Pulling Up Lame

Loser versus loser: Handicapping the coming Supreme Court vacancies

WASHINGTON, D.C.—The muggy summer has settled over the capital, and the political junkies have turned to handicapping the Supreme Court nominees—that is, the people who are thought to be possible candidates for the expected three openings.

This list of second- and third-rate jurists is unimpressive.

No wonder polls show that the public is tiring of the court. There are a couple of strong right-wingers in the group, but for the most part it's a bedraggled lot. Clarence Thomas and Antonin Scalia look like veritable giants in comparison. Following is a tip sheet on the grim prospects.


Relatively serious contenders

JAMES HARVIE WILKINSON III: By all odds the most prominent, the 60-year-old Wilkinson was appointed to the Fourth Circuit Court of Appeals in Richmond, Virginia, by President Reagan in 1984 and served as chief judge from 1996 to 2003. Born in New York, he clerked for Justice Lewis Powell and worked in the Reagan administration as deputy assistant attorney general in the civil rights division. Wilkinson ran for Congress from Virginia in the early '70s and lost. Then he became editorial-page editor at the Norfolk Virginian-Pilot. He has been a professor at the University of Virginia, his alma mater. The Fourth Circuit is not only conservative but the home base for the military. And Wilkinson can be counted on to defer to the Pentagon, especially when it comes to the war on terror. It was no surprise that this judge led the Court of Appeals in ruling that Yaser Hamdi, an American citizen captured in battle in Afghanistan, could be held indefinitely without access to a lawyer. The Supreme Court had to restrain Wilkinson and overturned that decision. Wilkinson has opposed affirmative action and the Violence Against Women Act. Wilkinson's supporters argue that he is no rubber-stamp ideologue but rather a pragmatic conservative who might end up following in the steps of Sandra O'Connor and Anthony Kennedy, as opposed to Thomas and Scalia. That may be, but Wilkinson looks more like a lickspittle for the Pentagon.

MICHAEL MCCONNELL: A Denver 10th Circuit judge, McConnell is known as a conservative legal scholar. He clerked under famed liberal D.C. Appeals Court judge J. Skelly Wright and then for William Brennan. Under Reagan, McConnell served in the Office of the Solicitor General and has taught at, among other places, the University of Chicago. He is vehemently against the Roe v. Wade decision, claiming that it confers a "private right" to use lethal violence to " 'solve' personal problems." Roe is "a gross misinterpretation of the Constitution," according to McConnell, and "an embarrassment to those who take constitutional law seriously." He supports an amendment to undo it and, additionally, wants to ensure that unborn children are protected under the Constitution. Federal and state legislatures should ban abortion, he thinks, and impose criminal sanctions on women who have them and on doctors who perform them.

McConnell does not appear to believe in any separation of church and state, having accused those who do—including John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer—of engaging in "extremist rhetoric." He says those who are hostile to such a separation, Scalia and Thomas, are "gutsy." He has testified before the House Judiciary Committee in favor of removing church-state separation from the Bill of Rights. McConnell is all for teaching creationism in public schools, writing in the Brigham Young University Law Review in 1993 that excluding such teachings "is to privilege the Darwinian orthodoxy and to shelter it from critical evaluation."

J. MICHAEL LUTTIG: A Texas native who worked in the Justice Department during the first Bush administration, Luttig was named to the Fourth Circuit Court of Appeals in 1991. Like Wilkinson, Luttig graduated from the University of Virginia law school and takes the same deferential view toward authority. Sitting with Wilkinson, he dissented from the Wilkinson-led majority on Hamdi, claiming the lower court had erred in supporting the Bush administration because it relied partly on a statement by Hamdi's father that his son had been captured in battle. It was wrong to rely on such a statement, said Luttig, and the court should only have considered evidence from the military. Luttig clerked for Warren Burger and later for Scalia. He was an assistant White House counsel during the early Reagan years, then worked in the Justice Department. Luttig's name is widely known because of a personal tragedy: The judge's father was shot dead in a carjacking, and the son helped track down the killers. Members of the Supreme Court had to recuse themselves in a death penalty challenge involving the killer because of knowing Luttig. He wrote an opinion striking down the Violence Against Women Act on grounds that Congress had overstepped its authority. In 1998, he reversed a lower-court ruling and upheld a state ban on so-called partial-birth abortion. He supported a law permitting Virginia to notify parents before an underage teen got an abortion. And he was a supporter of capital punishment long before his father was killed.


Dark horses

JOHN ROBERTS: A D.C. Appeals Court judge, Roberts clerked for William Rehnquist, worked in the Reagan and first Bush administrations, and went into private practice during the Clinton years. He made it to the D.C. court in 2003. Many liberals think Roberts may be a sign of what's to come. They grew nervous with his dissents challenging the constitutionality of the Endangered Species Act and because of his support of the White House decision to keep the Cheney energy task force records secret.

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