Mr. Justice (3 page)

McDonald finally exited the car. He locked the doors with the press of a button on his key chain and then did a quick sprint to where his wife and sleeping daughter were waiting. He eased his daughter from his wife’s tired arms, positioned her comfortably on his shoulder, and took his wife by the hand. He still got tingles when Jenny caressed his hand with the back of her thumb, and he still felt all warm inside when Megan wrapped her tiny arms around his neck.

No, Peter McDonald said to himself, life doesn’t get any better than this. Then …

A shot! McDonald heard a
shot
!

He felt his wife’s grip loosen from his own. He watched her knees buckle as she crumbled to the sidewalk like one of Megan’s rag dolls.

“Jenny!” he cried out. “Jenny!”

Then …

A second shot!

He heard a sharp squeal.

Megan! The second shot had hit
Megan
!

“No!” he cried out. “Please God,
no
!” McDonald dropped to the sidewalk. Megan lay limply across her mother’s chest. Jenny had a hole in the side of her head the size of a quarter. Both McDonald’s wife and daughter were soaked in blood, and both had their eyes open. “No!” he said again.

It didn’t take long for people to start pouring out of the pizzeria to find out what the commotion was about.

“Oh my God!” a middle-aged woman said. She had a slice of pepperoni in her pudgy hand.

“Call an ambulance!” McDonald said. “
Please
! Someone call an ambulance!”

A young man in a starched polo shirt and jeans—a UVA student, most likely—reached into his pocket and pulled out a cell phone. He dialed 911 and said, “A lady and her daughter have been shot! They need an ambulance!” He paused briefly, and then in obvious response to an obvious question, said, “Crozet Pizza on Route 250.”

Another young man—he, too, wearing a starched polo shirt and jeans, and he, too, most likely a UVA student—pointed across the road and said, “Look! I bet the shots came from that car!”

But before anyone could do anything about it, Jeffrey Oates hammered down on the Mustang’s accelerator and disappeared into the horizon. More importantly, there was no need for an ambulance. Jenny and Megan McDonald were dead.

CHAPTER 6

“This hearing will please come to order,” Senator Alexandra Burton said with a loud rap of her gavel.

All nineteen members of the Judiciary Committee were in their seats. Usually, only two or three members were present at the same time. But, usually, the committee was being asked to assess the qualifications of a nominee for a federal district court judgeship or for a seat on the U.S. court of appeals. Under the doctrine of senatorial courtesy, the senator from the state in which the judicial vacancy existed made the appointment. The Constitution specified otherwise—the president was to “nominate” and the Senate was to provide “advice and consent”—but the Senate rarely confirmed a presidential appointment if the nominee’s own senators disapproved. As a result, the practice had developed in such a way that now the home state senator told the president who should fill the seat. There was one notable exception to this longstanding custom: when the vacancy was on the Supreme Court of the United States, the nation’s highest court.

“Good morning, Professor,” Burton said.

“Good morning, Senator,” McDonald said.             

“Let me assure you, Professor, that I intend to bend over backwards to make sure you get a fair hearing before this committee.” Burton glanced toward the press gallery. “I know that our colleagues in the Fourth Estate probably don’t believe me, but it’s true.”

The members of the press didn’t “probably” not believe Burton—they
definitely
didn’t. A slew of stories in the morning’s newspapers had reminded readers that the senator’s daughter and son-in-law had filed a request for an expedited appeal to the Supreme Court asking that the Court reverse its 2003 decision permitting colleges and universities to consider the race of an applicant when deciding whom to admit and that, if confirmed, Peter McDonald would be the swing vote in the case. The talking heads who had been hired by the television networks to provide play-by-play for the confirmation hearing—apparently, there wasn’t much difference anymore between TV coverage of a confirmation hearing for a high-level government post and a football game between division rivals—had opened their morning broadcasts by expressing the same sentiment.

“Thank you, Senator,” McDonald said, struggling to keep his eyes from rolling. He didn’t believe that Burton would be impartial, either.

“Would you like to make an opening statement before we begin the morning’s questioning?”

