Mr. Justice (18 page)

Foley said, “The Court’s ‘self-inflicted wound,’ as my constitutional law professor called it.”

Alexandra Burton tightened her grip on the gavel. She was seething inside. The Ku Klux Klan considered the
Dred Scott
case the Supreme Court’s greatest decision. They celebrated it every year with an extravagant party … and with the lynching of a black man dressed to look like Scott.

McDonald said, “Precisely. Indeed, the Court’s decision helped spark the Civil War. It was overturned after the war by the Thirteenth Amendment, which abolished slavery, and by the Fourteenth Amendment, which guarantees to everyone the equal protection of the law.”

Foley said, “Amendments—together with the Fifteenth, conferring the right to vote upon African Americans—that allowed Charles Jackson to become president more than a century later. But what’s the connection to substantive due process? … What’s the connection to gay rights?”

McDonald said, “Critics of substantive due process insist that the due process clause is about fair legal
procedures
—the right to a hearing before having your disability benefits cut off; the right to know the charges against you in a criminal case; et cetera—rather than a mechanism by which judges can make social policy that the Constitution reserves for legislators to make.
Dred Scott
is generally regarded as the Court’s first substantive due process decision. So that’s the connection to substantive due process. Chief Justice Taney held that an act of Congress that deprived a citizen of his liberty or property merely because he had come himself or brought his property into a particular territory of the United States, and who had committed no offence against the laws, ‘could hardly be dignified with the name of due process of law.’”

Foley’s face tensed. The TV cameras zoomed in for a close-up. “Are you suggesting that the Massachusetts Supreme Court was legislating from the bench when it ruled five years ago that my husband and I had a constitutional right to marry? Because if you are, I can tell you that Senator Burton won’t be the only member of this committee opposing your confirmation to the U.S. Supreme Court.”

Foley and his Hollywood partner had been the lead plaintiffs in the landmark decision by the Massachusetts Supreme Judicial Court holding that a Massachusetts statute barring gay marriage was unconstitutional… . Not all transformations in American law were launched from Washington.

McDonald stiffened in his chair. “I’m not saying that, Senator. But I’m not saying the opposite, either. As you know, the lower courts are divided at the moment about whether state legislatures can outlaw gay marriage. But as you also know, it’s a virtual certainty that the question will soon find its way to the Supreme Court of the United States.” The professor paused and cleared his throat. “I’ll close by saying to you what I said to Senator Carpenter several weeks ago in response to his question about my views about affirmative action: It would be inappropriate for me to comment on a matter that will come before the Court.” McDonald leaned forward. This time, there wasn’t a hint of a grimace. “I’m sorry if that costs me your vote, but the Court would be ill-served by any nominee who felt otherwise. The
American people
would be ill-served.”

The hearing room erupted into a spontaneous round of applause.

Senator Alexandra Burton tried to gavel it to order but couldn’t.

CHAPTER 62

Secret Service Agent Brian Neal switched off the television with a pinch of the remote. He glanced over at Kelsi Shelton just as he had done dozens of times during the past week. This time, she was awake. This time, she was smiling.

Kelsi said, “I told you Professor McDonald would run circles around those Senate windbags.” She coughed … and coughed again.

Agent Neal quickly filled a cup with cold water and presented it to Kelsi. His hand was shaking. He hoped she didn’t notice. “Drink this,” he said to her. “It’s great to see you up and about.”

Kelsi took several small sips of water. “It’s great to be up. I can’t say that I’m ‘about’ yet.”

Neal laughed. “Soon—very soon.” He retrieved the water glass from Kelsi’s hand and placed it on the nightstand next to her bed. “How are you feeling?”

“Tired. Sore. Angry… . Take your pick, Dr. Phil.”

Neal laughed again. “So you noticed I’m a closet Dr. Phil fan, huh? … A ‘Phanatic,’ as they say.”

“How could I not? You’ve watched his show every day I can remember. Granted, I don’t remember everything, but I do remember
that
.”

Neal blushed. “What can I say? I’ve got a weakness for tall bald men from Texas. My dad was one.”

