Protect and Defend

by Richard North Patterson

  “‘Abortion lawyers’ can take this case, they’ll say. It’s ‘bad judgment’ for you to want it, and ‘bad’ for the firm. And if somehow we do take it, and things go south …” Votek’s tone grew crisp. “The old guys won’t try to fire you— that’s way too blatant. They’ll reach an agreement over lunch in some all-male club: work your ass off for another three years, then pass you over for partner. Because you’ve got ‘bad judgment.’”

  If Votek wanted to make her paranoid, he was succeeding— as a woman in a firm still run by men; an associate where partners met in private; a Jew whose parents harbored memories of exclusion. She could not know how matters were decided. “Scott,” she said at last, “I’m asking for your help. If you agree with me on the merits, maybe we can do this one together.”

  Votek tented his fingers, appraising them in an attitude of prayer. “There are other considerations,” he answered. “I’ve always been open about the things we both want here. So you know that our chairman looks upon pro bono as an obligation, not a joy.

  “We’ve been able to do good work because we’ve stayed below the radar screen—no public controversies, or massive commitments of free time.” Looking up, Votek leaned forward on his desk and gazed directly into Sarah’s eyes. “They don’t like what’s happening at the women’s clinic, and the Christian Commitment keeps upping the ante. So far I’ve been able to protect us. But I can’t cover for you on this.”

  Sarah made herself stare back. “‘Can’t,’ Scott? Or ‘won’t’?”

  A first, faint flush appeared on Votek’s cheeks. Watching, Sarah felt comprehension dawn: much of what Scott said about Sarah applied to him. The indulgence of his partners offered him an enviable life: $600,000 a year; treks in Nepal; an ecologically designed vacation house near Tahoe; a collection of Haitian art and costly African masks; an avocation bringing lawsuits for the Sierra Club, protecting wetlands, and limiting ski resorts. And, in return, he personified for Kenyon & Walker its commitment to the public good. Concepts like “infanticide” threatened to upset the balance.

  “Sarah,” he said firmly, “this one’s for the chairman. Assuming you care to go that far.”

  “What does that mean?”

  “You’d have to write a memo laying out the case law, the issues, the witnesses, this girl’s family background, and— most important—why this firm should take this case. I’d advise you to think very hard about all those things before you decide to turn it in. Or even spend the time.”

  Sarah folded her arms. “There isn’t much time. ‘This girl’ gets more pregnant every day.”

  Votek stood. “All the more reason, Sarah, to send her somewhere else. What’s good for you is also good for her.”

  Sarah was staring out the window when her phone rang.

  “Sarah? It’s me—Mary Ann. What did you decide?”

  The rush of words sounded like banked anxiety. “Where are you calling from?” Sarah asked.

  “A pay phone.”

  Mary Ann’s voice sounded tight and small. Once more, Sarah was struck by the girl’s isolation, then by the fact that, she, too, had entered the surreptitious world of a teenager. “There’s a problem,” Sarah temporized. “I don’t have an answer yet.”

  “When will you know …?”

  She was at the end of her resources, Sarah guessed. Then another truth became brutally clear—there was no way Mary Ann Tierney had the time, freedom, or resilience to keep going by herself.

  “Call me again tomorrow,” Sarah answered. Then, hearing herself, she added without thinking, “Please—don’t give up.”

  THREE

  “CAROLINE MASTERS,” Kerry said. “What have we got?”

  He sat in the Oval Office with Clayton Slade and Adam Shaw, Kerry’s White House Counsel. Lean, graying, and impeccably dressed, Adam epitomized the Washington lawyer with broad contacts in and out of government, and his sense of Caroline would carry weight.

  “A lot,” Adam responded. “She’s among the judges the prior administration kept a rolling file on, in case there was an opening. And the materials from her confirmation for the Court of Appeals fill a drawer: tax returns, financial records, medical data, transcripts of testimony, letters of support.

  “Last time out, she had strong endorsements from women, labor, environmental groups, minorities, the trial lawyers— the core of your support. There’s nothing in her decisions since to change that. And the opinions themselves are carefully crafted, beautifully written, and sound—progressive, but not radical.”

