Supreme Ambitions (25 page)

The reviews of Judge Stinson's performance in her confirmation hearings were stellar. Commentators praised her poise, polish, and careful, thoughtful responses. I had to concede: even if she didn't often bother with details in her day-to-day work as a judge, when she actually deigned to focus on something she cared about, she could hit it out of the park.

With not much time left before her confirmation vote—because the Court was in the middle of its term, her vote was being fast-tracked—I still hadn't figured out what to do in
Geidner
. Was I delaying because I didn't know what action to take, or was I being cowardly and trying to run out the clock? Did part of me feel guilty about the prospect of taking action that would arguably violate my duty of confidentiality to my judge and derail her Supreme Court prospects?

Early the following week, in an effort to give myself a pep talk about the wisdom of courts exercising jurisdiction with care, I picked up one of my old books from law school, a classic on the subject of judicial restraint:
The Least Dangerous Branch
, by Alexander Bickel, the late, great Yale law professor. There was nothing in it that related directly to the jurisdictional defect in
Geidner
, but flipping through it reminded me of how important proper jurisdiction is to the legitimacy of the courts. Far from being a “technicality,” jurisdiction is the foundation upon which judicial review rests.

I came to
Chapter 4
, “The Passive Virtues,” which was also the title of Bickel's landmark
Harvard Law Review
article. Bickel's argument, in a
nutshell, was that sometimes courts should refrain from ruling on controversial issues, even if those issues are properly before them, as they wait for societal views to solidify. In other words, judicial passivity can be a virtue.

Passivity as a virtue: that was the ticket. I now knew what to do.

I decided to reach out to Lucia. Her boss, Judge Polanski, was perhaps the one judge on the court who was even more of a stickler for jurisdiction than Judge Stinson. Rumor had it that he would reward any clerk of his who could find a jurisdictional defect by taking that clerk out to a fancy lunch—and considering that the Polanski clerks rarely ate lunch anywhere other than chambers, that was quite a reward indeed. If I could get
Geidner
's jurisdictional problem in front of Judge Polanski, he wouldn't hesitate to take action.

I picked up the phone and called Lucia. It was ten in the evening, but I knew she'd still be at her desk.

“Hi Lucia. Sorry to bother you, but I need to see you.”

“Sorry, Audrey, but you are one of the last people I'd like to see right now. Or ever. I don't know why I even picked up the phone.”

“I realize that, well, things didn't end so well with us. But this is very important. It would mean a lot to me if you'd just meet with me.”

“I'm not particularly concerned these days with what would or wouldn't mean a lot to you.”

“Okay, let me put it another way. I have information that I think you—and Judge Polanski—would be very, very interested in learning.”

Silence from Lucia. I could tell I was getting through to her, invoking her conscientiousness as a clerk.

“It's important,” I said. “Not just to me, but to the Ninth Circuit. It will take just a few minutes of your time. And you don't even need to talk to me if you don't want to. Can you meet me in the library in five minutes?”

“Fine. But this better be good. And fast.”

I gathered up the materials I used to prove the
Geidner
jurisdictional problem to Judge Stinson. I took the legal pad where I had previously
laid out the argument, then added at the top—in capital letters, in red marker—“JURISDICTIONAL DEFECT IN GEIDNER V. GALLAGHER.” Then I headed down to the library, where I took the table under the Chicago Clock—the table where Lucia and I had had our last intense encounter. This time, though, it would hopefully have a happier ending.

I laid out my materials all over half of the table. The legal pad with the red-marker writing was clearly visible. Also in plain view was the original notice of appeal.

Lucia arrived a few minutes later. She nodded at me in silent greeting.

“Hi,” I said. “I just realized: I have to go to the bathroom. Can you keep an eye—a close, close eye—on these materials of mine?”

She gave me a puzzled look. I raised my eyebrows twice, feeling like an inept agent in a spy movie. And then I saw the recognition in her eyes—of course the top graduate of Harvard Law School would be quick on the uptake.

I wandered off for five minutes, meandering through the empty hallways of the first floor of the courthouse. I figured that would be enough time for Lucia to see what she needed to see. When I returned, I noticed that Lucia—who had come down to the library empty-handed—held a sheaf of photocopied materials in her hands.