“So what you’re telling me is that you’re going to be bald in a few years?”

“No. No. Absolutely not. The baldness gene comes from the mother’s side, Einstein. My grandfather on my mom’s side would’ve made Ronald Reagan jealous.”

“Good.”

Neal blushed again. He changed the subject. He never had been good at flirting. Shoot, he didn’t even know whether Kelsi
was
flirting. “Do you think Professor McDonald will be confirmed?”

“It’s difficult for me to say with a hundred percent confidence. I missed most of his testimony, what with me being in a coma and all. But from what I saw, and from what I know about him, he’s a lock.”

Neal was pleased to see that Kelsi was feeling well enough to make light of her recent brush with death. He now felt free to ask the question he had been dying to ask: “Do you remember what happened? I mean, how you got hurt? The police are gonna want to know. In fact, they’ve called the hospital every day to find out when you’ll be strong enough to talk to them about it.”

The smile that had spread across Kelsi’s beautiful face quickly vanished. She traced her fingers across the brim of the water glass she had rescued from the nightstand. She was lost in thought, sort of like the way she got before a law school exam. She lifted her eyes to Neal’s. “Of course I remember.” Her eyes returned to the water glass.

“How?” Neal said in barely more than a whisper. He sat in the chair next to Kelsi’s bed. He wanted to take her hands in his, but he knew their relationship hadn’t evolved to that point—at least from Kelsi’s perspective.

“One of the guys from school stabbed me.”

“From UVA? Why on earth would he do that? Was he”—Neal struggled to say the words—“trying to rape you?”

Kelsi shook her head. She lifted her eyes to Neal’s again, this time even more briefly than the first time. “He stabbed me af … after … ”

“‘After’ what?” Neal said. “‘After’
what
?”

“After we slept together.”

The pained expression on Brian Neal’s face made it obvious, if it hadn’t been already—who spent a week sitting in a hospital room with an acquaintance?—that the Secret Service agent’s interest in Kelsi Shelton wasn’t simply that of a bodyguard for a body. After all, Peter McDonald was Neal’s real body, but the agent had somehow managed to convince his superiors at the Treasury Department that Kelsi needed around-the-clock protection, too … and that he was the agent who should provide it.

“Sorry,” was all Kelsi could think of to say.

CHAPTER 63

Clay Smith was sitting quietly in the back row of the Senate Judiciary Committee’s ornate hearing room. The room was open to the public—it was public property, in fact—but securing a seat for a Supreme Court confirmation hearing was almost as difficult as winning the Powerball lottery. Just ask the hundreds of people who had stood in line for more than twenty-four hours only to get turned away in the end. Clay hadn’t merely been fortunate in snagging a seat; one had been reserved for him in advance by Senator Burton.

Clay waited patiently, alone with his thoughts, while a sea of people cleared the room. He had to admit that he took pride in Professor McDonald’s performance, even if that performance had been relayed via big-screen TV from a hospital room in Bethesda, Maryland. The University of Virginia law professor had represented the school well. And as far as Clay knew, he was still a law student at UVA. He had been following the news surrounding the assault on Kelsi Shelton, and no suspects had been named. It was only a matter of time, though. CNN had reported earlier in the day that Kelsi was awake, conscious, and almost ready to talk with the police.

A Capitol cop tapped Clay on the shoulder. Clay jumped, figuring that his luck had run out and Kelsi had identified him. “Ye … yes, Officer?”

“Are you Clay Smith?”

“Ye … yes. I was just leaving, though. I was waiting for the crowd to thin. I’ve never been in the Capitol building before. I wanted to soak up as much of it as I could.”

The officer smiled. “It’s not that. You’re welcome to stay as long as you wish. The reason I’m asking is because Senator Burton would like to see you. She said she reserved a seat for one of her home state constituents, a bright young man who attends the law school that Professor McDonald teaches at. I trust that’s you.”

“It is.” Clay’s heartbeat had returned to normal. He checked his attire. He wasn’t wearing a sport coat, let alone a tie. “I really don’t think I’m dressed appropriately to meet with the senator.”