“Yes, Senator. Thank you.” McDonald swiveled in his seat and retrieved a thin manila folder from Kelsi Shelton’s quivering hand.

Kelsi Shelton was a third-year law student at the University of Virginia. She was Peter McDonald’s research assistant. Working for McDonald was a coveted assignment for any UVA law student: he was brilliant, productive, and less pretentious than any other member of the faculty. Kelsi had applied to work for him because the principal focus of his scholarship over the past several years had been capital punishment, and she hoped to become a public defender when she graduated in May. Those plans might need to be placed on hold for a year. McDonald had told Kelsi that if he was confirmed by the Senate for a seat on the Supreme Court, he wanted her to clerk for him.

Some of Kelsi’s classmates—the jealous ones, mostly—were saying that McDonald wanted Kelsi to continue to work for him because she was beautiful and he was now single. Everyone knew how devoted McDonald had been to his wife, but his wife was dead. McDonald was human, the argument went, and even
he
couldn’t avoid noticing how attractive Kelsi was. She was tall with blonde hair that shined like sunflowers on a summer day, and she possessed a smile that put everyone around her at ease. She tended to favor sweatshirts and jeans around the corridors of the law school, but even a loose fitting sweatshirt couldn’t conceal the eye-popping figure that lay beneath.

McDonald, plainly aware that Kelsi was more than mildly overwhelmed by the spectacle being played out before her, flashed his research assistant a reassuring smile.

Kelsi returned his smile, swept her hair from her face, and settled back into the seat behind the large walnut table at which McDonald sat. Kelsi, in short, was sitting where Jenny McDonald was supposed to be.

“Professor?” Burton said. It was remarkable how patient the senator was being.

“Sorry, Senator. My assistant had my notes.”

The myriad of TV cameras crammed into the hearing room all panned to Kelsi. Her face turned the color of the most prominent third of the American flag towering over the dais occupied by the members of the Judiciary Committee:
r
-
e
-
d
.

“Professor McDonald’s assistant certainly is beautiful,” a blithering head of hair spray could be heard reporting live for FOX News. Like it mattered to Article II, Section 2, Clause 2 of the Constitution of the United States—the provision that spoke to the Senate’s “advice and consent” power over presidential nominees to the federal bench—what Peter McDonald’s assistant looked like.

It did matter, though. In politics, as in life, it always mattered whether someone was attractive.

Kelsi Shelton would soon be learning that lesson for herself.

CHAPTER 7

Billy Joe Collier had arrived at The Rebel Bar and Grill an hour earlier than Earl Smith had told him to. But Collier was stoked for a fight, and he always liked to have a nice buzz going before he got down and dirty. He had already drunk three beers. The number would have been greater—Collier was known to inhale a six-pack an hour on a good night—but he was distracted by the couple at the bar.

Collier didn’t know the couple. That didn’t matter. He knew he didn’t like them. He hated them, in fact. Why? Because the woman was white and the man was black.

Earl Smith entered the bar. He removed his baseball cap and raked his hands through his hair. He plopped his cap back on his head. He scanned the room. He spotted Billy Joe Collier sitting in a booth near the back of the bar with a table full of empty beer bottles to keep him company.

“Sorry I’m late,” Smith said to his top lieutenant. “How long have you been here?”

Collier checked his watch, a dollar store special. “About two hours.” He chugged another beer. “Where the fuck have you been?”

The Ku Klux Klan wasn’t the military or the Mafia—although it patterned itself a bit after both—so Collier could get away with being disrespectful to his higher-up.

Smith fidgeted again with his baseball cap. He said, “Lost track of time is all.” That wasn’t true. But he couldn’t afford to tell Collier the real reason he was late: he had been with Cat Wilson.

“Have a seat, boss.”

Smith sat. He removed his cap and placed it on the table. The cap had
T
AYLOR
T
IRES
embossed across the front. He worked at the tire plant as a line foreman. Collier was part of his crew there, too.

Collier’s attention was again drawn to the couple at the bar. The man had placed his hand on the woman’s thigh. “Stick to your own kind, nigger!” Collier shouted.

Both the couple and Smith were startled by Collier’s outburst. The remainder of the bar’s patrons seemed used to it.

