By Charles Lane and Jerry Markon
Washington Post Staff Writers
Sunday, July 17, 2005
John G. Roberts Jr. and J. Michael Luttig have both marched up through the Republican ranks, from Supreme Court clerkships to White House jobs to the federal bench.
Now the two area judges -- Roberts sits on the U.S. Court of Appeals for the D.C. Circuit; Luttig is a Tysons Corner-based member of the U.S. Court of Appeals for the 4th Circuit -- have emerged on President Bush's short list of potential nominees to the Supreme Court, according to lawyers familiar with the administration's deliberations.
Conservative activists in the Republican base view both as far more acceptable than Attorney General Alberto R. Gonzales, who has become a top contender for the court, and have begun to promote the pair. But even though both judges are conservative -- and close friends -- they present a distinctly different choice in style and temperament that could influence their selection and say a great deal about how Bush wants to shape the court.
In his years as a lawyer, Roberts, 50, proved himself an affable and measured member of the Washington legal establishment. But his short tenure on the bench has meant fewer written opinions that can be parsed for his philosophy.
Luttig, 51, is edgier, painting his ideas in bold intellectual strokes. He has left a long paper trail that liberal critics will try to mine to fight his appointment.
The difference between the two men is a bit like the difference between the two conservative justices they served -- the easygoing William H. Rehnquist, for whom Roberts clerked in 1980 before Rehnquist became chief justice, and the combative Antonin Scalia, for whom Luttig clerked on the D.C. Circuit in 1982, and who is still a close friend.
"Roberts is known as a much more judicious person. . . . Luttig would get certain people really jazzed up," said a former administration official who, like other lawyers contacted for this article, declined to be named for fear of appearing to take sides. "For conservatives, Luttig is more exciting -- because he is more excitable."
Such intangibles might not matter when it comes to how either man would vote on the court. But they could affect their confirmation chances were either nominated. Robert H. Bork's 1987 bid failed, in part, because he seemed dour in front of the Senate Judiciary Committee. Scalia, in contrast, turned on his personal charm to help win unanimous confirmation in 1986.
The White House has been examining the records of many possible nominees, and Bush has said he is open to considering candidates who are not judges. But many conservatives continue to promote Luttig and Roberts, and say they are at the top of the administration's list.
Born in Tyler, Tex., Luttig attended public schools and graduated from Washington and Lee University and the University of Virginia law school. He worked at the Reagan White House and then clerked for Scalia. He later clerked for then-Chief Justice Warren E. Burger and served as Burger's special assistant.
After a brief stint as a corporate litigator, Luttig became a deputy assistant attorney general and soon was running the Justice Department's Office of Legal Counsel, a position from which he helped guide the Supreme Court nominations of David H. Souter and Clarence Thomas through the Senate. Luttig and Thomas remain friends, and Luttig has recommended many of his clerks to Scalia, Thomas and other conservative justices.
In 1991, President George H.W. Bush nominated Luttig to the 4th Circuit, and he was unanimously confirmed by the Senate. At 37, he became the youngest appellate court judge in the country.
Roberts grew up in Long Beach, Ind., and attended a private school in nearby LaPorte before going on to Harvard and Harvard Law School. He clerked for Judge Henry J. Friendly of the U.S. Court of Appeals for the 2nd Circuit, in New York, and later for Rehnquist, who was then an associate justice.
After that, he worked as a special assistant to U.S. Attorney General William French Smith and as an aide to White House counsel Fred Fielding -- who also mentored Luttig -- during the Reagan administration.
Roberts joined the Washington law firm of Hogan & Hartson in 1986, then went into President George H.W. Bush's administration, arguing cases before the Supreme Court as Solicitor General Kenneth W. Starr's principal deputy. He was nominated to the D.C. Circuit in 1992, but the appointment died when Bill Clinton succeeded Bush as president. Roberts returned to Hogan & Hartson, where he headed the firm's appellate practice and frequently argued before the Supreme Court. President Bush nominated him to the D.C. Circuit two years ago.
