Shining City

by Tom Rosenstiel

  “Let’s just say DAs have a lot of advantages. Police, forensics experts. The defendants are often sketchy. Their lawyers usually have no time to prepare.” Kimmel is making a speech.

  “Look, being a public defender is the toughest job in law. We averaged five hundred criminal cases a year. That’s about four hours per client. I once handled twenty-three arraignments in a morning. And you know what the average pay is?”

  Rena lets him get it out.

  “Forty-six thousand a year. And in the last five years, the public defenders’ budget was cut thirteen percent while the workload grew twenty-nine percent.”

  He seems done.

  “Were Martell and Navatsky friends?” Rena asks.

  Kimmel laughs. “I think Rochelle despised Martell. He was the kind of lawyer she didn’t want to become. And he beat her at trial.”

  Forty-five

  1:43 P.M.

  Washington, D.C.

  This is out of the blue.

  Senator William Stevens, the ranking Democrat, has just thrown a horrible curve.

  As the senior member of the minority, Stevens should go second in questioning the nominee after Chairman Morgan, whose own opening questions were respectful and vague, a series of ritualistic queries about precedent and original intent, simply laying down a line of inquiry for his GOP colleagues to follow.

  Then he turned to Stevens: “Senator, you have five minutes to question the nominee.”

  “Mr. Chairman, I’d like to pass and reserve my time,” Stevens said.

  What?

  This is most decidedly not the plan—a plan worked out meticulously over the last several weeks. Stevens is supposed to be their foundation, building Madison up, insulating him from the inevitable attacks to come. Without that, the other Democrats would be putting drywall up without a frame.

  Stevens is also the most experienced Democrat on the panel, the one with the most prestige among liberals, and the most friends among the old-guard conservatives.

  What is Stevens up to? And why hasn’t he tipped them off? God damn it.

  You can prepare these things within an inch of their life. But U.S. senators are demigods. They’ve reached the highest point most of them are likely to go. They are impossible to control. Even harder to predict.

  The room is buzzing. Camera motors clicking.

  Damn it to hell.

  Up to this moment, Stevens has been coy about Madison in public. He hasn’t praised him, but he hasn’t criticized him, either—and that is good given how harsh Stevens has been privately. Stevens also hadn’t said a bad word in his opening statement earlier this morning. Actually, come to think of it, he virtually ignored Madison, offering a paean to liberal traditions on the Court.

  Is it possible Stevens is considering the unthinkable? Did he pass on questioning because he wants to hear Madison answer questions before he has to take a stand on him? Is that why he has reserved his time?

  That would be too goddamn terrible to contemplate, Brooks thinks.

  She can feel her cell phone vibrating with multiple messages. Various people no doubt asking her what is going on. Including the White House. A quick scan of the messages and emails confirms it. This is a mess.

  Stevens passing means the malicious and savvy Aggie Tucker is up.

  Craggy Aggie. The feral boy senator of Texas. At age fifty-one, he already has close to a decade and a half in the body and still no friends to tell from it, though there are scores who fear him. Tucker has a fierce look and canny catlike eyes that can light up in a way that says, “I am going to screw with you and enjoy it.”

  For all that people dismiss Aggie as crazy or just mean, the man is in touch with a part of the American psyche, and a feeling about politics that is only growing. He was the first real Senate champion of the Common Sense movement, before any Common Sensers themselves had been elected there. He is also smarter than he pretends—Princeton and Harvard Law School—and possesses something many other sharper but less intuitive senators like Wendy Upton lack: He has no fear of living on the edge, where no one else would go. He loves it when people say, “Did you see what Aggie did?”

  If Aggie can draw blood now, some of his colleagues—the people her old boss used to call “weather-vane senators”—might be swayed.

  Brooks can feel the hush in the room behind her, people leaning forward—waiting for Tucker.

  He stares down at Madison with his cat eyes. Then begins.

  “Judge, throughout your career, you have set forth what you have called in your writings a ‘pragmatic, nonideological vision of law.’”

  “Yes, sir.”

  “If I may, I’d like to quote you:

  “‘The law is a human institution serving human needs. To advance the cause of justice, therefore, judges should approach it pragmatically, finding how it fits for the way that people actually behave, not the way we wish they might.’

  “If you would, Judge, could you expand on what you mean by this so-called pragmatic vision? How did you put it? Make the law ‘fit’? What do you mean, ‘fit’?”

  If Madison thinks this is a setup for an attack, he doesn’t show it.

  “I often have been struck, Senator,” he begins, “by why judges wear black robes. I’ve always thought it was to signify that a judge is not speaking as an individual. Judges look alike because when they speak, they do so for a body of rules and institutions and precedents, not for themselves. For the judge, the robe is a reminder to try to interpret the law for everyone, not enunciate a subjective belief or preference. This is no less true for a jurist on the Supreme Court.”

  “Well, that is fine, Judge. Mighty fine. Would you agree, then, that a judge’s authority derives entirely from the fact that he or she is applying the law? It’s not anything personal?”

  “Of course.”

  “Then would you also agree, Judge, that the meaning of the law is found in the understanding of the law by those who enacted it, by what some call original intent?”

