Judge Wilkinson Asks Obama Administration Not to "Go For An Ideological Makeover" Of His Circuit:
In today's Washington Post, Fourth Circuit Judge J. Harvie Wilkinson has an op-ed advising the Obama Administration on what kind of people it should pick to join him on the Fourth Circuit. The gist of the essay is that Obama shouldn't nominate anyone too ideological:
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.Judge Wilkinson is an excellent judge, and I happen to agree with the opinions he expresses in the op-ed. But c'mon, is it too much to expect for the elected branches to do their jobs without judges weighing in? Nominating judges is the President's job, and confirming them is the Senate's. Sitting judges — and especially sitting judges generally affiliated with the opposite party as both the President and the majority of the Senate — have and should have no role in the process. As I said before when criticizing Justice Ginsburg, judges who want judicial independence must see it as a two-way street: If they want the elected branches to stay out of judicial business, they should stay out of the business of the elected branches.
Wilkinson is said to be a very smart man, but even Homer nods.
Now, on the third day of the Obama Administration, Wilkinson warns that President Obama better not nominate any judges who don't agree with Judge J. Harvie Wilkinson. I'd like to know who he thinks he's fooling.
My previous comment notwithstanding, I agree with CJColucci. Judges know more than anyone about the judicial branch, and they should be encouraged to spread their specialized knowledge vocally and often.
Transparency is a virtue.
How specialized is Judge Wilkinson's knowledge as revealed in the op-ed? What did he say that is not widely known?
And Wilkinson is nothing if not transparent.
Me either. I am happier when extremists show their colors, instead of cloaking them.
Perhaps that is why Judge Wilkinson was never tapped for the high Court -- not stealthy enough.
More importantly, what is the two-way street? The President and Legislators can certainly provide their views on how judges should rule--legislators write amicus briefs all the time, and the President has the Solicitor General to advocate for him. What we do not want them to do is coerce judges into ruling a particular way. Here, Judge Wilkinson might be viewed as making an implied threat ("if you nominate someone I don't like, I'll make sure the Fourth Circuit becomes a sibling of the Sixth"); but that is a rather uncharitable view. It would seem that Judge Wilkinson neither intends, nor possesses any, coercive power.
It is in this direct opposite to Orin's concern that grates me about this piece. First, it is likely to be entirely ineffectual because Judge Wilkinson has no coercive power, and his ability to persuade is undermined by his johnny-come-lately appearance (as I faulted OK for this once, too). Second, to the extent that it is seen as an attempt to coerce, it will then run the risk of backfiring. If you agree with Judge Wilkinson, you should probably wish that he didn't write the piece.
One good way to reduce the chance of doors slamming shut is not to slam them yourself. Keeping communications open is the responsibility of all parties. Wilkinson doesn't seem to recognize his own obligations in the matter.
By my count, the 4th Circuit is evenly divided right now: 6 Republican appointees and 5 Democratic appointees (counting Judge Gregory, originally nominated by President Clinton but reappointed by President Bush, as a Democratic appointee).
I suspect what Judge Wilkinson is really saying is this: "We are all collegial now, meaning we agree to disagree at times but we treat each other with respect. We hope whoever you choose will be just as collegial."
Collegiality and willingness to work with others is neither conservative nor liberal. Rather, it has much to do with temperment, judicial and otherwise.
Wilkinson has nothing to worry about anyways. As we've seen with his WH Counsel/Justice appointees,
allmost of O's judges will be Ivy college, Ivy law, judicial clerk, big law. Some will be Ivy college, Ivy law, judicial clerk, law professor. The rest will be Ivy college, University of Virginia or similar law [Sanford, Berekely, NYU], clerk, big law and/or law professor.No boat rockers, just more of the elite. Wilkinson can be collegial with them all he wants.
Judicial selection is part of the political process, not the judicial process. He may have a constitutional right to express these views. He might also very well have a constitutional right to parade around on the campaign trail with the presidential candidate of his choice. But I'm pretty sure that that would ruffle a few feathers. And this should too.
The Ninth, of course.
The speech, though protected, was obviously ineffectual. Obama isn't going to say: "Well, I wanted to polarize the 4th Circuit, but since Justice Wilkinson advised against it . . ." And it was pointlessly untrusting.
I must have missed that part of the First Amendment that excludes sitting Justices of the Supreme Court from its protections. (This has nothing to do with the seemliness of a sitting Justice airing his or her political views in a private capacity. However, unseemliness does not equate to illicit.)
It might be interesting to see nomination success percentages per circuit. I searched without success. Does anyone know of a source? Thanks.
My guess is that once the new administration settles on the parameters of where its legal theories differ from its predecessor's, and the residual mess of the Gonzales era is finally cleaned up, at the career level DOJ will remain DOJ. And DOJ prosecutors will still play for keeps, seeking to win their cases. Federal prosecutors under the Carter and Clinton administrations, for example, often favored the Eastern District of Virginia in the Fourth Circuit for national security cases -- just like federal prosecutors under Republican administrations.
I never thought of him as unideological when we worked for the same employer.
What I still don't quite understand is Professor Kerr's objection to judges telling legislators what laws to pass. Maybe I'm just not capable of getting it.
