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The title of the speech that 4th Circuit Judge J. Harvie Wilkinson III gave on Feb. 19 said it all: “Why Conservative Jurisprudence Is Compassionate.” Speaking to a student audience at his alma mater, the University of Virginia Law School, Wilkinson spoke almost defensively about the ways in which conservative judges have heart. Favoring the individual over business or government, he said, is not always compassionate. Compassion is sometimes best left to legislators, and can be either inappropriate, hard to define, or insufficient in a judicial setting. Modesty, not compassion, is the highest virtue for a judge, said Wilkinson, whose chambers are in Charlottesville, Va. Wilkinson’s thesis was soon put to the test. A black law student approached him during a post-speech reception. Judicial modesty and deference to the elected branches are all well and good, the student told Wilkinson, but “what if the legislature is dragging its feet?” With a friendly smile, Wilkinson responded, “Well, saying that the legislature is dragging its feet sounds to me like, ‘The legislature isn’t doing what I’d like it to be doing.’ I’m very uneasy with that.” The student retorted, “So you are saying there are no absolutes? What if the legislature approves slavery?” Without missing a beat, Wilkinson replied, “Then, the judiciary must step in. Brown v. Board of Education and Marbury v. Madison were the best decisions the Supreme Court ever made.” The student was disarmed. And then he was charmed when Wilkinson told him, with characteristic full-body enthusiasm, how much he appreciated the student’s attendance and his comments. It was a classic Wilkinson moment: putting a friendly face on conservative jurisprudence, and trying to bring everyone under its tent with collegiality and consensus. It is these qualities, matched by respected opinion writing, that lead some inside and outside the White House to place the 58-year-old Wilkinson high on the list for nomination as chief justice. Like the late Supreme Court Justice Lewis Powell Jr., the man after whom he has modeled his life and jurisprudence, Wilkinson exudes a courtly civility that could be a unifying force on the Court. “The person in the center chair is expected to have a certain gravitas. So someone like Wilkinson, who is older, would be an appealing candidate,” says Florida International University law professor Thomas Baker. But age could also work against Wilkinson, says the University of Connecticut’s David Yalof. “If [the Bush administration is] using the Reagan playbook, where youth and longevity are key, then Wilkinson is in the danger zone.” Wilkinson declined to be interviewed for this story. Wilkinson’s eagerness for consensus may also frustrate some in the White House who would prefer a harder-edged conservative. Though a Judicature magazine tally of the rulings of several potential Bush nominees last year placed Wilkinson farthest to the right, those who know Wilkinson dismissed the study and place him closer to the Powellesque right-leaning middle. The Bush administration has little to object to in Wilkinson’s handling of the post-Sept. 11 national security cases that have gone before the 4th Circuit. In three separate rulings on different aspects of the government’s case against enemy combatant Yaser Esam Hamdi, Wilkinson expressed little doubt about the executive branch’s primacy over the judiciary in times of war — even undeclared war. “Our Constitution’s commitment of the conduct of war to the political branches of American government requires the court’s respect at every step,” Wilkinson wrote last July. “The deference that flows from the explicit enumeration of powers protects liberty as much as the explicit enumeration of rights,” Wilkinson said in another ruling this January. But in the January ruling, Wilkinson added that especially in the context of a habeas corpus petition such as the one filed by Hamdi, courts do have a responsibility to serve as a check on the other branches. “The duty of the judicial branch to protect our individual freedoms does not simply cease whenever our military forces are committed by the political branches to armed conflict.” Wilkinson, who recently rotated out of a seven-year term as chief judge of the 4th Circuit, has also distanced himself somewhat from the Rehnquist Court’s trademark series of federalism-based rulings striking down acts of Congress. In 1999, Wilkinson joined the 4th Circuit majority in Brzonkala v. Virginia Polytechnic Institute, rejecting a provision of the Violence Against Women Act as an excessive intrusion by Congress into state sovereignty — a position later ratified by the Supreme Court. But in a concurrence tinged with doubt, Wilkinson said the