THE BITER BIT

The Power of the Fourth (Deborah Sontag, The New York Times)

The 19th-century courthouse that houses the United States Court of Appeals for the Fourth Circuit sits across from a CVS and a Dress Barn on a desultory stretch of Main Street in Richmond, Va. The entrance -- peeling ''Pull'' sign, metal detector, dim lobby -- is not awe-inspiring. But upstairs in the courtrooms, beneath the pendulous chandeliers and the oil portraits of former jurists, a hush prevails. Whether or not the judges are on the bench, people whisper. It is as if they tacitly accept that the atmosphere should continue to be rarefied even as the judicial process becomes increasingly polluted by politics.

This 148-year-old building, once the site of the Confederate Treasury, is where you go if you are appealing the decisions of federal judges or juries in Virginia, West Virginia, Maryland, North Carolina or South Carolina. It's the last stop before the Supreme Court, which, given how few cases the highest court actually hears, essentially makes it the court of last resort for those seeking justice in this region. Let the plaintiff beware, though; the Fourth Circuit is considered the shrewdest, most aggressively conservative federal appeals court in the nation.

So begins Deborah Sontag's carefully reasoned, powerful critique of the judicial philosophy that animates . . . ah, who am I kidding? This article is a sixth grade alpha girl's power dream: look at those rubes, like people who have lived these lives, in this place, with these friends, could have anything valuable to say. Right from the beginning we get the important messages. The Fourth Circuit is declasse, it is the CVS of courts, it's polluted, it's shrewd, it's the Confederacy with a shabby facade. And of course, what article on conservative judges would be complete without the soft-spoken convicted murderer/abuse victim and the strong but attractive sexual harassment plaintiff. Sontag could go on for pages, and does -- nine contemptuous pages, interspersed with soft core fashion layouts, a story about high-tech anti-warriors and Bar Harbor real estate ads. Just another Sunday in the New York Times Magazine. There are, however, three things worth noting. First, one of the better short defenses of the new federalism you're likely to read in a general interest magazine. Two, the article is just a mess. Three, what goes around comes around.

The new federalism defense comes from Judge J. Harvie Wilkinson 3d, tipped by Sontag as being on President Bush's Supreme Court short list (and thus almost certain not to be nominated).

Like the "new federalists" whose conservative thinking increasingly influences the legal mainstream, Wilkinson said he believes that the Constitution is more than just the Bill of Rights. He doesn't think that the Bill of Rights has been overemphasized, he is quick to say, but that what he calls "the structural Constitution" has been underemphasized.

"That body of the document that spells out the relationship between the federal government and the states was neglected for far too long," he said. "The power of Congress was seen as unlimited and that of the states as a virtual nullity." Wilkinson has found it exciting, he said, to be engaged in redressing this imbalance, which sometimes means striking down Congressional acts that seem to usurp state power unconstitutionally.

But he notes, because he is of judicious temperament, that judicial activism is "heady wine" and that restraint is still the greater virtue. Everything in moderation.

Not bad for a couple of sentances smuggled past the editors of The New York Times.

That's about it for buried treasure, though. It's hard to know whether Sontag or the editors are to blame (though I'd plump for the editors), but this story is a crazy quilt of false starts and marooned vignettes. The Times says that Judge Wilkinson is fighting with another conservative, Judge Luttig, to lead the Court. There's a brief bio of Judge Wilkinson and then, well, a tangent into a story about Judge Karen Williams, who is apparently a white trash sex traiter. Though Judge Luttig's bio was dropped, we do get the details of the sexual harassment claim Judge William's inexplicably tossed out. The plaintiff objects that when she was hired, her male coworkers didn't stop "harassing" female mannequins, a claim that Judge Luttig -- that conservative idealogue -- takes seriously (on the grounds that men who do not act like gentlemen around a lady must be up to something). All the other common tropes of liberal writing about conservative judges are present. Decisions in which a woman loses are anti-woman; the poor, pitiful murder suspect was railroaded; the plain language of a statute is a flimsy excuse for a conservative decision, etc., etc., etc. To wrap it all up, the two cases Sontag follows are still undecided. Too bad this story had to be rushed into print because, well, um, just because.

There is one little payoff for conservatives. As Sontag notes: "Franklin Delano Roosevelt famously set out to overhaul the federal judiciary ideologically. Confronting courts that were thwarting his New Deal projects, he strove to create liberal ones that would grant the government more power to regulate the economy." Ronald Reagan did the same from the right. Now, despite Bill Clinton's failure to turn back the clock -- Clinton, not really a liberal, didn't care about his nominees' judicial philosophy (I swear I'm not making this up) -- George W. Bush is again engaging in ideological overhauling. As they filibuster the Estrada nomination, the Democrats might want to consider that turn-about is fair play.

Posted by David Cohen at March 9, 2003 6:05 PM