But does Professor Kerr think there's a close parallel between judges telling the political branches what laws to pass and what judges to select? It seems to me that judges' expertise can help the legislative process but has very place in the selection of new judges.
HAW HAW HAW HAW HAW!!!!!!!!!
You funny!
My phrasing was not the best, but a little context is in order. Orin previously blogged about Justice Ginsburg encouraging Congress to pass legislating in her judicial opinions. Justice Ginsburg's (and Judge Wilkerson's) right to engage in political advocacy in judicial opinions is a whole different ball of wax than their ability to engage in political advocacy elsewhere.
The Hon. Judge Wilkerson is merely giving Obama a heads-up on how to prevent "conflict and discord" in the Fourth Circuit, and how to stop using the judicial nomination process to strangle politics.
:)
That sort of corruption is much worse than any ideological disagreement, IMO. It's a given conservatives won't like the legal views of Obama nominees, but there's still space to hope they won't be outright corrupt.
Other courts with equally conservative majorities have retained a collegial atmosphere (as once did courts with liberal majorities) by remembering that reasonable colleagues can in good faith come to differing answers to the questions they adjudicate. If Obama appoints judges from the center left to the fourth circuit with a modest measure of humility, there is no reason to think the fourth circuit will collapse into sniping. Justices Brennan and Scalia are the model here; they remained collegial and friendly throughout their years together on the Court; Justice Brennan never slipped into bitterness as his role shifted from leader of a majority to a voice in dissent. There is no reason why Judge Wilkinson should either.
The model can be found by the Conspiracy and Balkinization with their respective comment threads. The principal bloggers frequently disagree, but in their disagreements, never fail to treat each other with respect. The comment threads strike a different tone; unfortunately, the sixth circuit has come to resemble the comment threads.
Like most conservatives, Wilkinson either (a) cannot accept that the results of the latest election actually happened or (b), a la Fixed News, would like to instill the belief that, despite the resounding rejection of his ideology, everyone still agrees with him and that Obama better act accordingly.
If we could only go back to the salad days of Bush's diplomacy...
I'm having a hard time getting too worked up by Judge Wilkinson's op-ed piece, although such a piece by a sitting Court of Appeals Judge is rather unusual, and arguably somewhat imprudent. Last time I checked, the First Amendment also applied to old, conservative, Southern guys in black robes, too. Besides, he may not have that much to worry about -- unless Obama intends to disregard Senatorial courtesy traditions, I have a hard time envisioning any traditional "Virginia" seat bomb-thrower nominees getting past senior Democratic Senator Jim Webb (ditto for junior VA Senator Mark Warner and NC Senator Kay Hagan, both of whom are established moderate Dems, for that matter). Then again, maybe Judge W. is worried about prospective appointments from the People's Republic of Maryland?
Unfortunately, it's probably too much to ask that Sixth Circuit judges (and the Trolls who infest VC comment threads) actually heed Obama's inauguration speech riff on the Bible that it's time to "put away childish things," eh?
Only if you have W doing the math. Last time I checked, 5 is less than 6.
of course judges have the right of free speech. so do legislators. So I'm sure Wilkinson won't be upset when a congressman writes on op-ed on how a he should rule on a pending case, complete with a threat if the decision doesn't come out the way it likes, all sorts of bad things will happen.
I think the well-reasoned Democratic response to this well-reasoned plea, will be as one of our WWE gladiators put it so concisely, "Suck it!" It's clear to me that no matter how seriously we mere practitioners take the law, whenever a big question hits the courts, it's going to be decided based on judicial policy preferences. The last president had a chance to address that issue, and at least five of the justices on the court (four conservative, one liberal) lean towards that approach, but the ex Pres walked away from the bully pulpit, in fact kicked it over, when he assured us that Harriet Meiers would rule the way we'd like in any abortion cases. When the people who claim to be in favor of the rule of law are just as in favor of pure will-to-power Nietszcheanism governing the courts, then the battle is lost, at least for this generation. Congress, for its part, seems to like having the courts decide the tough policy questions, which leaves Congress free to shovel out bushel baskets of Other People's Money, so I wouldn't waste my time asking them for assistance in keeping the courts from robbing them of their power.
The good judge ought to stick to talking about how Scalia and Thomas are no conservatives. At least the people who read and cite those op-eds and articles will pretend to take what he says seriously, and in the absence of being taken seriously, it'd be the next best thing him; he'd be able to retire almost universally respected. As it is he's only making people sympathetic to him laugh at him as hard as the people who hate him are laughing at him. For people who practice politics constantly, these judges have a damn poor grasp on the subject.
And I, for one, welcome my new judicial overlords.
Harvie (I'm a non-ideological pussycat) Wilkinson
He says:
...."With the new numbers in the Senate, the temptation is there to go for an ideological makeover."....
Sounds like an ideological guilty conscience to me.
Say no more.
I read his piece as saying "Look. What matters about a good judge is how intelligent and wise he/she is. Being ideologically closed-minded is counter-productive and such justices will harm our nation if confirmed. We hope whoever you appoint will work with others and consider issues rather than embark on an ideological crusade."
I didn't see the piece as being more than a reminder to politicians of the role of the judiciary. I thought it was very diplomatic, and I did not think that it stepped on the toes of the elected branches.
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