by Alan Sears
Chapter Twenty-Six
JOHN REMAINED CONCERNED about the reliability of federal judges. He and his staff spent weeks drafting a bill to present to their supporters in Congress, friends who could fast-track new judicial ethics legislation forward. If it became law, then the statute would prohibit any federal judge from belonging to or supporting any organization that advocated, taught, or promulgated any form of prohibited discrimination. With the Judicial Retirement and Expansion Act, this was important guidance in selecting new appointees.
By extension, no judge could belong to any club, community group, civic organization, or church that subscribed to a doctrine of exclusivity. As an added bonus, it also meant that no one would be able to claim that the Bible was literally true.
He knew resistance would rise from some parts of the country. To make sure the principle would be observed by every citizen, regardless of their personal beliefs, John, over dinner in a French restaurant in downtown D.C., proposed to his friend Chief Justice Isaiah Williams that judges at all levels ought to be instructed on the importance of the new policy. “They must impose justice in every case, looking to existing case law wherever possible, but with fidelity to the letter of the law. Judges must enforce the law as rigidly as possible.”
Williams nodded. John took that to be a request for more information.
“To indicate the solidarity of the court system, I suggest that a new image be attached to the judicial robes of every judge in America, to indicate solidarity with the policy and to symbolize the nation’s commitment to tolerance. It would be a sign of equality and inclusion for all people and lifestyles.”
Chief Justice Williams clearly loved the concept. “I’ve been considering a similar idea, John.”
“One of my PR staff came up with a clever design.” John pulled a small drawing from his pocket. “I think it is subtle, clear, and professional.” He passed the drawing to Williams. “It’s a yellow equal sign on a black field.”
“As a professional athlete, I spent most of my career with numbers and symbols on my jersey,” Williams said, “so I’m all for it. To me this represents unity, equality, and respect. That’s what a judge’s robe really ought to be about.” Williams sipped his coffee. “I remember years ago when Chief Justice William Rehnquist surprised the Court by adding gold stripes to the sleeve of his robe.” Williams studied the emblem. “You know, when I first came to Washington, I toured the Holocaust Museum. I was struck by a photo in the exhibit. It was a picture of judges in pre-war Germany. They displayed symbols of the Third Reich on their judicial robes.”
“This is different,” John said. “Their emblem came out of bigotry. Ours is the opposite. Our symbol stems from a desire to see justice for all Americans, including those forced to live on the fringes of our society.”
“Yes, of course. I was just making conversation.”
Later, when the Chief Justice presented the new design in a public forum, he said, “We believe in fairness and tolerance for all. The purpose of the law is the impartial imposition of equality and justice for every citizen. So today we’re asking every federal and state judge, as a sign of their commitment to equality, to voluntarily append to their judicial robe this symbol, which represents the highest aspirations of the American people.”
Support for the idea was enthusiastic, but when it came to actually implementing it, there were judges who resisted the chief’s request. Many judges were more than willing to resign their memberships in private clubs, professional associations, and even synagogues or churches, but for reasons that puzzled John, they resisted the new symbol, and appealed for more time to consider their options.
An addendum was attached to legislation concerning judicial appropriations that was already before the House of Representatives. When the bill was passed by both houses of Congress and signed into law by the president, all federal, state, and local judges were required to affix the new symbol of equality to the right-hand sleeve of their robes, halfway between the wrist and the elbow.
There was no formal penalty prescribed for those who failed to make the change, but it was clear there could be eventual consequences for those who refused. Even so, there were a couple of conservative justices on the high court who adamantly resisted the change. They spoke out publicly about their concerns, and in the process made themselves a nuisance to the Court, the Justice Department, and the administration.
Chief Justice Williams remarked to John, “Those two just don’t get it. They’ve created so many obstructions to many of our important initiatives—they ought to resign.”
Justices Collins and Grouling were almost always in the minority on the Court’s rulings, confined to writing angry dissents about originalism and other ancient ideas. Insisting on hanging on to their own interpretations of the Constitution, they invariably voted to block the progressive rulings of the Court. Now and then they convinced a couple of the moderate justices to cross over to their side, giving them the majority opinion, but such successes were rare.
When that happened, Chief Justice Williams made no secret of his contempt for Collins and Grouling, and on one occasion muttered under his breath, “Wouldn’t it be unfortunate if something happened to those two clowns?”
A defense attorney overheard the comment and reported it. Williams quickly apologized for the remark. To show that there were no hard feelings, during a meeting of the justices he gave the two conservatives his blessing to make a weekend junket together during the Court’s fall term to take part in a conference in Houston on judicial restraint.
