Balance of Power

between a lawsuit and the Senate; a clash between Kilcannon and the SSA—might spin out of control, with consequences worse than anyone could imagine. Only Macdonald Gage, turning to Fasano, could feel happy.

    'Ready, Frank?' he asked.

SEVENTEEN

The following morning, as the result of random selection by computer, Sarah and Lenihan found themselves in the chambers of United States District Judge Gardner W. Bond.

    Lenihan's grim demeanor reflected the harsh truth: out of fourteen judges they could have drawn, Gardner Bond was the worst for Mary Costello. That Bond had always disdained Robert Lenihan—sabotaging his cases to the extent he could—was the least of it. Bond was an idealogue in bow ties, a passionate conservative who, as a lawyer, had made his name by litigating pro bono against gay scoutmasters and in defense of demonstrators who harassed abortion clinics.

    This was among the reasons that so many had opposed Bond's appointment to the bench. To Sarah, Bond seemed temperamentally unable, either in his professional or personal lives, to tolerate anyone who did not believe as he did. Another reason was his membership in two oldline private clubs which proudly excluded women. And still another was his active involvement in the Federalist Society, a group of right-wing lawyers dedicated, among other things, to their own ironic form of judicial activism—stacking the federal courts with conservatives dedicated to combating what they perceived to be the excesses of liberalism.

    Completing this grim picture was the fact that, in the monochromatic world of Gardner Bond and his allies, Kerry Kilcannon was the leading bete noire, an illegitimate President who must, at all costs, be driven from power. That Kilcannon then would be succeeded by a Republican, like Frank Fasano, would serve Bond's interests as well. Only a Republican President could elevate Bond to the Court of Appeals and, with great good fortune, to the Supreme Court itself.

    In his mind's eye, Sarah thought, Gardner Bond was halfway there. Dressed in a blue pin-striped suit, Bond sat stiffly at the end of his conference table, looking—with his gold-rimmed glasses, closely trimmed greying hair and mustache, and white breast pocket handkerchief—like an oil portrait of himself. To Bond's right, sitting with Harrison Fancher, John Nolan appeared comfortably self-satisfied. Bond and Nolan were members of the same political party and the same private clubs, and for Nolan the moment must be redolent of wing chairs and cigars, black waiters in white jackets gliding with silver drink trays amidst cossetted white males. Lenihan and Sarah did not belong.

    Still, Sarah thought, Nolan's removal petition was, transparently, nothing more than a legal prank. She and an associate from Lenihan's firm had spent all night researching the law and drafting a reply. If anything, the purported grounds for Gardner Bond to retain the case were even more frivolous than they first appeared. Bond, in Sarah's hopeful estimate, was too smart not to know this, too prideful to abet John Nolan in quite so transparent a way.

    After perfunctory nods around the table, Bond said abruptly, 'I've read the defendants' brief, and plaintiff 's opposition thereto. Unless any of you have something particularly compelling to add, I'm prepared to rule.'

    This was plainly an invitation to silence. The three men—Nolan with a blank expression; Fancher with sharp, expectant eyes; Lenihan with folded arms—said nothing. As for Sarah, she chose to interpret the judge's brusqueness in a hopeful light: Gardner Bond had resolved to make short work of John Nolan's legal nonsense.

    'According to the petition,' Bond continued in his polished baritone, 'the plaintiff's antitrust and public nuisance theories present unique issues under the Commerce Clause, including the fact that plaintiffs are asking a state court in California to control Lexington's alleged behavior in another state, Nevada. The petition also asserts rights under the Second Amendment to the United States Constitution.

    'For these reasons, I agree that this court is the proper forum.'

    Sarah felt jarred, as though feeling the first tremors of an earthquake, unprepared to believe what was transpiring. 'Your Honor . . .'

    Bond turned to her with a closed expression. 'As I recall, Ms. Dash, I asked if you had anything to say.'

    'I didn't,' Sarah persisted in desperation. 'But, with all respect, I need to address your premise.' Pausing, she steadied herself. 'State courts have concurrent jurisdiction over antitrust cases. State courts routinely deal with claims under the Bill of Rights. State courts are empowered to protect their citizens from actions which imperil their welfare, even if taken in another state. And the claims at the heart of this case— wrongful death and public nuisance—are uniquely matters of state law.

    'We've researched this issue up, down and sideways. There's no precedent whatsoever for removal. Mr. Nolan's petition cites none.'

    Behind his glasses, Bond's eyes were hard. Stiffly, he said, 'Then you have the right to appeal, don't you?'

    Sarah's despair deepened. 'A very limited one, Your Honor. But I'm asking the Court to reconsider its ruling. If Miss Costello is forced to appeal, that could build in months of delay . . .'

    'Well that's your problem, isn't it? You decided to include the claims cited by Mr. Nolan—apparently for the purpose of casting a net broad enough to reel in the SSA.' Bond seemed to catch himself, pausing to moderate his language. 'That this case emanates from a tragedy no one doubts. Whether this suit is the proper remedy is an entirely separate question. But if it's meritorious—and I emphasize if—the nature of the forum should not matter.'

    The clever cynicism of this sentiment stymied Sarah. Bond was turning their tactic around on them: the judge understood full well that she and Lenihan had chosen state court for a reason, and had determined to frustrate them—precisely because, given Bond's own biases, the 'nature of the forum' might indeed determine the outcome. 'In any event,' Bond concluded, 'I'm denying your motion to remand to state court. Unless the Court of Appeals decides otherwise, this case stays with me.'

    Bond turned to Nolan and Fancher. 'That being the case, I'm denying plaintiff's motion for a temporary restraining order. Plaintiff 's complaint raises issues too complex for such a peremptory remedy, and I find her claim of imminent harm insufficiently persuasive.'

    Sitting back, Bond looked from one side to the other. 'I'm setting plaintiff's motion for a preliminary injunction down for hearing in ten days, and accelerating any motions to dismiss to be heard at the same time. In the meanwhile, plaintiff may conduct no discovery whatsoever. Until we determine what claims survive, if any, Miss Costello's lawyers should not consume defendants' time pursuing them.

    'Is there anything else?'

    'Yes, Your Honor.' Abruptly, Lenihan had found his voice. 'The new rules allow television in the courtroom. Because of the public interest in this matter, we ask that the hearing be televised . . .'

    'Denied,' Bond snapped. 'Your wrongful death claims, if either survives, will be heard by a jury. Television can only taint the jury pool— which, in my estimation, has been tainted already by the true combatants in this case, both here and in Washington. This is a lawsuit, not politics by other means.'

    Nolan, Sarah realized, had not needed to say a word.

* * *

    In the courthouse cafeteria, over coffee, Sarah murmured, 'We're stuck.'

    'Stuck? We're fucked.' Lenihan glowered at his coffee. 'That reactionary sonofabitch will use your injunctive relief claim to screw up our discovery.

    ' 'Want this fast-tracked?' he'll say. 'I'll fast-track it up your ass.' It's a license for Nolan and Fancher to jerk us around—withholding evidence, forcing us to take depositions without documents. And that's only if Bond doesn't decide to throw us out of court ten days from