Supreme Courtship

CHAPTER 32

CARTWRIGHT DEATHBED VISIT TO CLENNDENNYNN CASTS PALL OVER CASE AMID CALLS FOR RECUSAL

It was one of the milder headlines of the days following.

The burial at Arlington took on the aspect of a state occasion. In attendance were the President, the entire cabinet (minus the obligatory nonattendee in case of sneak nuclear attack), and-Declan had insisted-all nine justices of the Supreme Court.

Dexter Mitchell was in conspicuous attendance. One TV commentator whispered that it reminded him of the funeral scene in The Godfather. Would Blyster Forkmorgan approach Hayden Cork as taps was sounding to arrange “a meet on neutral turf”?

Pepper had not spoken with Declan since Graydon’s death. It would be more accurate to say that Declan had not spoken to her. Crispus acted as go-between.

With the clock ticking toward Inauguration Day, there was no time for a cease-fire between the Mitchell and Vanderdamp camps. A replacement for Graydon Clenndennynn was engaged, Philip “Flip” Soyer, a much-garlanded appellate lawyer who had once practiced law with Graydon, a former Solicitor General universally acknowledged to be a Matterhorn of probity. His only public statement was to say that he saw no need to file a new brief and would endeavor to pick up where Mr. Clenndennynn had left off.

Team Mitchell also issued bland statements, meanwhile maneuvering furiously in the dark. Graydon Clenndennynn’s body was still on its way to Gawler’s Funeral Home on Wisconsin Avenue when Blyster Forkmorgan filed a motion for delay. He did this banking on Vanderdamp’s sense of orderliness; as the days went by, the mounting chaos, anathema to his Ohio soul, might impel him to throw up his hands and resign, taking VP Schmidtz down with him in the higher interests of the nation. Forkmorgan also subpoenaed a) President Vanderdamp, b) Hayden Cork, c) Justice Pepper Cartwright, d) the Secret Service agents present at Graydon’s deathbed, and e) the entire staff of the Intensive Care Unit, with the objective of finding out-as he put it-“the full extent of the ex parte discussions pertaining to Mitchell v. Vanderdamp.” Hearing of this, President Vanderdamp said to Hayden, “Could you look up in the Constitution whether I’m allowed to order summary executions?”

At the press conference announcing these developments, Blyster Forkmorgan asserted that, regrettable as it might seem, these measures were essential, “given Justice Cartwright’s continued refusal to recuse herself in the matter of Mitchell v. Vanderdamp.” Here his straightforward object was to impute as much bias to Pepper as he could. And it worked. According to almost daily polls, 80 percent expected Justice Cartwright to vote for Vanderdamp. Mitchell’s apparatchiks seized on this and dispatched their agents to appear on various TV shows to issue strident demands for her impeachment.

Meanwhile, Forkmorgan continued, “It is critical that discovery go forward so as to ascertain the extent and substance of the inappropriate discussions that were held between defendant and judge.” The President was in no sense technically a “defendant,” but the word had a nice criminal ring to it.

Adding gasoline to the flames, an ICU nurse who’d witnessed the embraces between Pepper and the President and his Chief of Staff revealed them to a reporter. It was-Pepper, the President, and Hayden silently and separately reflected-probably a matter of time before someone got hold of Graydon’s last words, and retailed those.

THERE WAS A CHILL in the justices’ conference room air just short of visible breath-vapor.

Pepper, as the juniormost justice, closed the door and stood ready to serve coffee, if asked. Normally, Silvio delighted in making her undertake this menial office, but not today. As Pepper took her seat, she passed Declan’s, and caught a faint whiff of mintiness. Oh, dear, she thought, but then who could blame him? She could use a stiff one herself.

The CJ began with a few anodyne housekeeping notes. At length he seemed to take a deep breath and said, “I thought it might be appropriate, before we dive in, to ask if anyone had any… general comments.”

No one spoke. Most justices stared at the table, as if a good movie were playing on its surface.

“I think maybe we ought… at least…” Mo Gotbaum said slowly as if each word were being drawn up by bucket one by one from a deep well, “… discuss the matter of recusal.”

The statement hovered in the air for a moment or two. He added, in a cheery tone of voice, “I stipulate it’s an entirely personal decision. I’m not for a minute suggesting compulsion. But all things being equal it might make sense at least for us all to… discuss it as an issue… qua issue.”

