Supreme Court Shortlister Turned General Counsel Calls Out The Court (Plus Presidents And Congress Too)
Controversial comments from a leading judge turned general counsel.
Judge J. Michael Luttig (via YouTube)
Looking at the legal luminaries who have spoken or will speak at law school graduations this year, you’ll see a lot of celebrities. There are prominent politicians, like vice president Mike Pence, Governor Kate Brown, and Senators Cory Booker, Bob Casey, and Maggie Hassan. There are Biglaw boldface names, such as Roberta Kaplan, Ted Wells, Mary Jo White. There are famous former prosecutors, including Loretta Lynch, Preet Bharara, and Sally Yates. And there are judges, lots of judges (including such superstars as Judge Alex Kozinski of the Ninth Circuit and Judge Diane Sykes of the Seventh Circuit).
For my money, though, one of the most notable names on the list is Judge J. Michael Luttig, the Fourth Circuit judge turned Boeing general counsel. Judge Luttig was appointed to the federal bench at the tender age of 37, and during his time as a judge, he developed a reputation as a great jurist and remarkable writer — who didn’t pull his punches, especially in dissent. His brilliance as a judge brought him thisclose to a Supreme Court seat, and among legal nerds, he became famous as a SCOTUS feeder judge. Judge Luttig sent almost all of his clerks — aka “Luttigators” — into Supreme Court clerkships.[1]
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Last Friday, Judge Luttig delivered the commencement address at the University of South Carolina School of Law. And true to form, he spoke with courage and candor, refusing to sugarcoat his remarks. He lamented the triumph of partisan politics over the rule of law, and he wasn’t shy about calling to task the actors who have brought about this sad state of affairs. For starters:
One can’t help wondering what Judge Luttig would think of President Trump’s likely nominees to judicial office.
But — contrary to the views of some progressives — not everything is Trump’s (or the executive branch’s) fault:
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So it sounds like Judge Luttig wasn’t a fan of what happened to the nominations of either Chief Judge Merrick Garland or then-Judge Neil Gorsuch, suggesting that the processes devolved into “partisan spectacle.” In contrast, note Judge Luttig’s warm words for the late Justice Antonin Scalia, calling his former boss (for whom he clerked on the D.C. Circuit) “the last Lion of the Rule of Law.”[2]
But don’t think that Judge Luttig’s praise for Justice Scalia extends to all the justices or to the Supreme Court as an institution. Instead, SCOTUS bears some of the blame as well:
He doesn’t name names, of justices or of cases, but we can all think of jurists or decisions that put politics ahead of law. It is, as Judge Luttig makes clear in his remarks, a sin committed on both sides of the aisle.
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These are just the juiciest parts; Judge Luttig’s speech is worth reading in its entirety. You can do so by flipping to the next page (or clicking here).
P.S. In reading his remarks, I couldn’t help noticing Judge Luttig’s greeting of University of South Carolina President Harris Pastides, who happens to be a family friend (he went to college with my father-in-law). Speaking at a dinner held after commencement, Judge Luttig praised President Pastides as “a brilliant mind, a brilliant scholar, a brilliant educator, and a brilliant University President.”
President Pastides has led the university since 2008, and USC has grown and flourished under his tenure. But 2016 will surely go down in history as one of the school’s best years ever, with the men’s basketball team making its Final Four debut and the women’s team winning the whole tournament. Go Gamecocks!
[1] Depending on how you measure feeder-judge status, Judge Luttig might be the number-one feeder judge in history. Other judges, such as the aforementioned Judge Kozinski, have sent more clerks total to SCOTUS. But Judge Luttig surely is — and probably will remain, for many years — the biggest feeder judge in terms of the percentage of his clerks that have gone on to One First Street. Off the top of my head, I can think of only two Luttigators over the judge’s fifteen-year tenure who did not eventually clerk for the Court.
[2] Yes, liberals would lash into Luttig for praising Justice Scalia as putting law over politics. Conservatives would defend Scalia by noting the many cases when his originalist method led to results he’d find politically unpalatable (e.g., wins for flag burners and criminal defendants). Lather, rinse, repeat — it’s a familiar debate, and one that we don’t need to rehash here.
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David Lat is the founder and managing editor of Above the Law and the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@abovethelaw.com.
