Solomon And Lord Drop Anchor Part 18

"Didn't think you would," Blair said, turning to the committee chairman. "With lawyers as thick as fleas on an old hound, you'd think the president could find one that reads the Good Book on Sunday mornings."

The hate mail delivered to his Cambridge office had shocked Truitt. Protesters spewed invective and picketed in Harvard Square, calling him a card-carrying ACLU leftist and a p.o.r.nography wors.h.i.+per who cared more about spotted owls and snail darters than jobs and families.

Despite the uproar, the Senate had confirmed him, and if the 53-47 vote was not exactly a resounding vote of confidence, it should no longer matter. He was appointed for life, or more precisely, in the words of the Const.i.tution, during "good Behaviour."

With a capital B.

Sam Truitt intended to lead an exemplary life on the Court. He would do nothing to attract the attention of the Family Values Foundation, which had begun a "Truitt Watch," promising an impeachment pet.i.tion at his first lapse. He had a single blemish in his past "Behaviour," one that attracted the attention of the FBI when he was on the president's short list for the nomination. Ten years earlier, a law student named Tracey had filed a s.e.xual hara.s.sment claim against him after he slept with her, but nonetheless gave her a C in const.i.tutional law. He had remained true to his academic virtue-if not his marital vows-but Tracey believed he had not held up his end of the unstated bargain.

In truth, she had seduced him, but still, he had violated university rules. Stupid.

With a capital S.

In case he didn't know just how stupid, his wife, Connie, had fixed him with that icy, New England smile and said, "Next time you screw a student, Sam, spare me the humiliation and give her an A."

Before the misconduct claim could be heard, Tracey dropped out of law school, sparing him an ethical dilemma. Would he have told the truth?

Sure I screwed her, but she wanted it.

Oh, brilliant. Just brilliant. Want some more, Dean? The Veritas, the whole Veritas, and nothing but the Veritas.

While I was grading her paper on the legality of strip searches at border patrol stations, she came into my office and pulled up her skirt. "Want to pat me down, Officer?" She was young and willing and hot, and G.o.d help me, I'm just a man.

With a small m.

Or would he have lied?

I never touched her. She is obviously a deeply troubled young woman with an overactive imagination.

That would have violated his principles, but thankfully, he never had to confront the question. Ironic, he thought how his personal life did not live up to his professional standards.

Now, he had taken a vow of monogamy, which in his marriage was akin to a vow of chast.i.ty. When he told this to Connie, she laughed and said, "Don't forget poverty. You've taken that vow, too, and dragged me with you."

Poverty to Connie meaning the inability to afford a summer home in the Hamptons.

But he was serious about living a blameless life. No scandals in or out of Court. No ammunition for the Foundation's muskets. He wanted a long, productive career, writing cogent opinions that would live forever in our jurisprudence. He wanted to join the thirty-year club with Marshall Story, Holmes, Black, Douglas, and Brennan.

I'll drive my enemies crazy and then out-live them.

But that morning, Truitt was worried about getting through his first day, not his first decade on the Court. He felt as if he had sneaked into the ornate building. Just after dawn, he'd come up the steps and paused before the giant six-ton bronze doors. Even earlier, he'd sat on a bench on the oval plaza, the Capitol glowing behind him in the rosy early morning light. At the base of the flagpoles, he'd noted the scales of justice, the sword and book, the mask and torch, the pen and mace. He'd gazed up at the two marble figures flanking the steps, seated as if on thrones, Justice on one side, Authority on the other. Above him, sixteen huge marble columns supported a towering pediment with a sculpture of an enthroned Liberty guarded by other symbolic figures. Atop it all was engraved the lofty phrase, EQUAL JUSTICE UNDER LAW.

In a place where the figures were carved from marble, he had feet of clay.

It was a building to be entered triumphantly on the back of an elephant, following a cavalcade of golden trumpets and s.h.i.+mmering banners. Instead, he felt like a thief in the night.