Two opinions by Luttig and Roberts from 2003 illustrate their contrasting styles.
When Luttig was on the losing side of a preliminary 7 to 5 decision that effectively gave Zacarias Moussaoui -- the only person charged in the United States in the Sept. 11, 2001, attacks -- the right to question Ramzi Binalshibh, a detainee suspected of being a key al Qaeda operative, Luttig attacked the majority.
"I believe my colleagues have gravely underestimated the effect that their respective orders and decisions have already had, and now will continue to have, on the Nation's intelligence gathering . . . as we wage war against terrorism," he wrote. The 4th Circuit eventually backed the government.
When the D.C. Circuit refused to reconsider a three-judge panel's ruling protecting a rare California toad under the Endangered Species Act, Roberts dissented -- gently.
"To be fair," he wrote, the panel "faithfully applied" the circuit court's precedent, but a rehearing would "afford the opportunity to consider alternative grounds for sustaining application of the Act that may be more consistent with Supreme Court precedent."
Of the two, Roberts spent more time practicing law in Washington, where he has networked with many Democrats. When Roberts was nominated for the D.C. Circuit in 2003, Clinton's former solicitor general, Seth P. Waxman, called Roberts an "exceptionally well-qualified appellate advocate."
"He is a Washington lawyer, a conservative, not an ideologue," said Stuart H. Newberger, a lawyer and self-described liberal Democrat who has argued cases against Roberts.
He put in his time advising the Bush legal team in Florida during the battle over the 2000 presidential election and has often argued conservative positions before the court -- but they can be attributed to clients, not necessarily to him.
That includes a brief he wrote for President George H.W. Bush's administration in a 1991 abortion case, in which he observed that "we continue to believe that Roe v. Wade was wrongly decided and should be overruled."
Roberts won the case -- Rust v. Sullivan -- in which the Supreme Court agreed with the administration that the government could require doctors and clinics receiving federal funds to avoid talking to patients about abortion.
Those who know Luttig describe him as a warm and engaging but private man, who speaks in a Texas drawl and rarely goes to Washington social events.
His paper trail is extensive and, in the view of supporters, an asset rather than a liability because it offers the Republican base a guarantee of his conservatism that Roberts cannot match. Luttig is well known as one of the federal bench's leading advocates of the view, also endorsed by Scalia, that the text of constitutional provisions and statutes should be interpreted as close to literally as possible.
In 1999, he wrote the 4th Circuit opinion that struck down a portion of the federal Violence Against Women Act, saying Congress had exceeded its constitutional powers by giving rape victims the right to sue their attackers in federal court. The Supreme Court upheld Luttig's appellate opinion.
His record also includes at least one case bound to please antiabortion activists. When Virginia wanted to start enforcing a ban on the procedure critics call "partial birth" abortion in 1998, state officials sought out a conservative jurist -- Luttig -- who would rule in their favor.
His ruling for the 4th Circuit allowing the law to take effect overturned a lower court and ran contrary to courts in 17 other states in which bans on the controversial late-term procedure had been challenged.
Yet Luttig ultimately bowed to higher authority. In 2000, after the Supreme Court overturned a similar Nebraska law, Luttig wrote the 4th Circuit opinion invalidating Virginia's statute on "partial birth" abortion. Citing a 1992 Supreme Court ruling that reaffirmed Roe , Luttig wrote: "I understand the Supreme Court to have intended its decision . . . to be a decision of super-stare decisis with respect to a woman's fundamental right to choose." He added that Supreme Court precedent must be followed "faithfully."
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.
The next year, Luttig supported a North Carolina newspaper in a notable First Amendment case. He ruled that a federal judge was wrong to order a reporter to disclose her sources for information that was published in violation of a court seal.
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.
"I've always felt that people who view him as a knee-jerk conservative or ideologue are completely off base," said former attorney general William P. Barr, who worked with Luttig in the Justice Department's Office of Legal Counsel in the early 1990s.