Supreme Ambitions (24 page)

The limited role the courts play in our constitutional system—constrained by such doctrines as federal jurisdiction. Part of me imagined standing up, in front of the president and all the television cameras, and shouting out the dirty secret of no jurisdiction in
Geidner
. But instead I sat still, in the sausage casing of the beautiful Armani suit the judge had bought for me. Silence is consent?

“I pledge that, if confirmed, I will do everything within my power to fulfill those great and grave responsibilities. I look forward to working with the Senate in the next stage of this process. Mr. President, thank you once again for your confidence in me and for honoring me with this nomination.”

I spent two days in Washington, basking in the reflected glory of my boss as she attended events in her honor and visited her D.C. friends. Judge Stinson took care to introduce me to everyone—White House officials, Washington power brokers, fellow judges—and always with kind words of praise, calling me “brilliant” or her “most trusted law clerk.” It felt like an extended version of our conversation on the courthouse rooftop: “All this can be yours, as long as you remain loyal to me.”

I then returned to Pasadena—flying commercial, but on a ticket paid for by the judge—while Judge Stinson remained in Washington, making courtesy calls on the senators who would be voting on her nomination and preparing for her confirmation hearings. This involved poring through binders of material prepared for her by the White House and going through “murder boards”—brutal sessions in which numerous questioners would pretend to be senators, grilling her about her record and legal views, trying to trip her up or make her lose her cool. It sounded like a Supreme Court clerkship interview but worse.

The process of preparing Judge Stinson for her hearings, which was being handled by the White House and the Justice Department, did not involve us clerks. Being back in Pasadena, given what was going on in Washington, felt so irrelevant. We still had work to do; even though the judge wasn't being assigned new Ninth Circuit cases, she did want us to tie up loose ends on pending cases to the extent that we could. But our work was an afterthought for the judge, who hardly called in or emailed
to check on our progress. It was like being at home with the National Guard during a war: we were supporting the cause but in a minor way, far from the front lines.

Part of me wanted to be closer to the action, but part of me was relieved. Given my conflicted views about the judge, including the bomb-shell I knew about her most famous and acclaimed case, I was content to simply be a bystander to history. I remembered what I thought to myself on the roof: all I had to do was say nothing.

One afternoon, a few weeks after my return from D.C., and the day before the start of Judge Stinson's confirmation hearings, James stepped into my office, closed the door behind him, and sat down. This made me nervous. Things had been weird between us for a while and we hadn't had much in the way of one-on-one interaction lately.

“What's up?” I asked, trying to sound as relaxed as possible.

“I was going to ask you that.”

“Well, the judge's confirmation hearings start tomorrow, and it seems like things are looking good for her,” I babbled. “The Democrats don't seem to have the stomach to challenge an Asian American woman who has lived the American dream.”

“I wasn't talking about the judge,” James said. “What's up with
you
?”

“Nothing much. I'm just reviewing a case where the judge has to cast an en banc vote so I can make a recommendation. But how she votes is pretty irrelevant, since it seems that Judge Gottlieb has more than enough votes …”

“No, I'm not talking about what you're working on. You haven't been yourself over the past few weeks. You seem distracted. Anxious.”

“Maybe it's just the excitement of the judge's nomination. Our boss is about to have her Supreme Court confirmation hearings. That's pretty amazing. I guess I've had a hard time focusing ever since coming back from D.C.”

“But you were like this even before you went to Washington. Something's on your mind. Something's bothering you.”

I looked into his blue-green eyes and quickly looked away.

“Oh, nothing really,” I said. “I guess part of me is wondering what kind of justice the judge would be if she gets confirmed.”

“Are you worried that she's not brilliant enough to be a justice?”

“No, I actually think she's very smart. Maybe not as brilliant as Justice Keegan, but you can be a perfectly solid justice without being brilliant.”

“Do you think that she's … too disengaged?”

“Well, I think she'd be more engaged on the Court than she was here. The justices get the biggest and most exciting cases. The judge phoned it in when it came to the little cases. But the Supreme Court doesn't take little cases.”

“You're probably right,” James said. “So there's no need to fret over what Justice Stinson would be like. No justice is perfect. And it's not like there's anything that one of us could do at this point to change whether she makes it onto the Court.”

If only James knew what I knew. The prospect of sharing my secret with him was so tempting. I definitely wanted to get his advice. But I wasn't ready to commit to any particular course of action; I wanted to keep all my options open.

“There is something weighing on me,” I said. “But if I share it with you, can you promise that you will keep it a secret?”

“Absolutely. I promise.”

I paused. The judge had told me to tell no one. But I couldn't resist the opportunity to unburden myself.

“It's about
Geidner
.”

“Ah,
Geidner
! The judge's biggest triumph—and yours. The opinion that got a shout-out from the president when he nominated her. What's going on with
Geidner
? It might get reheard en banc, in which case your opinion goes away. But there's nothing you can do about that. And the opinion already served its purpose, at least as far as the judge is concerned.”

“Actually, the opinion shouldn't even exist. When I was doing the final cite-checking and proofreading, I made a discovery: the court lacks jurisdiction.”

“That's crazy. How can that be?”

“The notice of appeal was filed one day late. The clerk's office missed it. In the scanned document on the online docket, the date on the notice looks correct. But when you look at the original paper document, as I did in my cite-checking, you can see it was filed out of time by a single day.”

“Holy crap. Did you tell the judge?”

I nodded slowly.

“And what did she say?”

“This was back when the president was still mulling over nominees, when some on the right were questioning her conservative credentials as a possible Supreme Court justice …”

James paused, but only for a few seconds; he was a quick thinker.