And now, Samuel Adams Truitt-at least the name sounded like he belonged here-sat in Holmes's chair at the wing-shaped bench of gleaming Honduran mahogany, looking toward the heavens, or at least toward the four-story-high coffered ceiling, when he heard the voice of G.o.d.

"Justice Truitt!" the voice boomed.

Chief Justice Clifford P. Whittington both sounded and looked like G.o.d, if you pictured the Creator as a sixty-seven-year-old Iowan with a barrel chest, a rugged profile that, like the statues, could be carved from marble, and long, wavy white hair swept back and curling up at the neck.

Startled, Truitt swiveled toward the front of the courtroom. "Chief," he answered.

The chief justice strode toward the bench. He looked vigorous enough to vault the bronze railing that separated the public section from the lawyers' gallery.

"Getting a little head start on the rest of us?" the C.J. bellowed, his deep voice resounding in the cavernous chamber. "Or just walking the field before the game?"

The game.

The sole point of common ground between the two men, Truitt thought, was that they both had played football in college. Whittington had been a lineman at Yale in the days before face masks-though some liberal academics claimed he played too long without a helmet-then went to Oxford as a Rhodes scholar. He was a Renaissance man, a throwback, a midwestern farm boy who beat the eastern intellectuals on their turf at their game. He liked to think of himself as a common-sense judge with traditional values. Truitt considered him rigid, small-minded, and mired in the past.

Truitt also knew that the chief had huddled with Senator Blair, feeding him damaging questions for the Judiciary Committee hearings. If there was one man in America that Whittington did not want on the Court, it was the glamour boy from Harvard who appeared on even more news shows than the biggest publicity s.l.u.t on the Court, Whittington himself.

"It's customary for the chief justice to chat privately with a new member of the brethren," Whittington said, somewhat ceremoniously. By this time, Truitt was making his way down from the bench. It didn't seem proper to have the chief looking up at him.

"Can we still call ourselves brethren when we have two women on the bench?" Truitt asked with a smile.

"I don't know," the chief replied with a malicious grin. "I hear you're the expert on s.e.xual hara.s.sment, Professor."

Touche.

"I just figured you were doing some field research," the chief continued, eyes twinkling.

"Actually, I've written extensively about s.e.x discrimination," Truitt said.

"So you have. I read your piece on the male-only military college case. You didn't much care for my dissent."

"I just thought it was too late in the day to allow a public college to bar women. The states can no longer discriminate based on gender, race, or s.e.xual preference."

"'No longer'? I rather like that term. It implies that the Court has changed, which it d.a.m.n well has. But the Const.i.tution hasn't changed, except for those twenty-seven amendments. So, how do you explain it Sam? How did we get so far from the framers' original intent?"

"We haven't. They simply weren't faced with these questions in the context of the current era. If Madison or. Jefferson were alive today, I doubt they'd disagree with giving women the right to vote which took an amendment to their Const.i.tution. I wrote a piece called, 'Whose Original Intent?' in which-"

"Read that one, too, and didn't agree with a d.a.m.n thing. As for your forays into legal realism, inviting judges to ignore precedent and use the social sciences to shape our lives, well it's just plain dangerous. Then there's your essay on legal pragmatism. There are no grand foundational principles, eh Sam." The chief raised his bushy eyebrows. "Being a legal pragmatist means never having to say you have a theory."

"That's a bit of an oversimplification."

The older man beamed a photogenic, white-toothed grin. He was still tan from a summer at Martha's Vineyard, where he enjoyed tweaking the noses of Boston's liberal establishment at clambakes and c.o.c.ktail parties. Truitt looked directly into the chief justice's eyes. The two men were the same height, six two, though the chief probably weighed twenty-five pounds more than Truitt.

"You probably think I'm a troglodyte," the chief said.

"I think you like getting a rise out of people, particularly the junior-most justice."

"Well, you're not wrong about that, but I mean what I say. You know what makes me a good judge, Sam ... h.e.l.l, a great judge?"

