“Excuse me, Ms. Klein. Do you have any case law to support that opinion?”
“No, Justice Hirschfeld, I don’t. But I believe my logic is sound. Cases of first impression are frequently allowed to make new law. If that were not the case, our judicial system would be stagnant. As for your second question,—”
“I’m not surprised, Ms. Klein, that you’re unable to cite any case for your unprecedented position.”
Klein was plainly taking a beating. Everyone in the courtroom knew it. Even Esposito cringed. Klein was noticeably shaken, but Brooks appreciated that she was still trying her best to hold her ground.
“As for your second question,” Klein began anew: “The fact that judicial relief from a reduction in Congress’s perks and benefits might theoretically be possible, as you hypothesize, does not turn such a reduction in benefits, as opposed to an impairment of the right to enact rules and regulations, into an instance of nullification injury.”
Although Brooks knew Klein couldn’t see him sitting at counsel’s table off to her side, he nevertheless gave her a quiet fist pump. What’s the burr here under Hirschfeld’s saddle for God’s sake?
Hirschfeld was not backing off. “Ms. Klein, I’d like to examine your understanding of nullification injury a little further. If I negligently drive my car into yours on the way home from Court this evening, would you have the right to sue me for the resulting damages to your car?”
“I would, yes.”
“Would you have any less right to sue me if you happened to be a member of Congress?”
“No, of course not, but I’m afraid I don’t follow your point.”
“Are you not familiar, Ms. Klein, with this Court’s decision in the case of Powell v. McCormack? There, we found that Congressman Adam Clayton Powell was entitled to sue the U. S. House of Representatives for refusing to seat him following his election victory.”
“I am familiar with the Powell case, Justice Hirschfeld. However, I believe it speaks to an entirely different point.”
Brooks knew he and Leah had not reviewed Powell. He was momentarily encouraged by her response.
“In what way, Ms. Klein?”
“Because denying Congressman Powell the right to be seated and to vote on matters that would come before Congress during his elected term would, by definition, constitute the ultimate in nullification injury, denying him all of his rights to vote. But the 28th Amendment does not prevent any member of Congress from voting on any matters coming before Congress.”
Brooks shook his head imperceptibly. What Klein said was true, but it was the wrong answer.
Hirschfeld knew that as well: “This Court recognized, Ms. Klein, that Congressman Powell had standing to sue because he was being denied the right to vote in any number of future votes. Not prior votes, as you claim is necessary. How is that any different than if Congress wants to consider and vote on any future revision to the current language of the 28th Amendment?”
“As I said a moment ago, Justice Hirschfeld—”
“Come, come, Ms. Klein, a little more candor, please. Are you really telling this Court that Congress has to go through the useless gesture of enacting a revision of the 28th Amendment in conflict with its anti-contest language—risking each of its members being charged with the commission of a 28th Amendment felony—before it can assert nullification injury?”
Brooks was aggravated by Hirschfeld’s attempt to manipulate Leah. Powell was predicated on a denial of the Congressman’s fundamental property right to receive his Congressional seat and credentials. The case had nothing whatsoever to do with any claim of nullification injury.
While perhaps clever, Hirschfeld’s thesis was bad law. He had to know that. Brooks wondered why Hirschfeld would gamble his judicial integrity—and reputation—on Klein failing to assert the correct rebuttal to his question. It smacked of desperation.
Brooks blamed himself for Leah’s gaff. He should have anticipated this possibility, remote as it was, and reviewed Powell with her when they prepped. For now, there was nothing he could do but hope the other justices would not put any more stock in Hirschfeld’s argument than he did.
Brooks looked at Hirschfeld, who he could see caught the disappointed expression on Brooks’s face. Hirschfeld turned away, rather sheepishly Brooks thought.
* * *
Three seconds later Cassie’s meter confirmed her suspicions: 278. Her blood sugar was clearly too high. She dosed some additional insulin from her pump to bring it back down. She had to calm herself in order to reduce the amount of insulin she would need to use.