“Don’t worry about it. You look fine. You’re in law school. Haven’t you learned that you have a constitutional right
not
to wear a jacket and tie?”

Clay smiled. Apparently,
everyone
thought that lawyers were full of shit.

The Capitol cop escorted Clay to Senator Burton’s office. The senator greeted Clay with a warm smile and a firm handshake. “Thanks,” Burton said to the officer.

“You’re welcome, ma’am.” The officer returned to his post at the south entrance of the building.

Burton directed Clay to her private office.

Clay said, “Thanks for reserving a seat for me at the hearing, but I assume it wasn’t simply an exercise in constituent relations.”

The fish-out-of-water routine that Clay had pulled with the Capitol cop wasn’t necessary with Burton.

Burton said, “Correct. The sacred order needs your service again.
I
need your service. Can I count on you, Brother Smith?”

“Yes, Your Excellency.” Clay dropped to his knees and prepared to kiss Burton’s ring.

At precisely that moment, Jeffrey Oates entered the room.

CHAPTER 64

Jeffrey Oates finally had the evidence to confirm his biggest fear: Senator Alexandra Burton, his boss for three decades, was the imperial wizard of the Ku Klux Klan. Oates had done enough reading about the Klan to know that only the imperial wizard was entitled to have her ring kissed by her followers. The Klan had borrowed that tradition from the papacy and the mob. What Oates had witnessed reminded him of the final scene in
The Godfather
when Michael Corleone had become the new don.

Of course, Oates hadn’t uttered a word about the matter to the senator during the awkward moment when he had watched the young man—Clay Smith, Oates recalled his name being—kissing the senator’s ring. He had simply apologized for interrupting, excused himself from the senator’s office, and pretended as if he hadn’t seen anything.

But Oates knew that both the senator and her young visitor were aware that Oates had seen
everything
. What concerned Oates was what Senator Burton—
Imperial Wizard
Burton—would do about it.

Oates exited Capitol Hill a bit earlier than usual. He was known as a hard worker—even Senator Burton would concede that much—but after seeing what he had seen,  he wanted to go home and figure out what he was going to do next. It was bad enough that Oates had agreed to try to kill Peter McDonald in the first place when Oates had thought that he needed to do so in order to stay in Senator Burton’s good graces. However, the longtime Senate aide drew the line when it came to advancing an agenda of racial hatred. Oates might have been a Republican—and a
southern
Republican at that—but he was adamantly opposed to discriminating against people, let alone
killing
them, because of the color of their skin.

Oates walked the length of the Mall. He smiled, like he always did, as he enjoyed the sights and sounds of the city. He passed the Smithsonian Institution on his left, a place where he had spent many pleasant weekend afternoons. Yes, he said to himself, he was going to miss the nation’s capital. He knew he had no choice but to leave, though. Senator Burton couldn’t afford to risk word spreading around town, and then around the nation, that she was rumored to be the imperial wizard of the Ku Klux Klan. No senator could afford it. No
president
could.

CHAPTER 65

Oates arrived at the studio apartment he rented in Georgetown. It was nothing more than a glorified closet, but it was all he could afford on his congressional aide’s salary. People didn’t work on Capitol Hill for the money. They did it because politics was in their blood. Most had resumes virtually identical to that of Oates—bachelor’s degree in political science; leadership position in their college’s student Republican or Democrat club; extensive volunteer service with local political campaigns. Unlike most of his congressional staff colleagues, however, Oates still enjoyed the give-and-take of the legislative process. At least he had enjoyed it until he was asked to murder a nominee to the Supreme Court of the United States. He didn’t remember
that
being mentioned in the job description.

Oates searched his refrigerator for something to eat. He didn’t find much. He tended to “dine” on the fly after work. In fact, he couldn’t recall the last time he had eaten dinner at home. He opened the cupboard and discovered an ancient jar of peanut butter and a box of crackers. Supper. He slapped together a stack of peanut butter crackers, filled a tall glass with tap water, and marched the four short steps from the “kitchen” to the “dining room.”

He switched on FOX News. The talking heads were opining about Peter McDonald’s performance during the morning’s confirmation hearing.