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You may not have heard of Texas death row inmate Napoleon Beazley. But if 4th Circuit Judge J. Michael Luttig is nominated to the United States Supreme Court — as many think he will be — you’ll be learning plenty about Beazley. That’s because Beazley shot Luttig’s father dead in the driveway of John and Bobbie Luttig’s home in 1994. Beazley, then a 17-year-old crack dealer and high school football star, was stealing the elder Luttig’s car in order to sell it to a Dallas chop shop. For constitutional lawyers and law professors, Supreme Court qualifications are about professional competence and judicial philosophy. But for the politicians who select and confirm the justices — and the public who chooses to support or oppose them — events in a nominee’s life can be as influential as any case decision or theoretical view. Smoking marijuana did in Douglas Ginsburg. Firing Archibald Cox may have tipped the scales against Robert Bork. Anita Hill’s harassment charges almost blocked the nomination of Clarence Thomas. Michael Luttig’s response to his father’s murder is irrelevant to his qualifications for the Supreme Court, but it won’t be ignored. The random attack on the elder Luttigs was nothing personal, just bad luck. Beazley said that he “wanted to see what it [was] like to kill somebody.” Bobbie Luttig survived by pretending to be dead. Later a family member received an anonymous phone call that ended, “I only wish your mother had been raped and murdered, too.” Luttig moved his chambers from Virginia to Texas for the trial of Beazley and his co-defendants, paying for his clerk’s meals out of his own pocket. He testified against his father’s killers. He gave an emotional statement, really an elegy, at the sentencing of Beazley’s co-defendants, each of whom received long prison terms. He didn’t request the death penalty for Beazley, but was later quoted in a local paper as saying, “This was an appropriate case” for it. He told another paper that because he’s a “public official” the public is “entitled to know the circumstances surrounding my dad’s death.” Because Beazley was 17 at the time of the murder, his case has become a cause celebre for Amnesty International in Europe. Death penalty opponents have built Web pages for him in Italy, Sweden, Denmark, Germany and other countries. Beazley’s supporters claim that his execution would violate the International Covenant on Civil and Political Rights’ ban against the death penalty for crimes committed by minors. In 1992, the U.S. Senate ratified the ICCPR with a reservation rejecting the restriction. The United Nations Human Rights Commission says this reservation is void, and has asked the United States to withdraw it. Should a judge’s life experiences disqualify him from hearing cases of a similar kind? The murder of Earl Warren’s father didn’t lead to attempts to disqualify him from ruling on homicide appeals. Ninth Circuit Judge Susan Graber’s father was killed in a 1974 carjacking. But some defense lawyers argue that Luttig shouldn’t hear death penalty cases. The judge refuses to recuse himself. He says that requiring his recusal would be the same as forbidding a judge who had personally suffered racial or sexual discrimination from hearing a discrimination case. Of the current short-list Supreme Court possibilities, Luttig is the one who provokes the most passion among court watchers. But it has nothing to do with his father’s death. Luttig was appointed to the 4th Circuit in 1991, and has become the intellectual leader of what is the most conservative circuit. Law professor Randall Kennedy cited Luttig’s possible appointment as a reason to vote for Al Gore. Criticism of Luttig from the left focuses on his decisions upholding abortion restrictions and the death penalty. The 4th Circuit grants the fewest death penalty habeas hearings. But it is his views on federalism and constitutional restrictions on congressional and executive authority that excite legal theorists on the right. When I asked a libertarian think-tank scholar whom he wanted to see on the Supreme Court, Luttig was the first name out of his mouth. Adherents of this line of thinking are less concerned about abortion or death penalty issues than limiting the powers of the federal government. They want more restrictive interpretations of the commerce and general welfare clauses of the Constitution. They want a more expansive reading of the privileges and immunities clause of the 14th Amendment. They would overturn 60 years of Supreme Court jurisprudence, and the 19th century Slaughterhouse cases before that. They reject the traditional conservative concept of judicial restraint, which is why adherents hope that Luttig would be an “activist” on the Supreme Court. Kennedy writes that “to honestly oppose Luttig as a nominee would require senators to acknowledge that he is a decent man who is fully competent to be a justice except for ideas that are simply too conservative.” Senators are loath to make such arguments that likely would fail in any event. It is much easier to attack some demonized caricature as “the next Robert Bork” than to argue the finer points of the commerce clause. Most senators couldn’t participate in an extended debate over Luttig’s judicial philosophy without embarrassing themselves. Luttig shares Bork’s intellectual abilities, but lacks his arrogant public manner. So what would be the reaction to a shrill public relations campaign against a “decent man” who is “fully competent” but just “too conservative”? That will turn as much on public perception of personal character as on jurisprudence. Meanwhile, this February the 5th Circuit denied Beazley’s habeas corpus petition. His case is headed for the U.S. Supreme Court. George M. Kraw is a San Jose, Calif., attorney. His e-mail address is [email protected]

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