dissent, and she'll have to revise her dissent to respond to our revisions—you know the drill. It wouldn't be hard to run out the clock on this.”

“I think you're wrong,” Jeremy said. “Underestimate Judge Deleuze at your peril.”