PUBLISHED:March 13, 2012

Wilkinson discusses the advantages of a varied career and the perils facing judicial culture

Judge J. Harvie Wilkinson III discussed his experiences as a federal judge and legal scholar during a “Lives in the Law” conversation with Dean David F. Levi at Duke Law School on March 13.

Those who attended the event, sponsored by Duke’s Program in Public Law, heard Wilkinson’s reflections on a varied career, which included a Supreme Court clerkship, a stint as deputy assistant U.S. attorney general in the U.S. Department of Justice Civil Rights Division, work as editorial page editor of the The Virginian-Pilot in Norfolk, Va., and 28 years of service on the U.S. Court of Appeals for the Fourth Circuit, where he served as chief judge from 1996 to 2003.

Wilkinson also explained the observations, research, and legal philosophy behind his latest book, Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance (Oxford University Press 2012). He argues, in the book, that the constitutional theories developed by prominent legal thinkers have helped to increase the power of the judiciary while eroding the role of representative institutions in America.

After graduating from University of Virginia School of Law, Wilkinson clerked for U.S. Supreme Court Justice Lewis F. Powell Jr., an experience he that left a deep impression on him, he said. His own clerks have been an important part of his judicial career, he added.

“There are many things that make service in the federal judiciary worth doing, but having law clerks is probably the best part of the whole deal,” he said. “It gives you such hope for the future of this country to have these remarkably talented men and women come in and work with me day by day.”

After completing his clerkship and teaching for a time, Wilkinson made an abrupt career change, opting to take a job as editorial page editor of the The Virginian-Pilot in Norfolk, Va.

“It just seemed to me that I had had, frankly, a rather sheltered existence,” he said.”I thought that it was very important for me to get out of what was kind of a sheltered bubble. Going to fine schools and the rest is good, but it’s a fairly narrow slice of the human experience, so I looked at the newspaper as kind of a post-graduate degree.”

Wilkinson immersed himself in the “nuts and bolts” of local governments during his time with the newspaper.

“The interesting thing was that, to the degree that a newspaper has influence, it has influence not in talking about the grand issues of the nation, but in talking about intensely local concerns,” he said. “What I enjoyed was going to a housing authority meeting, or a planning commission or zoning board meeting, and just sitting for two hours and seeing how they did things … If you sit through those meetings, you learn what makes local governments tick.”

Wilkinson subsequently joined the U.S. Department of Justice, spending two years as deputy assistant U.S. attorney general in the Civil Rights Division. Then, in 1984, President Ronald Reagan appointed him to the bench.

“You tried so many different things, you were in the executive branch, you were in the media, you taught law, I wonder how those diverse experiences have contributed to your judicial philosophy?” Levi asked Wilkinson.

“I think it’s important to have people with a broad range of experience on the bench,” said Wilkinson. “What I worry about with respect to the federal judiciary today is that we need to get people who have had prior judicial careers as trial judges, we need academics, we need people with experience in politics and government, and it’s essential that we have people with a background in private practice. It’s this latter dimension of experience that I especially worry about.”

He cited the difficulty of recruiting distinguished private practitioners to the federal bench, having experienced it firsthand when he worked for the Justice Department.

“There was just a salary disparity, especially with many of these people in their fifties, entering optimal earning years, and with children facing college tuition,” he said. “It became especially difficult when we said, ‘Well you might have to look forward to a year-and-a-half of [background checks and vetting] and then you have to run the gauntlet of Congress. And meanwhile, by the way, you’ll have to put your practice on hold.’”

“I worry as the judiciary goes forward, that we simply have to draw from the ranks of practitioners to maintain our links to the legal profession and an understanding of what lawyers go through when dealing with clients. I worry that in 15, 20, 25 years from now, that will be missing largely missing from the bench.”

Wilkinson writes about a larger concern in his new book (encapsulated in a March 11 New York Times op ed) — that leading legal thinkers have been eroding the role of our representative government. The idea began to occur to him, he said, as he read the works of leading legal theorists.

“It seemed to me that when I was reading the most luminous minds in our entire profession, that they suffered from a common failing, and that was that they were that they were providing intellectual cover and rationalization for judicial activism from the right and the left, and they were providing an aura of respectability to judicial misadventures.”

This problem is damaging, he explained, not just to the executive and legislative branches that are losing power as the result of this judicial activism, but also to the judiciary itself.

“Politicians have electoral accountability, businesspeople have financial accountability. Judges are life-tenured, but we have a certain accountability as well, and I would call it reputational accountability. And the creators of reputation are sometimes these great theorists at academic centers of the country, but I thought they had ventured into areas where judges really had no business being, and the judiciary was simply losing stature in following these glitzy, brilliant, luminous men. And that a sense of self-restraint, as embodied by people like Oliver Wendell Homes, and Louis Brandeis, and John Harlan, and Felix Frankfurter, and Lewis Powell would help right the balance.

“It just seemed to me like some very brilliant, and fancy, and luminous people were leading the judicial culture badly astray and I wanted to issue a cri de couer.”