“I hope all this satisfies your preliminaries, Floyd. I have work to do.”
Grant nodded. “Has to be done. It’s all part of the mystique of being a clerk to the greatest legal minds in the land.”
“Greatest?”
“Bite your tongue, Alexander. Men have died for even thinking such thoughts.”
“Look, Floyd, I really am up to my ass in work.…”
“Obviously a Yale man.”
“Pardon me?”
“We never say ‘ass’ at Harvard. Columbia people do it, and obviously Yale, but never Harvard. Unless, of course, we are speaking about the animal so named.”
“Look.…”
Floyd Grant grinned and held up his hands in surrender. “All right, Ben. If you insist, I’ll almost come to the point. What’s the word on your justice?”
Alexander instinctively became defensive. “I only know what you already know. He’s had a stroke. He’s still in a coma. The doctors, at least according to his wife, aren’t able to predict what may happen. He could recover completely, he could be a cripple, or he could die. They just don’t know at this time.”
“The Chief went to see him in the hospital,” Grant said. “The Chief reports he looks fine, has good color, and regular breathing, just as if he were sleeping. Only he can’t wake up.”
Alexander nodded. He too had seen his boss, and the description was accurate.
“He may never come back to the Court,” Grant said.
“That’s a possibility.”
Floyd Grant had lost all hint of playfulness. He had become very businesslike. “And if he does come back, he may be severely impaired.”
“That’s another possibility.”
“Ben, the newest lady member of this Court is complaining that she doesn’t have enough staff to handle her work.”
“So?”
“She’s putting a lot of pressure on the Chief to have Justice Howell’s staff, or at least part of it, assigned to her.” Grant took out a pipe. “Mind?”
Alexander shook his head.
Grant lit the pipe, sending up clouds of gray smoke. “They say she’s very tough to work for.”
“I’ve heard that.”
“The Chief doesn’t like to bow to pressure, but she does have an argument, seeing as how your boss is out of commission.”
Ben Alexander sensed an invisible cord tightening about him. The woman justice was the terror of the Court. Her clerks were treated badly, overworked, and humiliated. She was following in the footsteps of several distinguished previous justices who had established historic reputations as petty tyrants. He did not want to be assigned to her.
“Of course,” Grant continued, “the Chief pointed out that Justice Howell’s work continued even if he wasn’t physically present. But you know women, Ben, logic seldom works. At least it doesn’t on this woman.”
“So I’m to be assigned to her?”
Grant puffed on his pipe. “Well, you are Howell’s leading clerk. Of course, there are others. I’ll tell you what’s in the Chief’s mind, then you can see our quandary.”
Alexander knew it was the Chief Justice talking. Grant was only a conduit. The Chief Justice of the United States would never sink so low as to bargain with a mere law clerk. He used other means, quite as effective, if not as direct. And the Chief Justice knew very well when to use the stick and when to use the carrot. Assignment to the woman justice was the stick. Ben Alexander sat back and waited for the carrot.
“As you well know, there are some very hot cases coming up this next term. The Chief has taken an informal poll. He can be very effective, in his own way. The Court will be evenly divided on most of the important issues. If your boss were here he would constitute the swing vote again.”
“He has that reputation,” Alexander said, carefully choosing his words.
“Yes. Well, if he isn’t able to make it back, the lower court decisions will stand. That is, of course, unless someone changes his or her vote. But that isn’t likely. The Chief is hoping your boss will be able to make it back, at least physically.”
“Physically?”
“Strokes are funny things, Ben. The effects can’t be predicted. Remember, Justice Douglas spent many of his last days here in a wheelchair. At that time there was some question about his mental abilities.”
“So you want me to influence Justice Howell if he comes back impaired, is that it?”
“How harsh and illegal you make it sound, Ben. I’m surprised. You aren’t being invited into any grand conspiracy, if that’s what you mean. But the work of the Court must go on. If, God willing, Howell makes a complete recovery, he will have the energy and ability to do the work and make the necessary decisions. However, if he doesn’t, he’ll need help. That’s all I’m saying.”
Ben Alexander leaned forward. “That’s not what you’re saying. You’re threatening to reassign me unless I play ball with you. You want me to influence Howell if he does come back and isn’t fully capable of making his own decisions. You know, Grant, that really stinks.”
Floyd Grant’s expression revealed no reaction as he quietly drew upon his pipe. “I’m leaving at the end of this year, Ben. The Chief is on the lookout for a chief clerk. You know what that means. The position is quite a springboard. I wasn’t kidding about Stanford and then Harvard for myself. That’s almost guaranteed. And only because I have served as the head clerk to the Chief Justice of the United States.”
“How nice for you.”
“Yes, as a matter of fact, it is. The head clerk position will be open when I leave. The job could be yours, Ben, given the right circumstances.”
Floyd Grant was not exaggerating. Alexander knew that people who served as head clerk to the nation’s Chief Justice could write their own ticket in the legal world. Alexander said nothing, but waited for Grant to continue.
“Ben, I’m sure you’re aware, as I am, that clerks have served as unofficial justices of the court in the past. This isn’t the first time that a sitting justice has had such problems.”
