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If J. Michael Luttig is nominated to the Supreme Court, Senate investigators and journalists will search in vain for his speeches or law review articles. The last public talk the 4th Circuit appeals judge gave was a eulogy in 2001 for Barbara Olson, the wife of Solicitor General Theodore Olson who was killed in the Sept. 11 terrorist attacks. Luttig had presided over their wedding. Before that, friends say, Luttig’s previous off-the-bench remarks were in 1995 at another funeral, this time eulogizing his mentor, Supreme Court Chief Justice Warren Burger. It is no accident that Luttig’s public appearances since being appointed by the first President Bush in 1991 have been so rare — and so indicative of his ties to the conservative Washington legal scene. Luttig, 48, strongly believes that judges should stick to their cases and speak only through their opinions. Policy pronouncements are the business of others, Luttig says, and his job — his only job — is to analyze the cases and precedents before him in a disciplined way to come to the most logical and defensible result. He rarely, if ever, cites law review articles or other secondary sources. “At the end of the day, other than conscience, it is only analytical rigor, and the accountability that such renders possible, that can restrain a judiciary that serves for life and at the pleasure of no one,” Luttig wrote in an obscure 2001 decision, Safety-Kleen v. Wyche. That rigor has earned Luttig a reputation as a meticulous taskmaster whose law clerks gain an intense, unparalleled education in judicial craftsmanship. It is no wonder that almost all his law clerks go on to clerk for Supreme Court justices. “There is no one in the federal judiciary who works longer or harder than he does,” says a lawyer who has worked with him. “He pours more into getting the details right than anyone.” This lawyer, who requested anonymity, says Luttig’s passion for detail and discipline leads to his main flaw: “He is not as aware as he might be that not everyone is as smart or persevering as he is. He expects a lot of himself and others.” Luttig declined to be interviewed for this article. Luttig’s analytical approach also leads him, at times, to veer sharply from conservative orthodoxy. In the partial-birth abortion case Richmond Medical Center v. Gilmore in 2000, Luttig said that because of Supreme Court precedent, the abortion right deserved “super-stare decisis” status — a precedent that cannot be disturbed — and as a result, the Virginia partial-birth law could not be upheld. “Our responsibility is to follow faithfully its opinions,” Luttig wrote — a stance that could change once Luttig is writing, rather than following, precedent. Last March, in Harvey v. Horan, Luttig said high court precedent also compelled the conclusion that those convicted of serious crimes possess a limited constitutional right of access to DNA evidence for testing. And in a dissent in Robles v. Prince George’s County last October, Luttig said police who tied a suspect to a pole in an isolated parking lot and left him unattended at 3 a.m. were not entitled to qualified immunity from a � 1983 civil rights suit. The majority had granted the immunity, and Luttig said the majority’s effort to strike a “just balance” had blinded it to the obvious conclusion that the police should have no such immunity. “I confess ignorance as to where the justice of the case lies,” Luttig wrote. “But under the law, it is quite clear that these officers are not entitled to immunity for their conduct.” In Robles and other decisions, Luttig’s forceful analysis has brought him into direct conflict with natural conservative allies such as J. Harvie Wilkinson III — public disagreements that a more flexible or collegial judge might avoid. In the en banc ruling Urofsky v. Gilmore in 2000, both Wilkinson and Luttig agreed with the judgment of the court that Virginia could restrict state employees’ access to sexually explicit materials when they use state computers. But when Wilkinson wrote separately to voice concern about the impact of the ruling on academic freedom for state university professors, Luttig wrote a withering concurrence that picked apart Wilkinson’s analysis, almost line by line. “Although Judge Wilkinson trumpets judicial restraint,” Luttig said, “his fanfare can hardly be heard over the clashing from his own unabashed creation of new constitutional rights out of whole cloth — an unabashedness that forces his surrender of the high ground that he has assumed in the debate over judicial activism.” Luttig’s unflinching readiness to criticize his allies invites comparison to Justice Antonin Scalia, for whom Luttig clerked on the D.C. Circuit 20 years ago. Scalia often seems happier in his decision-making when he is jabbing his colleagues for lack of doctrinal purity than he would be if he tempered his words in the interest of collegiality and coalition-building. Luttig himself has voiced disdain for the “false collegiality” of papering over differences, preferring instead the collegiality that he says comes with the airing of “high-spirited differences of opinion.” But if he is named to the high court, the challenge for Luttig may be whether that brand of collegiality can be counted on to build and hold majorities on a divided bench. University of Virginia law Professor A.E. Dick Howard says the comparison between Luttig and Scalia, while tempting, is not precise. “Judge Luttig is not nearly as theatrical as Justice Scalia,” says Howard, a longtime observer of the 4th Circuit. “Luttig shuns publicity, and he is very pleasant and steady, with no rough edges — none of the flashes of lightning you get with Scalia.” Indeed, in person, Luttig seems the opposite of Scalia, with a boyish face, an unassuming manner, teetotaling ways and a friendly Texas drawl. He has a sense of humor: A few years ago, he “applied” for a first-year associate’s job at Hogan & Hartson, which, he suspected, would pay more than the salary of a federal appeals judge. Responding in kind, Hogan partner John Roberts Jr. turned Luttig down, informing him that first-year associates normally lack life tenure, are not assigned a battery of law clerks to assist them, and don’t wear black robes — even on casual Fridays. Luttig has also known tragedy in his life. His father, John, was murdered in a 1994 carjacking in Tyler, Texas, in front of his mother, Bobbie. Luttig went to the trial of Napoleon Beazley, his father’s murderer, who was 17 at the time of the crime. When Beazley’s case went to the U.S. Supreme Court on appeal, it became evident how close Luttig is to several justices. His one-time boss Scalia, as well as Justices Clarence Thomas and David Souter, recused. While in the Bush Justice Department before joining the bench, Luttig helped shepherd Thomas and Souter through confirmation. Beazley was executed last May. Since the murder of Luttig’s father, defense lawyers have tried occasionally to get Luttig to recuse himself in capital cases, but he has refused. Friends have noted that the late Chief Justice Earl Warren’s father was murdered before he joined the Supreme Court, and Warren did not recuse from murder cases. It was the late Chief Justice Burger who guided Luttig into a legal career. Luttig, whose first initial stands for John, began working for Burger as an intern at the high court even before becoming a lawyer. And his Justice Department job was in the Office of Legal Counsel, where his predecessors included Scalia and William Rehnquist. “Mike has been on a fast track toward the Supreme Court since the Burger days,” says someone who has worked with Luttig. When Luttig’s law clerks celebrated his 10th anniversary as a federal appeals judge in 2001, they presented him with an American flag that had flown over the Supreme Court. He displays it in his chambers in Alexandria, Va. The clerks knew that to Luttig, anything having to do with the Supreme Court has special meaning. And a seat on the Supreme Court would be the best gift of all. Says another friend of Luttig: “I really think that if he was given the choice between being president and being a justice or chief justice, the presidency would lose out.”

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