Daily Record, The (Baltimore): A closer look at two 4th Circuit judges who may be headed for the

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.

The case concerned the extent of executive power in relation to an American citizen who was captured overseas and classified as an enemy combatant by the government.

The constitutional allocation of war powers affords the President extraordinarily broad authority as Commander in Chief and compels courts to assume a deferential posture in reviewing exercises of this authority, wrote Wilkinson for a three judge panel that decided the case.

In an argument for the entire court to rehear the case, Luttig called Wilkinson's opinion unpersuasive, indefensible, factually and legally untenable and unconvincing.

My colleague Judge Luttig's dissent attempts to straddle the issue by taking sides with both parties, wrote Wilkinson in response. The Supreme Court disagreed with Wilkinson, ruling that due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker.

The two judges also disagreed in 2000's Gibbs v. Babbit on whether the Endangered Species Act barred people from killing red wolves on private property. Wilkinson wrote the majority opinion, stressing that conserving valuable wildlife resources is important to the welfare of our country.

Battle-tested

Neither Luttig nor Wilkinson is a stranger to controversy and each could be well prepared for a confirmation battle.

When Wilkinson was nominated to the 4th Circuit, his name had already been approved by the Senate Judiciary Committee when Sen. Strom Thurmond, R-S.C., had to schedule a special hearing because several senators - most notably Massachusetts' Sen. Edward M. Kennedy - accused Wilkinson of trying to unduly influence the American Bar Association lawyers charged with evaluating his qualifications.

In addition, Wilkinson faced strong criticism due to his relative inexperience. He has never had a private client, argued a case in court or written a legal brief by himself. He has no judicial experience and is not entitled to practice before either the court he hopes to join or any of the trial courts it supervises, noted a 1984 New York Times article about Wilkinson.

After a fight that dragged on for a year, the senate approved Wilkinson's nomination by a 58-39 vote.

Luttig came under fire in 1991, while pushing the Thomas nomination through the Senate. Critics thought it was improper for the White House to continue using Luttig as the point man on the nomination, after he was already confirmed to the 4th Circuit by the Senate.

Luttig also was in charge of the Souter nomination and served as a law clerk for Scalia. Perhaps this is the reason that many of Luttig's law clerks have moved on to work for the Supreme Court and the White House.

It also is the reason that three justices recused themselves when a death-penalty case hit a little too close to home. In 1994, Luttig's father was shot and killed by three people who attempted to steal his Mercedes-Benz, a vicious killing that some court observers believe has heavily influenced Luttig's views on criminal matters. In 2001, the Supreme Court (minus Souter, Thomas and Scalia) refused to grant a stay of execution for Napoleon Beazley, who was put to death for the murder in 2002.

Crossing paths

Luttig and Wilkinson come from affluent backgrounds.

Wilkinson grew up in a wealthy neighborhood of Richmond, Va. He graduated from Yale University and received a law degree from the University of Virginia.

In 1970, while still in law school, Wilkinson ran an unsuccessful campaign for Congress. After graduation, he clerked for family friend and Supreme Court Justice Lewis F. Powell Jr. He went on to teach at the University of Virginia law school, but left to become an editor of a Virginia newspaper in 1978.

He also served as a deputy assistant attorney general in the civil rights division of the Justice Department. Wilkinson was back teaching law at University of Virginia, when he was finally confirmed to the 4th Circuit in 1984.

Luttig grew up in Tyler, Texas. He attended Washington and Lee University and, like Wilkinson, graduated from the University of Virginia law school.

After a brief stint at the White House (as assistant counsel to President Reagan from 1981 until 1982), Luttig clerked for Scalia on the D.C. Circuit and then for Supreme Court Chief Justice Warren Burger.

He later went into private practice, working for Davis Polk & Wardwell in Washington, D.C., before joining the Justice Department in 1989.

Chances are -

So, what are the chances that the president will go Fourth when it comes time to nominate a Supreme Court justice? The only one who can answer that question is the president and he is not talking.

Both men are obviously judges, and neither is Hispanic - factors that could hurt their odds, if recent speculation is borne out.

On the other hand, Luttig and Wilkinson's chances could keep going up with each vacancy that arises on the high court. Currently, Chief Justice William H. Rehnquist and Justice John Paul Stevens are both over 80, and the chief justice is ill, to boot. Ruth Bader Ginsburg is 72 and Scalia, Anthony Kennedy, Souter and Stephen G. Breyer are all approaching 70. Only Thomas is under 60 years of age. While O'Connor's retirement creates the president's first chance to shape the court, he may get several more before his term ends in 2008.