Alexander nodded. It wasn’t well known, but several past justices had drawn the salary while bright young men had made the ultimate decisions. The situation wasn’t unique.
“You know how the Chief works. He’s like a congressman hunting votes. He trades off with this one, pairs with another, and promises future decisions to get his way. You know how he works.”
Alexander nodded. “Yes. What does he want from me?”
The pipe had gone out, but Grant continued to puff on it, his only display of nervousness. “You put things so bluntly, Ben. Really, it’s not good form. Nothing is expected of you. But if the circumstances present themselves, you could be helpful. For instance, the Chief is very interested in the vote on the Electoral College case. Are you familiar with the issue?”
“It’s simple enough.”
“Exactly. The constitutional amendment received the necessary state votes for ratification, but by the time the last state voted, two others had withdrawn their approval. The question is whether a state can reverse itself, having once voted, or whether the only vote counted is the original. If they can reverse, then the amendment doesn’t have enough votes to pass, and the proponents know they can’t get anymore. Those who want the Electoral College abolished say the reversals don’t count. And those in favor of the Electoral College say the reversals by the state legislatures killed the proposed amendment. The Supreme Court must decide which side is correct. Basically, it boils down to a problem of simple constitutional construction.”
“But the decision could change fundamentally the way a president is elected.”
“Precisely. A simple issue but with a tremendous effect.”
Alexander waited. Grant chewed on the pipe for a moment, as if composing his thoughts. “The Court is divided, if the Chief’s poll is accurate. Your man’s vote will make the difference. The Chief is voting to keep the Electoral College. He’s of the opinion that the withdrawl of the states
defeated the proposed amendment. This case is of the greatest importance to him.”
“And to the White House,” Alexander added softly.
Floyd Grant looked away. “Yes. I understand it is.”
“So you’re asking that I influence Howell, should he return, to vote to sustain the Electoral College?”
Grant looked at him, his eyes narrowed slightly. “If you choose to put it that way, yes.”
“Anything else?”
“Ben, I detect a note of disapproval in your tone. Remember, nothing illegal is being requested.”
“What about ethics?”
“Nothing unethical either. You’ve seen the horse trading that goes on here. My God, man, the Supreme Court is no better than an Arab bazaar when it comes to buying and selling. No money changes hands, of course, but the currency here is the field of interest. For instance, there’s a reverse discrimination case coming on.”
“The one about the policemen.”
“Yes. The Chief obtained one of the votes to keep the Electoral College by bargaining his vote for reverse discrimination, so to speak.”
“You mean you would like me to persuade Justice Howell to vote for the affirmative action quota system?”
“Yes. It would help firm up the vote on the Electoral College case. After all, Ben, what great harm does it do? A few white cops lose their jobs. A few blacks are hired to take their place. It’s no big deal.”
“But it sets up a racial quota system, a change that could eventually fragment our society.”
Grant took the pipe from his mouth and grinned. “Come on, Ben. If things get out of hand, the Court will just change them back. Meanwhile, it may prevent another riot or two.”
“And the quota decision will protect the Electoral College.”
Grant nodded.
“What else?”
“That newspaper case, the one about the state law providing damages for written negligence. It’s a First Amendment issue.”
“So?”
“That’s really a personal thing with the Chief. You know how he likes to stick it to the media whenever he can.”
“Is that decision essential?”
Grant shrugged and tapped out his pipe. “Essential? No, I think not. It would be nice though. It would give those newspaper bastards something to think about. If it can be done, fine. But if not, the Chief won’t be greatly disappointed.”
“How about the rational suicide case?”
Grant smiled. “The Chief will vote to uphold the nun’s conviction. But who cares? He doesn’t. People are knocking themselves off right and left, and in rather messy ways. So it might serve a purpose if it were organized. It would be much neater. He feels this one could go either way. As I say, he really doesn’t care.”
“So I only have to be concerned about the Electoral College and the discrimination case?”
“Yes.”
Ben Alexander thought about how Justice Howell might approach the problems. What was being requested really wasn’t that far from Howell’s basic thinking. If he didn’t agree, Alexander knew he would find himself slaving for a petulant, harassing woman. And if he did go along … well, he had been taken to the top of the mountain and shown the wonders of the future.
“If Justice Howell returns, and should he seek my advice, I will be glad to urge the two positions,” Alexander said, his voice almost a whisper.
Grant beamed. “It’s a complicated world, Ben. Maybe that isn’t the way it should be, but we have to take things as we find them, right? I’ll convey your position to the Chief. He’ll be delighted.” Grant stood up and put the pipe in his jacket pocket. “I’ll have to take one of your clerks for her ladyship. There’s no other way. But if your boss comes back and things turn out predictably, you’ll have my job next year.”
Alexander merely nodded. “Is this how these things are always done?”
Grant laughed. “Heavens no. Ordinarily, we do an elaborate dance before any agreement is reached. You’re new, Ben, but you just demonstrated your ability to learn. You’ll do just fine here.”
“We’ll see what happens.”
“Ben, if you run into any problems, just let me know.”
“I will.”