"Modesty?" Truitt ventured.

Whittington laughed. It was a big man's laugh, water tumbling over a falls. "Because I don't have an agenda. I don't give a rat's a.s.s if a woman has an abortion. But I object to this Court finding a const.i.tutional right of privacy when the sacred doc.u.ment doesn't mention the word."

"Needless to say, I-"

"Save your breath, Sam. I know your position."

Truitt wondered what the judicial conference would be like, the chief's thunderous voice shouting down all dissent. He was reminded of Samuel Goldwyn's famous line to a young screenwriter: "When I want your opinion, I'll give it to you."

"I'll tell you something else," the chief rumbled. "Miranda is a disgrace. h.e.l.l, now the cops have to urge a defendant not to confess. I'd overrule the so-called exclusionary rule, too. If the constable blunders, why should the criminal go free?"

"I suppose you'd like to do away with the Fifth Amendment privilege against self-incrimination."

"Not entirely," Whittington said, without a trace of irony. "But what's the trial judge required to do when a defendant doesn't take the stand?"

The old buzzard's treating me like a first-year law student.

"The judge instructs the jurors that they're not permitted to draw an adverse inference from the defendant's failure to testify," Truitt said, straining to keep the annoyance out of his voice.

"Doesn't that just fly in the face of common sense? Why shouldn't the jury consider just why the little weasel didn't even try to contradict the evidence against him?"

"Because this Court held that such an instruction compelled the defendant to be a witness against himself."

"A ridiculous decision!" Whittington roared. "I'd overrule it if I had the votes."

A door opened, and a marshal in a blue blazer-perhaps attracted by the noise, most of which came from the chief-stuck his head inside, saw the two men, and ducked out again.

The chief lowered his voice and moved closer to Truitt, as if ready to share a great secret. "Sam, you know the tobacco case on the docket?"

"I haven't read the briefs yet, but I know Blue Cross claims the cigarette companies manipulated nicotine levels to keep smokers addicted."

"That's the one. Just part of the modern-day trend to blame big business for our personal weaknesses. If people want to smoke, should the law stop them?"

"But that's not the issue, Chief. Blue Cross wants reimburs.e.m.e.nt for medical payments based on-"

"Paint it with any brush you want, but it's just another example of using the Courts to change social policy. You're not inclined to favor the plaintiff, are you, Sam?"

The question jolted him. "I'm not inclined either way until I read the briefs and listen to oral argument."

The Chief coughed out a harrumph. "Don't get so d.a.m.ned self-righteous. We're all inclined one way or another and on rare occasions can be persuaded to go against our predispositions. I was just hoping to count on you on this one."

So this is how it's done. Horse trading like congressmen in the cloakroom. So much for the holiness of the temple.

"You're not lobbying for my vote, are you, Chief?"

"I'm just trying to see where you stand, but I'm getting the feeling that you and I are going to disagree on d.a.m.n near everything," Whittington said. "I can tell from your writings that you're plaintiff oriented."

"Only when the law and the facts are on their side," Truitt said.

"The law is whatever the h.e.l.l we say it is," the chief said with a crafty smile, "and the facts can be read any which way we want. Oh, h.e.l.l, Sam, let's not get into a fuss yet. I just want to lay my cards on the table." The chief paused and seemed to appraise the younger man. "I suppose you know I opposed your appointment."

Truitt chose to stay as quiet as a little weasel invoking the Fifth.

"Well, I did," the chief said, "and you probably think it was on political grounds, but you're wrong. The Court is split into too many camps now. It's hard as h.e.l.l to put together a consensus. Too many plurality opinions, too many concurring opinions on different grounds, way too many dissents."

"'Nine scorpions in a bottle' was the way Oliver Wendell Holmes described it," Truitt said.

"On this Court, we've got field mice, gnats, and maybe a horse's a.s.s."

"Which one are you, Chief?"

