Shining City

by Tom Rosenstiel

  Wellman is apparently a rare bird—a man with more political friends than ambitions. After settling things down at the DA’s office, he simply returned to private practice—seemingly without reward or demand. From the size of the law offices of Wellington, Knight LLP, the rewards might be less political, but they were obvious enough.

  In slacks and a well-worn sweater, Wellman looks more gentle and professorial than rich and connected. Rena would put him near sixty, with dark, intelligent eyes in the middle of a kindly face. There is a mustache, losing a battle from red to gray, that he wears in the shaggy style popular in the 1970s. Rena guesses he grew it in college and hasn’t changed it since—a man who finds things and sticks with them. Wellman projects trust.

  “This might seem far-fetched. We’re checking to see if there’s a possible connection between the murders of Alan Martell and Rochelle Navatsky.”

  Wellman’s expression reveals nothing.

  “I want to ask you about one case in particular that Navatsky and Martell had together when you were acting DA. The murder trial of Robert Johnson. Martell convicted him of killing a classmate from their high school. You remember the case?”

  Rena places a copy of the transcript in front of him.

  “Not really.” Wellman glances at the document.

  “Then tell me what you thought of Alan Martell.”

  “He was a victim of a bad situation.”

  “What does that mean?”

  “When things are running properly, Mr. Rena, the prosecutors in a city should push the police to be more scrupulous. Attorneys are officers of the court and thereby operate according to more restrictive rules than police. That means they should act as a gravitational pull toward more conscientious police work.”

  “That wasn’t happening?”

  “The main pressure at the time was for quick results.”

  “Doesn’t everyone want quick results?”

  “This was different. The DA I succeeded had a theory that any case that didn’t close in seventy-eight hours would never close.”

  Wellman picks up a baseball from his desk and tosses it in the air.

  “This became a kind of dogma, which led both prosecutors and police to very simple approaches. It was the definition of quick and dirty: Pick the suspect you like most and build the case.”

  “How does that connect to Alan Martell?”

  “Are you a baseball fan, Mr. Rena?”

  “A little. I grew up in a town that didn’t have a team for a long time.”

  “In baseball, if you have a young hitter with power, you can ruin him by asking him to hit too many home runs too soon. Better to teach him how to read pitchers and hit to the opposite field. When he has mastered that, his power will be magnified.”

  “What are you telling me, Mr. Wellman?”

  “Alan was a likable guy, with a lot of potential as a trial lawyer, but he learned too many shortcuts. He learned to rely too much on his likability and the power of the DA’s office, the presumption that someone who was arraigned was probably a bad person.”

  “Is that what happened in this case?”

  “I don’t remember what happened in this case. You asked me what I thought of Alan Martell.”

  An idea he cannot quite identify begins to form in Rena’s mind.

  “What are you looking for, Mr. Rena?”

  He’s out of time. Out of options. How much is he willing to bet on Wellman? What choice does he have?

  “I’m going to level with you. I trust, on behalf of the attorney general and the president, that you will not repeat what I am about to tell you. Hell, I’ll hire you so you can’t repeat it.”

  “You don’t need to do that, Mr. Rena. I know why you’re here. You’re working for the White House. You’re in charge of Roland Madison’s nomination.”

  Rena takes a breath.

  “It wasn’t very hard to figure out. A few moments on the Web.” Wellman gives Rena a grave look. “What are you really looking for?”

  “I need to rule out the possibility that these two murders could be linked,” Rena says, “and, if they are, whether it involves anything that pertains to Judge Madison.”

  Wellman’s expression betrays only curiosity, not surprise. A veteran lawyer.

  “Do you have reason to think there’s some connection?”

  “I have to make sure there isn’t. And I don’t like coincidences.”

  Wellman picks up the trial transcript and begins to flip through it.

  “Who was the lead investigator on the case?”

  Watching the lawyer trying to remember even the most basic facts, Rena is struck at how far-fetched it is to think he can resolve this in a day. He should fly home tonight. He needs to be with Madison. He needs to see Vic, who hasn’t returned his calls. He could catch the red-eye home.

  “Here it is, Calvin P. Smith,” Wellman says. He turns to his computer and begins to type. “I don’t remember him, but I know who would.” He picks up the phone and dials a number he reads out of his computer address book.

  “John, Bill Wellman here. I was wondering if you could do me a favor. I am trying to locate a detective, or former detective. He might be retired. He was involved in a case when I was the acting district attorney a few years ago. His name is Calvin Smith. Calvin P.”

  Rena glances out the window at the Bay Bridge. This view is even better than the one he had seen in Kimmel’s office this morning.

  “Ah . . . too bad. Okay, thanks, John . . . I’m sorry. . . . Excuse me?”

  Wellman’s eyes narrow. “Yes, I appreciate it,” he says. “Bye, John. Thanks.” Wellman ends the call by pushing a button and then slowly hangs up the phone.

  “If you don’t like coincidences,” Wellman says in a dry voice, “you are going to hate this.”

  “What is it?”

