The Rule of Nine

FOUR

Josh Root was a man who could always make time for an old friend. He and Nicholas Merle had come of age together in the counterculture trenches of the sixties. So when Root called him on his cell phone and asked to meet for a drink, Nick didn’t think anything of it.

“The usual place?” said Nick.

“Why not?”

“Give me twenty minutes.”

Neither man felt comfortable venturing into the other’s office. It was one of those unwritten rules of government etiquette.

The “usual place” was a quiet upscale restaurant in Columbia Heights, not far from the Capitol and the court building. The restaurant possessed a lounge dripping with old-world charm, dark wood, and equally dim lights.

Root arrived first, dropped off by his driver, who parked in a garage across the street and waited. He ordered a drink and took a seat at the booth in the back corner.

When it came to their meetings, Nick was usually late, mumbling something about circumspection and Caesar’s wife. It was part of Nick’s cautious routine. He always had to be certain that no one had picked up on their private meetings, especially the ever curious rumormongers from the press corps. Josh always gave him a hard time about it. If they ran into each other at a cocktail party or an embassy fling, it was fine. But a one-on-one meeting in a bar would cause tongues to wag, not that anybody could do anything about it. Still, why end up in the gossip sheets?

A few minutes later Nick came through the door. He smiled the moment he saw Root. In many ways they were like night and day. Nick was as organized as Josh was chaotic. Nick was tall and slender, had a kind of stately appearance, and was reserved in his manner, whereas Josh was in your face. Josh’s suits, no matter how well tailored or expensive, never seemed to fit his paunchy body. If Nick was the smile of life, Josh was the scowl. Yet with all their differences the two men remained fast friends.

Nick had been losing weight for the past several months. He didn’t look good, at least not to Josh, whose mind was increasingly focused on thoughts of mortality. Nick was working too hard.

He ordered soda water, no twist, just ice. Nick never allowed alcohol to pass his lips during business hours. He took the glass from the bartender, headed for the booth, and took a seat on the other side of the table. “I thought you were out of town, back in Oregon.”

“I was until yesterday,” said Root. “I came back to take care of some business.”

“I should be out of here myself, but I’m interviewing some new clerks for the fall,” said Nick. “What a pain. Kids. Still, a couple of them are pretty bright.”

“Remember when we were that age?” said Root.

“I don’t think I can remember that far back.”

“Sure you can. Berkeley, sixty-eight,” said Josh.

“Jesus, don’t remind me. Seems like another age,” said Nick.

“It was.”

The two men had known each other for almost half a century. Their paths had crossed and careers intertwined so many times that Root could not begin to count them. He often wondered how it happened that two people following such different courses could end up on the same trajectory, as if they were touched by some stellar fate.

Nick had graduated from Berkeley. Josh was a senior at San Francisco State. They met at an antiwar demonstration during Vietnam, and in the months that followed sucked down enough tear gas and tossed enough bricks to form a kind of bond that usually coalesces only in the heat of battle.

After that Nick went on to law school at Yale. Josh graduated and then seemed to drop out of life. He disappeared for more than three years. It was what Josh came to remember as “his dark time.” He talked to no one about it, not even his friends. That he was able to pull himself out of it, resume a normal life, and come so far in the decades that followed was an absolute wonder. It seemed that he had gone off the track and somehow, as if by magic, had wandered back. Still, he often saw himself as a failure. The demons of his youth continued to haunt him. Only now they appeared distorted by the contradictions in his life and the looming horizon of death.

“Do you ever wish we could go back to the time?” said Josh. “You know, the smell of tear gas in the morning.”

“Are you kidding?” said Nick. He laughed.

“You don’t miss the sense of commitment-the crusade?”

Nick thought about it for a second. “It had its place, but the moment has passed.”

“You’re wrong. That moment never passes. The world is what we make of it. And we never lose our ability to change it for the better until we lose our grip on life.”

“You were always more ambitious,” said Nick. “I gave up trying to warp the world a long time ago.”

“I know,” said Josh. It was a major disappointment. Nick believed that radical thought was something you outgrew, like toys in an abandoned sandbox. To Josh it was a core element of his being, as essential as breathing.

“We’ve both been pretty damn lucky,” said Josh. “What is it they say? ‘It’s better to be lucky than good.’”

“We’ve had this conversation before. Don’t sell yourself short,” said Nick. “You are where you are because of talent. Otherwise you wouldn’t have survived as long as you have.”

“I know. Luck is only as good as what you do with it,” said Root. Still, there was no way to get around the fact that his career rested on the pillar of an accident.

In the years after pulling himself together, Josh got a job teaching at a small college near Portland, Oregon. The problem was he was bored. He hated it. He talked endlessly about changing the political system. He often went on a rant at faculty meetings. He had failed to change the system from the outside and now all he did, it seemed, was complain. When one of the other faculty members laughed at him and told him he should run for office, Root filed papers in a bid for a seat in Congress. For months it was the standing joke on campus.

Josh found himself up against a seven-term incumbent from a solid Democratic district in the party primary. His opponent was so invincible that the Republicans didn’t even bother to field a candidate in the general election. As far as they were concerned, the man was anointed.

