Luttig's appeal for Bush starts on the surface; he was born in Tyler, Texas. Luttig is also useful for his age; at 51, he and Clarence Thomas could form a long alliance. His qualifications for the Supreme Court run much deeper than that, however. Luttig has never been afraid to take a tough legal stance on politically difficult cases, which will come as a relief to people concerned about the Court getting involved in culture wars. He wrote the massive 4th Circuit opinion in Brzonkala v. Morrison, striking down the Violence Against Women Act, which provided civil remedies in federal court for various crimes. Such a move might be political suicide in an overheated gender climate, but the law was enacted under a very broad reading of the Commerce Clause and Luttig determined that the VAWA "simply cannot be reconciled with the principles of limited federal government upon which this Nation is founded."

Luttig performed the task of an appellate judge: he considered a law that had been enacted by a politically motivated legislature, held it up against precedent such as Lopez (which overturned the Gun-Free School Zones Act on grounds that the Commerce Clause does not allow Congress to regulate noneconomic activity based solely on a chain of inferences showing economic effect), and struck it down. Detractors will rally around this decision to make it seem like Luttig is weak on hate crimes, but in reality he's just strong on the Constitution. Federalism proponents rightly should look to Luttig's ruling in Brzonkala (and SCOTUS' 5-4 affirmation) as evidence that they have an ally in the fight for a re-examination of the principles behind the Commerce Clause.

He is widely regarded as brilliant, and his dedication to his purist view of law has led him to pen comprehensive dissections of his disagreements with other judges, even on seemingly minor issues. For example, Luttig blasted 4th Circuit Chief Judge Harvie Wilkinson in 2000's Urofsky v. Gilmore, a case that upheld a Virginia law restricting state employees' access to sexually explicit materials while using state-owned computers. Wilkinson concurred in the judgment and stated that the law restricted "academic freedom" but was constitutional anyway. Luttig's concurrence (he joined the majority opinion but wrote separately on this issue alone) fired back at length on Wilkinson's "academic freedom" defense, criticizing, among other things, the fact that Wilkinson didn't define to whom the right was unique. It's hard to pull out any choice quotes from Luttig's concurrence because it was such a cumulative criticism of Wilkinson's reasoning, but his willingness to launch an attack on a detail that was ultimately irrelevant to the decision reminded me of a certain Antonin Scalia and his quest for complete faithfulness, even in dicta.

Luttig, like Emilio Garza (see Josh's intro to Garza's jurisprudence), has accorded deference to the basic principles of abortion rights, which might wrongly turn some political conservatives against him. Luttig approvingly cited statements from Casey and Stenberg that Roe v. Wade should be upheld, but he did so because of an admirable judicial philosophy. To be intellectually consistent with his view that judges should not inject personal affinities into decisions of law, Luttig's logic had to proceed as follows: abortion, as a right granted by the Supreme Court, is unassailable as precedent unless or until overturned by the Supreme Court.

In Richmond Medical Center for Women v. Gilmore, Luttig initially refused to enforce a District Court ruling that a Virginia law banning partial birth abortions was unconstitutional, because he believed that "the Supreme Court would ultimately hold that the Commonwealth's restrictions on partial-birth abortions did not constitute an undue burden on a woman's right to choose." When the Supreme Court did the opposite by overturning Nebraska's similar law in Stenberg, Luttig lifted the stay and joined the order striking down the Virginia law. Luttig's opinion accompanying the order gives good insight as to his judicial philosophy, which incorporates thoughtfulness into his strict view of what the judiciary's role is. It is that philosophy that seems to appear in every public discussion of Luttig, and is good reason to support him if he is nominated to the Supreme Court.

Fittingly for him, Luttig spoke in a panel discussion during the 2003 convention of the American Constitution Society, a liberal policy organization positioned opposite to the Federalist Society. The topic on which Luttig and other panelists spoke? None other than judicial activism, which was as hot in 2003 as it is now. Luttig defined activism as "the substitution of a judge's personal predelictions for law, whatever form that substitution takes." He then spoke out strongly against "activism" by judges of all stripes: "...it should not matter to either jurist [conservative or liberal], that his activism is employed in moderation. The conservative and liberal jurist alike should regard activism in moderation as no more defensible than activism in excess, the attempted defense of such as folly."

In his closing remarks that day, Luttig hinted at an independent streak that, while consistent with his philosophy, might not make him attractive to any hyper-politicized folks in the Bush administration. He said, "I think we risk that when, after vicious confirmation hearings in which these labels are thrown around without definition, we risk that the judicial employee, regardles of their conscientiousness, will fall into the belief that he or she should vote a particular way, because that is the political platform of the appointing president. And when that occurs, there will, indeed, be no difference... between politics and law." How fitting Luttig's statements will be if he is subjected to a vitriolic confirmation fight, rises to the post of Supreme Court Justice, and proceeds to utilize his philosophy over the course of a quarter-century tenure. Here's hoping he gets that chance.