THE HOUSTON CONFERENCE, held at the George H. W. Bush Presidential Library, was no ordinary speaking event. Justices Collins and Grouling responded to an invitation by two former Presidents of the United States. Conference organizers assured them they could complete the trip and conference in an eight-hour day. With the Chief’s permission, they prepared their remarks and made arrangements to go.
They made the trip in a privately owned Gulfstream G550 for a quick in-and-out visit. A wealthy patron of the event arranged and paid for the business jet. At the controls were two former Air Force pilots, one of whom was a flight instructor and the other a former captain of Air Force One during a previous administration. Between them, the two high-ranking officers had more than forty years flying experience.
The conference took place on a Saturday, but the justices didn’t have time to stick around after their talks. It was a breach of custom for justices to fly together, but because of the nature of the event and the time constraints, they decided to do so anyway. On board the Gulfstream were the pilot, co-pilot, a security officer from the Court, and an aide. The flight to Houston had been quick and uneventful, and their speeches went exactly as planned. Even though not everyone on the panel shared their views of the Constitution, the justices received a warm welcome and polite applause.
After both had completed their remarks, a driver took them by limousine to Hobby Airport where they boarded the Gulfstream for the return flight to D.C.
Approximately eight minutes into the flight, the G550 developed engine trouble. The pilots took emergency precautions, but weren’t especially alarmed. In the history of Gulfstream, there had never been a fatal crash due to equipment failure. Nevertheless, the captain radioed the tower and reported problems with control and response. Then the radio went silent and two minutes later, the aircraft stalled, then plunged to earth. All on board were killed.
Predictably, the crash of a private aircraft with two justices of the Supreme Court on board created a sensation in the press. It generated wall-to-wall commentary from television’s talking heads. Horrified, conservatives in Congress insisted on a full-scale investigation, to which President Blaine agreed without hesitation. The remaining conservative talk radio hosts raised questions about whose agenda would benefit from foul play.
Clearly something was terribly wrong, but no one knew who to blame. Liberals in the government grew defensive, expressing outrage that anyone would suspe
ct them of something so vile. To John, who had taken the day off at the last minute and gone to the Houston event to attend the conference without any of his aides or support staff, blame didn’t matter. There were suddenly two new vacancies on the Court that needed to be filled. It was up to President Blaine to nominate the right kind of individuals to take their place.
John made sure information from the FAA and NTSB investigators came to his desk. He read each dispatch with interest, discussing the key events with his staff. When one report mentioned the discovery of a titanium memory stick in a restroom trash bin of the private aviation terminal in Houston, John made a call.
“What else can you tell me?” John asked Greg Mayer, the NTSB lead inspector on the other end of the phone.
“I prefer to leave the details for a later report, sir.”
“As assistant attorney general I’d like to hear it now.” His calm delivery hid none of the heat in his words.
The investigator sighed. John gave him time to weigh his impossible choice.
“An airport janitor was doing a deep cleaning of one of the men’s restrooms. While emptying one of the trash bins he noticed the memory stick. Believe it or not, it was stuck to the plastic liner with a piece of gum.”
“Someone was hiding it there?”
“Most likely it became stuck to the gum accidentally. The janitor said the bin was packed. You know how it is. Those restrooms are never cleaned enough.”
“Go on,” John prompted.
“The janitor is a kid working his way through college. He’s into computers. He saw the memory stick and took it home.”
“He took someone else’s memory device home?”
“With all due respect, sir, it had been thrown away. The thing had been battered. It looks like someone had stomped on it, but those things are close to indestructible—especially the titanium cased ones. That made us suspicious.”
“If the janitor had it, then how did you get it?”
“He plugged it into the USB port of his computer and discovered the thing still worked. It contained technical files on the G550 Gulfstream; the kind of files used by aircraft mechanics. He put two and two together. The two justices died in a Gulfstream G550. Like a good boy, the kid brought it to us.”
John tightened his jaw. “This implies premeditated murder.”
“It certainly could be, sir. The coincidence is too large to ignore.”
“Your earlier reports mention a possible software malfunction on the aircraft. Does this fit with that scenario?”
“It does. The black box and cockpit recorder all indicate a software glitch.” The investigator paused. “I’m afraid that happens sometimes. Today’s aircraft are flown by software. Unfortunately, pilots are becoming too dependent on the computer. There have been a few cases in which accidents occurred while the pilots were trying to reprogram the computer when they should have been looking out the window.”
“What’s your best guess?”
“We think someone messed with the software and that led to the crash.”
John grew impatient with the inexact language used by the investigator. One thing he loved about law was its dependence on precision in oral and written communication. “By messed with you mean what?”
