“And Roe v. Wade is one such precedent?”
“Yes, ma’am. Has been for more than thirty years.”
“But it could be reconsidered?”
“Any decision can be revisited in a subsequent case, if there are grounds. New issues. But that can’t be based on anyone’s—any judge’s—personal beliefs. It must be based upon new consideration presented by the case at bar.”
“So you wouldn’t strike down Roe v. Wade.”
“Ma’am—”
“Right, right. No specific cases.” She paused, then turned a page in her notes. Ben mentally commanded his fingers to stop drumming on the tabletop. This little exploration into legal philosophy had been fine, possibly dry enough to persuade a large portion of the audience to switch channels, but Ben knew that Matera had other more malevolent goals for the first day of the hearing, and waiting for her to show her true colors was giving him an ulcer.
As it happened, he didn’t have to wait much longer.
“Judge,” Matera continued, “if you won’t talk about Roe v. Wade, perhaps the single case of greatest interest to everyone in America, would you consent to discussing Powers v. Georgia?”
Ben felt his heart drop. They had known this was a possibility, of course. But somehow, he had thought that even Senator Matera wouldn’t have the effrontery to try this tactic.
“What about Powers, sir? Would you have any interest in repealing it?”
Roush licked his lips, pulled the microphone a little closer, all the while doing what Ben thought was a magnificent job of keeping his emotions in check. “I can’t address any ruling in the abstract. I have to know the circumstances of the case at bar.”
“Oh, come now, Judge. You must have some personal feelings about this.”
Ben winced; it was the least emotive facial expression he could manage. Powers v. Georgia was the infamous 1988 Supreme Court case which, in a decision written by Justice Rehnquist, upheld a Georgia sodomy law, declaring that it did not offend the Constitution to criminalize consensual relations between male homosexuals. What the Dred Scott case was to African Americans, Powers v. Georgia was to the gay and lesbian community.
Roush’s face reddened only a bit, but on the television screen he looked as if he were wearing rouge. “Whether I do or do not have any personal feelings would not be relevant to my work on the Supreme Court. My work as a justice would simply be to determine whether the state statute offends the U.S. Constitution.”
“Oh, please, sir. With all due respect, I’m nobody’s fool.”
“I never said—”
“The first moment in your life you were in the public spotlight, you were compelled to declare to the world your participation in the homosexual lifestyle. Do you seriously expect me to believe that you wouldn’t jump at the chance to overturn Powers?”
Roush spoke in careful, measured tones. “I seriously expect you to believe that I wouldn’t overturn anything unless there was a constitutional basis.”
“Then you’ll find one. That’s what you activist judges do, isn’t it? I bet you’d love to bury that opinion.”
“As a matter of fact,” Roush said, “I have a lot of respect for that opinion.” Red blotches were creeping up his neck, but Ben hoped he was the only one close enough to notice. “Just as I have a great deal of respect for the late Chief Justice Rehnquist. I don’t believe for a minute that Justice Rehnquist or those who voted with him made their decision based on any personal prejudices, homophobia or anything else. As Rehnquist explained, antisodomy statutes are as old as this nation. It simply isn’t credible to suggest that the framers of the Constitution would’ve been offended by such laws.” He took a deep breath. “That of course doesn’t mean that enlightened senators such as yourself couldn’t pass a law prohibiting statutes they deem discriminatory. It just means they aren’t unconstitutional.”
Ben released his breath. Damn—this man was good. He could almost stop worrying about him—or he might have if the good senator from Wyoming had left it at that.
“Judge Roush, let’s cut through all this judicial rigmarole and talk turkey, shall we? You are a self-professed homosexual.”
“Objection,” Ben said. “Or—point of order. Whatever you want to call it, Mr. Chairman. This question is obviously veering into private matters.”
“There’s nothing private about it!” Matera said, slapping the table. “The man came out of the closet at a press conference!”
“I’d have to agree with her on that one,” Chairman Keyes said, as if his opinion were a surprise to anyone.
“I don’t care,” Ben replied. “If you allow questions in this direction, it will only set a precedent for subsequent committees to find excuses to pry into people’s private sex lives. We already do that to our political candidates. Must we do it to judicial nominees as well?”
“It’s all right, Ben,” Roush said, placing his hand on the mike, making his voice echo through the chamber. “The senator does have a point. What I haven’t heard yet is a question. Is there one?”
“Well then,” Matera said, leaning forward, “here it is. How can we know that your sexual preference won’t influence your judicial reasoning?”
“How can you know anyone’s private life won’t affect their judicial reasoning?” Ben shot back. “This is a frivolous question being asked for the sole purpose of generating opposition based upon intolerance.”
“It’s an important question, Mr. Kincaid. We’ve never had a gay Supreme Court justice.”
“That you know of.”
“Who was openly gay.” She paused. “Is it all right to call you gay, Judge Roush? What term do you prefer?”
Roush gave her a long look. “You may use any term you feel appropriate, ma’am.”
“Thank you. I appreciate your generosity. But my point is, when a man’s thinking is so dominated by one issue and cause, how can we know it won’t control his work on the bench?”