“Thanks for trusting me with your papers,” she said. “You're right. I find them exceedingly interesting. And Judge Polanski will too.”

A day passed. Then another, and another, and another. No word from Lucia, and no action by Judge Polanski. Had I missed something? Was there really no jurisdictional problem in
Geidner
?

And then the big day itself rolled around: the Senate vote to confirm Judge Stinson to the Supreme Court of the United States. With strong bipartisan support—just a handful of hard-core liberals voted against her—Judge Stinson was confirmed to the Court by a vote of 82–18, as we watched coverage of the vote on the television in chambers.

“Well, congratulations to our boss,” James said, an obvious edge in his voice. “The Senate has performed its advise-and-consent function and voted in favor of Judge Stinson. I wonder how informed that consent was?”

I wanted to explain myself to James and to tell him that I
had
taken action, that I
had
brought the
Geidner
jurisdictional defect to the attention of someone I thought would do something about it. And that I had done so in a cleverly passive way, where I could tell myself that I hadn't actively betrayed my boss but had just “accidentally” allowed certain information to get out. But I didn't feel comfortable revealing what I had done.

Fortunately, I didn't have to wait long. The morning after her confirmation vote, Christina Wong Stinson was sworn in as Associate Justice Stinson. That afternoon, Judge Polanski sent around an email to all Ninth Circuit judges—the “All Associates” listserv—unveiling the ju
risdictional defect in
Geidner
. His email, clearly based on my research and analysis, left no room for argument. He included an extremely clear copy of the original notice of appeal to his email—presumably a copy that Lucia had made on the evening we met up. His message did not say anything about how he came to learn of the problem.

As a result, a few days later the
Geidner
opinion was vacated—withdrawn, rendered a nullity—and the appeal was dismissed. The proper outcome for the case, as a matter of legal principle, was achieved; the issue of same-sex marriage would be decided in some unknown future case—hopefully by judges more principled than my boss. But none of this affected the confirmation to the Supreme Court of the judge who knew about the mistake and willfully concealed it from public view.

And so justice was done in
Geidner
—but not in terms of Judge Stinson's elevation to the Supreme Court. I wondered to myself: why did Judge Polanski wait to expose the jurisdictional defect in
Geidner
until it was too late to affect Judge Stinson's confirmation?

Shortly after her confirmation and swearing-in ceremony—to which she wore the triumphantly pink Armani suit I picked up with her, as I noticed when I watched on television—Justice Stinson returned to California to straighten out some affairs. She popped into chambers one day, presumably to leave instructions for Brenda and for the movers, and called me in to see her as soon as she arrived.

“Hello, Judge—I'm sorry, Justice.”

It felt strange to call her “Justice.” But I had to respect the office, even if not the occupant.

“Hello, Audrey,” Justice Stinson said, standing up from behind her desk. “Don't sit down. This conversation will be brief. I assume you told Judge Polanski about the jurisdictional issue in
Geidner
.”

“Your Honor, I did not speak to Judge Polanski about …”

“Spare me the word games, please. I took hundreds of depositions back in the day and I know how to rephrase a question. I assume that you played some role in Judge Polanski learning of the jurisdictional issue in
Geidner
.”

I said nothing, but my blushing betrayed me.

“Thankfully, your dishonesty came too late to interfere with my confirmation to the Court.”

“Justice, I wouldn't call it dishonesty for a law clerk to …”

“Enough,” she said, raising her voice and her right hand. “I do not wish to hear excuses for your betrayal. There will be consequences.”

I nodded. Even though I knew I had acted properly, I felt bad. I was not used to disappointing, to say nothing of angering, authority figures.

“Your co-clerks will be offered positions with other judges here on the Ninth Circuit for the remaining months of their clerkships, as is customary in these types of situations. But not you. You can resign your position, effective immediately, or we can explore … other options.”

“You're firing me?”

“Not quite. I am offering you the opportunity to resign. What did you expect, a promotion? Needless to say, I am not taking you with me to the Supreme Court. Nor will I recommend you to any of my colleagues on the Court—ever. You will never be a Supreme Court clerk, Audrey Coyne. And I will never forget what you did to me.”

“Your Honor, I'm sorry,” I said instinctively—before catching myself and clarifying, “I'm sorry it had to end this way.”