  “What about Frederico Carreras,” Clayton interjected, “from the Second Circuit? We all know him—he’s Hispanic, a scholar, and a moderate Republican.” Facing Kerry, he added, “Masters is sounding like a classic liberal, and her personal life—or lack of it—will put Mac Gage on alert.

  “There are two ways to get a justice through the Senate: fifty-one to forty-nine, or one hundred to zip. Why risk political capital on Masters when a Carreras breezes through?”

  “Because Carreras may not be with us long.” Kerry turned to Adam Shaw. “Didn’t he just have an operation?”

  Adam nodded. “Throat cancer. He’s a smoker. His friends say the doctors got it all. But why risk a new Chief dying on you? Besides,” Shaw added dryly, “it would send the wrong message to our young people.”

  “Any argument about that, Clayton?”

  “No. But at least let’s get Carreras’s medical records before we write him off.”

  “There’s another reason,” Kerry answered. “On some issues I don’t want ‘moderation’—guns, for example. Now that they’ve collected billions from suing tobacco companies, our pals the trial lawyers are after the gun manufacturers. I know that some of these corporate ambulance chasers are as greedy as the people they sue. But my point of view’s Darwinian: if they run the gun industry out of existence, it’s a victory for our species. I don’t want my new Chief Justice getting in their way.”

  The blunt assessment brought a smile to Shaw’s lips. “There’s no way to be sure, Mr. President. But if permitting suits against the merchants of death is one of the criteria, I’d pick Masters over Carreras. Unless he’s truly bitter at Joe Camel.”

  “I would be,” Kerry said softly, “but you know how vindictive I am. I’m the kind of person who remembers that the gun lobby spent over three million dollars trying to defeat me.” Not to mention, he did not add, how my brother died.

  Clayton shifted in his chair. “That’s fine in this room,” he said with equal quiet. “But not for the Court. The longer I’m in politics, the more I’m struck by the importance of personality. This Court needs a consensus-builder, like Carreras. Masters is the wrong look for Chief—liberal, single, an outsider to the Court.”

  Kerry turned to Adam Shaw. “How about her written decisions? Does she draw a lot of dissents?”

  “Relatively few. Even though the Ninth Circuit, where Masters sits, is sharply divided between liberals and conservatives.”

  “That suggests she has some social skills,” Kerry said wryly. “At least for a woman without a life.”

  “Oh, she’s had a life,” Adam responded. “Her mother died in a car wreck when she was twelve—drove off a cliff. Her father was a state court judge in New Hampshire and, it seems, a bit of an autocrat. It appears they were estranged: in her early twenties, Masters moved to California and put herself through law school. And never came back.”

  Kerry considered this. “We all have our fathers, I suppose. I assume the last administration checked all that out.”

  “Of course. And found no problems.”

  “I would hope not,” Clayton interjected. “If you want to consider her, Mr. President, why not as an associate justice. You can elevate someone who’s been there for a while, like Justice Chilton. He knows the other justices, and we know he’s on our side.”

  “He’s also constipated,” Kerry shot back. “Have you ever talked to him, Clayton? It’s the nearest thing to eternity you’ll experi
ence on earth, and he’s got the soul of an actuary. He’s part of the problem over there.” Kerry’s voice turned wry again. “You must really be worried to float Chilton. You think I’m falling in love with the idea of a woman Chief.”

  “Are you?”

  “Not yet. And I’m far from committed to Caroline Masters—two days ago, I barely recalled that she existed. But making a woman Chief Justice would send an important message: women still have a ways to go, and I’m determined to get them there. Let Gage chew on that awhile.”

  Turning to Adam Shaw, Kerry said, “I want Masters back here for a meeting—Clayton, Ellen Penn, and you. No one else. No leaks. Your office gets up everything you need. Then you grill her until there’s nothing left to know.

  “If your meeting with Masters goes well enough, I may want to see her.”

  Clayton’s brow furrowed. “Seeing her,” he interjected, “is tantamount to selecting her. We’d be accelerating the whole process.”