Then two weeks before the primary, political fortune ran its errant fingers through the golden locks of Joshua Root. The incumbent did a face plant into his chicken Kiev at a fund-raiser in Portland. The man died of his heart attack before the peas had run off his plate.

As the only surviving candidate on the primary ballot, and with no opposition in the general election, Josh found himself with a ticket to Washington and a seat in Congress.

It was where he and Nick crossed paths once more. By then Nick had graduated from law school. After spending a year clerking for a judge on the federal circuit court in D.C., he was working in the office of the solicitor general. The two men renewed their friendship.

Cynical though he might be, Josh was learning how to survive in office. If the only way to effect political change was to turn to the dark side, Root was prepared to do it. He mastered the finer arts of duplicity. He seemed to thrive in the shadowed crevices that form the boundary between perjury and politics. He won two more terms in the House before a vacancy in the Senate yawned open before him. He ran and won.

It was there that the light of good fortune finally spread to encompass Nick. Four months after Josh arrived in the Senate, a vacancy developed on the Supreme Court. The president filled it with a nomination, but his candidate soon found himself in trouble. The nominee had a history of recreational drug use in his youth, something he had not disclosed to the White House.

As it turned out, the high court candidate was a native of Oregon. He sat on the Ninth Circuit Court of Appeals. As a matter of courtesy, the White House consulted the senior senator from the state. This was not Root; still, he was sufficiently inside the loop to have influence and to know how to use it. The question was whether the senior senator from Oregon would continue to back the man from his home state.

Root discovered that on the short list of other candidates for the appointment was the name Nicholas Merle. Nick was still working in the solicitor general’s office. He was a dark horse for the high court, but he had a subtle advantage, and Josh saw it immediately.

Though Nick had argued cases before the Supreme Court, he had never handed down a decision or an opinion because he had never been on the bench. Consequently he was a clean slate with no controversial baggage that might erupt in a battle during Senate confirmation. Caught in the crosshairs of a drug scandal, the White House was already gun shy, Root realized. Josh convinced his senior cohort in the Senate that they could no longer afford to support the current candidate. It was the political kiss of death. The nominee withdrew his name from consideration the next day.

That was more than fifteen years ago.

As Root sat there sipping his Amaretto in the dimly lit lounge, it seemed almost surreal. His friend who had sucked tear gas with him and thrown bricks at police on the barricades had now spent the past decade and a half on the United States Supreme Court while he himself served as chairman of the Senate Select Committee on Intelligence. Surely the gods must be laughing.

“I wanted to talk to you about something,” said Root.

“Shoot,” said Nick.

“Have you ever thought about retiring?”

“What?” Nick looked up at him.

“Fifteen years on the bench is a long time. You’re not getting any younger. And now might be a good time to think about stepping down.”

“Josh, I know you had your own set of health issues. We all start to feel our own mortality at some point in life, but I’m not quite there yet.”

Most of Washington was aware that Senator Josh Root had serious health concerns even though his staff tried to keep a lid on the details. He had been in and out of Bethesda Naval Hospital as well as several other treatment facilities for the past two years. What troubled Root most was his increasing loss of short-term memory. Whether it had to do with the new medications or other factors Root couldn’t be sure, but there were periods of time for which he could not account. He collected his thoughts for another pitch to his old friend.

“The president would be able to fill the vacancy with someone younger who would have a much longer tenure on the court,” said Root. “And he would have no problem with confirmation since we control the Senate. If you wait until after the midterm elections, that may not be the case.”

Merle looked at him. “Has someone sent you here to ask me this?”

“No, of course not. I’m speaking as your friend. Look at yourself. Every time I see you, you’ve lost another ten pounds. You’re working yourself toward an early grave. If you stay on the court until the current administration leaves office, and there is no assurance of a second term, you may find yourself in a partisan vice, unable to get off without changing the balance of the court. Think about it.”

“Go on,” said Nick, “I’m listening.”

“If you end up with a Republican in the White House, and if he gets two terms, you’ll be well into your eighties before he leaves office, if you can live that long. Nick, I’m telling you as a friend, now is the time to think about getting off.”

“The administration has two more years on its current term,” said Nick. “That’s if they don’t get a second term.”

“Yes, but the confirmation process takes time. If you wait until the election is on top of us, there’s no way to be sure that the president will be able to make the nomination, and that it won’t get blocked in the Senate. Now is the time.”

It was a problem. Everybody knew how the game was played. It was why the balance on the court never changed, at least not in recent decades. There was a time when presidents made mistakes and unwittingly appointed moles from the other side of the philosophic divide. Now that was nearly impossible given the mind meld of interrogation to which candidates were subjected. So unless there was a sudden death on the court, which was rare, the balance was static.

Root realized, as did most observers, that the court was the only real agent for permanent and lasting change in the system. Its members were immune from the whimsy of voters and the restraints of the ballot box. Once confirmed by the Senate, they were there for life. They could pick and choose the cases they heard and in this way dictate the policy agenda for the country. If the voters rebelled and elected a hostile Congress and president, the court could strike down any new laws that were enacted. A long-term change in the political balance of the court was tantamount to a revolution. It was why Roosevelt tried to pack the court with additional new seats that he could appoint during the Depression. Sooner or later the balance on the court would change. The only question was which direction the revolution would take.