“It never has before,” Roush replied. “I’ve been on the bench a long time, but no one outside my immediate friends and family even knew I was gay until I announced it in the Rose Garden.”
“Why did you keep it secret?”
“It wasn’t a secret. I just didn’t talk about it.”
“You’re splitting hairs.”
“Do you go around talking about your sexual preference a lot?”
“Well…”
“Neither do I. But let’s get real—if I had come out of the closet beforehand, I wouldn’t be here now.”
“So why come out at all?”
“As I said when I accepted the nomination, I felt it would be dishonest not to do so.”
“Still, my concern is that your highest controlling authority might be…well, something or someone other than the Constitution.”
“Your concerns are misplaced.”
“My understanding is that you are in a long-term relationship—”
“Which is absolutely none of your business.”
“What if you contract AIDS?”
“What if you contract syphilis? Nobody ever got disqualified from a job because of something they might get someday.”
“This is totally different. If confirmed, you would be a representative of a…a lifestyle…”
Roush shook his head. “This is so sad. These are the same arguments people used against Kennedy—vote for him and the country will be controlled by the Pope. The same arguments they used to keep women from voting, to keep them off the Supreme Court till the 1980s, when Ronald Reagan—a Republican—appointed Justice O’Connor. Sometimes it seems as if we haven’t made any progress at all.”
“You can compare yourself to Kennedy and women if you like, but they were both in the mainstream in a way that you simply are not. You represent a minority lifestyle, one that many people oppose and most people do not share. How can you possibly claim that you can represent the thoughts and interests of the American people when you are so different from them? When you are nothing
like them?”
“Nothing like who?” Roush exploded. “You?”
Ben pulled the microphone away. “These questions have in fact become quite offensive. We will not be answering any more of them.”
“Mr. Kincaid—”
“You heard me. I’m not going to change—”
Chairman Keyes leaned forward. “Mr. Kincaid, I guess I need to remind you again that you are not in a courtroom. You can’t plead the Fifth. Refuse to answer and the nominee could be held in contempt of Congress.”
“You can huff and you can puff,” Ben said firmly, “but I’m instructing the judge not to answer any more offensive questions.”
“Just a minute, Ben,” Roush said, laying a hand on his arm. Damn it, why wouldn’t the man let him do his job? “I do want to say something before we leave this subject, once and for all, I hope. In the first place, I haven’t been nominated to the Senate. I’m not a representative of the people. That’s your job, Senator. The judiciary is specifically designed to be independent of the legislature, a check on the legislature. It is not a judge’s job to represent the thoughts and interests of the American people—it’s a judge’s job to enforce the law, pure and simple.”
“Without any regard to the wishes of the people?” Matera looked as if he had just suggested torching the Washington Monument.
“Frankly, yes. And let me make a second point. You talk about representing America—there are many Americas. And they don’t all look like you. From the outset, America has been a melting pot. Our diversity has been our strength. It still is, even if some misguided folks want to re-create the whole country in their own image. We do not have a national religion, or a national race or color. We do not all have the same sexual preference and we never have. America has many faces. And we are better and stronger for it.”
24
Loving stood on the sidewalk and idled about, pretending to read a discarded newspaper, admiring the display windows of overpriced Georgetown boutiques, and otherwise purposelessly killing time until he was certain Nadya had disappeared into the coffee shop and wouldn’t be watching or returning—at least not until her son’s journey to his inner self was over for the day. Sweet Jeepers, why couldn’t she just hire a babysitter? Given what she’d said, he had a little under an hour, so he couldn’t afford to waste time. Didn’t like standing around in plain view, anyway. He tried to convince himself there was no danger, despite what Leon had told him. There was no logical reason to think assassins were watching his every move, right? That was just paranoia, and with the Senate committee hearings already under way and Ben left with no way of explaining the murder at the press conference, he couldn’t afford to give in to paranoia. That was just craziness.
Yeah. And if he kept saying it to himself long enough, maybe the pain in his leg where the bullet creased him would stop suggesting he was in total denial.
He tore a scrap of paper from a newspaper in a trash bin, bummed a pencil, then casually strolled up to Nadya’s Toyota. He crouched beside the driver’s door, peered through the windshield, and copied down the VIN from the embossed metal label on the dash. He almost felt bad about doing this. Well, he rationalized, it was her own fault for not covering up the number. It was illegal to remove the VIN plate, but nothing prevented you from putting a strip of electrician’s tape over it. For that matter, an index card wedged into the bottom of the dash would work—anything to prevent criminals from doing…exactly what he was doing.
He flipped open his cell phone and activated the scrambler. The scrambler would not affect his call; he and the person on the other end of the line would be able to speak naturally. But to anyone trying to intercept the signal, it would sound like gibberish. He was still fighting the urge toward paranoia, but he knew that it was pathetically easy to eavesdrop on cell phone calls. Anyone with a receiver purchased at Radio Shack could do it. Amateurs could simply roam the frequencies, listening for interesting chatter, but professionals knew how to triangulate onto a cell phone’s signal or hack into a database to get its serial number and thus determine the perfect frequency for eavesdropping. He’d never used a scrambler before Ben and his crew had come to Washington, but then, he’d never been able to afford one before, either.
