A closer look at two 4th Circuit judges who may be headed for the

Daily Record, The (Baltimore), Jul 15, 2005 by Daniel Ostrovsky

With two judges from the 4th U.S. Circuit Court of Appeals on the short list of potential Supreme Court nominees, it's easy to lump them together. After all, Judges J. Harvie Wilkinson and J. Michael Luttig sit on the same bench, from the same state (Virginia), and share the same strict constructionist philosophy.

However, on further inspection, the two are not as close as they appear.

Most believe Luttig is slightly more likely to get the nomination, because he is 10 years Wilkinson's junior. He also is better connected, having helped the first President Bush get Senate approval for the nominations of Justices David H. Souter and Clarence Thomas in his role as an assistant attorney general.

Stylistically, while both judges ask plenty of questions during oral argument, honestly, I'd say Luttig is a little tougher in his questions, but he does tend to monopolize, more than the other members of the panel, the time during oral argument, said Fred Warren Bennett of Bennett & Bair in Greenbelt. If he is off on a point, he may ask two or three questions on the same point, which makes it difficult for counsel to make all of his points during a 20- minute session.

Substantively, in the criminal law area and constitutional law area J. Harvie Wilkinson might be a tad more liberal than Luttig, Bennett added. [Wilkinson] would have a tad more flexibility and be more towards the center.

Pro-choice groups consider Wilkinson more likely to embrace their goals - not an inconsequential bargaining chip in a confirmation battle for retiring Justice Sandra Day O'Connor's replacement.

Whoever is nominated will have to answer the question whether they will support and uphold the American people's constitutional right to birth control and abortion, said Ariana Kelly, executive director of NARAL Pro-Choice Maryland.

In some of his early legal articles, Wilkinson displayed the ability to channel an inner-Souter.

Indeed, if procreation is to be labeled a constitutional right, it may imply a full freedom from negative choice, in the same sense that marriage implies a full choice not to marry, voting not to vote and travel to remain at home, wrote Wilkinson.

In Planned Parenthood of the Blue Ridge v. Camblos, Luttig and Wilkinson both voted to uphold a Virginia law requiring parental notification before doctors could perform an abortion on a minor. The 1998 decision stirred controversy, because it let stand a judicial bypass option that gave judges the ability to deny an abortion even to a minor who shows that she is mature and capable of giving informed consent.

Other loyalties

Luttig also upheld Virginia's ban on partial birth abortions in Richmond Medical Center v. Gilmore. But after the Supreme Court struck down a Nebraska statute that was similar to the Virginia law, Luttig rewrote his own opinion, bowing to Supreme Court precedent.

I understand the Supreme Court to have intended its decision in Planned Parenthood v. Casey, to be a decision of super-stare decisis with respect to a woman's fundamental right to choose whether or not to proceed with a pregnancy, wrote Luttig.

Which underscores another point: While both men are strict constructionists, they may be equally as loyal to the principle of stare decisis as to the framers' intent.

Luttig is a lot like [Justice Antonin] Scalia, Bennett conceded, in a recent interview dealing with the judges' views on abortion. However, I'm not sure that abortion would be decided differently. Roe v. Wade has been on the books for so long. - They would be leery at this time in the history of this country to, in effect, strike [it] down outright.

That may come as scant comfort to civil liberties groups, who worry about putting either 4th Circuit judge on the Supreme Court. Or perhaps that should be any 4th Circuit judge: this week, Chief Judge William W. Wilkins' name was also put in play (see sidebar).

The 4th Circuit is generally considered the most conservative in the country, said ACLU of Maryland spokeswoman Meredith Curtis, careful not to specifically comment on any potential high court nominees. It's not the most favorable venue in terms of civil liberties and civil rights.

It's fair to say that Luttig and Wilkinson have each done their share to further the 4th Circuit's conservative reputation.

My impression from reading decisions by them and by reputation is that they truly believe in strict constructionism, said Francis J. Collins of Kahn, Smith and Collins. I would consider them both very intellectual, but also caution that they do seem to have fairly well- developed ideologies.

However, Salisbury lawyer Raymond S. Smethurst Jr. emphasized the roulette-like quality of the nomination process, noting the impossibility of predicting how either one of the seemingly conservative judges might vote if they are in fact confirmed to the high court.

When they get on the Supreme Court, they row their own boat, Smethurst said.

Butting heads

Luttig and Wilkinson have actually butted heads on several occasions, most notably in Hamdi v. Rumsfeld, decided in 2003. In Hamdi, Luttig and Wilkinson basically engaged in a legal equivalent of a duel.