“I am as well. I saw so much of myself in you, and so much promise. But that's the end of that.”

Justice Stinson sat back down and looked up at me, dismissively.

“Brenda has all the paperwork,” she said. “She has already printed out your resignation letter; all you need to do is sign it. Then pack up your personal effects and leave chambers immediately. Don't make me call courthouse security to remove you from the building. They respond extra quickly to requests from Supreme Court justices.”

As I packed my few personal belongings—a handful of books from law school that I had brought into the office, a framed photograph of my parents and my sister, an extra suit that I hung on the back of my door—I thought about what had just transpired between me and the judge. I can't say it came as a surprise—I knew the judge would be angry—but,
until then, I hadn't really stopped to think through all the implications.

I would never have the privilege of clerking for the Supreme Court. A longtime dream of mine was dashed. At the same time, I would never have the corresponding burdens. And make no mistake about it: being a Supreme Court clerk came with burdens, the weight of high expectations. Within a few years of leaving your SCOTUS clerkship, you were expected to enjoy a certain amount of professional success: a partnership at a major law firm, a tenured professorship at an elite law school, a high government office. If you weren't a federal judge by age 45, people would wonder: what went wrong? And even making it to a coveted, life-tenured seat on the federal bench didn't put an end to ambition. District judges wanted to be circuit judges. Circuit judges wanted to be particularly well-respected circuit judges, such as feeder judges—or, better yet, Supreme Court justices. I recalled what Judge Stinson had told me during my clerkship interview: “I like to be a judge who's going places.” Success didn't take you off the treadmill, but simply put you on a different treadmill, at a higher speed and with a steeper incline.

But now I didn't have to worry about any of that. With no hope of a Supreme Court clerkship in my future, I was free to just be an Ordinary Person. It felt liberating to have the weight of ambition lifted from me. Or so I tried to tell myself.

I tried to imagine with pleasure the perfectly normal, boring life that awaited me. I'd go back to Cravath and plunge into the toil of a junior associate. I'd leave after a few years, maybe to work in government or go in-house or join a boutique firm. At some point I'd get married and have two or three kids. I'd keep working as a lawyer, doing competent work in service of my clients, and move a notch or two up the career ladder. My kids would grow up and go off to college and get married themselves. Eventually I'd retire, filling my time remaining on earth with travel, classes, and grandchildren. And then I'd die, having lived a pleasurable, productive, perfectly pedestrian life. My death would be noted not as a news item, with a
New York Times
obituary, but with a death notice paid for by my family.

And who was I, really, to aspire for more than that? Yes, I'm intelli
gent and accomplished, but not to any extraordinary degree. It would be an exaggeration to call me “brilliant.” There are hundreds, if not thousands, of law school graduates and young lawyers just like me. When we're young, overachieving, and unstoppable, we all think we're special. But as we grow older, we reach a more realistic understanding of our place in the world. It happens at different times for different people, but eventually we all come to terms with our own ordinariness.

We can't all become Supreme Court justices, or even federal judges, or even prominent lawyers with noteworthy cases. And this reality is not unique to law. Very few doctors will cure a major disease. Very few actors will win Oscars or Tony Awards. Very few writers will pen best sellers. Very few bankers will become billionaires. Very few soldiers will become generals.

We can't all become part of history; we can't all become stars. Instead, we must serve as members of the chorus, or even the audience, so the true stars can stand out and shine. Indeed, without supporting players or an audience, there can be no stars. The role of being an audience member, while not prominent, is essential. It's the role played by the vast, vast majority of humanity, and it holds no dishonor.

So, in one sense, not getting a Supreme Court clerkship was a great blessing. It gave me freedom: freedom to step off the track, freedom to stop chasing elusive glory, freedom to live a normal life, freedom to just … be. Dropping out of the race gave me such sweet relief. I looked forward to watching others pass me by, sweating and panting and struggling mightily—for what?—as I just stood there, breathing deeply and savoring the sky above me and the ground below.

Judge Stinson's confident pronouncement that “there is always somewhere else to go” was simply wrong. You can stop exactly where you are, anytime you want, plant your feet, and declare to the world, “Here and no further.” And in that moment, you will have your victory; you will have overthrown the tyranny of ambition.

Or so I tried to tell myself, as I packed up my belongings and left chambers for the last time.