4th Circuit Judge Argues Against Court’s ‘Ideological Makeover’
The Richmond, Va.-based 4th U.S. Circuit Court of Appeals, long touted as a conservative bastion, has four vacancies, six judges who were appointed by Republicans and five appointed by Democrats. Those numbers give President Barack Obama a chance to change the court’s ideological tilt.
Now one of the judges in the 4th Circuit’s conservative ranks is urging Obama and the Senate to resist the temptation to engineer an “ideological makeover” of his court.
Writing in the Washington Post, Judge J. Harvie Wilkinson warns that ideology should not be the primary reason for picking a judge. Law, he argues, is “a medium through which judges of disparate beliefs often can find common ground. Ideological fervor is law’s great antithesis.”
Wilkinson, once on a on a short list of possible candidates for the U.S. Supreme Court, is described by the New York Times in a 2005 article as a “core conservative” known for his courtly ways. He ruled on behalf of the United States in the case of enemy combatant Yaser Esam Hamdi, saying the courts should not second-guess the president in the war on terror. He was later overruled by the Supreme Court. But he has also sided on some issues with First Amendment advocates and environmentalists.
More recently, Wilkinson wrote a law review article criticizing Justice Antonin Scalia’s majority opinion finding a constitutional right to own guns at home for protection.
“Many people may not believe it, but judges are not politicians in robes,” Wilkinson writes in today’s op-ed. “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.”
“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.”
The Wall Street Journal (sub. req.) highlighted the 4th Circuit and two other federal appeals courts with vacancies in the recent article, “Appeals Courts Set for Tilt to Left.”
Hat tip to How Appealing.
