Supreme Ambitions (9 page)

Silence. But I could hear the applause in my head.

“Excellent advice,” the judge said. “In addition to the advantages you identify, certifying the question to the California Supreme Court shows a healthy respect for federalism. And it will send this case away from us until after the—until, well, we enter a … calmer period. Very shrewd.”

“Thank you, Judge.”

I glanced over at Amit. With his mouth wrapped firmly around the corner of his legal pad, he looked like a dog.

“Audrey,” Judge Stinson said, “you will work with me on
Geidner
.”

“Oh James,” I moaned, rolling my head back and staring up at the ceiling. “I haven't been this hungover since that first Monday morning meeting. Why did you let me have so much of that toxic beverage?”

It was early November, the morning after Election Day. I was sitting in one of the two guest chairs in my co-clerk's office. One of the perks of clerking, at least for Judge Stinson, was a private office with enough space for visitor chairs—something not enjoyed by our classmates now toiling at New York law firms as junior associates, who had to share offices.

“I didn't know it was so strong,” he said, leaning far back in his tilting chair. “It was hella sweet.”

“Hella? Is that some California thing?”

“Yeah. It's an intensifier, synonymous with ‘very' or ‘incredibly.'”

“You can take the boy out of Berkeley, but you can't take the Berkeley out of the boy.”

“Well, you should have known better than to drink the ‘Right-Wing Kool-Aid' at an Election Night party hosted by a liberal like Jeremy. You're lucky it wasn't poisoned. I'm a moderate, but I stuck to the ‘Progressive Punch'—I knew it was fine because Jeremy was guzzling it the whole night. Especially after the last network called it for LaFount.”

“I feel so ill,” I said. “I need this day to end as quickly as possible.”

Suddenly James tilted forward, sat up straight in his chair, and cast his eyes toward the door.

“Heads up, Coyne,” he said.

I turned around, following his eyes, and beheld a startling sight: Judge Stinson, wearing a bright red suit with a festively ruched collar, standing in the doorway of James's office.

“Good morning, James! Hello, Audrey!”

We both greeted the judge as effusively as we could. But what was she doing in this part of the office? She rarely came over to the clerks' side of the chambers.

“I have an announcement: we're having a chambers lunch. I'm taking you all to the Parkway Grill. We have a 12:30 reservation and we'll leave at 12:15. See you soon!”

After the judge left, I leaned in toward James, placed my elbows on his desk, and put my aching head in my hands.

“Ugh, not the best day for lunch with the judge,” I said. “And we haven't had a chambers lunch in weeks. What do you think is going on?”

“I think the judge is thrilled about a Republican in the White House, that's what I think.”

“Do you really think she's that political?”

“We'll find out soon enough.”

It didn't take long. As soon as we were seated in the clubby confines of the Parkway Grill, the judge ordered an expensive bottle of cabernet sauvignon from Cakebread Cellars, one of her favorite California vineyards (“Jack Cakebread is an old friend”). As soon as it was poured, she raised her glass.

“A toast,” Judge Stinson said. “To our new leadership in Washington!”

James and I exchanged awkward glances and hesitated for a second. But as Amit and Larry moved to clink glasses with the judge, James and I joined in.

“Judge,” Amit asked, “what do you think the change in administration will mean for the Ninth Circuit?”

“Maybe I'm being too optimistic, but it could be transformative. Based on the people on his campaign's legal advisory team, I'm expecting President LaFount to be severely conservative when it comes to judi
cial appointments.”

“But is LaFount himself that conservative?” James asked. “During the Republican primary, he got criticized by the other candidates for not being conservative enough.”

“True,” the judge said, “but you have to understand that conservatives, especially social conservatives, play a disproportionate role in the judicial nomination process for the Republican Party. They pay more attention to the courts than other groups within the party—so even if the party itself is becoming more moderate, the conservatives still control the picking of judges.”

“Would you say that's true at the Supreme Court level too?” I asked.

Judge Stinson grew even more animated. I watched the wine slosh around in her glass as she waved it while she spoke.

