Judge Michael Luttig is generally perceived and described as more “conservative” than Judge J. Harvie Wilkinson III. Thus, I was surprised to read this tidbit in a Washington Post article this weekend:
In a 2002 article in Judicature, published by the nonpartisan American Judicature Society, three political scientists compared Luttig’s recent opinions with those of five other appellate court judges considered potential Supreme Court nominees.
They concluded that Luttig’s rulings — in the areas of criminal justice, civil rights and liberties and economic and labor regulation — were conservative 68.2 percent of the time. That still made him “consistently conservative,” the authors wrote, but not as conservative as the other judges.
The most conservative, the study concluded, was J. Harvie Wilkinson III, Luttig’s colleague on the 4th Circuit, who is also considered a potential Supreme Court nominee.
The article suggests that the reason for this counterintuitive result may be Luttig’s commitment to textualism as part of his larger judicial philosophy:
Indeed, although Luttig’s rhetoric has earned him a reputation as a staunch conservative, his adherence to textualism as he sees it has sometimes led to results that cannot be so easily categorized.
In 2002, Luttig became the first federal appeals judge to rule that inmates have a constitutional right to post-conviction DNA testing to try to prove their innocence, calling it “a matter of basic fairness.” In 1999, he granted protection to a female college football kicker under the federal law, known as Title IX, that bans sex discrimination in federally funded educational programs.
This has been noted in the context of the recently-completed Supreme Court term, where in several high-profile cases some of the individual Justice’s votes were hard to explain in terms of political ideology, but instead seemed to reflect differences in judicial philosophy, such as principles of federalism. Luttig has articulated his philosophy of textualism in a number of interesting cases over his time on the bench.
The Washington Post article refers to a 2002 article by Manning, published in the journal Judicature (85 JUDICATURE 278, available on Westlaw). Here’s a summary of the key chart from that article (Table 3: “Percentage conservative decisions in three case type areas by possible Bush Supreme Court Nominees”):
[Continued Under Hidden Text]
|
Judge
|
Composite Ideology**
|
|
Janice Rodgers Brown (SCOCA)
|
59.9
|
|
Frank Easterbrook
|
68.8
|
|
Emilio Garza
|
70.4
|
|
Edith Jones
|
71.3
|
|
J. Michael Luttig
|
68.2
|
|
J. Harvie Wilkinson
|
79.5
|
|
U.S. Cout of Appeals Average
|
64.4
|
The authors close with an excellent example of why those who study politics may not actually be the best at predicting what will happen in politics (and why judicial philosophy may matter):
Should Bush seek to choose, in the words of Senator Charles Schumer, a “consensus” nominee as a means of gaining support from Democratic Senators, one may contemplate that Judge Brown’s history of judicial decision making might make her likely to receive approval. Our study suggests that Janice Rogers Brown has a record that is somewhat to the left of the mean ideology of U.S. appellate court decision making. However, though her record may have some appeal to Democrats, it is easy to envision that some on the right might balk at her selection.
Conversely, should Bush seek to appoint a stout conservative to the Court, most of the names that have been suggested as possible nominees have pedigrees that would likely fulfill Bush’s wish. Four of the jurists investigated-Easterbrook, Garza, Jones, and Luttig-have somewhat similar decision-making records that are solidly conservative in nature. Furthest to the right is Judge Harvie Wilkinson, who has displayed a record of exceptional conservatism.
* The definition of “conservative” decisions is relatively crude in the study, but is consistent with standard political science definitions of the term, which looks at case outcomes, rather than jurisprudential philosophy (such as commitment to textualism). The author’s define the coding as follows:
We utilized established coding methodologies employing contemporary American understandings of ideology in determining judges’ votes in each of the three broad case type categories. For example, in the area of criminal justice, judges’ votes in favor of a criminal defendant were coded as “liberal,” while decisions supporting the state and/or prosecutors were coded as “conservative.” A judge’s decision favoring those who alleged that their civil rights or liberties had been violated were coded in a “liberal” fashion, while rulings against these litigants were coded “conservative.” Finally, we coded as “liberal” a judge’s vote in support of a labor union or government regulator, while a “conservative” preference was one that favored business or industry. Other scholars who have studied judicial decision making have used this well-established coding methodology.
** “Composite Ideology” is a average of each judge’s decisions in cases raising issues of (1) criminal justice, (2) civil rights and liberties, and (3) economic and labor regulation.
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