Bush Needs a Shorter List for the Supreme Court

“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. These include 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: Harvie Wilkinson, the man who once marveled at the near-divine authority assumed by Supreme Court justices and who now sits, with Luttig, on the 4th Circuit.

Last October, the New York Times said, “He is likely to be palatable to many Democrats and was a prot???? ©g???? © of the late Justice Lewis F. Powell, who was widely admired.” Congressional Quarterly used the same adjective to describe Wilkinson. “Democrats may view some conservative jurists as more palatable than others,” noted CQ. “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.”

More Perplexing

Luttig, in a biting dissent, characterized Wilkinson’s desire to protect a prospective 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 University of Virginia Law professor 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.”

This is an invitation for federal judges and Supreme Court justices to apply their personal discretion to the “spirit of the Constitution” to create new federally protected “rights” that the Framers never would have dreamed of—and thus to expand federal power into areas that the Constitution, as framed and ratified, does not authorize the federal government to go.

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. “Should the state be constitutionally required to abandon an ancient sanction, when abandonment might in time lead to increasing, although statistically unpredictable defections from heterosexual behavior and traditional family life?” the authors asked. “On the answer to this last question the authors have been unable to agree. Mr. Wilkinson would uphold the state’s interest in the preservation of the traditional family; Mr. White would desire stronger empirical proof that the state interest is truly put in jeopardy by homosexual practices among consenting adults. Both authors acknowledge the intuitive elements in their judgments.”

But Wilkinson 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 Bush would risk with “deistic power” for lifelong tenure on the U.S. Supreme Court is long enough to include Wilkinson, it needs to be shortened.