Posted on 06/15/2005 6:06:56 AM PDT by hinterlander
“A Supreme Court judgeship is perhaps the closest our country has come to clothing mortals with deistic powers,” wrote James Harvie Wilkinson III in a 1974 book about clerking for Justice Lewis Powell.
In anticipation that Chief Justice William Rehnquist may retire, speculation abounds about which mortal President Bush may now offer these “deistic powers.”
The rumored “short list” features some stellar federal appellate judges with credible records as strict constructionists: Michael Luttig of the 4th Circuit, Edith Jones of the 5th, Samuel Alito of the 3rd, and Michael McConnell of the 10th.
Conservatives would be thrilled with any of these.
But another name gives pause. This is the same Harvie Wilkinson, who once marveled at the near-divine authority assumed by Supreme Court justices and who now sits, with Luttig, on the 4th Circuit.
“Democrats may view some conservative jurists as more palatable than others,” notes Congressional Quarterly. “If Rehnquist retires and Bush nominates a middle-of-the-road conservative, such as 4th Circuit appeals court Judge J. Harvie Wilkinson, the confirmation process will probably be relatively easy.”
Much does recommend Wilkinson. He is lauded for a powerful mind, congenial manner, and elegant writing style. He graduated from Yale, was a law review editor at the University of Virginia Law School, became a popular professor there, and as editorial page editor of the Norfolk Virginian-Pilot wrote hard-hitting pieces against court-ordered busing and in favor of the death penalty.
So, what makes him “more palatable” to Democrats?
Well, in Gibbs v. Babbitt, Wilkinson ruled that the constitutional clause giving Congress power “to regulate commerce … among the several states,” justified a Fish and Wildlife Service regulation prohibiting North Carolina farmers from shooting red wolves when they threatened the farmers’ livestock on the farmers’ property after FWS “reintroduced” wolves in the state. “The relationship between red wolf takings and interstate commerce is quite direct,” opined Wilkinson, “with no red wolves, there will be no red-wolf related tourism, no scientific research, and no commercial trade in pelts.”
Judge Luttig, in a biting dissent, characterized Wilkinson’s desire to protect interstate trade in endangered-species pelts as “most humorous.” But Wilkinson was serious. He was exercising the almost deistic power of a judge almost on the Supreme Court.
Even more perplexing is “Constitutional Protection for Personal Lifestyles,” a 1977 Cornell Law Review article Wilkinson co-authored with fellow UVA Law Prof. G. Edward White.
“Although lifestyle freedoms are not expressly safeguarded, we believe that the spirit of the Constitution operates to protect them,” wrote Wilkinson and White. “We are aware of the historic dangers that attend judicial departure from specific constitutional mandates. Judging by inference from constitutional provisions, or from the Constitution as a whole, has plunged the Court into difficulties in the past. Notwithstanding textual and institutional difficulties, judicial recognition of lifestyle freedoms as due process liberties better serves the basic purposes of the Constitution than dismissal of them.”
Wilkinson, to be sure, expressly disagreed with his co-author’s analysis of whether the “spirit of the Constitution” might harbor a right to homosexual activity. “Mr. Wilkinson would uphold the state’s interest in the preservation of the traditional family,” the authors wrote, “Mr. White would desire stronger empirical proof that the state interest is truly put in jeopardy by homosexual practices among consenting adults.”
But Wilkinson’s and White’s joint analysis of abortion is eye-opening. “The right to procreate also suggests a right not to procreate. …,” they wrote. “Only in Roe v. Wade, however, did the right not to procreate gain firm recognition as a lifestyle decision. In upholding the right to abortion, the Court recognized that an unwanted child might create a ‘distressful life and future,’ with psychological, physical, and financial burdens for the woman concerned. Although Roe has been severely criticized, the decision is not an illogical extension of the Court’s earlier decisions in matters of intimate association. Indeed, if procreation is labeled a constitutional right, it may imply a full freedom of 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. For the constitutional right of procreation can hardly be fundamental if one is compelled to exercise it.”
Where does Wilkinson stand on Roe today? Some conservatives might optimistically point to his 1998 concurrence upholding Virginia’s parental notification law. But it doesn’t criticize Roe. Virginia’s law, Wilkinson wrote, “imposes only the mildest form of regulation upon the fundamental constitutional right to terminate an unwanted pregnancy. … If the Act were a consent statute or otherwise imposed more onerous burdens on the abortion right, we would have a very different case.”
If the list of those President Bush would risk with “deistic power” is long enough to include Judge Wilkinson, it needs to be shorter.
Miguel Estrada. Let the Dems keep attacking a very well qualified hipanic candidate. They had no trouble doing it to a well qualified black candidate.
Maybe it will open some eyes.
Wilkinson is 61 years old. If Bush wants to shape the court for the next generation, he needs to pick someone much younger.
Bork them.
It's all about Roe v. Wade. The Democrats will madly bite at the ankles of any nominee who even appears to support overturning it.
A right is a right, irrespective of the sex of the citizen. Women have no more rights than men. If a woman has the right to procreate or not to procreate, then so does a man. The difference is that a man cannot decide for a woman, whether she will abort or carry to term.
The court should recognize the shortcomings of their judicial fiat concerning abortion and remedy the situation. Men should be afforded a "legal abortion" whereby they could renounce their fatherhood and thus any custodial rights. That would allow men the same rights as the court has developed for women. How do you think the womyn's libbers would like that compromise?
I oppose anyone who is palatable to the Dems.
bump for later
God help us if he picks another David Souter, like his old man.
I like the idea of reintroducing Estrada. If not, McConnel of the 10th circuit would be outstanding.
I believe that President Bush ought to nominate someone completely under the radar judicially. How about a political philosopher instead: Professor Robert P. George?
http://www.princeton.edu/~paw/archive_new/PAW03-04/02-1008/features1.html
He would pummel the libs in at least some areas.
Take Judge Wilkinson off the list and add Professor George.
I would like to see the President pick a solid conservative, let teh dems throw a tantrum, AND, if they succeed in killing the nomination, have the president appoint someone even more conservative (and younger if possible).
I would like to to be clear to the dems that the original choice is the most paletable they are going to see.
It is a real necessity that the Prez nominate a real conservative who can withstand the PC hatred that will hit him or her. Estrada pulled out. He will not be a good choice. Gonzalez would be worse. If the Prez wants to hit the Dems hard, nominate Jones. She will give the Dems trouble trying to pick apart her conserv. record without tarring and feathering her. Luttig is the safe choice. Age matters. Someone who is near early 50's will be a good choice. Jones will be one choice when another jurist goes so why not put her up now?
Emilio Garza
Luttig would be a good choice then.
Lewis Powell was no conservative at all, but many of those who confirmed him thought that he would reverse the steady march of "big government." Wilkinson is a protege of Powell.
Wilkinson is not on a short list probably. I have not heard his name mentioned as a possible judge anywhere but in this article.
I guess we will find out when (surely) somebody retires next week after the flurry of rulings come out next week on the Ten Commandments, file sharing etc.
Surely somebody will...this is the longest period without a retirement (heck, it was in 2002) in likely 100 years, perhaps even in the entire history of the court.
Bush has got to be able to appoint surely at least 2 justices before his 4 years are up.
McConnell would be unbeleivable.
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