Posted on 07/05/2005 8:39:01 PM PDT by ex-Texan
WASHINGTON — Three years ago, before today’s white-hot struggle over judicial appointments and the philosophical direction of the federal courts grabbed hold of official Washington, a soft-spoken Virginia conservative and a loquacious New York liberal met at the Library of Congress to bat around some ideas.
Brought together by the American Academy of Arts & Sciences, Judge J. Harvie Wilkinson III of Charlottesville and Sen. Charles Schumer of New York carried on a friendly debate over the role of political ideology in shaping legal decisions and influencing congressional evaluations of judicial nominees.
It’s unlikely many minds were changed during the session, which, as such events often do, escaped the notice of newspapers and broadcasters.
But as the Capitol’s partisans prepare for what likely will be a no-holds-barred debate over a new Supreme Court vacancy – an opening for which Wilkinson, 60, could be a candidate – the Virginian’s plea at the library for a different approach to selecting and evaluating judges has a haunting ring.
“The role of ideology in lower court decision-making is frequently exaggerated,” Wilkinson asserted then, “and the role of simple professional craftsmanship is too frequently overlooked. ”
“I have had the pleasure of serving with judges with a wide variety of views in almost 18 years on the court of appeals,” he added. “What one comes to appreciate in a colleague is not so much ideology but dedication, preparation, intelligence, humanity and above all, legal mastery and competence.”
Wilkinson declined to be interviewed for this article. To legions of his admirers across the legal profession however, the judge’s 2002 description of a model judge perfectly matches his own service on the Richmond-based 4th U.S. Circuit Court of Appeals.
It also squares, they say, with the record of Justice Sandra Day O’Connor, whose retirement announcement on Friday created the Supreme Court opening.
A pride in craftsmanship, “a real sense that it matters to do the job well,” runs through Wilkinson’s four books, dozens of law review articles and speeches and hundreds of appellate opinions, said A.E. Dick Howard, a University of Virginia constitutional law expert.
Howard, who was among Wilkinson’s professors at U.Va. in the early 1970s, said his former pupil is unquestionably a conservative, a pre requisite for any nomination by President Bush.
But in his writing and through 21 years as a judge, Wilkinson has worked to build a reputation for “modulated jurisprudence” in the mold of O’Connor and particularly the late Justice Lewis F. Powell Jr., another Virginian, Howard said.
That may not recommend him to a president who seems to admire the tougher style of justices such as Antonin Scalia and Clarence Thomas, Howard added.
Wilkinson “doesn’t have the sharp edges in his opinions,” observed Carl Tobias, a law school classmate of Wilkinson’s who now teaches at the University of Richmond School of Law.
Other observers suggest that time may have passed by Wilkinson, who will turn 61 in September, and that Bush’s desire to have a long-term effect on the high court will push him toward someone like Judge J. Michael Luttig, 50, a Wilkinson colleague and sometime antagonist on the 4th Circuit.
Howard, Tobias and others who have studied Wilkinson’s record suggest that his addition to the high court would probably not trigger a major shift in its philosophical direction. But his selection to fill the current vacancy, or the opening that would be created if Chief Justice William H. Rehnquist follows O’Connor into retirement, could help make the sometimes-fractious court more collegial, they say.
Luttig, by contrast, likely would make the court more conservative and sharpen its internal differences, legal analysts suggest.
Wilkinson is “a brilliant and well-qualified judge,” said Rod Smolla, dean of the University of Richmond law school. But his real strength is a “very pleasing, gregarious, collegial personality.”
Matt Lembke, a Birmingham, Ala., lawyer who clerked for Wilkinson at the 4th Circuit in the early 1990s, recalled how his boss would seek out judges with whom he was most likely to disagree to join him for exercise at the end of a workday.
Wilkinson has “a sense of collegiality … that is often lacking among lawyers in today’s world,” Lembke said, along with a rare ability to maintain and even strengthen his friendships with colleagues who do not share his views.
“He’s a real person … probably the least-pretentious person I’ve ever been around,” Lembke added.