He stepped away from the car, then called Information to locate the nearest Toyota dealer.
“Georgetown Imports.”
“Hey, this is Al Loving. Sorry to bother you, but I’ve locked the keys in that car I bought from you guys a while back and I have to be at an important meeting in thirty minutes. Is there any way you can cut me a duplicate key?”
The voice on the other end of the line sounded bored to tears, as if she had heard this story a thousand times. “Have you got the VIN number?”
“Sure.” Loving read it off.
The woman took it down. “Can you get a ride down here?”
“Not a problem.”
“We’ll start cutting the new key now. It’ll be ready for you when you arrive. You can also get a keyless lock controller, if you wish. Sounds as if you might need one.”
“Thanks, just the key will be great.”
“We’ll get right on it.”
Loving disconnected, then stuffed the phone into his pocket. He’d pulled this scam at least a half dozen times. It was ridiculously easy. Someday, he supposed, someone was going to get wise to it, put it in a book or something, and then car dealers would start being more careful. But in the meantime, why should this only be available to car thieves who used the VIN to hijack a car in broad daylight and drive it to the chop shop? Seemed only right that the trick should occasionally be used by the forces of good and righteousness.
And he was working on the side of good and righteousness. Right?
Less than thirty minutes later, Loving was back at the side of Nadya’s Toyota with a brand-new sparkling door and ignition key. He slid the key into the lock, trying not to attract any attention, although there was no reason for anyone to believe that he wasn’t the owner of the car. After all, he had a key, didn’t he? Unless Nadya happened by. That would be bad.
Loving didn’t waste any time. He opened the Filofax calendar to the present month, then removed his handy-dandy DocuPen R700. The gizmo was no bigger than your average writing pen, and that’s what it looked like, but in reality, it was a miniature scanning device. He rolled the pen over the pages for the entire month; the DocuPen would record everything—text and graphics—and it took only four seconds. Later, he’d take it back to the office and Jones would upload it to his computer via a USB port. So easy even Loving could understand it, despite his acute computophobia.
He closed the Filofax, crawled back out of the car, shut the door, relocked it, and had started moving away when he saw Nadya approaching from the opposite direction. She saw him, too. This left two options: he could try to make some excuse for his presence, or he could run. The latter would probably be more prudent, but the former would be more fun. And what was life without a little fun?
Nadya marched right up to him, her expression angry. “Why are you hanging around my car?”
“I was waitin’ for you to return.”
“Why?”
“I told you already—I need to find Trudy.”
“And I told you already—I’m not telling you anything. Remember?”
“Yeah, but I thought you might be more agreeable after you got your caffeine fix.”
She glared at him. “You thought wrong.”
“Well, can’t fault a man for tryin’.”
“I think I could.”
“Say—do you do this yoga stuff, too?”
“Of course. You think I’d indoctrinate my son in a discipline I don’t practice myself?”
If it bought you an hour’s peace in a coffee shop, probably so, he thought. For that matter, if you drank less caffeine, you might need less yoga. But he opted not to voice either observation. “I was just wonderin’, you think maybe I could do that, you know, that yoga stuff?”
; She eyed him dubiously. “Are you seriously interested in leading a balanced life? Trying to find inner tranquillity?”
“Absolutely. If you’d be my spiritual guide.”
She took a step closer. “You’d…you’d want that?”
He stepped even closer. “Absolutely.” He stared deeply into her eyes. Their noses were inches apart.
Her lips pursed. “You’re playing me, aren’t you?”
“Totally.” He grinned. “Kind of fun, though, wasn’t it?”
“It might be, if I didn’t think you were trying to get my friend in trouble.”
“I won’t get her in trouble.” He paused. “But I can’t promise she isn’t already in trouble. Somebody out there has a secret they want kept secret. And they’re playing for keeps.”
25
“Now that was more like it,” Senator Hammond said, slapping Roush on the back. “You really came to life. That little speech was just what we needed. Don’t you agree, Ben?”
Ben nodded. He was enjoying this little post-game rehash a lot more than he had the last. “I thought it was perfect. I was worthless, but happily, Tad was able to save his own bacon.”
“More than that,” Hammond continued. “You showed Keyes and his cronies this mudwrestle isn’t over yet. If you can speechify like that, son, you could have a career in Congress.”
“Thanks,” Roush said, shrugging, “but I think I’ll stick to the bench. If the bench will still have me.”
“I concur with the senator,” Beauregard said. “Tracking polls suggest that many people have a higher opinion of you now than they did before.”
“But none of those people will be voting on my nomination.”
“In effect, they will. The Republicans will back off if the public starts to perceive this as an anti-gay witch hunt. Not even the staunchest Republicans want anything to do with that.”
“We’re not out of the woods yet,” Sexton interjected. As the senior strategist on the team, Ben assumed it fell to him to be the perpetual wet blanket. “They didn’t get the coup they wanted on their first day before the cameras. But since it’s still a horse race, the second-day audience will be above average. They’ll redouble their efforts to trash Judge Roush.”
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