Fool Me Three Times....

J. Harvie Wilkinson, a judge on the 4th Circuit Court of Appeals, is an interesting fellow. Very conservative, he still manages to skirt under my "radical right-wing" radar, despite several blatant provocations. The first time I came across him, it was in the context of an appalling church/state opinion which basically ruled the state could discriminate against Wiccans. Then it slipped my mind, and so when he wrote a really dumb article reacting to the Seattle and Louisville desegregation cases, I was really surprised.

Now Wilkinson is out in the Washington Post calling for a truce in ideological picks for his circuit (known as the most conservative in the nation). Does he recognize that his court is known might fairly be described as being slanted far to the right? Nope. Did he call for a similar truce or ceasefire at any point in the Bush administration. Of course not.

A little suspicious, don't you think?

Quote of the Evening

From Derrick Bell, Silent Covenants: Brown v. Board and the Unfulfilled Hopes for Racial Reform (Oxford UP, 2004):

J. Harvie Wilkinson III, now a federal judge but writing as a University of Virginia professor two decades after Brown, offered practical details of why Brown II was a mistake. Brown II, he felt, left federal judges far too exposed; it "gave trial judges little to wrap in or hide behind. The enormous discretion of the trial judge in interpreting such language as 'all deliberate speed' and 'prompt and reasonable start' made his personal role painfully obvious." The judge who, in trying to enforce Brown, did more than the bare minimum, would be held unpleasantly accountable by the active, vocal, and powerful opposition that surrounded him. Wilkinson explained:

Segregationists were always able to point to more indulgent judges elsewhere. Brown II thus resembled nothing more than an order for the infantry to assault segregation without prospect of air or artillery support. That some of the infantry lacked enthusiasm for the cause only made matters worse.... Given the vague and sparse character of Brown II and the Court's low profile thereafter, stagnation was inevitable.

The Wilkinson block quote is from J. Harvie Wilkinson III, The Supreme Court * Southern School Desegregation, 1955 - 1970: A History and Analysis, 64 Va. L. Rev. 485, 507 (1978).

And my schizophrenic relationship with Judge Wilkinson continues.

J. Harvie Whilikers!

The Harvard Law Review has a series of articles on the recently decided Parents United school desegregation decision (links to my extensive analysis of the opinions can be found here). One of the articles is by 4th Circuit Judge and Bush Supreme Court short-lister J. Harvie Wilkinson.

I wasn't expecting to agree with Wilkinson, an arch-conservative. But it was worse than I expected, and after a few pages, I found myself thinking "Man, I've lost so much respect for you from this." But that got me thinking about why, when I first picked up the article, I had respect for Wilkinson in the first place.

In a sense, it's an easy question -- Wilkinson is a very prominent judge, and while he is quite right-wing, he hasn't really developed a reputation as wildly extreme. But then again, my only real run-in with Wilkinson is the truly appalling opinion he wrote sanctioning (verging on outright applauding) discrimination against Wiccans in Virginia. I am not exaggerating when I say it is the worst Church/State opinion issued in my lifetime that I've ever read. I have no idea how he got rehabilitated in my head after that catastrophe.

But anyway. I'm not going to go and refute Wilkinson's article, point-by-point. I just don't have the energy. Suffice to say, while the article is really slipshod overall, Wilkinson also manages to specifically hit virtually every button on my "most frustrating elements of racial discourse" list. He describes the plurality opinions as "courageous" (over and over again, actually). He makes huge assertions, critical to his argument, and doesn't back them up with even a perfunctory citation. He doesn't engage with the relevant literature. He straw-mans, hardcore, and dodges his opponents' best arguments entirely. He compares the liberal position to that of Jim Crow southerners (while denying he's doing it in the same breath). I could go on.

It was a spectacularly annoying spectacle, and it made me want to put something through a wall. And while in retrospect, he already lost whatever respect I might have had after the Wicca case, hopefully this article will remind me not to let him sneak back into the good side of my subconscious. Ugh.