Judgement Day
By: Annette MacGregor

What happens if a nominee to the Supreme Court has a past?

Author's Note: The idea behind this story has been percolating around in my head for a while, and Justice Souter's resignation and then the nomination of Justice Sotomayor helped clairify some of my thoughts. Hopefully you find it of some interest. With the exception of those figures of national prominence, all characters are fictional. Most significantly, there is no Justice Harding. I chose this name, to represent a "generic" Supreme Court justice, not wanting to imply anything about any currently sitting justices. I actually started the story shortly after Justice Souter's resignation, but I was too slow writing.

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"In a surprise announcement today, Associate Justice Harding announced that he would be stepping down immediately, for health reasons. This caught most political observers completely by surprise. Last fall, there had been speculation that Justice Ginsberg or Scalia might retire for health reasons, but Justice Souter's retirement and the subsequent nomination of Justice Sonya Sotomayor had distracted observers from the earlier speculation. Justice Harding's resignation provides President Obama with another opportunity to influence the court for some time to come. It's too early for speculation on his nominee at this point in time, but, as most observers were surprised by his last nominee, they are likely to be surprised again."

* * * * * * * *

"In the news today, President Obama used these words to describe the person he's looking for to replace Justice Harding, 'Like with my nomination of Sonya Sotomayor, I'm looking for someone with a deep and clear understanding of the Constitution, and constitutional law. I still don't just want an ivory tower intellectual. The person I nominate must also be someone with a strong standing in reality and the world around us.' The same individuals previously suggested, before his nomination of Justice Sotomayor have been suggested, but new names appear to be showing up this time.

"One thing that is apparent, is that with this replacement of Justice Harding, a member of the conservative block, it is likely that Senate conservatives will be even more critical of any nominee that is perceived to have more of a liberal bent.

"In other news..."

Turning back from the television, "What do you think, Rahm?"

"Mr. President, I still think that she's a dangerous selection. Yes, she's eminently qualified; there's no question about that. But, I think she'll face some strong opposition in the Senate."

Nodding, "True, but, only if it comes out."

"Granted, that's not likely. After all, it never came up when President Clinton nominated her to the District Court. But, I think we should be prepared for the eventuality."

"What do you think our response should be?"

"That all depends on HOW it comes out, of course. This could really blow up in our face and seriously hurt you."

"Possibly, but, I really think she's the best candidate available." He paused a moment. "Okay, assuming she accepts the nomination anyway, she's it."

* * * * *

Several days later:

"Rhonda, is there any indication of who President Obama is nominating, or even if he's announcing a nominee today?"

"The word on the street is that he IS nominating today. At least that's what all of us in the Washington Press corps are expecting. Here comes Robert Gibbs, let's see what he has to say, Katie."

"Sorry for the delay, ladies and gentlemen. The president will be here momentarily." At several raised hands, he continued. "No, I'll not let you know in advance."

"Okay, Katie, as you heard; nothing yet."

"As you heard, the President has been delayed. In other news," she started when she was interrupted. "It looks like things are happening now. Back to Rhonda Fleming at the White House."

"The President is coming in, and a small lady is following him."

"Ladies and gentlemen of the press, the President of the United States of America."

"Thank you, Robert." His clear tone carried to all corners of the room. "As you all know, the country is losing a yet another voice on the Supreme Court. Justice Harding will be sorely missed. His approach to serving the constitution and the American people was an invaluable component of the court. With me today, is my nominee to replace Justice Harding. Judge Caroline Mason, is a respected constitutional scholar and respected district court judge. She's also served with distinction in the US Attorney's office in New York. I can't think of a better qualified individual to serve. Ladies and Gentlemen, Judge Mason."

"Thank you for this very great honor, Mr. President. And, it IS a great honor to me, to even be considered, much less nominated for this position." She talked a few more minutes, and then after both she and the president fielded a few questions, President Obama called an end to questions and they departed.

"That's all for now, Katie."

"Thank you, Rhonda," came the reply and the news continued.

Over the next few days, political analysts all across the spectrum came out with opinions. Unlike Justice Sotomayor, no embarrassing statements were found and taken out of context to cause embarrassment. Some pundits even questioned why she'd not been the President's first nominee.

