Federal Appeals Court Judge Shares "View from the Bench"

April 3, 2008

J. Harvie Wilkinson III '72

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Judges are too often nominated for how they view today's hot political issues rather than for their overall decision-making abilities, said J. Harvie Wilkinson III '72, a judge on the Fourth U.S. Circuit Court of Appeals. Wilkinson delivered the 10th Annual Henry J. Abraham Distinguished Lecture to a crowded Caplin Auditorium on Friday.

The former University of Virginia Law School professor and first clerk of U.S. Supreme Court Justice Lewis F. Powell Jr., Wilkinson titled his lecture "The View from the Bench." He answered some of the more frequently asked questions posed to him and began by observing that, "The greatest surprises are…the cases that I had to sit on involving problems that I never possibly anticipated."

When he began his term as a federal judge 24 years ago, Wilkinson said he could never have appreciated the impact the Internet would have. The difficulty has been "trying to adapt traditional principles of law in the area of libel, slander, trademark infringement, and personal jurisdiction to this extraordinary new world."

He noted too that, at that time, few understood the dimensions of the AIDS epidemic and how it would relate to the Americans with Disabilities Act, or the attacks of Sept. 11, the ensuing war on terror and how they would relate to numerous key decisions involving constitutional issues.

Looking to the future, Wilkinson imagined cases that could come before young, prospective jurists going through their own confirmation hearings. "We can say that we'll be dealing with issues related to global warming, some unforeseen pandemic, bioethical issues—trying to capture the great benefits of scientific progress and yet wary of the profound dangers that come with tampering with genetic materials."

All of this, Wilkinson said, "suggests that when we follow judicial confirmation proceedings, we not try to put an excessive emphasis upon litmus tests, upon responses to specific issues that dominate the headlines during the present day.

"You may be pro-life on abortion, you may be pro-choice, or you may be somewhere in between. Whatever your position, I certainly respect it. I don't mean to downgrade the importance of the issue, but abortion should not be a litmus test for who we want as a federal judge, nor should any other single issue."

Wilkinson said that confirmation battles in Congress suffer from a perspective that's too contemporary. Instead, he suggested that those whose job it is to confirm federal judges look for candidates who can grapple with unforeseen and unanticipated problems with a blend of "character and temperament, balance and seasoning."

Whenever he's asked about "big" cases, Wilkinson said he explains that there are no big or little cases. He cautioned judges and lawyers, who may get excited about cases that have interesting or unusual legal aspects or that attract extensive media coverage, against neglecting what he called "our basic obligation as public servants: to treat each person before the court with equal conscientiousness and dignity. Everything matters."

Regarding the perennial question about whether the Supreme Court is becoming more conservative or has been more liberal, Wilkinson pointed to the balance the courts have to maintain regarding the potential to encroach on the legislative and executive branches of government.

"Even in the halcyon days of the Warren court the Supreme Court was very reluctant to intervene in the Vietnam War, as unpopular as that war was," Wilkinson said. "Even the more liberal justices by and large resisted the invitations and temptations to interfere with the conduct of foreign wars."

He noted that the high court today has not intervened in any basic way on the conduct of the war in Iraq, but said, "The war on terror is a little tougher thing because it's a different kind of war.

"It's more prolonged, more shadowy, the enemy is more diffuse. It's the indefinite nature of this war that makes questions of detention and surveillance so very hard for the courts and finding that particular balance in a war of indefinite duration has been…a very challenging task."

Wilkinson said federal judges enjoy a unique position, serving their terms for life, contrasted with elected officials in the legislative and executive branches who find themselves up for re-election every two, four, or six years.

"It's not a bad thing to have one branch of government have a sense of insulation and sometimes taking the long view of what the law requires, of what the values of this country require, and what its Constitution and the intention of its framers require, even if that doesn't seem to be the popular view at a particular moment," he said.

According to Wilkinson, this independence allows federal judges to rule without fear of interference. "[Judicial tenure] is a precious heritage that has stood us well over time….there's a real danger in our state court system of money affecting the judicial process. It's a different thing from the political process," he said.

Admitting that he may have been able to earn a much higher salary in other aspects of the law, Wilkinson said, "I wouldn't trade my job for anything.

"It is such a privilege to me to be vindicating those liberties protected by the Bill of Rights…But it's also a real challenge to find the proper balance between liberty and security.

"Some people see liberty and security as an irreconcilable conflict. They are in conflict. The 20th century produced some terrible examples of dictators who can tell you what can happen to a society that goes too far in the direction of security and trusting too much to the powers of the state."

Wilkinson ended on a personal note by explaining what it was like to be considered for the Supreme Court. He said people ask if he was disappointed at not being nominated. "Yes," he said with a smile, adding, "I gave it everything I could within the limits of my principles, stayed true to myself, and it didn't work out. And for a little while I really felt a little sorry for myself—for a little while…But I looked at myself in the mirror and I said, 'Jay, you make a hell of a poor victim. You've got the best family and friends in the world. You've got a job that challenges you, life has been bountiful, the country has been bountiful to you beyond measure. What more could you possibly want?'"

The event was sponsored by the Thomas Jefferson Center for the Protection of Free Expression in Charlottesville and the Virginia Law-Related Education Center at Sweet Briar College.

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