The couple paid their tab and quickly left the bar.

Smith thanked his lucky stars that he hadn’t told Collier about Cat. Frankly, he knew he shouldn’t have been surprised by Collier’s outburst about the couple at the bar. Nothing made a klansman angrier than an interracial romance.

“Fuckin’ cunt,” Collier spat. He drained another beer. “A piece of pussy that fine shouldn’t be wasting herself on no nigger.” He smiled. “She should give me a taste of that sweet thang. God knows I could use me a taste.”

Smith played along. “You and me both, Billy Joe. You and me both.” He signaled for the waitress. “Now let’s talk about McDonald.”

CHAPTER 8

Peter McDonald said, “I realize that custom dictates that I begin by introducing my family. But, as the committee knows, my wife and daughter were murdered six months ago.”

Whispers of sadness and sympathy filled the committee room. Everyone already knew about the tragic deaths of McDonald’s wife and daughter, but hearing him mention it for the first time publicly was one of the most gut-wrenching moments in the history of the Supreme Court appointment process.

McDonald added, “I would like to take this opportunity to thank the chair for the kindness she showed when she was first apprised of that awful news. I especially appreciate her generous offer to postpone this hearing until I felt ready to proceed.”

Senator Burton said, “You’re welcome.”

Actually, the senator had initially inquired about whether the professor might wish to reconsider his acceptance of the president’s nomination to the Court. “Everyone would understand if you changed your mind,” Burton had said at the time, her voice dripping with southern charm. “Losing your wife and daughter is a lot to bear. I know. I still haven’t recovered from losing my grandson two years ago.”

Unfortunately for Burton, McDonald had said that he owed it to the president—and to the country—to honor his commitment and press forward with the confirmation process.

McDonald took a sip of water. “I’d also like to thank the committee for the serious attention it has afforded to my nomination. I’m a law professor, and we law professors tend to put pen to paper quite a lot. I thank each and every member for the time you’ve invested in reading my books and articles.”

Members of the committee nodded, and a few smiled. The members weren’t used to reading so much scholarship from a nominee. Most modern presidents tended to appoint stealth candidates to the bench—men and women with no paper trail to criticize.

McDonald continued, “I’m especially grateful to President Jackson for nominating me to a position that I find humbling to even think about. If I’m confirmed, I’ll try to become a justice whose work will justify the confidence that he and you have placed in me.”

The committee nodded again. The fourteen men and five women who composed it looked like a collection of antique bobble-head dolls.

“As my writings make clear, I believe that a judge’s authority derives entirely from the fact that he or she is applying the law and not his or her personal values. No one, including a judge, is above the law. Only in that way will justice be done and the freedom of the American people secured.”

McDonald took another sip of water. “How should a judge go about finding the law? By attempting to discern what those who made the law intended. I realize that many of my colleagues in academia, and more than a few members of the judiciary, believe that the law means what judges ‘need it to mean’ in order to do justice, but I believe, and I have stated so in print, that if a judge abandons intention as his guide there is no law available to him, and he begins to legislate a social agenda for the American people. That goes well beyond his legitimate power. He diminishes liberty instead of enhancing it.”

The FOX News reporter could be heard saying, “He sounds like a conservative.”

Of course any journalist worth his salt would have read at least
some
of McDonald’s writings and known that wasn’t true. But this particular reporter was too busy getting his hair styled to read anything more detailed than a Clairol box.

McDonald said next, “The past, however, includes not only the intentions of those who wrote the law; it also includes the opinions of previous judges who interpreted it and applied it to prior cases. That is why a judge must have great respect for precedent. It is one thing as a legal theorist to criticize the reasoning of a prior decision—even to criticize it severely, as I have done. It is another and more serious thing altogether for a judge to ignore or overturn a prior decision. That requires much more careful thought. That doesn’t mean that constitutional law is static. It will evolve as judges modify doctrine to meet new circumstances and technologies. Thus, today we apply the First Amendment’s guarantee of freedom of the press to radio and television—and even to the Internet—and we apply to electronic surveillance the Fourth Amendment’s guarantee of privacy for the individual against unreasonable searches of his or her home.”