  “That’s why we need secrecy.” Kerry paused for emphasis. “I want to find out if Masters has got it, and I don’t want Gage to know about it. Or anyone.”

  Clayton stood. “I’ll call her myself, Mr. President.”

  “It’s Iowa, Aunt Caroline.” Even over the telephone, Caroline could imagine Brett Allen pulling a face. “It’s flat, and it’s cold.”

  “New Hampshire’s cold,” Caroline retorted. “You’ve been flash frozen your entire life. That’s why I wanted you to apply to the creative writing program at Stanford, where they have palm trees.”

  “It would have been nice,” Brett agreed. “And I could have seen you more. But the program here is the absolute best.”

  “Anything for art, I suppose. That short story you sent me was superb.”

  “Really?”

  “Yes. I’ve satisfied my appetite for stories where some deracinated male crawls out of bed, brushes his teeth, spends five pages deciding whether to leave his apartment, then doesn’t. You’re the literary hope of your generation, Brett.”

  The young woman laughed. “And you’re biased, Aunt Caroline.”

  Caroline smiled to herself. “I hope so,” she answered, and then her gray-haired assistant cracked open the door.

  “I’m sorry, Judge Masters. But there’s a call on line two. From the White House, he says.”

  Surprised, Caroline stared at Helen, then said hastily to Brett, “Hang on, okay?” Of Helen, she asked dryly, “And who might ‘he’ be? Surely not President Kilcannon yet again.”

  Helen shook her head in apparent awe. “Clayton Slade. The President’s Chief of Staff.”

  Caroline felt the first pinpricks of nervousness. “I’d better take this,” she apologized to Brett. “Can I call you right back?”

  “Sure. I’ll be here until four, your time.”

  “It’ll be sooner,” Caroline answered, and said good-bye. Looking back to Helen, she directed quietly, “Please close the door behind you.”

  For a few seconds, Caroline gathered her thoughts. Then she pushed the flashing light on her telephone, drew a breath, and said, “Mr. Slade? This is Caroline Masters.”

  “Good afternoon, Judge Masters.” Though amiable, Clayton’s tone was formal. “I’m sorry to interrupt you.”

  “Not at all,” she answered. “When you called, I wasn’t dictating the Ten Commandments. Just exchanging gossip with my niece.”

  This produced a perfunctory chuckle. “In any event,” Clayton said bluntly, “your name came up this afternoon. The President would like to know if you’re willing to be considered for a seat on the Supreme Court.”

  Caroline closed her eyes. It was the moment she had hoped for, and feared. And far more astonishing in the event than in the imagining. “As an associate justice?” she managed to ask.

  “No, Judge Masters. As Chief.”

  Caroline gathered herself. “In either case,” she answered, “please tell the President that I’d be honored. And that I’m grateful for the compliment implied.”

  “I’ll tell him that. What he hopes is that you’ll come to Washington as soon as possible. You’ll be meeting with the Vice President, the White House Counsel, and me.”

  Ellen Penn had done this, Caroline realized. And it was serious.

  Standing, she began to pace. “Is three days soon enough?” she asked.

  Placing down the phone, Caroline sat, inert. A half hour passed before she recalled that Brett, who consumed her thoughts, was waiting for her call.

  FOUR

  “I’VE READ your memo,” John Nolan told Sarah, “but I’d like to hear it from you. Given that you want our firm to challenge the Protection of Life Act.”

  The chairman of Kenyon & Walker was a man of carefully calibrated reactions. His deep voice was typically emotionless; his saturnine mien—black eyes, dark hair, broad face— had a mandarin indecipherability. The result was that the smallest note of sarcasm, a hardening of the eyes, could be as intimidating as someone else’s rages. Nolan was a big man, with a reputation built on a devastating skill at cross-examination and an utter lack of sentiment; sitting next to Sarah, Scott Votek seemed diminished, a witness rather than a participant.

  “To start,” Sarah answered, “it won’t take that much time. It can’t.”

  Nolan’s eyebrows shot up. “Unless you go to the Supreme Court.”

