Gettin’ Hip on the Judiciary, Part II

Judge J. Harvie Wilkinson III

Wilkinson sits, with Luttig, on the most conservative of the 12 federal appellate courts, and although he is described as a moderate conservative in most areas, and is, in all honesty, the least objectionable in the bunch, he still holds some views that I find in conflict with some very basic progressive objectives.

Two positions in particular caught my attention. First is Wilkinson’s views on abortion, which lean beyond what I would consider moderately conservative, as evidenced by his vote to uphold a state law granting parental notification when teenage daughters sought abortions. While in a perfect world, that law might make sense, we do not live in a perfect world, but instead one where fathers have been known to rape their daughters, and mothers known to kill their daughters for being pregnant. Anyone who supports compelled parental notification laws shows a fundamental disregard for the sometimes ugly realities of the world in which we live, and thereby disqualifies him- or herself from a place on the nation’s highest court.

Wilkinson also believes
that “affirmative action in a time of great growth of minority populations is creating ethnic separation rather than bringing America's peoples together as citizens.”
On its face, such an assertion is not necessarily objectionable; I have heard passionate arguments from liberals who stand to benefit from affirmative action that, in its current form, its divisiveness is more pronounced than its successes. However, delving deeper into Wilkinson’s thoughts on the matter unearths this little gem:
"We are discarding the melting pot for a cultural mosaic which aims not to promote the common bond of American citizenship but to accentuate the distinctiveness of racial and ethnic experience," Wilkinson said in a 1999 Richmond speech on the subject [of affirmative action].
Gets a bit dodgy there, doesn’t it? Cultural mosaic isn’t exactly a term that has negative connotations for a progressive, but clearly Wilkinson doesn’t share the sentiment. Instead he sees celebrating a rainbow of cultural and ethnic diversity as analogous to undermining the “common bond of American citizenship.” Of course, I share a common bond of citizenship with Pam (not to mention a similarly wicked sense of humor), which doesn’t seem beholden to or subverted by or in any way relevant to our differing backgrounds and experiences. So what does Wilkinson really mean? It seems that the “common bond of American citizenship” is little more than creative shorthand for “the dominant culture,” which is in turn shorthand for “white, straight, men,” whose culture is being victimized (or, more accurately, its dominance being diluted) by acknowledging diversity at the expense of their cultural primacy. In men like Wilkinson’s version of the melting pot, everyone melts and melts and melts until our uniqueness melts away and we’re all just like them.

Finally, Wilkinson shows up as the author of a decision giving the government broad authority to hold U.S. citizens as enemy combatants without constitutional protections, a ruling later overturned by the Supreme Court. Superb.

Judge J. Michael Luttig

Wilkinson’s compatriot at the United States Court of Appeals for the Fourth Circuit, has served as a law clerk for Antonin Scalia and worked on behalf of the first Bush administration to help secure Clarence Thomas’ appointment to the Supreme Court, which probably tells you all you need to know about him, but I’ll give you a little more grist for the mill. Via (emphasis mine):
Luttig is widely considered one of Bush's top judicial prospects, especially given his young age, 50, and his ability to shape the direction of the court for years to come. He is considered the most conservative judge on one of the most conservative appeals courts in the nation.
Bear in mind, that’s a source that likes him. At, Luttig is described as the “most aggressively conservative member” of “the nation’s most aggressively conservative federal court of appeals.”

His record on abortion rights is appalling, and I could give you a slew of other cases demonstrative of his being a conservative ideologue (including his penchant for reversing subordinate colleagues on abortion cases at the behest of state authorities). However, this seems to sum it up perfectly and succinctly:
Asserting that Congress overreached its constitutional power, Luttig wrote the recent opinion striking down the federal Violence Against Women Act.

And although this has absolutely nothing to do with his abilities or suitability, and I freely admit I include it for no other reason than it irks me, Luttig is described as

ideologically self-conscious but not an egghead. This is an important consideration: George W. Bush reputedly disdains bookish intellectuals. Luttig is sufficiently smart to be a justice but sufficiently regular to be a good ol' boy. One can easily imagine the genial, politically well-connected Luttig getting along just great in an hour-long interview with President W.

Judge Samuel A. Alito

Okay, I’m mucho busy at work today, and I’m also running out of steam, so I’ll make Alito quick.

One line, in fact:

Alito so closely emulates Scalia that he has earned the nickname "Scalito."

If that doesn’t make your blood run cold, then nothing will.

In all seriousness, this is a really overlooked issue on the Left. I know it’s dry and not very sexy, but look—part of the reason we’re in the mess we’re in is because conservatives have been paying attention to the judiciary for decades now. They have law schools specifically designed to churn out conservative lawyers who are mentored into the judiciary. Meanwhile, we pay no attention, and wonder how the hell all this crazy shit is happening all over the country.

You know I never ask this, but please link to these posts if you’ve got a blog of your own, and encourage others to do the same. We’ve got to start paying attention to this issue. Waiting for a slew of ideologues to be paraded in front of Congress and hoping the Dems will have balls to filibuster isn’t enough. We’ve got to know what’s going on locally, on the state level, in the regional courts…long before these guys get to be possible SCOTUS nominees. We’ve got to inform ourselves, and we’ve got to care.

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