“Anyone see the piece in Legal Times?” Silvio ventured.

This brought a palpably awkward silence, for they had all indeed read the article by the Dean of Fordham Law-Pepper’s own alma mater. (Oh, dear.) It was entitled “Recusal Now, or Impeachment Later?”

Pepper said, “I read it.”

“Oh?” Silvio said, uncharacteristically reticent. “Ah. Well…”

Excruciating silence. Pepper said to Declan, “Chief, may I say something?”

“Of course.”

“First,” she said, “I want to apologize to all of you. I did what I did because I felt I had to be there. As to the hugs, anyone here who’s been at a deathbed knows that just… happens. It wasn’t any celebration among plotters.”

“But this wasn’t just any deathbed,” Justice Haro sniffed.

“I’m aware of that, Mike,” Pepper said. “There’s something else you should all know. Just before he expired, Mr. Clenndennynn said, “ ‘Did we win?’ ”

Justices stared. No one spoke. Finally, Paige Plympton said, “Did anyone make a reply to Mr. Clenndennynn?”

“I was trying to figure out something to say when he died.”

There was a rumble, a low rumble that at first sounded like bronchitic lungs gasping for air, but which shortly revealed itself as-laughter. It was coming from Crispus, from very deep within him, as magma from an erupting volcano. His shoulders shook, his eyes teared, his hands gripped the edge of the conference table.

“I… aha… ahaaaa… sorry, sorry. It’s not in the least… haaaa-haaa-haaaaaa. It’s just too… haaaaaa.” Ruthless stared at him with pursed lips, like a church lady confronting a bishop who had just farted in the middle of the Sermon on the Mount. Crispus gave a few final shudders, dabbed his eyes. “I’m sorry. Sorry,” he said. “It’s just…” This was followed by another few eruptions. After which he said, “Sorry. Sorry.”

There was silence and the ticking of the grandfather clock.

“I think-” the Chief Justice said.

“If I might?” Pepper said.

Declan waved her on.

“I know it’s my decision whether to recuse myself, and I thank Mo for pointing that out. There was no ex parte discussion. But under the circumstances, I’m going to let you all decide whether I should have a vote in Mitchell.” She stood. “I’ll abide by whatever your decision is.”

“No. No,” Declan said, bringing his hand down on the table with an angry thump. “That’s is not how we do things.”

“You got a better idea?”

“It’s your decision. Don’t ask us to make it for you. Take responsibility. It’s your conscience. Your integrity. Don’t ask for a proxy vote on it.”

Pepper was formulating a response to this outburst when Justice Haro said, in a lowered but distinctly audible voice, “Is ‘integrity’ applicable here?”

Pepper wheeled. “You know, Mike,” she said in a measured tone, “there’s something I’ve been wanting to say to you for a while now. Kiss my ass.”

To everyone’s knowledge, it was the first time in history those three words had been uttered in the justices’ conference room. No one moved. The Chief Justice stared at Pepper with icy contempt.

“I’ll be in my chambers,” Pepper said, gathering up her papers. “Let me know how the vote goes.”

PEPPER BURIED HERSELF in mind-numbing minutiae, redrafting an overdue opinion, poring over footnotes, even paying bills, until she’d managed to put herself into a sort of zombielike state. When finally she looked up at the clock she saw that nearly two hours had gone by. It was taking them a long time to vote. Or did the delay portend some graver development? Were they drafting a petition asking her to resign? Articles of impeachment? No, she recalled from Introductory Con Law-that was up to the Congress.

Eventually there was a knock on her door. She looked up, expecting Crispus on some lugubrious ambassadorial mission-For what it’s worth, darlin’ child, I took your side, but they all felt it would be best if you did the decent thing and resigned… But no, it was Declan, looking either drunk or like someone had smacked him across the face.

“You look like shit,” Pepper said.

He sat in a chair facing her.

“You okay?” she said.

“You just said I look like shit.”

“Sorry. You been…?”

“No. I had a little snort before the conference. I could drain an entire bottle right now, but I don’t think that would help.”

Silence.

“So, you all want me out of here?” Pepper said.

“No. It’s not that.”

