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If Attorney General Alberto Gonzales is in the market for a Supreme Court nominee anytime soon and his thoughts turn to appeals court Judge J. Michael Luttig, he won’t have to look far to find people who will sing Luttig’s praises. Gonzales’ chief of staff, Theodore Ullyot, is a former Luttig clerk, as is Courtney Elwood, an associate counsel in his office. Two of the lawyers in the Justice Department’s Office of Legal Counsel, where potential nominees may be vetted, are also former Luttig clerks — Luttigators, as they are called. And if Luttig is nominated and confirmed, he’ll find familiar faces when he arrives at the Supreme Court: All three of his current clerks will be working for Supreme Court justices next term. In his nearly 14 years on the 4th U.S. Circuit Court of Appeals, 40 of his 42 law clerks have gone on to the high court. And Justice Clarence Thomas and several other justices could also form a friendly welcoming committee for Luttig if he joins the nation’s highest court: Thomas, Antonin Scalia and David Souter all felt close enough to Luttig that they recused themselves when the case of Napoleon Beazley, who murdered Luttig’s father in 1994, came before the Court. As a Justice Department aide, Luttig had helped Souter and Thomas navigate their own confirmation hearings for the high court in the early 1990s. And Scalia? Luttig clerked for him on the D.C. Circuit in 1982. Slowly but steadily, aided by a small army of well-connected former clerks and loyal friends, Luttig, 51, has by all accounts made his way onto the short list of potential Supreme Court nominees. If Chief Justice William Rehnquist retires in the next few weeks, it would surprise almost no one if Luttig is named to replace him.“He would love it, and he would flourish in it,” says Shay Dvoretzky, a 2000 Luttig clerk who went on to clerk for Scalia and now is an associate at Jones Day. Dvoretzky says Luttig’s clerks keep in touch with one another and with their judge — their 2004 reunion was at an Arlington, Va., barbecue restaurant — and clerks view him as “a mentor and a friend.” But he says they have not joined in any “concerted effort” to push for Luttig’s candidacy. “We are all clueless about what is happening,” Dvoretzky says. Luttig declined to comment for this article.Luttig’s 4th Circuit colleague J. Harvie Wilkinson III is often mentioned as a possible chief justice as well — he, unlike Luttig, has served as a chief judge on his circuit — but conventional wisdom has it that at age 60, Wilkinson is a shade too old for the job. Other potential candidates mentioned in the ever-changing sweepstakes include 10th Circuit Judge Michael McConnell, 5th Circuit Judge Emilio Garza, D.C. Circuit Judge John Roberts Jr., and a grab bag of others ranging from Texas Sen. John Cornyn to former Deputy Attorney General Larry Thompson. If Luttig is named to the high court, it won’t be just because of his well-placed allies. Friends and detractors agree that Luttig has a sharp and rigorous mind and can build a well-documented case for strongly held, mostly — but not always — conservative positions. “He’s a very brilliant person,” says Georgetown University Law Center professor Peter Rubin, founder of the liberal American Constitution Society. Rubin also credits Luttig for his open-mindedness, which he saw firsthand when Luttig accepted Rubin’s invitation to speak at the ACS 2003 convention. “He was very well received,” says Rubin, who adds that “I would be very surprised if he were not very controversial” if nominated.In his remarks to the liberal group, Luttig attacked judicial activism by both liberal and conservative jurists. “There is no such thing as good or defensible judicial activism,” he said. “All activism is in defiance of law — ‘law’ that is defined as the politics of the people, not the politics of individual, unelected, life-tenured judges.”In a 2004 speech before Yale University’s China Law Center in Beijing, Luttig also said judges of all stripes should welcome searching scrutiny from the public and the press as a beneficial kind of accountability.“Properly understood,” Luttig said, “criticism of the judiciary and the judicial product by a free media is more of a safeguard of, than a threat to, judicial independence.”If nominated to the high court, Luttig is likely to get a full dose of the medicine he prescribed for judges, not only from the press but from advocacy groups. His decisions sometimes hit hot buttons.Earlier this month, when the Supreme Court upheld federal power to override California’s approval of medical uses for marijuana, Justice Scalia invoked a 1999 4th Circuit decision in which Luttig explained why even home-grown marijuana could be banned under federal law. Banning marijuana was part of a “comprehensive statutory scheme” that the federal government was entitled to enact, Luttig said, despite the high court’s recent trend toward favoring state power.That same 1999 decision overturned key parts of the federal Violence Against Women Act, though, with Luttig asserting that the law exceeded the enumerated powers of Congress. His ruling began, “We the people, distrustful of power, and believing that government limited and dispersed protects freedom best ….”But Luttig’s independent streak 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 abortion 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. In the 2003 ruling Harvey v. Horan, Luttig also said high court precedent compelled the conclusion that those convicted of serious crimes possess a limited constitutional right of access to DNA evidence for testing. Luttig’s forceful analysis has also at times brought him into direct conflict with natural conservative allies such as Wilkinson, resulting in 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.”More recently, in a 2003 ruling involving Yaser Hamdi, the U.S. citizen classified by the Bush administration as an enemy combatant, Luttig took his fellow judges, including Wilkinson, to task for “eviscerating” presidential war powers. But he criticized the government’s position as well. Wilkinson responded in a footnote that Luttig was trying to “straddle the issue.”Luttig’s unflinching readiness to criticize his allies invites comparison to Scalia, who often seems to prefer jabbing colleagues for lack of doctrinal purity over 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. “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 also 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, then-Hogan partner John Roberts Jr. — now a possible high court nominee himself — turned Luttig down. Roberts informed 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.Though his recent talks suggest he is getting out more, Luttig is known as a low-profile judge who speaks mainly through his opinions. His most visible moment may have come in 2001, when he gave a eulogy at the funeral for Barbara Olson, the wife of then-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 was Burger who guided Luttig into a legal career. Luttig began working for Burger as an intern at the high court even before obtaining his law degree at the University of Virginia.“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.”Note: For more new Legal Times coverage of the Supreme Court, see Rehnquist Retire? Think Again.

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