“Absolutely,” she said. “But it gets more complicated and delicate at the Supreme Court level. The president has to pick someone who will excite the conservative base but still win confirmation in a divided Senate—no easy task.”

Lunch stretched out over two leisurely hours, with the chatty Judge Stinson regaling us with tales of Hollywood gossip gleaned from her husband. Upon returning to chambers, I did not have a productive afternoon; that one glass of wine made my head heavy. But it didn't matter. The judge left work right at 5:30, and Brenda and Larry followed soon after. At around 6, I went into James's office and closed the door.

“Can I ask you a question?” I said.

“Sure,” said James, leaning back slightly and putting his hands behind his head. Even though it was the end of the day, his blue shirt still looked impossibly crisp.

“Were you a little disturbed by the judge's mood at lunch today?”

“How so? She was in a great mood.”

“Exactly. She's a judge, not a politician. She's supposed to be impartial. Her glee over LaFount's victory made me a bit … uncomfortable.”

“Look, the LaFount win is
huge
for her. She now has a real shot at the Supreme Court. You'd be thrilled if you were in her shoes.”

“I could never afford her shoes. They cost more than my rent!”

James chuckled.

“You know what I mean,” he said. “If LaFount had lost, she'd have another four years to wait before a possible nomination. And now that she's around fifty, she's at a critical age. If she doesn't get nominated in the next five or six years, she'll probably never get it.”

“I get that she's happy. But she could keep it to herself. Or be more understated about it.”

“Well, we
are
her clerks. Professionally we're just extensions of the judge. If she can't share things with us, who can she share them with?”

“I see your point. I guess I just have an old-fashioned view of judges. Did you know that Justice Harlan wouldn't vote in elections—even though ballots are secret, and even though judges are allowed to vote—because he viewed a judge participating in politics, even in such a small way, as inappropriate?”

“Audrey, our boss is no Justice Harlan.”

A few days later, my office phone rang.

“Audrey, come to my office.
Now
.”

“Right away, Judge.”

I grabbed a pen and yellow legal pad and hurried over to the judge's side of chambers. As soon as I entered her office, she started barking at me.

“What am I supposed to with this?” she said, waving a thick stack of papers in the air as I approached and sat down next to her at the conference table. “I don't even know where to begin.”

I had seen the judge get peeved before, but I had never seen her angry—until now. I looked down at the table, to avoid looking her in the face, and the veins in the creamy marble slab swam before my eyes. I took a quiet breath before speaking.

“I'm sorry, Judge,” I said with a calm I did not feel. “Can you explain what seems to be the problem?”

“This,” she said, shaking the sheaf again, inches away from my face. “
This
is what you consider acceptable work product? This is what you would have me issue under my own name, as an opinion of the United States Court of Appeals for the Ninth Circuit?”

She dropped it on the conference table disdainfully. My draft opinion in
Hamadani
.

“I'm sorry my draft in
Hamadani
did not meet your expectations, Judge. What can I do to fix it?”

“I don't even know where to begin. For starters, you seem to have a problem with forgetting to italicize the periods included in ‘Id.' citations. They must be italicized. They taught you that at Yale, didn't they?”

“Yes, Judge. But sometimes it's hard to tell the difference …”

“No buts. No excuses. Everything coming out of this chambers from now on must be
perfect
.”

“Absolutely, Judge, I will fix all of those.”

“People are watching this case. It has been written up in the papers. Judge Gottlieb will write a strong dissent. There is no room for error here.”

I picked up the opinion and started turning the pages. To my surprise, they had hardly any markings on them, other than some circled, nonitalicized periods.

“I don't see many line edits here, Judge. Could you give me some general thoughts on how to strengthen the opinion?”

“Audrey, how long have you been in chambers now? How many opinions have you read over the years? You're a graduate of a top law school. I hired you because you're supposed to be one of the brightest young legal minds in the country. I'm not going to sit here and tell you how to do your job.”

“Yes, Judge.”

“Look at me.”

I looked up from the opinion, blinking hard to keep myself together, and made eye contact with the judge.

“Do you want to clerk for the Supreme Court?”

“More than anything.”