“Someone programmed the computer to fail.”
John’s heart beat in double time. “Keep me informed.” He hung up and stared at the smooth surface of his desk. He had a lot to think about.
BECAUSE THE OPENINGS on the Court occurred during the busy term, the president’s closest advisers, Attorney General Stamper and Chief Justice Williams, suggested that he nominate replacements either from the appellate court system or the Department of Justice. One name on everyone’s lips was former federal judge Arthur James Lincoln, who had a distinguished career in the DOJ. Over the previous two and a half years, Judge Lincoln had been tapped on several occasions as a policy adviser to John Knox Smith and the DTED legal team. Before that he had been a judge on the D.C. Circuit, and had once clerked for Justice Hadley Brown on the Supreme Court.
The second person receiving near-unanimous acclaim was Miriam Lacey McKeegan from the 9th Circuit Court in San Francisco. Prior to her appointment to the bench, McKeegan had served as Deputy Administrator for Compliance at the EPA, and had been a professor of reconciliation studies at the University of California at Santa Cruz. She had received a joint JD and Ph.D. from the University of Pennsylvania, and a bachelor’s degree in sociology from Rutgers. Her domestic partner, Rosslyn Mirsky, was Dean of Music at Palisades School of the Arts in San Jose and a transgender activist.
McKeegan’s credentials were impeccable, and the fact that she was a fairly new appellate judge appealed to President Blaine. Chief Justice Williams and the other members of the Court privately concurred. Miriam Lacey McKeegan was a legendary figure who had already made a name for herself as one of the major advocates of the “Kindness Doctrine.” In due course, both Lincoln and McKeegan received a “qualified” rating by the American Bar Association, and were confirmed almost unanimously by the Senate.
The Supreme Court was beginning to look a lot better to John.
WITH THE NEW justices, the Alliance saw nothing but black clouds on the legal horizon, and engagement in confrontation after confrontation with the Justice Department. Alliance head Scott Freeman and his associates challenged the use of foreign law in proceedings of federal courts. It was obvious that all three branches of government—executive, judicial, and legislative—were looking to European courts for both language and philosophy to incorporate into their new policies, and the Alliance protested strongly, on the grounds that this was unconstitutional and dangerous to the rights of every citizen. To make their case, Alliance lawyers were in the process of building a super-coalition to confront the practice, but they wouldn’t go unchallenged.
To counter resistance from certain groups, to educate the newest members of the Supreme Court, and to rally support for all the initiatives the administration was pushing at that time, President Blaine decided to make these issues a centerpiece in his State of the Union Address. To give credibility to his plans, he invited dozens of distinguished academics from America’s top universities to be present in the Senate gallery on that occasion.
John hung on every word of the Address, which he had helped write. In the speech, the president said:
“There are some people in this country, including some who happen to run public interest law firms, who would say that eighteenth-century concepts of national sovereignty are essential. What does that really mean? The fact is, the United States today is part of an international family of nations, a worldwide brother-and-sisterhood of like-minded peoples. This is not 1776, the age of worldwide slavery, violent wars, and religious hatred.
“Borders, frontiers, and nationalistic barriers divide us, and this has been a source of conflict for centuries. The old concept of ‘sovereignty’ that so many push is an eighteenth-century notion that reeks of xenophobia and bias, and I would suggest that in this century we can do better. We can put that ancient conceit behind us.
“One of the only things those boundaries have accomplished, both physically and emotionally, is to promote sectarian strife. Some of our religious organizations have done this by creating walls of separation where they do not belong and tearing down ones that do. Frankly, such actions amount to nothing short of bigotry, and I assure you these old tactics are not within the statutory purview of my administration. What I propose is a new climate of cooperation.
“Father Jerome Filcher is one clergyman who understands the problem. He said in a recent television address: ‘We need to get real! We’ve got to join the family of nations.’ And I say, Amen. But I would also add, in unison with many of our distinguished guests who are here tonight from some of our great universities, that we need to join the community of persons.
“Every day our courts discover new ways of framing age-old issues of community. They’re not doing this is in isolation; they
’re consulting the latest rulings from Europe, Africa, Asia, and the Middle East and have found a rich storehouse of wisdom. Constitutions from nations as diverse as Kosovo, Germany, Estonia, and South Africa can offer us a wealth of new insights.
“Our neighbors in Canada had the foresight in 1982 to establish a Charter of Rights and Freedoms that protects people of all persuasions from insults and slurs. Where have we been? Why haven’t we done at least as much?
