- The Washington Times - Monday, June 27, 2005

Amidst the gathering storm over who will become the next chief justice of the United States, one candidate stands forth like an obelisk: Judge J. Harvie Wilkinson of the U.S. 4th Circuit Court of Appeals.

Judge Wilkinson displays a dazzling intellect, gifted pen, fastidious impartiality, open mind, saintly manners and genuine humility as much to be marveled at as imitated. He would be a perfect chief justice in all its moods and tenses.

His experience bespeaks breadth, depth and Aristotelian moderation, which recognizes civilized law is a matter of degree stripped of crusading dogmas.

Judge Wilkinson graduated from Yale, served in the Army; attended the University of Virginia Law School (U.Va.), captured a prestigious appointment as law clerk to Supreme Court Associate Justice Lewis Powell, 1972-73, was appointed a professor of law at U.Va., sparkled as the editorial page editor of the Virginian-Pilot newspaper, shined as deputy assistant attorney general for civil rights under President Ronald Reagan and was appointed to the Court of Appeals in 1984, where he has served with distinction for 21 years.

His classical education and alertness to human vices and virtues are the earmarks of a great justice as limned by Judge Learned Hand: “I venture to believe that it is as important to a judge called upon to pass on a question of constitutional law, to have a bowing acquaintance with Acton and Maitland, with Thucydides, Gibbon, and Carlyle, with Homer, Dante, Shakespeare, and Milton, with Machiavelli, Montaigne, and Rabelais, with Plato, Bacon, Hume, and Kant, as with books that have been specially written on the subject. For in such matters everything turns upon the spirit in which he approaches the question before him. The words he must construe are empty vessels into which he can pour nearly everything he will.”

Judge Wilkinson is no rubber stamp for any ideology. He inspires confidence in all litigants that their arguments will be fairly entertained. His conception of the judicial role is to interpret the Constitution and laws according to their original meaning, irrespective of the political fallout or ramifications. He rejects the idea that the Constitution today is but a homonym of what the Founding Fathers fashioned.

In Humphries v. Ozmint (2005), Judge Wilkinson risked the wrath of “tough on crime” conservatives. He dissented from a death sentence for a murder orchestrated by the prosecutor’s marquee insistence that the defendant’s life was worth less than the life of his victim. Judge Wilkinson elaborated: “Human worth comparisons are the hallmarks of totalitarian governments. They do not belong in our country. Societies have gotten into the deepest sort of trouble by making these comparisons an explicit basis for the imposition of death.”

The Rev. Jerry Falwell and his flock were dismayed by Judge Wilkinson’s dissent from a denial of a rehearing en banc in Falwell v. Flint (1986). He maintained Hustler magazine, despite its celebration of decadence, deserved the full protection of the First Amendment in viciously insinuating Mr. Falwell was a moral hypocrite. In reasoning subsequently embraced by the Supreme Court, Judge Wilkinson amplified: “Political satire and parody aim to distress. This genre of commentary depends upon distortion and discomfiture for its effect. The best political humor may be in bad taste. The cartoonist’s nightmare may be that the intended victim of all his insult and ridicule indeed fails to suffer emotional distress, but instead finds the whole thing merely funny and calls up the cartoonist, not to complain, but to ask for the original.”

On the vexing matter of religion, Judge Wilkinson has exhibited admirable deftness. In United States v. Bakker (1991), he overturned a sentence imposed on James O. Bakker because the trial judge had been provoked by the charlatan’s disgracing of religion: “[Bakker] had no thought whatsoever about his victims and those of us who have a religion are ridiculed as being saps from money-grubbing preachers or priests.” Judge Wilkinson retorted: “Our Constitution, of course, does not require a person to surrender his or her religious beliefs upon the assumption of judicial office. Courts, however, cannot sanction sentencing procedures that create the perception of the bench as a pulpit from which judges announce their personal sense of religiosity and simultaneously punish defendants for offending it.”

On the other hand, Judge Wilkinson concluded in EEOC v. Roman Catholic Diocese of Raleigh (2000), that musical ministry and teaching positions in religious organizations are exempt by the “ministerial exception” to employment discrimination laws as a legitimate accommodation to freedom of religion. He explained: “We refuse to demote music below other liturgical forms or to sever it from its spiritual moorings. … Whether spoken or sung, psalms lift eyes unto the hills. It is not for us to place the oratorios of Handel, the cantatas of Bach, or the simplest of hymns beneath the reading of the sacred texts from which they draw.”

Judge Wilkinson defended federalism in holding the Violence Against Women Act update beyond the Commerce Clause power of Congress, but sustained the constitutionality of the Endangered Species Act. He deplored the casual employment of racial or ethnic preferences in J.A. Croson Co. v. City of Richmond (1987). But above all, Judge Wilkinson, like Socrates’ wise man, knows what he doesn’t know, and knows judges are not God Almighty. He reflected in Planned Parenthood v. Cambos (1998): “[J]udges, no less than astronomers, have but a blurred, imperfect gaze upon the objects of their passions. … [They] do not have all the answers to such questions as: When does human life begin? Where does the role of the state in intimate decisions end? … On matters touching profound moral beliefs and intimate human freedom, a democratic system holds forth no prospect of agreement. What it does promise is a compromise that disenfranchises no one and that, though fully satisfactory to few, may be partly satisfactory to many.”

In sum, Judge Wilkinson is a judge’s judge. His appointment as chief justice would be a national treasure.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group. He has published “Advice & Consent” addressing the filibuster and judicial appointments.


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