painted a stripe through it. George understands but occasionally dislikes who Rusty has become in the aftermath, often depressed and sometimes officious, as he was just now about Marina, and almost always on guard. That said, he has been an extraordinary Chief Judge. He became an able manager running the P.A.’s office, and he has used his public stature to wrest control of this court from the party chieftains, transforming it into a respected judicial body.
Together now they hunch to enter the half-height door to the High Court. They are well matched physically, both tallish, fit, and gray. Rusty has bulked up a little more with age, and George may be a bit faster now, but that does not make up for what Rusty learned by playing this game since he was a boy, an ingrained intuition about how every ball will carom. He wins consistently and by long agreement spots George points, two in the games to twenty-one, one if the match goes to the eleven-point tiebreaker. Still agitated about Marina, George plays with fury and wins the first game straight up, 21 to 17.
“You’re not going to have anything left for game two,” Rusty says when they take a breather at the watercooler.
“Trash-talk somebody else, you old fart. I think you’ve finally lost a step.”
“Another one,” Sabich says.
George rests his hands on his knees. Rusty is right that he pushed himself hard.
“So here’s my next item, George. What’s the deal with your retention petition?”
“I have two weeks.”
“Formally,” Rusty answers. “But look, George. There are a hundred and fifty judges in the Superior Court who’d like to move up. You’ve been there. Everybody gets sick of the grind. Trials. Motions. Lawyers with all their cockamamie. I’ve gotten six calls this week. Not to mention Nathan.”
“Koll?” Nathan’s seat is being eliminated for budgetary reasons, which is what led Jerry Ryan, the judge elected to the position, to resign in pique. Nathan will not be eligible simply to seek retention.
“Just because his appointment lasts two more years doesn’t mean he can’t run for a full-term seat if a vacancy develops now. I bet he sends his clerks downstairs twice a day to see if you’ve filed. George, you can’t do that to us. We’re your friends.” Rusty is smiling. It was he who encouraged the Supreme Court to give the interim appointment to Nathan, thinking that the addition of a famous legal scholar would be another enhancement to the stature of the court. These days, he says he’d like to donate Nathan’s body to science-while he’s still living. “Seriously, George. We need you around here. Don’t let this hairball’s threats give you second thoughts about staying on.”
There is an unspoken issue. Rusty has controlled membership on the court for more than a decade and does not want anybody making an end run around him. If George were uninterested in retention, he owed the Chief word of that long ago.
“It’s not that, Rusty. I’ve just been waiting for all the dust to settle with Patrice.”
“Sure. But raising false hopes, you’ll end up making enemies you don’t need. Get the papers filed. And speaking of Nathan, what’s he up to on Warnovits? I read a bizarre item in the Tribune about your oral argument yesterday.”
Like everybody else, Rusty finds the story of Koll’s sneak attack on Sapperstein hilarious.
“So he’s going to dissent on those grounds?” Rusty asks.
“Or concur separately.”
The idea that George might vote to reverse catches the Chief short.
“I think the limitations issue is tough, Rusty.”
“Really?” Sabich’s eyes are open wide as he calculates. Among Rusty’s concerns as Chief is maintaining public respect for the court’s decisions. But there is a line here. The judges often ask one another about abstract legal issues, but it is out of bounds for a judge not sitting on a case to suggest an outcome.
With no more said, Rusty waves George back onto the court. Halfway through the second game, with the score 10–10, George realizes that he does not have the juice to go on to a tiebreaker. His only hope for the match is to take this game. Before each point he stops to fill his lungs, exhorting himself to press all-out. Ahead 20 to 19, with the serve, George ends a long rally with a desperate lunge for a great passing shot Rusty has hit. The ball flips off George’s fingertips, arching up like a diver and plunging in slow motion to strike the very base of the front wall. George has won.
“Oh, for God’s sake,” Rusty says. George has not beaten him two games to naught all year.
George collects the ball and finds Rusty with his hand on the door.
“So let me understand this. Koll votes to reverse because the videotape was inadmissible, you vote to reverse because of limitations, and Summer dissents on both grounds. Is that how this is breaking down?” George sags a little, realizing that his triumph was due in part to the Chief’s distraction with Warnovits.
“That’s one scenario. I took the opinion, and I have no clue yet what I’m going to do, Russ.”
“Well, that’s a relief. Look, George, don’t let Nathan mousetrap you on this thing.”
“ ‘Mousetrap’?”
“Play it out. Reverse on limitations grounds and what happens to the case?”
“ Finito. ”
“Right. But Nathan’s grounds?”
George shrugs. He’s never gotten that far in his own mind.
“Think about it,” the Chief says. “If you guys hold only that the tape was inadmissible, the prosecutors will be able to go back to square one. You’ll already have decided that there’s no limitations bar, and so under the statute, the P.A.’s office gets one year from the reversal to reindict the case with any violations that spring from the same criminal transaction. Right so far?”
“I’m following.”
“Which means the prosecutors will charge all four of these men for eavesdropping. Correct? Then the P.A. s will wait to see which defendant bangs down their door first to make a deal to testify about the rape. The worst of those boys will be charged with both crimes. And everybody ends up with convictions. Justice delayed,” Rusty says, “but not denied.
“But go where you’re headed? Three separate opinions? We should just dial 911 right now. The case gets reversed without any guidance to the trial court on whether it can go forward. Either we rehear it en banc or, better bet, the Supreme Court steps in. And then you’re running for retention after deciding in a marquee case that you’ll free four rich white rapists on a technicality, in an opinion which no other judge would join and which, odds on, gets overturned. I mean, Jesus, George. Talk about looking for trouble.” Rusty touches the sodden shoulder of George’s T-shirt. “Ask yourself if Nathan didn’t play all that out in his head before he got on the bench yesterday. He’s going to leave you hanging from the yardarm and run for your seat when it goes south on you.”
Lecture complete, Rusty exits, leaving George within the high, white space, greatly unsettled. He is unconvinced about Koll. The complex calculations Rusty described are well within Nathan’s capabilities. But the compromises are not. Koll’s story to himself is that the law is a matter of rigorous reason untouched by personal motives. Once falsely accused of murder, Rusty is understandably prone to see devious and complex schemes to undermine him and his friends.
Yet about the practical consequences if George votes to reverse on limitations grounds, the Chief is clearly correct. Feminists and minorities, liberals and conservatives-a judge who manages to antagonize all those groups at once is looking for trouble on Election Day. George is as practical as the next person, but he’d as soon not run as trim his conscience to fit the ballot box.
That, he realizes, is what’s bothering him most. The conversation went well past the point of propriety. George sees this with Rusty now and then. He is so accustomed to his role as the very figure of integrity that he assumes his every word and act, no matter what their character, is clothed in rectitude.
To his credit, Rusty himself has had second thoughts by the time George reaches the locker room. Sabich is sitting on the narrow wooden bench between the banks of lockers, a towel indenting his softening middle, his chin drooped onto the gray hairs of his chest.
“George, at some point there I should have put a sock in my mouth. Let’s strike all that from the record. I’m really sorry.”
“No problem.”
“I’m concerned for your sake. You know that.”
“I do.” George believes that, although Rusty’s deepest concerns will always be for the court, which is his
