The judge's plea for ideological restraint in filling 4th Circuit Court vacancies would ring truer if his court wasn't a hotbed of right-wing activism

In the Powell Courthouse in Richmond, home of the U.S. Fourth Circuit, it often seems as if Jefferson Davis is still president. (Though never tried, he was arraigned in this building, which served as the Confederate treasury.)

by Ken

There seems to be general agreement that J. Harvie Wilkinson III is a congenial, gracious judge, in the mold of his mentor, for whom he clerked in 1972-73, Supreme Court Justice Lewis Powell Jr., for whom the building in which he works is named: the Lewis F. Powell Jr. Courthouse, the Richmond seat of the Fourth Circuit U.S. Court of Appeals. (It is often pointed out in notes on Judge Wilkinson that Powell was a good friend of his father, Richmond businessman J. Harvie Wilkinson Jr.)

Judge Wilkinson was appointed to the Fourth Circuit in 1984 by Ronald Reagan. He served the allowed seven-year term as chief judge (1996-2003), and now is the senior-most active judge on the court.

Now, for all Judge Wilkinson's graciousness and congeniality, it is generally agreed that he played a leading role in establishing the Fourth Circuit -- long the proprietary enclave of the late Sen. Jesse Helms, who was said to at least sign off on, if not actually propose, every court appointment -- as the most conservative of the 13 circuit courts, a hotbed of right-wing judicial activism.

There was a time when the judge was thought to be a leading candidate for elevation to the Supreme Court. It's generally thought that the fact that he talked publicly about his interview with President George W. Bush ended his chance. In fact, not one but two Fourth Circuit judges were thought to be on the Bush short list: Wilkinson and his more stridently conservative colleague-rival, J. Michael Luttig. Apparently neither of them was judged to be a John Roberts, a Harriet Myers, or a Sammy Alito, and Judge Luttig didn't hang around waiting for another shot. In 2006, at the age of 51, he gave up his lifetime federal court appointment to take a job with Boeing.

Judge Luttig was replaced on the court, but the Bush regime has had a tough time getting appointments to the Fourth Circuit confirmed by the Senate. Maybe it's just a coincidence that Jesse Helms is no longer around to watch over "his" court. Probably it has more to do with Senate Democrats' growing unwillingness to rubber-stamp more of the judicial sludge Chimpy the Prez pumped into the federal judiciary. In any case, there are now a total of four vacancies on the Fourth Circuit awaiting appointments by President Obama.

Yesterday Judge Wilkinson weighed in with a Washington Post op-ed plea to the president not to "polarize" the Fourth Circuit. For anyone familiar with the court's recent history, it was a pretty astonishing exercise. Well, read for yourself:

Storming the 4th Circuit

By J. Harvie Wilkinson III
Friday, January 23, 2009; A15

So the U.S. Court of Appeals for the 4th Circuit is set for a takeover. Popular commentary has it that the court, on which I serve, is a fortress or bastion or citadel of conservatism. Discussion of coming changes suggests more the fruits of a successful military campaign than the result of an election giving our new president the right to nominate members to a judicial body.

This is all understandable -- to a point. Victory is exhilarating. There are no Supreme Court vacancies. With four vacancies on our 15-member court, the 4th Circuit may be the best game in town. With the new numbers in the Senate, the temptation is there to go for an ideological makeover.

Yet the tempting course would prove a misguided one. Of course there will be change, as there should be after every presidential election. While no two judges will ever agree on everything (regardless of who appointed them), the differences between appointees of Republican and Democratic administrations can be important. "I don't understand how someone so nice and so smart can be so wrong," I have told my wife. Her reply? "And did you stop to think, Jay, that they could be saying the same -- or worse -- about you?"

But these differences, however significant, are not the whole story. And ideology should not be the foremost criterion for selecting a judge. Many people may not believe it, but judges are not politicians in robes. Many of us found out long ago that we weren't all that good at politics. (I left law school to run for Congress, and the voters sent me back with a spanking.) So we became law nerds. We focused on standards of review, burdens of proof, and somnolent textual and structural discussions. And, when we were at our best, these arcana were not things unto themselves but became connected to the larger purposes of liberty and order that it is our duty to uphold and serve.

Law, then, is a medium through which judges of disparate beliefs often can find common ground. Ideological fervor is law's great antithesis. This is especially true on the courts of appeal, which, unlike the Supreme Court, do not have self-selected dockets and whose cases are often more technically challenging than ideologically flavored. Congress put federal circuit judges on panels of three for a reason -- namely, so that we could listen as well as talk, give as well as take and make the accommodations (more narrow rulings, less strident opinions) without which appellate courts cannot function. The 4th Circuit has never prided itself on ideology but on the collegiality that takes minds out of concrete and prevents personal animosities from clouding and distorting the essential act of judgment.

Courts of appeal, while inferior in constitutional rank to the Supreme Court, do matter. And it's not just because the Supreme Court cannot answer every question. Our two great oceans once marked a neat divide between domestic and foreign policy. It was easier for earlier courts to say which was which and to stay out of the latter. But the oceans are no longer the barriers they were, and the courts at all levels have become inescapably involved in matters pertaining to armed struggle and conflict. Today, the misadventures of the third branch can, like the miscalculations of elected bodies, place tens or hundreds of thousands at risk or, conversely, hasten the loss of our priceless heritage of personal liberty.

Wisdom in judging resides, now more than ever, in knowing all that we do not know, in resisting the urge to become ideologically self-assured. Perhaps, too, it resides in recognizing that persons throughout public and private life often, though by no means always, go about the tasks that society has assigned them with the same good faith that we go about our own. Perhaps it resides in understanding that judges, as quintessential generalists, occupy a vital role in this age of specialization, though it is one in which whole realms of knowledge will elude the powers of even the most incandescent judicial intellect. Wherever wisdom resides, it does not lie with the ideologues; activism of all persuasions is a trade best practiced away from the bench.

If all this marks me conservative, I wear that designation proudly. But far more than a conservative, I am an American. Our country faces deep and endemic difficulties, and the need for a successful presidency has seldom been so great. While the views I express here are solely my own, I feel certain that every judge on our small plot of public earth would bend every effort, within the limits of the laws and Constitution, to contribute to the larger good.

To be sure, there will be change and disagreement on the 4th Circuit, but I pray that coming appointments to our court will not cause the doors of communication and compromise to slam shut. A polarized 4th Circuit would bring no discernible public benefit. At the end of the day, it's not lines of battle; it's not us and them. Americans are in this together, and that includes the courts.

The writer is a judge on the U.S. Court of Appeals for the 4th Circuit.

It all sounds swell, of course. But then, there's the Fourth Circuit's record. One can understand the sensititivity of its judicial conservatives to President Obama's Lincolnesque associations; inside the Lewis F. Powell Jr. Courthouse, there seems to be a hazy illusion that Jefferson Davis is still the president. (The building now known as the Powell Courthouse served as the Confederate government's treasury, and C.S.A. President Davis -- although never tried -- was arraigned there.)

This is a court so commitedly conservative that one suspects the less conservative Clinton appointees have learned to shut up because they have so little chance of having any influence. As I understand it, the general procedure has been that, on rare occasions when a three-judge panel of the Fourth rules "wrong," the decision is bucked up to the full court to make it "right."

Of course, it could be that Judge Wilkinson is saying something different when he warns about polarization of the Fourth Circuit: that if the president appoints some really uppity judges to overturn the present conservative majority, he and his heretofore collegial colleagues are prepared to become the shrieking ideologues of our worst nightmares.

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