J. Michael Luttig

J. Michael Luttig, 51, sits on the Richmond-based U.S. Court of Appeals for the Fourth Circuit. President George H.W. Bush appointed him in 1991. Luttig is a graduate of Washington and Lee University and the University of Virginia law school. He clerked for Chief Justice Warren E. Burger in 1983-84 and for then-Judge Antonin Scalia on the U.S. Court of Appeals for the D.C. Circuit in 1982-83. He also served in the Justice Department during the first Bush administration.

This background gives Luttig impeccable conservative credentials and he has many supporters throughout the conservative movement. Many commentators are comparing him to Scalia, but that seems to be a bit of a stretch.

The American Constitution Society, a liberal group, sponsored an interesting conference discussing judicial activism, and whether conservatives are just as likely to engage in activism. One of the panelists was Judge Luttig, who comes across as a very thoughtful and principled conservative jurist.

Luttig's philosophy is fairly simple - judges should apply the law and leave their own personal opinions out of the equation. He defines judicial activism as instances where judges let their personal views distort their legal decisions, and he argues that judicial activism by both liberals and conservatives ought to be condemned. In this sense he seems very similar to John Roberts. The questions is whether he would give the same deference to precedent as Roberts (according to his testimony).

Key Decisions and Writings:

In 1998, Luttig upheld Virginia's ban on partial birth abortion -- but agreed to let it be struck down after the Supreme Court struck down a similar Nebraska law in 2000.

Luttig has disagreed in the past with fellow conservative J. Harvie Wilkinson, another judge sitting on the 4th circuit also thought of as a Supreme Court contender. In 2000, Luttig dissented from a ruling by Wilkinson that upheld a Fish and Wildlife Service regulation limiting the killing of endangered wolves on private land. He also disagreed with Wilkinson in 2003, when he wrote a dissenting opinion that supported the Bush administration's position that it could designate and detain "enemy combatants" with little judicial scrutiny.

Federalism - Luttig has been involved with several decisions that indicate he would place some limits on the powers of Congress under the Commerce Clause. In Brzonkala v. Morrison, Luttig wrote the opinion in the case striking down the Violence Against Women Act. Luttig wrote that the act "simply cannot be reconciled with the principles of limited federal government upon which this Nation is founded." His ruling was affirmed by the Supreme Court in a 5-4 decision. The law gave victims of rape and domestic violence the right to sue their attackers in Federal court for violating their civil rights. Luttig concluded that the Constitution does not give Congress the power to open federal courts to gender-violence suits because the problem is not related to interstate commerce and does not involve state or local government violations of civil rights.

Basically, Luttig sides with many conservatives in ruling that the Commerce Clause does not give Congress free reign to regulate everything, regardless of how tenuous its connection to interstate commerce. This and similar decisions from the Rehnquist court have alarmed liberals, but the Commerce Clause has been stretched so far by the Supreme Court that it's hard to get too excited about some reasonable limitations placed on this power. Frankly, the recent medical marijuana decision by the Supreme Court demonstrates how far the Court will go sometimes to uphold Federal power, even in a case where individuals grow their own supply for medicinal purposes. Here, Luttig's approach seems more practical and consistent with the Constitution.

Abortion - Luttig is personally opposed to abortion, but he has said repeatedly that judges should not let their personal views affect their judicial decisions.

In 1998, Luttig issued an emergency stay of a lower-court order that blocked a new Virginia law banning partial-birth abortions. Eventually, Luttig and the 4th Circuit allowed the law to remain in place, but were overruled by the U.S. Supreme Court and the state's law was struck down.

In 2004, he voted to deny rehearing in a case about South Carolina's decision to offer "choose life" license plates. Luttig'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.

We have not found any indications of whether Luttig would overturn Roe.

Textualism - Luttig agrees with the general principle put forth by Scalia that the text of a statute must control over arguments of legislative intent one might find from the legislative history. In one case, Luttig wrote that the "critical point of law -- and it is critical -- is that we do not know what Congress intended. All that we have before us is the amended statute from which to determine intent. . . . It is the statute, not any inferential intent, that constitutes the law." Liberals, on the other hand, generally favor examining legislative history and other non-textual factors to shed light on contested statutes.

Profiles:

Washington Post profile

Slate profile

New York Times profile

CNN profile, addressing Luttig's personal ordeal of dealing with the murder of his father and the subsequent conviction of his killer

In the Agora profile

Wikipedia profile

Quotes about Luttig:

"He is a man who is not tortured by doubt over the correctness of his judicial philosophy," - Bruce Fein, a lawyer and constitutional scholar who was a deputy attorney general in the Reagan administration

"His reputation is one of an extremely smart, hard-line conservative. Even those on the left, who disagree with his politics, really agree that he is very, very smart." - Heather Gerken, an assistant professor at Harvard Law School

Comments, questions and suggestions can be sent to Gerardo Orlando at editor@orlandoreport.com.

Back to The Orlando Report home page.