The Supreme Court Shortlist
The views of the likely candidates.
Updated Friday, July 1, 2005, at 11:34 AM
Age: 60 Graduated from: University of Virginia School of Law. He clerked for: Justice Lewis F. Powell. He used to be: a law professor at the University of Virginia. He was also at the Justice Department during the Reagan administration and served as the editorial-page editor of the Virginian-Pilot. He's now: a judge on the U.S. Court of Appeals for the 4th Circuit (appointed 1984).
His confirmation battle: Wilkinson is reported to be an affable, middle-of-the-road southerner like Lewis Powell, the Supreme Court justice for whom he clerked. But his record as a forward-looking defender of core conservative values is more akin to William Rehnquist's. Like Rehnquist, Wilkinson has a long affiliation with the Republican Party (he ran unsuccessfully for a House seat in Virginia in 1970). His confirmation battle would probably highlight his willingness to defer to the president in the case of Yaser Esam Hamdi. Wilkinson's approach to the case was overturned by the Supreme Court and pilloried, in a separate opinion, by Scalia. Another factor to consider is Wilkinson's age—at 60, he is the oldest of the shortlisters by a significant margin.
Civil Rights and Liberties
For the 4th Circuit as a whole, upheld the military's "don't ask, don't tell" policy. Wilkinson's opinion rejected the claims of a gay-rights group that the policy violated the equal-protection clause of the Constitution by discriminating against homosexuals. (Thomasson v. Perry, 1996)
In the 1985 book One Nation Indivisible: How Ethnic Separatism Threatens America, sharply criticized affirmative action for causing racial division.
Over a dissent, struck down an affirmative action program in Richmond, Va., which guaranteed that at least 30 percent of municipal contracts would go to minority-owned businesses. Wilkinson's approach was adopted by the Supreme Court. (J.A. Croson Co. v. City of Richmond,1987)
For a unanimous panel, rejected the claims of Yaser Esam Hamdi. Wilkinson argued that the president's war powers allowed him to hold Hamdi without trial as an enemy combatant captured abroad and that he was not entitled to the protections of the Geneva Conventions. The Supreme Court rejected this approach. (Hamdi v. Rumsfeld, 2003)
Separation of Church and State
For a unanimous panel, found that a "non-sectarian invocation" recited at the start of meetings of a county board of supervisors in Virginia does not violate the Constitution's prohibition against government-endorsed religion. (Simpson v. Chesterfield County Bd. of Supervisors, 2005)
For a unanimous panel, reversed a district-court ruling to find that the Religious Land Use and Institutionalized Persons Act, a federal law that requires prisons to accommodate the religious observance of prisoners, is constitutional. The Supreme Court unanimously reached the same conclusion. (Madison v. Riter, 2003)
Voted unsuccessfully (along with Luttig) to reconsider a case in which a three-judge panel found that a superintendent at the Virginia Military Institute who required cadets to say a prayer before eating supper in the mess hall possibly violated the First Amendment principle of separation of church and state. (Mellen v. Bunting, 2003)
Environmental Protection and Property Rights
Over Luttig's dissent, upheld various regulations issued by the Fish and Wildlife Service promulgated under the Endangered Species Act in the face of a challenge that they exceeded Congress' authority under the Commerce Clause. (Gibbs v. Babbitt, 2000)
Abortion
Voted to deny rehearing (along with Luttig) in a case about South Carolina's decision to offer "choose life" license plates. Wilkinson's vote helped to uphold a ruling that the license-plate program violated the First Amendment because it did not offer pro-choice advocates a similar opportunity to make license plates that asserted their views. (Planned Parenthood of S.C. Inc. v. Rose, 2004)
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David Newman is a contributing editor at Legal Affairs.
Emily Bazelon is a Slate senior editor and writes about law, family, and kids. Her forthcoming book, Sticks and Stones: Defeating the Culture of Bullying and Rediscovering the Power of Empathy and Character. Find her at emilybazelon@gmail.com or on Facebook or Twitter.
Photographs of: Michael J. Luttig courtesy of Michael J. Luttig; John Roberts by Mark Wilson/Newsmakers; Emilio Garza courtesy of Emilio Garza and the United States Courts 5th Judicial Circuit; Michael McConnell courtesy of the United States Courts 10th Judicial Circuit; Alberto Gonzales by Joe Raedle/Getty Images; J. Harvie Wilkinson III courtesy of J. Harvie Wilkinson III; Edith Brown Clement courtesy Edith Brown Clement and the United States Courts 5th Judicial Circuit; Samuel Alito courtesy of Samuel Alito. Photograph of the Supreme Court chambers on the Slate home page by Dennis Brack.