Otherwise, her insulin would be used up in less than the one plus days she had originally estimated when she reattached her pump. I’ll make things worse if I panic. Can’t do that. Shhhh. Slow down. Focus. Calm down. Easy does it. Just like when I have to nail a five-foot putt to win a match. This situation’s kinda like a match too.
CHAPTER 17
Tuesday, May 6, 11:00 am
ESPOSITO’S TURN. He gathered his thoughts, including those he privately held about his clients. The esteemed members of Congress.
No doubt Congress had some honorable members, but most he knew were not. The Congressional leaders who engaged his services were more concerned about their own interests than those of their constituents. While confirming that he understood his fees would come solely from the taxpaying public, they emphasized to him that his loyalty and services were to inure to them, and them alone.
One Congressman had put it to Esposito this way in justifying the under the table kickbacks he requires from those for whom he arranges public works contracts: “You don’t think I hold public office for just the salary and benefits that come with the job, do you? The real money is in what I make behind the scenes. The parties and the lobbyists who pay me are very pleased with my services and are quite willing to pay me for what I do. I’m just like any other broker who brings two parties together. They don’t do that for free. Neither do I. The only difference is that I don’t admit it.”
Not quite, Congressman, Esposito told himself. Brokers and finders disclose what they receive, and based on their own good will, not that of their constituents. So many of these politicians were incredibly calloused and devious. In office to be served, not to serve, and often inept to boot.
Like them, I may be selfish and devious, but I’m not inept. As long as I’m paid, they get my services. Damn good services at that. But my loyalty? Really? Besides, what do they know about loyalty?
Unlike his clients, he owed no duty to their constituents. What he cared about, first and foremost, was reputation. His reputation. Thanks to his record, demand for his services was at an all-time high. A win here and he’d own D.C. Even a loss wouldn’t damage him. He couldn’t be blamed for the mess his clients had created for themselves. A win for them would be a coronation for sure, but he agreed to take this case on because it would be a winner for him no matter what the outcome.
He took a couple of deep breaths. In spite of all the resources and backup at his disposal, this was the time when it was on his shoulders alone. Just how he loved it. He was ready. He was always ready. Nevertheless, Hirschfeld’s off-the-wall surprising remarks were a plus. He intended to put them to good use.
* * *
Brooks eyed Esposito strutting to the lectern in his expensive suit and fancy cowboy boots. Cocksure and full of himself.
He wasted no time. “With all due respect to my learned colleague at the bar, there can be no question but that nullification injury exists here and establishes Congress’s standing to bring this lawsuit.”
He commanded the lectern with a folksy keenness. A thinking man’s backwoods lawyer, Brooks thought, a modern—and falsely humble—Honest Abe. But it had served him well.
“First of all, as Justice Hirschfeld so ably demonstrated in his use of Powell a few moments ago, our so called 28th Amendment denies Congress its fundamental Article V constitutional right to vote on any proposed future revision of the amendment.
Yet, this is nullification injury. And it’s exacerbated by the fact that this suit has been brought on behalf of all members of Congress. Not just a disgruntled few.”
Esposito nodded appreciatively at Hirschfeld, then moved his gaze to the other Justices.
If Brooks were originally angered by Hirschfeld’s abuse of Powell, he was now outraged. But I can hardly fault Esposito for capitalizing on the opportunity. And nothing I can do about it right now. We’ll see about later.
Associate Justice Norman Veksler broke Esposito’s stride. “Aren’t you making a number of assumptions, Mr. Esposito? And do you think it helps your cause to mention that your suit is on behalf of all members of Congress? Is it not your position that nullification of a single legislator’s vote, such as Congressman Powell, is sufficient to empower that legislator with standing to sue?”
“Fair enough, Justice Veksler.” Esposito tugged on the lapels of his Armani suit. “You are correct that a single nullified legislator has standing to sue. However, do you really want 500 plus individual members of Congress spending the taxpayers’ money on lawsuits every time one of them doesn’t get his way? I wouldn’t.”