“When I recommend one of my law clerks to the Supreme Court, I am putting my credibility on the line. I am making a representation and a warranty. I am telling the justices: this is a clerk who is self-sufficient. This is a clerk who knows how to do the job. This is a clerk you don't need to train. This is a clerk who will hit the ground running.”

I nodded and nodded, eyes still on the judge. She knew how to get my attention. This was the first time since I started the clerkship that she
mentioned her coveted Supreme Court recommendation.

“So go back to your office,” she said, “and take this opinion, and just … make … it … better. I want a new draft by tomorrow morning.”

“Yes, Judge. I'm sorry, Judge. Thank you, Judge.”

I grabbed the opinion, hurried back to my office, and closed the door. I sat down in my chair, back to the door, and closed my eyes. I did not want to cry. Feeling the beginnings of a sob in my throat, I took three big gulps from the bottled water on my desk, then let out a deep breath.

After collecting myself as best I could, I wandered over to James's office, closed the door, and collapsed into a chair. He looked up from the brief he was reading.

“Are you okay?” he asked. “You look upset.”

“I am upset. The judge hates me.”

“Of course the judge doesn't hate you. You're her favorite clerk. Well, you and Amit, depending on the day and the mood she's in.”

“If she doesn't hate me, then why did she just call my draft opinion in
Hamadani
a piece of crap?”

“I doubt she said that.”

“Not in so many words. But she told me it wasn't up to snuff. And didn't tell me how to make it better!”

“That's just how she is. She's a ‘big picture' person.”

“I guess I still have this idea of a judge as devoted to the writer's craft. Someone like Justice Oliver Wendell Holmes, writing his opinions out in longhand while standing at his lectern.”

“Very few judges write their own opinions nowadays. You know that. And our boss isn't the kind of judge who gets down into the weeds.”

“I wish she were like Judge Gottlieb. He doesn't write his own opinions, but he edits heavily, for both substance and style. He goes over his comments with Jeremy line by line, paragraph by paragraph, explaining each change and making sure the wording of everything is just perfect. Judge Gottlieb pays attention to detail—in a good way. Not like yelling at me for not italicizing the periods in ‘Id.' citations!”

James started laughing.

“What's so funny?”

“Because I had a similar absurd experience. The other day she yelled at me for putting a space between ‘n.' and the note number in a footnote citation.”

“What's going on with her?”

“Come on, Audrey—you know exactly what's going on. Ever since LaFount won the election, the judge sees herself as a possible Supreme Court nominee. And she's right; she has to be on any shortlist. But that means she's going to be super-uptight and super-perfectionist from now on. She sees herself as under heightened scrutiny.”

“So she flips out over Bluebooking mistakes? I don't think she'll lose the nomination over nonitalicized periods.”

“Of course not,” James said. “But since she doesn't dig into the substance of the opinions we draft for her, she uses small Bluebooking errors as the way to police our work.”

“Are we doomed to this until she gets—or doesn't get—a Supreme Court nomination?”

“I'm afraid so. Let's hope that she gets it. I'd hate to see what she'll be like if someone else gets the nod.”

I stared at the screen blankly. This was bad. Very bad.

Whenever an email related to one of my cases arrived in the chambers inbox—I could tell if it was one of my cases from the subject line—I'd get nervous. What was about to happen? Was a judge who had agreed to join an opinion of ours about to announce a change of heart? Was an opinion that I drafted about to come in for harsh criticism from a colleague of Judge Stinson?

Most of the time, my anxiety turned out to be unwarranted; this time, though, my worries were justified. In response to our draft majority opinion in
Hamadani
—which featured properly italicized periods, as well as strengthened legal analysis—Judge Gottlieb had circulated a powerful, blistering dissent. The dissent was so powerful, in fact, that I worried that we might lose the vote of Judge Hollingsworth for our majority.

I stared at the screen, reading the dissent yet again, and wondered how to respond. In terms of what was supposed to happen next, I would edit the majority opinion to respond to the dissent, get Judge Stinson's sign-off on the edits, and circulate the revised opinion to the other two judges. But I was at a loss for how to revise the majority opinion to respond to Judge Gottlieb's persuasive argumentation.