“Today I’m asking Congress to develop new legislation, in order to begin a new era of cooperation and understanding. We want to ensure that every woman in America will have access to the full range of medical health services, including full abortion coverage, and that no one will be subjected to institutional bigotry or discrimination because of their genetic or racial identity.
“As we look at examples from abroad we are pleased to know that all of the international accords make it clear that some forms of speech must be controlled. Yes, we believe in free speech within reasonable limits. But as a civilized nation we also understand—better now than ever before—that hateful and hurtful speech is never free and cannot be allowed.
“Tonight I am announcing the creation of a memorial to the victims of hate, bigotry, and intolerance. In other countries there are memorials of marble, bronze, or stone to the victims of persecution. As we know, Germany has erected a magnificent stone memorial to the thousands of LGBT individuals who suffered at the hands of the Nazis. I want to propose another kind of memorial, not of marble or stone, but of respect, decency, and law.
“Accordingly, I have asked Congress to review all our laws and administrative procedures to eliminate any remaining evidence of bias, discrimination, and bigotry toward any group. Part of that review will include a new initiative to provide reparations, not to the descendants of slaves as has been proposed in years past, but to individuals who have actually endured persecution, humiliation, and pain because of the hatred and intolerance of the few.
“Many of these individuals have been denied the right to achieve their full personhood because of their sexual identity. Some have suffered physical abuse, incarceration, curses, personal embarrassment, and have been denied marriage for merely being who their God and genetics made them to be. To express our deepest sorrow and our desire to make recompense, my administration has proposed a compensation package of not less than $10,000 for each person who has suffered in this way.
“Representative Frank Burnside of Massachusetts has introduced HR-333 for this purpose. I hope all Members of Congress will sign on to this important legislation. There will be some, I’m sure, who will say we can’t afford it; but I say we can’t afford to wait any longer. Let history record that ‘We, the People of the United States’ were not too small or too self-centered to admit our mistakes and make things right.”
President Blaine shifted the focus of his address to the exercise of state’s rights to do more than seize property.
“The language of the founders expressed the beliefs of their era, and was never meant to be an obstacle for future generations. The Ninth and Tenth Amendments, which some use to restrict the rights of the government, mean very little today. We don’t have to live by the standards of an earlier age.
“When this administration adopted the International Treaty on the Rights of the Child, we were thinking ahead about what we wanted this nation to look like in the future. Every child should have the right to grow up in a world that is safe and free of hatred and intolerance.
“This treaty makes it clear that every child will have the right to choose certain things about the way he or she is reared, about how he or she is treated at home, how he or she is educated, and what sort of religious instruction he or she receive. It is unacceptable for any parent to force his or her child to go to an institution that teaches bigotry and hatred.
“If the biological parents of any child show themselves to be intolerant, bigoted, and a danger to themselves and others, it’s only fitting that government should step in, take those children, and make sure they’re placed to be raised safely in a family that will provide the nurture and encouragement every child needs and to do so in an atmosphere of tolerance, respect, and acceptable religious practices.
“It’s the responsibility of all Americans to make sure our children are raised in ways that allow them to become productive members of society rather than a threat to everyone they meet.”
IT WAS CLEAR to John that the threat this White House feared most was the influence of intolerant religious leaders. According to the Endangered Childhood Protection and Training Initiative proposed by the president, the first thing the state would be asked to do was to get the children of Bible-thumpers out of the house before they could be permanently damaged by the repressive dogma of their parents, pastors, and teachers. These people should lose their children, and church members who stand in the way should lose theirs as well.
John thought Blaine’s speech was excellent.
MATT BRANSON WATCHED the State of the Union while eating dinner in his home with his wife, Michelle. Holding a plate of pasta in one hand and fork in the other, he consumed his meal while he sat on his sofa, the image of Blaine playing on his big-screen television. Every minute of the speech whittled away more of Matt’s appetite. By the end, he felt ill, and set his dish on the coffee table. He looked at Michelle. There were tears in her eyes.
“Tell me I didn’t hear that,” Michelle said.
“I wish I could, babe. I really wish I could.”
Ruthie, too young to understand politics or law, was old enough to recognize the hurt displayed on her parent’s face. She rose from the floor where she had been eating and hugged her father, then her mother. If Matt understood the president’s proposals, government goons could come to his door and take Ruthie away. He would never let that happen. Never.
The case was no longer about Pat Preston. It was about millions of believers and parents.
LARRY JORDAN SAT in his home pretending to listen to the news anchors tell him what he had already heard. Marla sat next to him. They didn’t speak. Larry slipped from the sofa, went to his office, knelt, and poured out his heart in prayer.
PAT PRESTON SAT alone in his cell.