“Interesting style, Mr. Esposito,” Veksler responded, “agreeing with me on something I didn’t say. It was your position I addressed. I question whether such tactics serve your cause. Do you actually have anything instructive to share with us?”
Brooks noticed Veksler’s scowl and chuckled to himself. All eyes in the Courtroom were now definitely trained on Esposito.
“I’m sorry if I misunderstood you, Justice Veksler, or if I sounded dismissive. That was certainly not my intention. I do have some further points to make.”
Veksler replied, “Why am I not surprised?”
Soft laughter rippled through the audience. Brooks was careful not join in.
“The case before this Court today,” Esposito said, “is a simple response to those who would seek to nullify Congress’s Article V constitutional right to participate in amendment of the U.S. Constitution. And to use the threat of a criminal felony to raise the stakes. Courts have rarely countenanced such patently chilling practices.”
“Counsel,” Associate Justice Dennis Galanti interjected, “did you just say Article V requires the participation of Congress in constitutional amendments? While I recognize this will be the subject of our hearings this afternoon and on Thursday, and don’t want to jump the gun, do you have any authority for that proposition? I didn’t see that point briefed in your papers.”
Almost unnoticeably, but not missed by Brooks, Esposito stiffened. “I’m sorry, Justice Galanti. As detailed in Congress’s opposition brief, Article V provides two means by which to amend the Constitution. Both require Congressional participation. I don’t believe any additional authority is necessary.”
Now Chief Justice Trotter entered the scrum. “Mr. Esposito, does Article V expressly provide that its two means to amend the Constitution are the only means by which the Constitution can be amended?”
“Uh, no, Chief Justice Trotter, Article V doesn’t say that, but—”
“I didn’t think so—”
“—I can’t imagine any other reasonable interpretation—”
“Mr. Esposito!”
The booming voice belonged to Justice Taser, who then paused as if for effect, to be sure she had the undivided attention of everyone in the Courtroom. She did.
“Thank you so much for your unsupported view of what our Constitutional forefathers had in mind when they crafted Article V.” She leaned forward and peered down at Esposito, her scorn evident. “Is there anything more you wish to say about the standing issue in this case? I note that your allotted time is about to expire.”
“Two further points, Justice Taser. I’ll be brief.”
Brooks smiled. The mantra of every lawyer seeking more time from a court—feigned brevity.
“If NoPoli’s National Convention can amend our Constitution, then we’ll be opening the floodgates to every Tom, Dick, and Harry who may want to do so. As it is, we’ve had over eleven thousand attempts to date to amend the Constitution. Only twenty-seven— now possibly twenty-eight—have succeeded. Finally—”
“Well, Mr. Esposito,” Veksler interjected once more, “Tom, Dick, and Harry have no pending amendments to the Constitution, at least none that have been judicially challenged. I’m afraid we’ll just have to save that question for another day.”
“Of course, Your Honor.” Esposito offered a weak, deferential smile. “Finally, if Congress does not have standing to challenge the 28th Amendment, then who?”
“That’s an interesting question,” Veksler replied. “I’m grateful we don’t have to answer it today. For now, it will be difficult enough for this Court to decide whether Congress has such standing. As always, Mr. Esposito, thank you for your inspiring vision.”
“Thank you, Justice Veksler.”
Esposito beat a hasty retreat from the lonely rostrum to his entourage, perhaps seeking safety in numbers. Brooks thought he looked a couple inches shorter than fifty minutes earlier.
“Thank you, counsel,” Trotter said. “I see it’s almost noon. We’ll be adjourned until one o’clock this afternoon, when we’ll consider the constitutional validity of the 28th Amendment.”
* * *
Cassie stared at the toilet. It was right out there in the open. Who would expect her to live in a bathroom? She wondered if someone were watching her. Eeew! She had no choice—couldn’t hold it in another second. She quickly did what she had to do.