  “The lead police investigator was murdered two and a half months ago, the same week, I believe as Rochelle Navatsky. In San Mateo County, just south of the city.”

  Wellman sees the expression on Rena’s face. “If you want to make a phone call, Mr. Rena, feel free to use the conference room next door.”

  Forty-seven

  6:07 P.M.

  Washington, D.C.

  Senator Stevens begins by fumbling with his reading glasses. “Judge, I want to go back to your exchanges with Senator Tucker concerning how to interpret what is less than clear in the Constitution. Senator Tucker said he found your comments extraordinary and appealed to the media to replay them and he said we should all ponder them. So I’d like to take him up on his offer to do that.”

  “Yes, sir.”

  “The Ninth Amendment of the Constitution contains the following statement: ‘The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.’ What do you think that means?”

  “The authors of the Constitution were saying that Americans have rights not mentioned in the Constitution, Senator.”

  “And when it talks about ‘unenumerated’ rights,” Stevens continues, “how would you, as a Supreme Court justice, determine what those rights are? How do you know what isn’t there?”

  “That’s a critical question. What did the Framers mean by the word others? And why were they so vague? I think they used this word others purposefully—because they wanted to be expansive, not limiting. I think, at least in this regard, their intent was clear: They wanted the government to inhibit people’s lives as little as possible, and they wanted no one to think that the rights named in the Constitution were any more important than, or by implication disparaged, the ones that were not named.”

  “Ah,” Senator Stevens says. “So they are saying that the Constitution is not meant as an all-inclusive document?”

  “Correct.”

  “Because if it were all-inclusive, omniscient, perfect, that would make it limiting?”

  “I think there is no other conclusion,” Madison says. “They were worried that people w
ould read the Constitution too literally. They knew they were fallible, that there were things missing. They were even worried about it.”

  “So, what are judges to do, then, about these other rights that are not enumerated?”

  “I think the Framers here are making it clear that judges have to imagine what those ‘others’ might be.”

  “And how do judges do that? I mean how do you apply or infer words that aren’t there?” Senator Stevens asks.

  “You start with the text, for after all, there are many phrases in the text of the Constitution, as in the Fourth Amendment, that suggest that privacy is important, even though privacy isn’t mentioned.”

  “Is that all?”

  “You then go back to history and the values that the Framers articulated. And you look to the precedents that have emerged over time. You also look at what life is like at the present as well as in the past. Finally, you think about what a holding one way or the other will mean for the future. Text, history, tradition, precedent, the conditions of life in the past, the present, and a little bit of projection into the future. That, I think, is what the Court has done, and virtually every justice has done, through history. That’s not meant to unleash subjective opinions. It’s how you search for original intent, which broadly is what all judges must do.”

  “Is that what you mean by your skepticism of strict constructionism? That you cannot simply apply the text, because, as the text itself says, the Constitution is not all-inclusive?”

  “Senator, I think most Americans can understand this from their own lives. Theory is one thing. Real life is another. When we are young, we imagine what it will be like to grow up. And when we grow up, we discover adulthood is different from what we imagined. And your theories have to give way to common sense, to experience, to actually performing a task. I was a scholar for many years. We are paid to theorize, and we do it at universities, at some remove from the problems of everyday life. When you become a judge, you no longer operate at that remove. You have real cases involving real people. That is where the law lives. In real life. The law is designed to help us live. It has no other justification. If it cannot do that, if it operates only theoretically, the law will fail us.”

  Senator Stevens stares over his half glasses at the nominee, pausing a long time. Why, Brooks wonders? Is he trying to come up with another question? Or is the man trying to decide whether he is done? With Stevens, it is always hard to know what he is thinking.

  “You aren’t a radical, Judge, are you? You’re just the opposite. Calling you a radical is a gimmick, a label, made to scare people or to give ammunition to opinionmongers on TV. You may be one of the most nonpolitical court nominees we’ve ever had. And one of the most candid. That, I think is what scares some people in this town. I think you are owed an apology today, Judge. And I think you are owed a confirmation by this committee and by the Senate. Senator Upton said you don’t have to agree with everything a nominee believes to support him. Well, I don’t agree with you on everything, Judge. But sitting here today, I came to the realization that good people shouldn’t be destroyed because of disagreements. We are a better country than that. In fact, the ability to disagree and coexist is what our country is all about. Sometimes people in this town just lose their common sense. But, as you say, you have to be practical and forgive them.”

  Stevens then removes his reading glasses and leans back in his big leather chair.

  Brooks sees Aggie Tucker looking at Stevens. Stevens turns, looks over at Tucker, and with a boyish grin, winks at him.

  In return, to Brooks’s astonishment, Tucker offers Stevens what she could swear looks like a small salute.

  Forty-eight

  3:55 P.M.

  San Francisco

  “You got it?”

  “I understand,” Smolo answers.

  Now Smolonsky knows about Calvin Smith. And the fact that they are now trying to triangulate three murders. So Rena can check at least that task off the growing list of disasters.