Another former clerk, Seattle lawyer Justin Nelson, describes himself as a moderate Democrat but said he sought a job with Wilkinson after “all my professors raved about him” at New York’s Columbia University law school.
They have political differences, but he would advise Democratic senators to support Wilkinson without reservation, Nelson said.
“His record speaks for itself. What the country would be getting would be an absolute first-class judge, who is an independent thinker.”
Among Wilkinson’s most notable opinions:
-A 2002 decision supporting the Bush administration’s attempt to hold Yaser Esam Hamdi, an American citizen, without charges and without providing him with access to a lawyer. The government said Hamdi had fought for the Taliban in Afghanistan; Wilkinson concluded that courts should defer to the president in cases involving such alleged “enemy combatants.” The Supreme Court ultimately ruled that Hamdi should have access to the federal courts.
-A 2003 ruling in support of a federal law that requires prison officials to show a compelling reason for denying inmates the ability to exercise some religious practices. A lower court judge said the law impermissibly gave privileges to religious convicts that were not extended to those who do not worship, but Wilkinson – later backed by the Supreme Court – concluded that it simply “lifted government burdens on religious exercise.”
-A 1996 ruling upholding the Clinton administration’s “Don’t Ask, Don’t Tell” policy permitting military service by homosexuals. The decision underscored the president’s prerogative to set military policy without judicial interference.
-A decision in 2000 upholding federal regulations designed to protect red wolves as they were being re introduced in eastern North Carolina.
Those who know him and have studied his record agree that with the possible exception of his late father, a prominent Richmond banker, Wilkinson has been influenced most by Justice Powell.
A family friend – he introduced Wilkinson’s parents – Powell brought young Wilkinson to the Supreme Court as a law clerk shortly after his own elevation to the bench in 1971.
Wilkinson already had established himself as a young man of considerable promise; he graduated magna cum laude from Yale in 1967 and seemed to be preparing himself for a career in politics.
Months after his graduation, Wilkinson published “Harry Byrd and the Changing Face of Virginia Politics,” a meticulously researched and still-respected volume on the conservative Democratic organization that dominated Virginia government from the 1930s until the ’60s. Then, in the midst of his legal studies in 1970, he unsuccessfully sought the Republican nomination for Richmond’s seat in Congress.
After that loss, and under Powell’s guidance at the Supreme Court during 1972 and ’73, Wilkinson apparently decided to devote himself to law. He wrote his second book, “Serving Justice,” on the clerkship experience and through it expressed his admiration for Powell and Powell’s approach to the court.
“I spent a year at the elbow of what I think is one of the great Virginians of the past century and I really admired the way he went about the task of judging,” Wilkinson said in a 2003 public television interview.
Powell “did not rush to conclusions. He was very even-handed. He tried to understand the arguments of both sides. He tried to understand the real-life plight of individuals behind the legal papers and the legal filings,” Wilkinson said.
“You could never find a better justice, and what a privilege it was for me right out of law school to be under his tutelage.”
Wilkinson returned to Charlottesville to teach at U.Va.’s law school after his clerkship but moved to Norfolk in 1978 for a three-year stint as editor of The Virginian-Pilot’s editorial page.
He was “just full of interesting ideas and truly an intellectual,” said Bill Wood, who was running the editorial page of the afternoon Ledger-Star at the time. Wilkinson shifted The Pilot’s moderate-to-liberal editorial page to the right but was no ideologue, Wood said.
Wood remembers Wilkinson as a friendly and engaging competitor but never had a sense that he was in journalism for the long haul. Just a decade removed from law school, Wilkinson was presumed to be aiming for a judgeship and ultimately a place on the Supreme Court, Wood said.
In 1982, with conservative icon Ronald Reagan in the White House, Wilkinson returned to Washington as a deputy assistant attorney general. He worked in the office of civil rights, pursuing the special interest in that area he shared with Powell.
In 1984, Reagan tapped him for the 4th Circuit, one of 12 regional courts that are one level below the Supreme Court in the nation’s judicial hierarchy. The court hears appeals from federal trials in Maryland, the Virginias and the Carolinas and is widely considered the most conservative of the circuit courts.