* * * * * * *

"Welcome home, honey. Your mail's on the table."

"Thanks, George. How'd the writing go today?"

"I think I worked out the kink in the story line you pointed out. The press conference went well."

She laughed, picking up the envelopes, "I was very nervous. I understand why this is so much bigger than when President Clinton nominated me to the District Court, but still it's almost as if it wasn't really real to me until we stepped out there in front of the press corps." Suddenly, she stopped talking, then "Honey." She called, something strange in her voice.

He came out of the kitchen, to see her leaning against the wall, holding a piece of paper in one hand, and the envelope in another. "What is it, dear? Is something wrong?"

She handed him the paper, and he could see it was a typewritten letter. Skimming it, then "Oh, my." Then, taking a breath, "Let me see the envelope." After taking it from her hand, he helped her sit down on a chair. "We'll work through this, like we have everything else. We've known it could come out, from the very beginning."

"Thanks for reminding me. I guess, after ten years on the bench, I'd gotten complacent."

He looked at her fondly, but with concern. "You're not considering giving in to their demands, are you?"

"Actually, yes. This isn't just me it impacts, your career, the kids, I have to consider it all."

"Exactly, but don't you think we should have a say too?"

His question appeared to startle her. "Yes, you're right there too"

"All part of the job, my dear. Keeping your head grounded. I'll give Junior and the twins a call, and see if they can manage to come over. At least the extortionist's deadline gives us some time. It's lucky he's here in town, now."

She nodded agreement.

George called the three kids, and arranged for them to come over, the following evening. They had several days before the deadline, and he thought that they needed a little time to decide how, and what, to tell their children.

George and Caroline spent a quiet evening together, talking occasionally, but mostly thinking. They did eventually agree that George would start things off, and they'd take things as they happened.

The next evening, "Who do you think'll be here first?"

Laughing, Caroline responded, "There's no question, it'll be Junior. He's always been punctual. It's the girls that are late, occasionally."

He nodded. "Yes, but, you're assuming he'll be finished debriefing at Fort Meade on time and that the traffic between there and here will be light. Neither are likely."

"How true. But, Lisa's and Karen's commute won't be much better." She was quiet for a moment. "Are you sure you want to tell them all?"

"They know some already, we've not hidden things. Let's not hash over it again, at least not until..."

The doorbell rang, as the front door opened. "Hi, Mom, Dad," they heard from the entryway. Definitely NOT their son.

"Back here, honey," called out George.

"Karen was just pulling up as I came in." said a slim blonde, wearing a Navy nurse's uniform, her Lieutenant's bars showing. Her father stood up, and gave her a hug. "Youngest, but still the first here. Looks like Georgie'll be the laggard today."

She giggled. "You know he hates to be called that."

"True, but he's not here now, is he?"

Hearing the front door close again, they looked toward the entrance, where Karen was coming down the hall. "You back in the kitchen?" she called out.

"As always, sis." Lisa replied.

As Karen entered the kitchen, her light brown hair did nothing to hide her resemblance to her sister. "It's good to see you too, little sister. What's this all about, daddy?"

"We'll wait for your brother before going into things, but it's related to mom's nomination."

"Great news conference, Mom," chimed in Lisa.

"It really was. I'm glad you let us know about it in time to tune in. It's not every day your mom is seen with the President."

"You were able to get out of class to see it?"

"Better than that, I was able to get a TV rolled into the class, and we used it as an opportunity to explain the process to the kids."

At that point, they all heard a "Sorry I'm late," from the front door.

"Back here, son," called out George.

It was as if George's presence filled the room as he walked in. Obviously in top shape, he walked over to the hors d'oeuvres his parents had set up. "I dunno about you folks, but I'm hungry. They don't feed you at Fort Meade."

"Go ahead, son, you can dig in. You too, girls; don't let him hog them all."

George picked up a cracker, "So, what's this all about, dad?"

"You all know I'm not your biological father."

"Yeah, so what? Nobody could have been a better dad. Is the biological father causing trouble?"

"No son, it's nothing like that; it goes back to the reason I couldn't be your father."

Lisa interposed, "But, what could your sterility have to do with mom's nomination?"

"We didn't say it did, directly. But, yes, there is something, it's the reason he's sterile, kids."