Whittington's face froze for a second, but then he laughed drily, like a log crackling in a fire. "I'm the old lion, the king of the jungle. And who are you, Sam? Tell me why you're here, and don't give me any BS about answering your country's call. I know you hustled like a son of a b.i.t.c.h to get the appointment."

"I want to make my mark. Fifty or a hundred years from now, I'd like scholars to read my opinions and say, "d.a.m.nit, he was right, and he was right before anyone else'"

"Just as I thought, you want to be a star. That makes you dangerous because the quickest way to be noticed is to ignore precedent and strike out on your own."

"I respect the past, but I'm not irrevocably bound by it. Jurisprudence must recognize that the law changes with society. All the great justices, Holmes included, did just that."

The chief looked toward the back wall, where a sculpted marble frieze depicted a winged female figure of Divine Inspiration flanked by Wisdom and Truth. "When Teddy Roosevelt finally appointed Holmes to the Court, the Great Dissenter was sixty-one, which is what, fifteen years older than you. He'd been a Civil War soldier, a lawyer, a professor, and a judge in Ma.s.sachusetts who'd already written a thousand opinions. He was the foremost legal mind in the country. He'd been tempered by experience, and I a.s.sure you of this, when he taught at Harvard, he didn't prance around the stage like some"-the chief justice searched for a phrase-"some vaudeville comedian."

Vaudeville? This guy probably thinks Bob Hope is a bright new comic.

"John Jay was only forty-three when Was.h.i.+ngton appointed him the first chief justice," Truitt said.

Whittington grinned, as if he'd just filled an inside straight. "I knew John Jay. John Jay was a friend of mine. And trust me, Sam, you're no John Jay ... or Oliver Wendell Holmes, either."

"I get the point," Truitt said. "You don't like my style."

"I don't give a dog's d.i.c.k about your style! All I care about is the Court. This isn't a cla.s.sroom or a burlesque hall. Don't expect to hear applause or be rewarded with adulation. And don't be impatient about writing opinions. You know I give the a.s.signments."

"Only when you're in the majority."

"When it counts, I make it my business for the majority to be with me. With all the different factions diluting the voice of the Court, we're weakened as an inst.i.tution. You're way out there, and I predict a string of showy one-man dissents aimed at your Harvard Square and New Republic friends."

"I suppose having eight other justices is a real nuisance," Truitt said, measuring his words. "It would be a lot more efficient if you could just decide every case, maybe a.s.sign the opinions to one of your admirers."

Whittington barked out a laugh. "Well, you don't scare easy, I'll give you that." He looked around, as if someone might be watching, but the courtroom was deserted. "I like you, Sam. As a man, I like you. h.e.l.l, you and Curtis Braxton are the only judges I've got who can break walnuts in your fists or chop down a tree with a one-handed axe. Maybe someday you and I should Indian wrestle to decide a vote. Or should I say, 'Native American wrestle,' so as not to offend your sensibilities?"

"Chief, just out of curiosity, how long are you planning to bust my chops?"

"Not long, Sam. Ten or fifteen years at most. And in case you're thinking this old billy goat is going to retire before then, I'll remind you that Holmes was still on the Court at ninety-one, Bill Douglas they had to push out of here in his wheelchair. I never cared much for Douglas's seat-of-the-pants jurisprudence, but he was a tough monkey. Christ, after his stroke, he drooled on the briefs, but he was there voting at conference, irritating the h.e.l.l out of his chief."

I think I'm auditioning for that part.

"Douglas used to call Warren Burger 'Dummy' behind his back," the Chief continued. "When Douglas was too ill to read the briefs, a clerk asked him how he'd be able to vote. You know what he said?"

"'I'll wait to see how the Chief votes and then vote the other way,'" Truitt said, figuring it might be a good strategy for him, too.

"You got it," Whittington said, nodding.

The conversation had wound down, and the Chief looked as if he was ready to dismiss the younger man. As he turned to leave he said, "Stop by my chambers this afternoon for the formal orientation and a gla.s.s of brandy."