  “Whenever possible.”

  Careful, Rollie, Brooks thinks.

  “Whenever possible? I’m sorry. When is it, exactly, that you think the meaning of the law is not ascertained from the understanding of those who enacted it?”

  “In those instances, Senator, when it is unclear what the authors of the Constitution intended.”

  “Why should a federal judge do anything when it is not clear what the Constitution intends?”

  “The Framers of the Constitution were writing and debating about life in eighteenth-century America. And they were writing a document that would win votes at a constitutional convention and then across the colonies, a political as well as legal document. In my opening statement I talked about humility. To me, humility includes admitting we do not always know what the Founders had in mind. Or if they agreed on a single intent.”

  “If you don’t know what they had in mind, why do anything? If the Constitution doesn’t address it, then it doesn’t address it.”

  “Well, it might be easier to say the court can’t go there, because it’s not clear what the Framers wanted. But maybe they intended the court to act in this area and they just weren’t explicit about it. There is ample scholarship and history to suggest this is the case.”

  “Well, sir . . .” Aggie tries to get in.

  Rollie is still answering. “And then there are all the elements of modern life that the Framers naturally never envisioned. Are we to conclude that these aspects of our life are not covered by the Constitution because the Founders couldn’t imagine the future? Finally, what of those parts of the Constitution that contradict each other, or that require the right in one amendment to be balanced against those in another? Are we not to try to balance them because it is unclear or unstated how do so?”

  Aggie is leaning back happily.

  “So what do you think judges should do about these areas of doubt?”

  “I think they must infer from what we know about the Framers. And they must n
ot extend beyond what can reasonably be inferred. But there is some subjectivity to this. And reasonable people may disagree. This is not a matter of making new law. It is a matter of understanding old law for new times. And there is no doubt that the Framers did have in mind that the court would do that.”

  “Well, Judge, seems to me you have just made for yourself three mighty convenient loopholes. And you could do anything you want there.”

  “Not loopholes, Senator. Judicial obligations.”

  Aggie has a hateful gleam in his eyes now.

  Madison’s not wrong. But he has just committed the first sin of testifying. He has answered the question honestly and given doubters a reason to vote against him.

  Aggie has made sure of it.

  Aggie is fumbling for some paper now. He finds the sheet he wants and says with a new coldness: “Judge, did you say the following words?

  What do I think of the theory of strict constructionism? I think it is more of a political argument than a legal one. And it collapses under scholarly scrutiny. The Constitution was the work of people, not gods. Judges who claim the mantle of strict constructionism don’t strictly adhere to the text, either. All judges live in the real world, apply the law in the real world, and as such they have an obligation to push against the politicization of our legal theories. The idea that the constitution is complete and omniscient, almost biblical, and that judges need do nothing more than apply the facts in the cases against the magic text to arrive at their decisions, well, it is doesn’t meet the test of intellectual honesty.

  Shit. Brooks does not know where this quotation comes from.

  And that is probably the worst thing that can happen. They knew Tucker would pull something. They’d gone through all the documents and cases and quotes predicting what it would be. They didn’t have this.

  Aggie’s team has out-investigated them.

  “Judge Madison, do you remember these words, sir?”

  Madison looks uncertain.

  “To refresh your memory, it is from a seminar lecture you gave on August 2005 at Stanford University, before you became a judge.”

  Madison looks lost.

  “What year, Senator?”

  “Two thousand five.”

  “Yes, senator, I do remember the lecture,” Rollie says. “I believe, Senator, that must be from an extemporaneous conversation with students. So I cannot tell if you that is a verbatim quote. But I recall the seminar.”

  “Well, Judge, if you need something to help your recollection, I have an audio recording of it. Made by one of the students present, who was frankly shocked by your words, and it was obtained by my office. Would you like me to play it, sir?”

  Someone in the back of the room, melodramatically gasps, probably a plant acting on cue.

  The quotation doesn’t reveal anything Madison hasn’t said before. But the idea of a covert recording revealed in a hearing is different.

  An audio means replays on cable TV, endlessly, with a transcript scrawling across the bottom. With pictures of Madison looking surprised. It means this will be the moment that people take from the first day of the hearing. It means they have lost the first day. Badly. And it is her fault. This is what she was paid for. To find everything and prepare for it. She has failed.

  “No, Senator. That is not necessary. My belief that the academic theory of strict constructionism cannot hold up against the experience of being a judge is well documented. It is not a secret. You needn’t have unearthed an audio recording to learn it.”

  “Needn’t I? It seems to me, Judge, you go further here, in this unearthed recording as you put it, than suggest the theory isn’t practical. You call judges who believe it intellectually dishonest and political. You accuse them of being ideologues. That group would include, I believe, at least four members of the current Supreme Court, including the chief justice. Do you consider these men intellectually dishonest?”

  “With all due respect, Senator . . .”