"Please, quit beating around the bush."

"Okay, the simple bit is that I was born female."

The resulting silence was–to use an abused phrase–deafening.

"Don't just sit there, with food halfway to your mouths."

"You're transgendered, dad?"

"Yes, Lisa."

"And, mom's known?"

"It would have been hard to hide it from her, we were roommates our freshman year at Rutgers."

"What's this trans stuff, Sis?" asked Karen.

"It means Dad was a guy, but somehow got born in a female body. Or at least that's the simplest way to describe it. We don't run into many cases at Bethesda, but I understand it's much more common in the VA hospitals."

"It happens everywhere; one of the members of my team got a discharge because he was a girl. They don't advertise it, but it happens." Lisa nodded agreement with her brother's statement.

"Thanks, George. But, that's not why we asked you here today, directly anyway, either. Your mom got a letter yesterday."

Caroline handed her son the letter, and he read it aloud.

Dear Judge Mason, or should I say Johnson? Information that has recently come to our attention implies that the person masquerading as your husband is not. If you continue to seek to make a mockery of marriage and our justice system, we have no choice but to bring the bastardy of your children to light. You have until noon on Friday to publicly withdraw your name from consideration or the information will be made public. You should think long and hard about whether you should resign your position on the District Court as well. Concerned Citizens

"That's blackmail, mom!"

"I know, but..."

"You can't be considering doing what they demand, can you?"

The discussion between the parents and their adult children continued for over an hour. Suddenly, their son asked to see the envelope the letter had been delivered in.

"I thought so. Look at the date.'

"It's the day before yesterday. Yes, and mom's nomination wasn't made public until yesterday."

"That means... "

He nodded, "Yeah, it means the president has a leak somewhere."

Caroline and her husband thanked their kids for their support, and agreed that she would contact the President in the morning, and let him know what had happened.

"Mr. President, thank you for seeing me."

"Think nothing of it. What may I do for you, Caroline?"

"It's something that you need to know, that apparently was missed when they did my background check."

He looked at her, with a measured look. "You mean, about your husband?"

She is startled. "Yes. You know he's transgendered?"

"Of course, the check was detailed. But, you've lived a private life, it's never even leaked to the public and, as far as I can see it's not influenced your judgments on the bench, why not. It's about time... No, you were going to say something."

She handed him the letter. "This was waiting for me at home, following our news conference."

After he read it, "I hope you're not going to ask me to withdraw your nomination, but I certainly understand if you do."

"Nooo, I talked it over with my family, and we agreed that if you were willing to let it stand, we'd make a public announcement that spells out the details, and as my son said, let the chips fly."

He chuckled. "You have a very supportive family; you're one very lucky lady."

"I know. So, do you want me to remain your nominee?"

"Of course. How public did you want the announcement. If you don't mind, I think holding a press conference here, where I can continue to show my support is likely to get the most positive spin. I kid you not; this will make confirmation a bit more difficult. Though, making some of those bigots show their true colors WILL be helpful, both in the short and long term."

"I'd expected to do it from my private office, but if you're willing, you're probably right about the effect. I'd like my family here."

"Of course. Though, based on the note, I think we need to do it tomorrow, if you're up to it."

She nodded in response.

"Okay, I'll have Rahm set things up, and call you with when you and the family need to be here. We'll weather this storm, Caroline. Just you wait and see."

They chatted very briefly, and then she left and he called in Rahm Emanuel.

"Rahm, it came out, and she's willing to go forward, so we'll go with the preemptive contingency plan."

"How did it come out so soon?"

"It sounds like there was an intentional leak, somewhere. She had this letter waiting for her when she got home from the press conference."

"We need to find that leak."

"Yes, but we need to have another conference tomorrow, so we can remove the threat as well. Get someone working on tracking down the leak, and have Rob pull together the press conference. Her family will be here too, to support her. You know the plan."

"Got it, Sir. Are you SURE you want to go through with this? It'd be easier to ..."

"No, Rahm. She's the best for the job. Let's do it."

The next morning:

"Rhonda, is there any indication as to the subject of today's conference?"