“She didn't—she didn't tell you to ignore it, did she?”

I nodded. For some reason, making James guess what happened instead of telling him directly made me feel less guilty about revealing the judge's secret—even though I felt guilty over keeping the secret too.

“Wow,” James said, shaking his head in disbelief. “And to think that she always casts herself as the defender of judicial restraint and jurisdictional limits. But our boss is nothing if not ambitious. You've been keeping this a secret the whole time?”

More nodding from me.

“You have to do something,” he said. “You have to tell someone.”

“I told the judge. And she made the call to go forward and issue the opinion anyway. That was her call to make. She's the judge.”

“Audrey, that's bullshit. Issuing an opinion in a case where the court lacks jurisdiction—and
knows
it lacks jurisdiction—is lawless.”

“Lawless? That might be a little strong. The constitutionality of banning gay marriage is an important issue that needs to be resolved. It's going to come through the appellate courts someday.”

“Someday, but not today. Don't you think it's hypocritical of the judge to talk so much about how judges must recognize the limits of their role and the importance of jurisdiction, but ignore all of that when it suits her own purposes?”

“I wouldn't call it hypocritical so much as … practical. This isn't a case where the judge overturned a law on a whim or because of her own personal political views. The jurisdictional defect here is tiny and technical—a piece of paper got faxed in one day late.”

“But here, even if she sustained rather than overturned a law, she
did
brush aside a jurisdictional problem to advance her own personal political views—her conservatism. If a criminal defendant or an immigrant or a plaintiff in a civil case filed their notice of appeal one day late, do you have any doubt the judge would dismiss for lack of jurisdiction?”

I had no rebuttal. We both knew the answer to that.

“Why are you defending the judge so much here? What's at stake for you?”

I shrugged, in what I thought was a casual manner, but James immediately pounced.

“Let me guess: the judge said she'd take you with her as a clerk if she makes it to the Supreme Court. As long as you keep her secret.”

I suspected I was smarter than James in a “book smart” way, but he was far more emotionally intelligent than I could ever hope to be.

“The judge likes my work a lot,” I offered weakly. “And you could see how she might want a familiar face among her first set of law clerks at the Court.”

That almost seemed to anger James. He stood up and moved toward the door, but turned around to face me before opening it.

“Audrey, I see a lot of the judge in you. You share many things—especially ambition. But I trust you to do the right thing.”

The judge's confirmation hearings were scheduled to last four days. Together with my co-clerks and Brenda, I watched every minute, gathered around the only television in chambers, which was in the judge's office. I honestly wasn't sure how well she would hold up, given her 30,000-feet approach to her judicial duties, delegating vast amounts of substantive responsibility to her clerks. But she actually did well—very well, in fact. She provided just enough legal analysis in her answers to satisfy the senators, but not so much as to get bogged down in minutiae. And, perhaps most important in the age of televised hearings, she looked and sounded great. She never stumbled and never lost her cool, giving her opponents no sound bites to use against her in ads or on the nightly news.

On the morning of her last day of testimony, a Republican senator asked Judge Stinson a softball question about her
Harvard Journal of Law and Public Policy
article concerning jurisdiction.

“Thank you for that question, Senator. As I expressed in that article, I am a strong believer in jurisdictional limits, especially in the federal courts, which are courts of limited rather than general jurisdiction. All too often, courts decide issues that they should not decide—and issues that, in fact, they
cannot
decide, due to a lack of jurisdiction. In the article, I analyze some of the doctrines—rationalizations, really—that judges concoct for blowing past jurisdictional constraints to decide issues they lack the power to decide. If you survey my rulings over the years, as both a trial and appellate judge, you will note my strict atten
tion to jurisdiction and my strong respect for the limits it places upon federal judges.”

James gave me a sideways glance. I looked away, but I felt his eyes still on me.

That afternoon, after the close of the confirmation hearings, my mother called. Normally I wouldn't take a personal call in the middle of the workday, but with my boss on national television as a Supreme Court nominee, this wasn't a normal time.

“Hi Mom. What's up?”

“I was watching your boss on the television this morning. Very pretty!
Mestiza
beauty, as they say back home.”

“Yes—she's half-Chinese, half-Caucasian.”

“And she speaks so well! I don't understand all the law-law stuff she's talking about, but she
sounds
very good. Like a newscaster!”

“You're not the first person to make that observation.”

“But, you know, we have a saying:
kung sino ang masalita ay siyang kulang sa gawa
.”

“And that means?” My parents had never taught us Tagalog (or Filipino, if you prefer).

“Whoever talks much never does much. There's a young surgeon here at the hospital, went to Harvard Medical School, did his residency at Mass General, always talking about his education and awards—very
mayabang
. But in the operating room he's very slow, his suturing is sloppy, and the nurses hate working with him because he's so mean.”

“I guess prestige isn't all it's cracked up to be,” I said. “Reputation doesn't always have a basis in fact. You have to look below the surface.”

“So about this boss of yours—would she be a good Supreme Court judge? The newspapers say she is very smart, and she went to good schools, and she looks nice and speaks well. But I don't like how hard she makes you work! Every time I call, you're too busy to talk because you're working. Even though there are four of you! And she doesn't even pay you that much! She should do more of her own work. Does she deserve to be on the Supreme Court?”

“That is … a complicated question.”

Somehow my mother, lacking any real knowledge of the legal profession, had stumbled upon a number of truths.

“Ay,
hija
, my break is over. I'll call you later. Be a good girl!”

I did want to “be a good girl.” I remembered the church billboard I saw on the way to the airport: “Silence Is Consent”—and realized I could no longer consent. I had to do something. But what?