  “Oh, please don’t insult me by trying to say that isn’t what you said. I can hear as well as you can. You’re a smart man, Judge Madison. No doubt about that. But, when I take these two things together, your denunciation of adherence to the text of the Constitution, and your theories about how we need to interpret the old law in new times, it sounds to me that what you have outlined here is a clever excuse for judges doin’ just about anything they want. Now, Judge Madison, I myself was just a country lawyer. You know, trials for murder, and robbery, and such, everyday kinds of things. Real-life law, I think is how you described it. But it sounds like what you just outlined, in my experience, is the most astonishing justification of radical judicial activism I have ever heard, one that that would allow judges to use courts to extend government into every aspect of American life. I think this is a revelatory moment. And I hope our media take note of it. And replay this statement. And replay it again so every American can hear it. You know, people complain about how Court nominees come up here and don’t level with this committee anymore. They just dodge and weave. Well, you have been candid over the years. And I admire you for it, sir. Because it reveals who you really are. And I think the only the difference between you and the most radical activist, socialist-style judge, is that, being a scholar, a Harvard/Stanford law professor and all, you’ve developed a nice theory to justify your radical judicial activism.”

  “Senator . . .”

  “I think you’ve answered the question, Judge, thank you.”

  “Senator Tucker, would you let Judge Madison finish?” interrupts Senator Jonathan Kaplan of New Jersey, the freshman senator who has emerged as a serious new voice, but who used to be a host of a program on Comedy Central.

  “He had plenty of time, sir, and I believe you are out of order and that this is my time. You’re new here, Senator Kaplan, so perhaps you didn’t know.”

  “Senator, I find . . .” Kaplan tries again.

  Chairman Morgan bangs his gavel. “There will be order now. We aren’t going down that road, gentlemen. Are you through, Senator Tucker? You have one minute more.”

  After a pause drawn out longer than necessary for dramatic effect, Tucker says, “Ah, Mr. Chairman. I think I will reserve the remainder of my time and at this moment simply ponder what the judge has said. My mama taught me it was always when you have heard something upsetting to think on it.”

  The room erupts in laughs and jeers in equal measure.

  Brooks looks at Tucker. The senator looks as if he were upset by what Judge Madison has said. Not triumphant. He’s a good actor.

  Forty-six

  5:23 P.M.

  Washington, D.C.

  Brooks feels repelled by the demagoguery. Of the day, the city, the whole damn system. The feeling has gone in waves, at times replaced by concentration as she has tried to listen, assess the political fallout, and cope with the panic of Democrats and the White House.

  In the four hours since Senator Tucker pulled his stunt, they’ve moved through every senator once except one, and Republicans can smell blood. The questioning of Madison has gotten progressively more malevolent. No one has laid much of a hand on him. They don’t have to. Aggie Tucker’s stunt took care of that.

  And rather than uncovering something meaningful—or tricking Madison into some dreadful utterance—the damn bastard has just done theater, a fabricated pseudo-event, revealing a supposedly covert audio recording, the accompanying charge of hidden radicalism. It’s the irony of it that she keeps being struck by, such serious people over such serious things engaging in such fiction. The purity of it makes her feel as if she were new to Washington and watching a hearing for the first time.

  Roland Madison’s critique of strict construction is a reason for him to be on the Court—not kept from it—Brooks thinks. His arguments are an important effort to replace the polarization in public legal arguments with a better approach, she is persuaded. And his ideas have taken root in legal scholarship among conservatives and liberals alike. It is the next big
idea. And now a mockery of it is being used against him.

  Tucker is not a man who can be dismissed. Not anymore. Not with the way his party has moved. He is a bellwether now, not a crank. He is also a lawyer and former Supreme Court clerk himself.

  Chairman Morgan has made things worse, too, by refusing to take an afternoon break. So she and the White House and Madison’s Senate backers have had no opportunity to confer except by email and text. There is outrage and worry, and in some quarters self-serving panic. Brooks has reached out to groups supporting Madison and asked them to check in with key senators but not heard much back yet. Everyone is waiting to see how others will react.

  A glance between the panicked emails and messages tells her social media is out of control, too, filled equally by people panicked that Madison is doomed and those charging that he is guilty of treason.

  Spencer Carr, who left after Madison’s opening statement, sent a chilling email: “We need to talk.”

  Christ, why isn’t Rena answering his phone or email?

  Only one senator remains to ask questions.

  William Stevens. The old liberal, the veteran of more Judiciary hearings than anyone other than Chairman Morgan, who had passed on questioning Madison this morning.

  Brooks has frantically been shooting texts and emails to Stevens’s staff ever since that happened. They claim they were caught off guard, too. She is sure they are lying.

  Stevens, now in his late seventies, can be pretty bad on a bad day. And he seems to be operating on his own agenda.

  2:33 P.M.

  San Francisco

  Focus on the person in front of you, Rena tells himself. Ignore the constantly vibrating cell phone.

  “You said you had questions about Alan Martell’s murder?” William Wellman says.

  Bill Wellman had been acting district attorney during the murder trial of Robert Johnson. Wellman had worked at the DA’s office only briefly, eleven months. The place had been rocked by a scandal when the former district attorney got caught in an affair with one of his lawyers. There were headlines, charges of favoritism, a messy resignation, an even messier divorce. The mayor asked Wellman to take a leave from private practice and step in as interim DA.