  Did Martell, Navatsky, and Smith have any other cases in common? If not, then whoever killed them probably had some connection to the trial of Robert Johnson.

  “Lean on the police,” Rena tells Smolonsky. “They haven’t looked at these cases together before. But don’t mention who the judge was.”

  “There comes a point, Peter, when we won’t be able to keep that lid on.”

  “We don’t have to lift it off, Walt.”

  Rena hangs up and checks the time. Almost 7:00 p.m. on the East Coast. Madison’s confirmation hearings may be over for the day.

  He should call Brooks. And probably Spencer Carr. But not yet.

  He could tell people don’t feel good about Johnson’s murder trial. It isn’t clear to him, though, whether Johnson was guilty—or innocent.

  “You okay?” Wellman asks when Rena returns.

  “We still off the record?”

  Wellman waves his hand: Stop worrying.

  “If someone were systematically killing people involved in the Robert Johnson case, someone who thought Johnson was innocent, who might that be?”

  “While you were making that phone call, I made a couple of calls of my own. Discreetly,” Wellman adds.

  There isn’t anything Rena can do about it now. “Find anything?”

  “Johnson had friends who were gang members. It could be one of them. He had uncles who were involved in crime. It could be one of them. He also had a brother who was in prison.”

  “I need to find out more about Calvin Smith’s murder.”

  “I still have friends in the police department.”

  Wellman hands Rena some documents sent to him in the last few minutes. Police files.

  “You wouldn’t have been able to get these so easily on your own.”

  “Why are you helping?”

  “This case was under my charge. If we got it wrong, I’m responsible, too.”

  “What makes you think it was wrong?”

  “I don’t know that it was. But if someone is trying to kill the people involved, I’d like to know. And I know Rollie Madison,” Wellman adds. “If anyone deserves to be on the Supreme Court . . .”

  Another Madison admirer.

  In the cab to his hotel, Rena turns on his phone. He has 317 messages and 43 phone calls.

  What has happened?

  Brooks isn’t answering her phone. She must be in post-hearing meetings with the White House and Madison.

  But the text messages from her are clear enough: You need to come home.

  Rena finds his assistant O’Brien, who books him on the red-eye at 10:30. He can eat at the airport, read the file on Smith, call Brooks, maybe Carr, and check in again with Smolonsky before boarding.

  He tries to sort out what’s occurred by checking websites via his phone. There are accounts of questioning by Aggie Tucker and an audio recording by a Stanford student. And some counter-questions by Senator Stevens. The stories are fragmented. Whatever had occurred in the hearing apparently is proving hard for reporters to process in real time.

  At the airport, Rena finds a place to eat with a television turned to news. Deborah Cutter is debating Josh Albin. They’re on the cable channel with a largely Republican audience.

  “He talked about the rule of law. He talked about precedent. He talked about humility,” Cutter says.

  “This man is a radical, a secret member of a terrorist cell in college who engaged in crimes against the military, who is on the record holding the Court’s most esteemed members in contempt as intellectually dishonest. This is the most dangerous man to be nominated to the Supreme Court since William O. Douglas, who was a socialist.”

  “Josh, I’ve known you a long time, but you’re becoming unhinged.”

  “I would expect nothing less from you, Deborah, than challenging my sanity. That is what the Soviets used to do to dissidents.”

  People seem to be fraying.

  Rena orders something to eat, a bad taco salad, and as much wat
er as he can drink. A vodka martini would not go well with a plane ride.

  Finally Brooks calls back. “You picked today to be off the grid? Where are you?”

  “The airport. Flying home. I’ll be back in the morning.”

  “I need you here. We messed up. Tucker’s people found an audio recording of a Madison lecture at Stanford we didn’t have.”

  “Was there anything new in it?”

  “No. Another denunciation of strict constructionism. But that doesn’t matter. Tucker made it seem like a revelation.”

  “How much are we hurt?”

  “That’s what I’m trying to sort out. The Left is in an uproar, maybe because they think they can dump Madison. And the Right thinks they might have hurt Nash.

  “The only person who had his wits about him was William Stevens,” she says. “He helped repair some of the damage. And he endorsed Madison today. Strongly.”

  The old senator knows the fundamentals, Rena thinks: All political battles are symbolic. He couldn’t leave Madison undefended on the issue.

  “Peter, I don’t know if we’re going to make it,” Brooks says. “I need you back here.”

  “We have another problem,” he says.

  “Sure. Bring it on,” she says, sounding punch drunk. “I’ll solve everyone’s problems.”

  “Randi.”

  He wonders for a moment if he should wait to tell her about Calvin Smith. Does he really think someone is out there killing people? And that it might be over a case that Madison adjudicated and possibly muffed? She sounds like she is on the edge, trying to hold everything together.

  “Tell me, Peter,” she says. He walks through how there are three people dead. And he needs to talk to Madison.

  “Christ. Get back here,” she commands.

  “I’m on my way.”

  Then his phone is ringing again. The lawyer Bill Wellman.