This dissent was great. Did Jeremy draft it? I picked up my office phone.

“Why, hello there, Audrey! I've been expecting your call.”

“And why is that?”

“I trust you've just read my handiwork in
Hamadani
?”

“So that
is
your case. Based on all the attitude in the dissent, I suspected that you might have a hand in it.”

“Yup. What do you think?”

“It's good.”

“It's ‘good'? That's all? You're hurting my feelings.”

“Okay, it's very good. But it sounds like you don't need me to tell you that.”

“Maybe not. But I still like to hear you admit it.”

“Well, this isn't over,” I said. “You'll be hearing from us.”

I wondered if Jeremy could see through my false bravado. After I got off the phone with him, I printed out a copy of the dissent and read it over while wielding a red felt-tip pen, a weapon that I hoped would give me courage. I underlined forcefully, scribbled furiously, and filled the margins with checks and question marks.

But this exercise in engaged reading did not produce the hoped-for insight into the fatal flaw of the dissent's reasoning. Nor did my careful review of all the cases cited in both the majority and the dissent.

Having made absolutely no progress in trying to unravel the dissent, I concluded I had no choice: I had to go see the judge. She'd know what to do. Even if she didn't usually go for hand-holding—she told us early on that she wanted us to be independent thinkers—this was an exceptional case. I had never been this stumped by anything during the clerkship.

I headed over to Judge Stinson's side of the chambers, something I generally didn't do unless summoned, and approached the doorway to her office. The door was open just a crack, in a way that seemed to say “I have an ‘open door' policy, but I really don't want to be bothered.” When I started clerking, Judge Stinson would usually leave her door wide open, but lately—since November or so—the judge was often on the phone, with the door fully or mostly shut.

I opened the door just a little, enough to stick my head in, and knocked softly on the doorframe. The judge, seated behind her brown barge of a
desk, looked up from the brief she was reading.

“Judge, sorry to bother you. Could I ask you about something?”

I thought I detected a flash of irritation cross her face, but if so, she concealed it quickly.

“Certainly,” she said.

I sat down opposite the judge in one of the guest chairs, which felt so small in front of her imposing desk. This wasn't like when I interviewed for my clerkship, when I sat on the sofa and she in a club chair, or when we reviewed cases together, when we both sat at the conference table. I could feel the power differential between us.

“Judge, have you had the chance to read Judge Gottlieb's dissent in
Hamadani
yet?”

“I saw that he circulated it, and I skimmed it. But I haven't looked at it in detail yet.”

“It's strong. Very strong.”

“Of course it is,” she said, swatting an imaginary fly with her small pale hand. “I warned you about that when you submitted your weak first draft to me. But I thought your revision—which you turned around very quickly, I must say—was significantly improved. I would not have allowed it to leave chambers if I did not think it was solid.”

“Well, I feel that even with the improvements, our draft opinion doesn't hold up well against the dissent. I'm not sure if we have good arguments to respond to Judge Gottlieb's points, especially his analysis of prior Ninth Circuit cases about what constitutes persecution. I wonder if, maybe, the outcome of the case should be, perhaps, revisited …”

“Are you suggesting that I
change my vote
in this case?”

I paused and took a breath. My mouth felt as dry as the pages of the Federal Reporter.

“I'm sorry, Judge. Of course I'll revise the majority opinion. But could you perhaps—after you've had the chance to read the dissent, of course—give me some, well, additional guidance in terms of how you'd like the opinion to be revised?”

Silence. The judge stared at me, lips turned inward to form a grim, an
gry line. It was as if I had asked something patently offensive, like when she and her husband last had sex.

“Audrey,” said Judge Stinson, leaning across the massive mahogany desk, “I am a federal judge. I do not concern myself with trivialities.”

I was about to protest that the legal arguments for and against political asylum are not “trivialities,” but thought better of it—which was just as well, because the judge wasn't finished.

“If you can't think of the arguments to sustain my position, which was also the position of the third judge on the panel, Judge Hollingsworth, then I suggest you consult with Amit. He has excellent analytical skills.”