Legal Versus Political Philosophy:

Judge Michael Luttig is generally perceived and described as more "conservative" than Judge J. Harvie Wilkinson III. Thus, I was surprised to read this tidbit in a Washington Post article this weekend:

In a 2002 article in Judicature, published by the nonpartisan American Judicature Society, three political scientists compared Luttig's recent opinions with those of five other appellate court judges considered potential Supreme Court nominees.

They concluded that Luttig's rulings — in the areas of criminal justice, civil rights and liberties and economic and labor regulation — were conservative 68.2 percent of the time. That still made him "consistently conservative," the authors wrote, but not as conservative as the other judges.

The most conservative, the study concluded, was J. Harvie Wilkinson III, Luttig's colleague on the 4th Circuit, who is also considered a potential Supreme Court nominee.

The article suggests that the reason for this counterintuitive result may be Luttig's commitment to textualism as part of his larger judicial philosophy:

Indeed, although Luttig's rhetoric has earned him a reputation as a staunch conservative, his adherence to textualism as he sees it has sometimes led to results that cannot be so easily categorized.

In 2002, Luttig became the first federal appeals judge to rule that inmates have a constitutional right to post-conviction DNA testing to try to prove their innocence, calling it "a matter of basic fairness." In 1999, he granted protection to a female college football kicker under the federal law, known as Title IX, that bans sex discrimination in federally funded educational programs.

This has been noted in the context of the recently-completed Supreme Court term, where in several high-profile cases some of the individual Justice's votes were hard to explain in terms of political ideology, but instead seemed to reflect differences in judicial philosophy, such as principles of federalism. Luttig has articulated his philosophy of textualism in a number of interesting cases over his time on the bench.

The Washington Post article refers to a 2002 article by Manning, published in the journal Judicature (85 JUDICATURE 278, available on Westlaw). Here's a summary of the key chart from that article (Table 3: "Percentage conservative decisions in three case type areas by possible Bush Supreme Court Nominees"):

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