On the 4th Circuit, Wilkinson has emerged as a strong but not always predictable conservative – an American Judicature Society study in 2002 found him the most conservative of six candidates thought to be on Bush’s short list of potential nominees – but one noted for his ability to find common ground with those who do not share his views.
Smolla and Howard said that Wilkinson’s prolific writings have given potential allies and critics alike a rich trove of material to sort through should Bush choose Wilkinson for the court.
“I’m sure they will dig through every scrap of everything he’s ever done,” Howard said. But Wilkinson is so determinedly judicious, so circumspect, “I’ll be surprised if they find anything that will be inflammatory.
I disagree. Above all, the only criterion should be a strict constructionist who would put an end to the social activism of the court. Collegiality be damned. I am sure the Warren and Burger courts were collegial. How has collegiality saved the lives of 44 million aborted babies?
I know what former President Reagan would say, but I decline to raise that argument here. It seems we have a disagreement. A 'less contentious' and 'more collegial' Court is a very good goal indeed. Bush could do a lot worse. The alternative is for Congress to spend the next year or eighteen months debating your keystone issue.
Next.
But thanks for playing.
>> Having a 'less contentious' and 'more collegial' Court would help GWB to mold his legacy. <<
Is there a sarcasm tag missing when you say that? "More collegial" means Republicans who let Democrats run things in spite of being in the minority. Propelled by conservatives, the GOP has taken 55 Senate seats, outpolling President Bush across the country. We didn't fight so hard so President Bush could make nice with the David Souters, Ruth Buzzy Ginsburgs, Arlen Specters and Ted Kennedys of the world.
From the Bork hearings to the post-Jeffords Democratic Senate power-grab, George H.W. Bush's tax "compromise," Republicans have learned there's no making nice with an enemy whose only desire is your destruction.
Oh, and um, nice personal page. We had no idea that the weather on Mt. Hood wasn't the same year-roud.
(Honest truth: They kicked you out of Texas, didn't they.)
[I'm not really trying to be obnoxious; I'm just razzing you.]
Sounds like a good man, like to know a little more about him.
One of Wilkinson's first books was a history of the Harry Flood Byrd, Sr., organization in VA.
Wilkinson's writings on Roe are squishy. I'm not sure where he stands. Is abortion a constitutional right as he has written it is? Not in my reading.
Too squishy for SCOTUS. We need someone who will follow the law. (I hesitate to say even "interpret the law", becaus these interpreters are giving us new law in the process.)
I read Wilkinson's book on Byrd years ago but do not recall if he was neutral or leaned one way or the other in regard to the "organization." His close ties to the late Lewis Powell make him somewhat suspect in my mind in regard to constitutionalism.
IOW, Wilkinson, and anybody older, is out.
He is too old. How about nominating Mark Levin...he is only in his 40s and could serve for 40 years.
THREE MONTHS??
Aw, hell... by them standards I'm an okie. (Father was training at FAA center in OKC from T:minus 6 months to T:plus six months.)
Nice guy, but not who we need on the Supreme Court. The stakes are simply too high.
Well, "once a Texan always a Texan" folks say. Proud to be an ex-Texan. Notice that I do not brag about being from Oregon, Indiana, New York, or California. If I move to Montana, Idaho or upstate NY, I'll try to keep my FR screen name.
We have the Presidency. We have both houses of Congress. We have a majority of state governments - both governerships and legislatures (I believe). Yet a single 5-4 decision from SCOTUS can render all of that meaningless on any given issue. If the left wants a 'less contentious' and 'more collegial' Court, it is their obligation to fall in line behind us and cease their obstructionism. We have both the Constitution and the will of the people on our side.
Should we not be allowed to undo the damage that liberalism and judicial activism has wrought on this country? And if not now, then when?
The only thing that will enhance Bush's legacy is keeping his word -- to name a Scalia-like, originalist judge. Anything else, will place him in the same category as his father, a failed President that betrayed those that voted for him.
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