Grant left and Ben Alexander once again leaned back in his chair. Everything in the court seemed to be a trade-off. This case for that, that legal principle in exchange for this legal precedent. But at least there would be gain in this transaction.
If he became chief clerk to the Chief Justice he wouldn’t need to marry any damn conglomerate heiress.
CHAPTER THREE
Judge Joseph Michael O’Malley fidgeted impatiently in his chair as the attorney droned on in his annoying singsong voice. The man should have had the brains to know he had won and should have concluded quickly and gracefully with a few brief remarks. O’Malley and the other two appellate judges asked him no questions. Still, the lawyer plowed on, reciting in his irritating manner the dry, uninspired speech he had apparently memorized.
The oral arguments were only a formality in this case, the law was clear. Even the opposing counsel knew that his cause was lost as he patiently endured the barbed and hostile questions by the judges, questions that consumed most of his allotted time for argument.
O’Malley was anxious to break free from the dull routine of the court. He had much more important things to do. The three-judge panel had spent the morning listening to oral arguments in four cases. The cases were boring. There were no great legal questions presented. And, as if to match the content of their drab legal matters, all the attorneys that morning were bumbling clods. Win or lose, a snappy presentation was always welcomed by the court. But for some reason, exciting speakers were rare in the appellate court. Dullness seemed to have become a way of life.
O’Malley glanced at his watch. It was almost over.
He rushed through the judges’ conference after the hearings. There were no serious disagreements among the three judges on the cases. O’Malley acknowledged the case assigned to him to write, then hurried to his chambers.
It was almost lunch time. It would be difficult contacting people during the lunch hour, but the attempt had to be made. O’Malley knew he had to be careful in his approach; Howell hadn’t died, but it was a distinct possibility, and Joseph Michael O’Malley was a realist. The spade work had to be done now and as quickly as possible.
He unlocked his desk and extracted the yellow pad with all the names and telephone numbers. The pad was marked up, with notes showing the results of the call, or how many times a number had been tried. He dialed the next phone number. It was a Washington call.
“Good morning, Congressman Robinson’s office.” The girl’s voice was cheery, but businesslike.
“This is Judge Joseph O’Malley of the U.S. Second Circuit Court of Appeals. I’d like to speak to the congressman, please.”
“I’ll see if he’s in, Judge O’Malley.”
He was put on hold.
He glanced at his watch. He didn’t like to wait. But when you wanted a favor, you had to put up with things ordinarily not tolerated.
The line crackled into life. “He’s on another line, Judge. He should be through in a minute. Would you care to hold, or shall I have him call you back?”
“I’ll hold, thank you.”
The line again went dead.
It was wise to make the contact now. There was no telling when Robinson would call back. As a ranking member of the important Ways and Means Committee of the House of Representatives he was powerful and busy, it might be days before O’Malley could expect a call back. It was wiser to wait, even though it would cost him precious time; time he could use making other calls.
“Just a moment for the congressman,” the girl’s voice popped into his consciousness.
The phone clicked. “Good morning, Your Honor. This is a pleasure.” Sid Robinson had the well-practiced enthusiasm of all politicians. He sounded as if he had spent all morning just hoping that Joseph
O’Malley would call.
“How are things in the capital, Sid? I haven’t been in to see my friends there in quite some time.”
“Same old stuff, Joe. We go from one crisis to another. It’ll never change.” He paused. “What can I do for you?”
O’Malley smiled to himself. He had used this approach so often, it was becoming automatic. “Shame about Brian Howell, isn’t it?”
A pause. “Yes. Terrible thing to have happen, especially to a man as young as Howell.”
“Sid, I’ll be frank. I hate political vultures as much as the next man, but sometimes political realities override normal sensibilities.”
“That’s true.”
“Did you know that the President was thinking of nominating me, if the Senate hadn’t confirmed Howell for that seat on the court?”
“I had heard that, yes.”
“Sid, I know this may sound a bit ghoulish, but I’m trying to line up as many friends as I can who can urge my nomination to the President, just in case the worst happens with Howell. Normally, I’d sit back and be civilized about the situation, but there are some key cases coming before the Supreme Court, and if anything happens to Howell, the President will have to move very fast to get a name before the committee in order to have that man or woman cleared and on the bench when those cases come up.”
“Like the Electoral College amendment.”
“Yes, that’s one.”
There was another pause before the congressman spoke. “Look, Joe, if the worst happens, as you say, I’d be glad to recommend you. We’ve been friends a long time. You have an excellent record and you’re a party man. I’d have no trouble saying a good word.”
“I appreciate that, Sid. And your word will carry great weight, I know that. I wonder if I might impose for an additional favor?”
“What’s that?”
“Your state’s national committeeman, the new man, I don’t know him.”
“Harvey Taylor?”
“Yes. I knew Eddie Milton, his predecessor, but I never met Taylor. I wonder if you could give him a call and say a good word for me. I think the President might look to the party leaders for a consensus on the appointment, if there is one. I would feel a bit better if someone like you could vouch for me with Taylor. At least that way he would know something about me. You understand?”
The Court Page 6