Next, she opened the small refrigerator and looked inside. She noticed several bottles of water. She wasn’t sure if they were safe, but she needed to hydrate herself. She would have to chance it. Besides, if they meant to harm her, they wouldn’t need to be so sneaky about it. She opened one of the bottles and took a sip. It tasted okay. Her throat was dry. She gulped down the rest of the bottle. Elevated blood sugars always made her thirsty.
In addition to the water, she saw milk, juice, bananas, a jar of peanut butter, a jar of jelly, and a loaf of bread. On one of the shelves above the refrigerator sat a box of crackers, packages of instant soup, and small boxes of different dry cereals. It looked okay, but much of it was high carb, would require her to dose more insulin. Besides, she wasn’t the least bit hungry.
But what would it matter? Within two days after her insulin ran out, she would go into a diabetic coma.
And die.
CHAPTER 18
Tuesday, May 6, 11:55 am
RELIEVED that Trotter didn’t begin speaking to the television cameras again, Hirschfeld left the podium with the other Justices, walking hurriedly past them in fear that some might want to immediately discuss one or more of this morning’s points.
He had thought about rallying to Esposito’s aid, but the man had made such a complete ass of himself that Hirschfeld didn’t want to be dragged down with him. He had much to accomplish. He had to pick his battles wisely.
More importantly, he was cautiously optimistic that at least four of his colleagues wanted to debate and decide the correct meaning of Article V and would join him in holding that Congress had standing so that discussion of Article V would not be preempted. Had that not been the case, surely one or more of them would have spoken out against his obviously strained use of Powell.
Hirschfeld reached for his phone. He was so wrought he needed to assure himself it was still there. He’d hated turning it off, but their text insisted that he do so. He couldn’t chance ignoring the instruction. He hoped Mark and Jill understood. He had to get to his office now and call them.
* * *
“And . . . that’s a wrap.” The NBN-TV director’s voice reverberated in Nishimura’s headset. “Nice job, everyone. We’re switching over to the 12 o’clock news. Get something to eat. Back in forty-five please, ready to start up again and introduce the afternoon session.”
Nishimura turned to Elliott and Kessler. “Esposito didn’t make any friends up there.”
“I wouldn’t be so sure,” Elliott said. “Very tough to figure out exactly where each of the Justices really is, especially the three who haven’t said anything so far. It won’t matter what Esposito or Klein said if the Court wants to decide the 28th Amendment on the merits. If they do, they’ll find standing no matter what the lawyers had to say about that.”
Kessler shrugged his shoulders. But said nothing.
* * *
Brooks smiled at Klein as they packed up their briefcases. They had a private room reserved in a nearby hotel to review and update their afternoon strategies over lunch. Esposito and his vast team would be doing the same. As they rose to leave, Brooks leaned over to Klein.
Before he could speak, she said, “I know. I know. I can’t imagine how I screwed up Powell. I’m sick about it. When I think of the thousands of NoPoli delegates I let down today, the hundreds I met with personally, who gave so much of themselves to help enact the 28th Amendment—”
“Ms. Klein,” Brooks said, “stop berating yourself. Those things happen. Besides, I count at least five Justices who, for a variety of different reasons, will find in favor of standing no matter what.”
He wasn’t really that sure, but there was nothing to be gained by beating her up.
“What I wanted to ask you,” he continued, “was to please invite your husband to join us for lunch. I have something I need to discuss with him.”
“Your Honor, Frank has the kids with him. I think he was planning to take them to lunch so you and I could work without distraction.”
“No worries. Bring them along too. Won’t be a problem. I’m pretty much good to go for this afternoon.” He offered a playful wink and grin. “Who knows, your kids might offer a useful tip or two.”
CHAPTER 19
Tuesday, May 6, 12:05 pm
THE COURT WAS CLEARED for the lunch recess. Like most of the country, Thomas wasn’t particularly interested in all that standing gibberish. He was certain the Court would find standing. Well, he was pretty sure. They had to if his efforts to defeat the 28th Amendment were to succeed. That was all he cared about. The rest was just details. He had to defeat the 28th Amendment. His very survival depended on it.
Brooks-Lotello Collection Page 6