ruling, like others by the Supreme Court that rejected acts of Congress, could be labeled judicial activism. In the end it was justifiable as fulfilling the judiciary’s role of “structural referee,” Wilkinson wrote, but he cautioned against going too far, too fast. “The values of federalism must be tempered by the maxims of prudence and restraint,” Wilkinson wrote. Taking his own advice, Wilkinson ruled the next year in Gibbs v. Babbitt that the Endangered Species Act was a valid exercise of Congress’ power over interstate commerce when applied to the protection of red wolves. “The courts may not simply tear through the considered judgments of Congress,” Wilkinson wrote. On the issue of affirmative action, a 1987 ruling by Wilkinson struck down Richmond, Va.’s minority set-aside program in Croson v. City of Richmond. The Supreme Court affirmed Wilkinson’s view in a 1989 ruling that made clear its growing disenchantment with affirmative action. A decade later in his book “One Nation Indivisible,” Wilkinson reaffirmed his opposition to affirmative action as “the most dangerous of policy prescriptions for a multiethnic nation.” But the rest of the book, which called for an end to ethnic and racial separatism in America, is a celebration of multiculturalism and diversity. Wilkinson wrote that at times he rues the all-white milieu of his own upbringing in upper-crust Richmond, which he said was “as distant from multicultural America as any childhood could possibly be.” Wilkinson’s father was a prominent Richmond banker who was introduced to his wife by the young Lewis Powell. Powell gave the young Wilkinson — known to friends as Jay, short for James — his first summer job in high school, as a messenger at Powell’s law firm, Hunton & Williams. “One day you may make a good lawyer,” Powell told Wilkinson, and he kept in contact with Wilkinson through college and law school. When lightning struck and Powell was named to the high court in 1971, Wilkinson was the first clerk he hired. “Clerking for Justice Powell was clearly one of the centerpieces of Jay’s career,” says longtime friend Russell Palmore Jr., a partner in the Richmond office of the Atlanta firm Troutman Sanders. Wilkinson wrote about his experience as a Powell clerk in the 1974 book “Serving Justice.” Wilkinson also dabbled in teaching law and in journalism, writing editorials for a Norfolk, Va., newspaper. Before he went with Powell, he even ran for Congress — and lost. He has said that winning only 30 percent of the vote left him with a “profound respect” for those who achieve a majority and are elected. President Ronald Reagan named Wilkinson to the 4th Circuit in 1984. Even Wilkinson’s friends remark that he sounds and even looks somewhat like the late Justice Powell. Wilkinson’s thin frame — he runs daily, according to friends — and the inflections and cadence of his reedy Southern voice match Powell’s. Wilkinson does not object when the comparison is made. In addition to explaining and popularizing conservative jurisprudence, Wilkinson has devoted much of his public speaking and off-the-bench writing to spreading the word about Powell’s legacy. In a 1992 Washington and Lee Law Review article, Wilkinson praised Powell for regarding the role of the judiciary as “that of a mediator and facilitator, not as dictator.” As for his jurisprudence, Wilkinson said Powell “sought to craft decisions that gave something to both sides.” Admiringly, Wilkinson also said Powell avoided establishing bright-line rules or issuing sweeping decisions — characteristics of Powell’s approach that partisans sometimes found frustrating. “The Powell approach sought to ensure that the most volatile issues in our society did not quickly achieve definitive outcomes in the courts,” Wilkinson wrote. After Powell retired from the high court in 1987, he occasionally sat on the 4th Circuit by designation, sometimes finding himself on the same panel with his younger friend Wilkinson. In a 1992 trademark case, Anheuser-Busch v. L&L Wings Inc., Wilkinson wrote the majority opinion and Powell filed a dissent — a rare, if not unique, instance when the two disagreed. Wilkinson, joined by Judge J. Michael Luttig, held that T-shirts displaying humorous images that looked like Budweiser beer cans did not confuse consumers and did not infringe the Budweiser trademark. Powell disagreed, though he gently remarked that in one aspect of the case “the court is correct in the abstract.” Wilkinson, for his part, gently chided Powell: “Our dissenting brother’s standard is so broad that it would banish virtually all attempts at humorous takeoffs on trademarks as a matter of law.” The disagreement was clear, but Wilkinson’s tone, as always, was respectful.

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