Terry Jeffrey

"A Supreme Court judgeship is perhaps the closest our country has come to clothing mortals with deistic powers," wrote James Harvie Wilkinson III in a 1974 book about clerking for Justice Lewis Powell.

 In anticipation that Chief Justice William Rehnquist may retire, speculation abounds about which mortal President Bush may now offer these "deistic powers."

 The rumored "short list" features some stellar federal appellate judges with credible records as strict constructionists: Michael Luttig of the 4th Circuit, Edith Jones of the 5th, Samuel Alito of the 3rd and Michael McConnell of the 10th.

 Conservatives would be thrilled with any of these.

 But another name gives pause. This is the same Harvie Wilkinson, who once marveled at the near-divine authority assumed by Supreme Court justices and who now sits, with Luttig, on the 4th Circuit.

 "Democrats may view some conservative jurists as more palatable than others," notes Congressional Quarterly. "If Rehnquist retires and Bush nominates a middle-of-the-road conservative, such as 4th Circuit appeals court Judge J. Harvie Wilkinson, the confirmation process will probably be relatively easy."

 Much does recommend Wilkinson. He is lauded for a powerful mind, congenial manner and elegant writing style. He graduated from Yale, was a law review editor at the University of Virginia Law School, became a popular professor there and as editorial page editor of the Norfolk Virginian-Pilot wrote hard-hitting pieces against court-ordered busing and in favor of the death penalty.

 So, what makes him "more palatable" to Democrats?

 Well, in Gibbs v. Babbitt, Wilkinson ruled that the constitutional clause giving Congress power "to regulate commerce ... among the several states" justified a Fish and Wildlife Service regulation prohibiting North Carolina farmers from shooting red wolves when they threatened the farmers' livestock on the farmers' property after FWS "reintroduced" wolves in the state.

 "The relationship between red wolf takings and interstate commerce is quite direct," opined Wilkinson. "With no red wolves, there will be no red-wolf related tourism, no scientific research and no commercial trade in pelts."

 Luttig, in a biting dissent, characterized Wilkinson's desire to protect interstate trade in endangered species pelts as "most humorous." But Wilkinson was serious. He was exercising the almost deistic power of a judge almost on the Supreme Court.

 Even more perplexing is "Constitutional Protection for Personal Lifestyles," a 1977 Cornell Law Review article Wilkinson co-authored with fellow Virginia Law Professor G. Edward White.

Terry Jeffrey

Terence P. Jeffrey is the editor-in-chief of CNSNews

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