  A faint sardonic undertone reminded her of what she dared suggest. But Sarah had prepared herself: she had spent the night in Kenyon & Walker’s library, parsing the statute; reviewing the procedural rules for the three federal levels—the District Court, the Ninth Circuit Court of Appeals, and the Supreme Court; reading every relevant case on abortion and parental consent. “Even then,” Sarah answered, “the statute requires a District Court ruling within ten days. An emergency appeal should take about three weeks. Ditto the Supreme Court.”

  “And Miss Tierney is already five and a half months pregnant. By the time you’re through, her fetus is seven and a half months old, at a minimum.” Nolan’s tone was flavored with distaste. “That makes your position rather unattractive, doesn’t it.”

  A sense of unreality hit Sarah hard: they were sitting in Nolan’s corner office, with its panoramic view of the San Francisco Bay, talking about a pregnant girl with Olympian detachment. It helped transform her nervousness to passion.

  “No,” she retorted. “It demonstrates how cynical this statute is in theory, and how cruel in practice. Congress takes a girl with sound medical and emotional reasons to abort, and makes those problems two months worse—because the courts are ‘protecting’ her from herself. The plain effect is to make underage girls have babies, and to place them at more risk.

  “Among the risks in this case is that Mary Ann Tierney will have a hideously defective child, and never have another. I don’t think that’s right, do you?”

  A small frown dismissed this question as too emotive. “What’s ‘right’ may seem clear to you. But some of my partners believe that Congress can, and should, limit a fifteen-year-old’s ability to abort a viable fetus simply because she considers the consequences of her own sexual conduct— pregnancy—distressing.

  “Nor do they think it’s ‘right’ to finance a lawsuit which offends their own beliefs just because a fifth-year associate wants them to. Especially when pro-abortion activists would be pleased to take your place.”

  To Sarah, Nolan’s speech was more devastating for its absence of inflection. She felt her own voice rise. “This girl is living with two pro-life parents. I don’t think she can hold out if we send her somewhere else.”

  Nolan raised his head, as though to scrutinize her from greater heights. “In that case, how would you answer the charge of improper influence—that this is your lawsuit, not hers? And that you’ve separated an impressionable girl from a loving family to serve your own political agenda.”

  This was meant to silence her, Sarah knew. “The way you would with any minor,” she came back. “First, I’d ask the court to appoint a guar
dian ad litem to speak for her best interests—”

  “A counselor from the women’s clinic?” Nolan interjected. “From your memo, she doesn’t appear to have some favorite pro-choice aunt.”

  Sarah ignored this. “Second,” she persisted, “I’d engage a psychologist who specializes in adolescents, to testify that Mary Ann understands what she is asking the court to do, and that she believes it’s best for her.

  “Third, we hire an independent expert—an ob-gyn—to confirm that the medical risks of carrying this fetus to term are real, and that Mary Ann hasn’t exaggerated them as an excuse to end an unwanted pregnancy.

  “Fourth, we have Mary Ann sign a client consent form which sets out how she met me, the reasons for her desire to terminate, and that she has asked us to bring the suit.” Pausing, Sarah softened her voice. “I’m not proposing that we let a teenage girl delude us, or open ourselves to charges of ‘improper influence.’ Or to let anyone use that as an excuse.”

  For the first time, Nolan looked nettled—as much by her readiness to answer, Sarah thought, as by her implicit challenge. “One of the reasons I came to Kenyon & Walker,” she said evenly, “is that we do pro bono work. If we put other pro bono cases up for a vote, some of the partners wouldn’t like them, either.” Briefly, she inclined her head toward Votek. “I’m sure Scott doesn’t like it when we represent polluters against the EPA, for money. But we do it—because it’s profitable, and because even polluters have a right to representation.

  “Whether one agrees with Mary Ann or not, as a principle of our profession even a teenager has the right to challenge a law. That she’s so powerless makes the principle more compelling.”

  “I know something about principles.” Nolan placed both palms flat on his black walnut desk, head jutting forward like a prow. “If our commitment to pro bono weren’t real, Sarah, you wouldn’t have spent so many hours at it. That work is financed by the same partners who have principled reservations about your principles—as well as those who, foreign as it may seem, think they have the ‘right’ to keep you from offending clients.”