“Well, what is it? You look like an armadillo just crawled up your butt.”

“Crispus told me.”

“Told you what?”

“About the FBI. About Haro.”

“Aw, he wasn’t supposed to do that.”

“I’m not sure where to begin. So I’ll start with the apology.”

“No one here owes me any apology.”

“I confronted Mike. Not in front of the others.”

“Was that smart, in the middle of this shit storm?”

“There’s a principle at stake here, Pepper.”

“I’m sick of principles. Vanderdamp ran on principle, and look what that accomplished. This country’s ready to explode. And we’re the detonators. Principles. Nothing but trouble. I don’t want to hear any more about principles.”

Declan seemed unsure how to process this declaration.

“So what did Mr. Justice Integrity have to say?” Pepper said.

“Not much.”

“He could always just deny it. I destroyed the evidence.”

“You’re about as adept at destroying evidence as you are at using our Intranet. Crispus dug the pieces of paper out of the wastebasket and taped them together.”

“That sneaky…”

“I showed it to Mike. I enjoyed that part. He went appropriately pale. Started blathering about gestapo tactics and criminal procedure. I was tempted to ask for his resignation.”

“Kind of draconian, isn’t it?”

“Draco is on the frieze in the Great Hall. You may have noticed.”

“I did. Along with Moses and the Ten Commandments, with his beard covering the Thou Shalt Not parts. You ought to do something about that, by the way. So where was it left?”

“It was left that he is going to apologize to you at conference, starting fifteen minutes from now. For impugning your integrity. Further, he is going to propose that you not recuse yourself. My sense is that the others will accede. As for the leak and the FBI, nothing more will be said, by anyone, to anyone. You might apologize to him for telling him to kiss your ass.”

“Slick, Chiefy,” Pepper said. “Real slick.”

“Yes,” Declan said. “It was, rather.”

THE VOTE on Mitchell v. Vanderdamp was 4-4. It fell to the juniormost justice to cast the deciding vote.

There had been vigorous discussion around the table. Normally, the Chief Justice did not encourage “debate,” preferring that these contentions be waged on the cooler battleground of written opinions and footnotes. Nine old farts sending footnotes to each other. But this was an unusual case, and sensing that a certain amount of face-to-face combat might be cathartic, he allowed it.

The four justices in favor of granting Mitchell’s motion clove to the (technical) argument that the term-limit amendment was in effect prior to the election, and that Vanderdamp’s election was thus null and void. The four justices in favor of denying the motion, and allowing President Vanderdamp to take office for a second term, made their stand on grounds of the larger issue, namely that the people-as in “We the People”-had elected him, amendment or no. They viewed with approval, too, Graydon Clenndennynn’s final (in so many ways) point that the Twenty-second Amendment was not “prospective.”

It got pretty heated. The word “goddammit” was uttered several times; the table was thumped; motivations subtly questioned; the Chief Justice had to interject, “Come on, now,” or “Please.” At one point, Crispus leaned over to Pepper and whispered, “This is better than Friday Night Smackdown.”

“Silvio,” said Justice Gotbaum, “you’re completely twisting what Bernstein said.” [33]

“I goddamn well am not. I do not ‘twist.’ ”

“Well, for your information, it’s a valid goddamn constitutional amendment. The Congress is the ultimate expression of the will of ‘the People.’ It has the superior claim to legitimacy-and therefore trumps-even the results of an election.”

“I’m with Mo,” Ruthless Richter said. “The principle here is precisely the same as in judicial review. We’re back to Marbury. And if you want to bring in law review articles, I’d refer you to Bill Treanor’s in Stanford Law Review. [34] As Justice Marshall observed in Marbury, ‘Ours is a government of laws, and not men.’ The amendment, adopted by ‘We the People,’ through the constitutional process, has a superior claim to legitimacy over an election result.”

“You make ‘election result’ sound like an abstraction!”

“I do not.”

“You do, too.”

“All right,” the Chief Justice finally said. “I think we’ve covered the ground.”

“Some of us covered it,” Silvio snorted. “Others stamped their little feet on it.”

“Bullshit!”

“All right,” Declan re-interjected. “Thank you, all.”

A heavy silence fell, like the one that hangs over a battlefield after the firing has stopped.

“Justice Cartwright?” he said. “How say you?”