"Not yet, Katie. Word has it that Justice Mason was here yesterday, and is expected again today, but that could just be strategy sessions on how to work her nomination with the Senate. She's expected to get some resistance from the conservatives, but not as much as Justice Sotomayor. As I said though, they are being very tight lipped about today's conference."

Meanwhile, Caroline and her family arrived - George in his Dress Whites, showing his awards. Lisa also in her uniform, and Karen wearing a dress that worked with all the white, as requested by the President's Press Secretary (Robert Gibbs). They met in the Oval Office.

Rahm Emanual stuck his head into the office, "They're ready for you, sir."

"Shall we?" asked President Obama. Of course, they all agreed, and followed him down the hall.

"Ladies and Gentlemen of the Press, the President of the United States"

"Good afternoon. Thank you all for coming at such short notice. I'll be brief, now. My nominee to fill the opening on the Supreme Court, Justice Caroline Mason, has something she needs to tell you. When she's done, I'll have a few closing words and Robert will have briefing packets that will contain much more information. So, with no further ado, Caroline?"

He stepped aside, and she took the podium. "Ladies and gentlemen of the Jury. No, that's press. Sorry, old habit." She got a few chuckles. "I echo the President's thanks that you could be here, today, on such short notice. Someone in the country probably expects that I'm withdrawing my name from consideration, but that is not the case. The day before yesterday, I received an anonymous letter, which was an attempt at blackmail.

"You may wonder how. My husband of thirty years," she beckoned and he joined her, "was born in the body of a woman." There were several intakes of breath. And she smiled, as she continued, "Hard to believe, to look at him, isn't it? I'm proud of my husband, and love him deeply. He's been the father to our children, even though biologically they are not his. The letter threatened to 'expose' this, and we chose, as a family, to go public with it, rather than let some cowards try to use this information against us."

She stopped then, and several journalists jumped up, apparently to ask questions. Mr. Obama smoothly stepped forward, "I'm sure you all recognize the courage it took for the Masons to come forward at this time. This very courage and conviction, along with her deep understanding of constitutional law are why I nominated her originally, and why she is still my nominee. No, as I said earlier, we will not take any questions, now. I'm sure that most will be answered by the information packets you can pick up on the way out." There was a raise of voices among the journalists. "I'm sure you'll have an opportunity to ask any remaining questions in the near future."

With that, he and the Masons left of the briefing room.

"There you have it, Katie. Quite a strange and unexpected turn of events. I'll have more for you once I get the briefing packet."

Epilogue

As can be expected, Justice Mason and her family were on the receiving end of quite a few unpleasant remarks from people. Some were not surprising, but others certainly were. The debate in the Justice committee was closed fairly early on, but eventually they did vote to allow the full Senate debate her nomination.

Debate on the floor was equally heated, until a block of right wing senators began a filibuster, which effectively stopped all action. The first attempt at cloture* failed, with votes down party lines. Two days later, a second attempt succeeded, with the cross over of eleven republicans, to join the fifty democrats that were voting (one democrat having absented himself at the time of the cloture vote). [AM — I thought about saying they bypassed the need for cloture using the "nuclear option" which is a way that has never been used, but was suggested by the current Democratic leader Harry Reid, in a related situation.]

The nomination was finally brought to a vote, and passed, despite the absence (due to health) of both Senators Byrd and Kennedy.

One outcome of the three month confirmation process was that it sparked much debate in organizations around the country relating to transgendered rights. In some cases, long standing opposition to even acceptance of the existence of transgendered individuals came to an end with tolerance in some cases and even acceptance in others. Will this spread to the rest of the country? Only time will tell. Will Justice Mason vote in ways that improve LGBT rights? This is also something that only time will tell. One might expect this to be the case, but with her strong feelings about the rule of law and belief in support of the constitution, this is not guaranteed. As she said over and over again in her confirmation hearings, her personal beliefs do not necessarily override the law.

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* Cloture is the method used in the US Senate to stop a form of debate called a filibuster. Complete details and history of this parliamentary process can be found in various locations online.

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Author's Note: I want to thank Karen and Gabi for reading and commenting on early bits of this story, and for helping me avoid some glaring errors in word choice, spelling and gramar. Any that remain are either intentional (Yes, there are a few) or accidental (and probably some of these too) are my fault.

Comments are greatly appreciated!