J. Michael Luttig, a Potential New Supreme Court Justice

Bush is likely going to be able to appoint two new Supreme Court justices during his term, and quite possibly three. Sandra Day O’Connor will likely retire for personal reasons during the next four years, and Chief Justice William Rehnquist, who has thyroid cancer, is currently too ill to sit on the bench and may be forced to resign within the next month or two.

There are several names being thrown around as potential replacements, one of which was Alberto Gonzales who is the new Attorney-General. Since he is no longer an option the short list is led by J. Harvie Wilkinson III, J. Michael Luttig, Emilio Garza, Samuel Alito Jr and Janice Rogers Brown. Former Solicitor General Ted Olson, whose wife died in the Sept. 11 attacks and who argued for Bush and Cheney in Bush v. Gore, is also mentioned in that list, but from what I’ve read his age is a significant factor working against him.

From what I’ve been reading it seems likely that J. Michael Luttig will get the first Supreme Court opening (with Wilkinson III being the second-leading candidate) and I’d be quite surprised if he isn’t on the bench by the end of Bush’s term in any case. It also seems very likely that Clarence Thomas will be appointed the new Chief Justice. If you’re wondering what difference that makes, as far I’ve always understood the Chief Justice appoints who writes the opinions and this is important because it frames exactly why the court ruled as it did. Luckily, in this case it appears to be a conservative replacing a conservative judge on the bench, with a conservative replacing a conservative as Chief Justice. However, it is still worth finding out more about the man who seems likely to replace Chief Justice Rehnquist.

Luttig, 47, currently serves on the 4^th U.S. Circuit Court of Appeals, which covers Virginia, West Virginia, Maryland, North Carolina and South Carolina and is also considered the most conservative appeals court in the country. Interestingly, Wilkinson III is a judge on that court, as well. Luttig clerked for Justice Antonin Scalia when he was an appeals court judge and worked for the Justice Department in the first Bush administration. He has ties to Justices Thomas, David Souter and Scalia, which led to an interesting case in 2001 when those 3 Supreme Court justices excused themselves from a case. Luttig’s father had been killed in a carjacking and the murderer’s case ended up before the Supreme Court. This led to an unusual 3-3 decision, which was not enough to stay the man’s execution.

Luttig’s intellect has been routinely praised, as this article from the Richmond Times-Dispatch shows:

That Luttig sometimes strays from a conservative line does not surprise Richmond lawyer Steven D. Benjamin, president of the Virginia Association of Criminal Defense Attorneys.

Benjamin said Luttig's "greatest strengths as a judge are his intellect, his analysis and his distrust of power . . . I regard his distrust of power as an important characteristic."

"No one wants a judge who is going to judge by the force of his political philosophy," Benjamin said. "I think he regards an intellectual, analytical approach as far more important than a political consideration or a popular view.”

However, CNN provides another article looking at what Luttig has done so far while on the bench:

It has been during his time on the 4th Circuit bench that Luttig has developed his reputation, staking out some of the most controversial opinions from that bench in recent years.

Two years ago, he wrote an opinion striking down the Violence Against Women Act on the grounds that Congress had overstepped its authority in establishing the legislation. In 1998, he reversed a lower court ruling and upheld a Virginia ban on partial birth abortion. A year earlier he issued a ruling allowing the state to require parental notification before a teen-ager could obtain an abortion.

Luttig was a supporter of capital punishment long before Beazley and two accomplices in the carjacking -- brothers Donald and Cedric Coleman -- killed his father and wounded his mother in the driveway of their home in Texas.

In recent years, defense attorneys have at times asked him to recuse himself from capital cases because of the personal tragedy he suffered. But Luttig has said he can separate his personal emotions from his judicial responsibilities.

Luttig is also described as a “Scalia protégé” in the aforementioned Richmond article. He has developed a reputation as a “feeder” judge, which means that those law clerks that clerk for him often end up clerking for justices on the Supreme Court, particularly Justice Thomas. As the Washington Post reports:

Thomas relies heavily for clerk recommendations on friends and ideological soul mates among appeals court judges. Twenty-three of the 56 law clerks Thomas has hired at the Supreme Court previously clerked for one of two federal appeals court judges, Laurence H. Silberman and J. Michael Luttig, both highly respected conservatives who stood by Thomas during his confirmation.

Luttig said in an interview that his own judicial philosophy likely "has some relevance" to Thomas's selection of many of his clerks. More crucial, he said, are the track records of his clerks who previously worked at the high court and his friendship with Thomas, which allows for easy, candid assessment of candidates.

And, just to be sure of the mindset of Thomas’ clerks, he earlier states:

Thomas's clerks are culled from the top ranks of law school graduates and are typically conservative. Most justices tend to hire like-minded clerks, though Antonin Scalia is known for bringing in an ideological opposite to sharpen the discussions in his chambers.

"I'm not going to hire clerks who have profound disagreements with me," Thomas said several years ago during an appearance in Dallas. "That is a waste of my time. Someone said that is like trying to train a pig. It's a waste of your time, and it aggravates the pig."

Luttig is a Scalia-trained justice who feeds conservative law clerks to Justice Thomas. He has never sided with the defendant in a death-penalty case argued before him and appears to be ardently pro-life. While the issue will being to get really contentious when if a liberal justice leaves the court during Bush’s term, it appears that Luttig, if appointed, is going to fit in well beside Scalia and Thomas on the noticeably conservative side of the bench.