All of this occurred when I was still in law school. And Judge Luttig, a sitting federal judge at the time, was forced to go through five separate criminal trials for the murderers who killed his father. Judge Luttig gave, at one of the trials, a federal victim impact statement which remains one of the most powerful statements about the consequence of violent crime that I have ever seen. He described, in matter-of-fact fashion, but also incredibly poignantly, the small, mundane details of one’s life after one’s father is murdered. Judge Luttig allowed that victim impact statement to be published in the newspaper because he wished to speak for so many victims of violent crime who lacked the opportunity to speak for themselves. Here are some excerpts from his statement:
Words seem trite in describing what follows when… your father is stripped from your life.… it’s being frightened out of your mind in the middle of the night by a frantic banging on your door… Your body goes limp as you see one of your best friends standing in the doorway. No words need even be spoken. For you know that the worst in life has happened. Then, he tells you: “Your mom just called. Father was murdered in the driveway of your home.”
… it’s realizing that, at that very moment, the man you have worshipped all your life is lying on his back in your driveway with two bullets through his head.
… it’s going down to the store where your dad had always shopped for clothes, to buy a shirt, a tie that will match his suit, and a package of three sets of underwear (you can only buy them in sets of three) so your dad will look nice when he is buried.
… it’s sitting beside your father’s grave into the night in 30-degree weather, so that he won’t be alone on the first Christmas.
… If I had any wish, any wish in the world, it would be that no one ever again would have to go through what my mother and my father experienced on the night of April 19, [1994,] what my family has endured since and must carry with us the rest of our lives.
For Judge Luttig, violent crime was real and personal. And as his law clerk, I still recall standing by the judge at his father’s gravesite in Charlottesville, Virginia, as the judge wept, remembering his dad. Judge Luttig was deeply committed to the Constitution and the rule of law, and I am confident that his own personal tragedy did not influence how he ruled in cases. He had been Justice Scalia’s very first law clerk in Scalia’s first year as a judge on the D.C. Circuit Court of Appeals. And he and Scalia remained incredibly close until Justice Scalia passed away. Indeed, when Judge Luttig’s father was murdered, it was Justice Scalia who came to Judge Luttig’s home late at night to beat on the door, awaken Judge Luttig and his wife, and inform them that the judge’s father had just been murdered in East Texas.
I have said previously—indeed, I said it in the course of the South Carolina presidential debate in 2016—that, had I been president, I would have appointed Judge Luttig instead of John Roberts to be chief justice of the United States. Once upon a time, both men were the two finalists to replace Chief Justice William Rehnquist, and had Luttig been nominated instead of Roberts, I have complete confidence that Judge Luttig would have remained faithful to his oath to support the Constitution.
In the 1995 Fourth Circuit Court of Appeals case of Turner v. Jabe, a capital murderer raised a Lackey claim. The panel considering the appeal rejected the claim, carefully weighing the pros and cons before rejecting the case on its merits. Judge Luttig wrote a short concurrence that he typed out on his own keyboard using two fingers to type furiously, as he always did. It was extraordinarily powerful. Judge Luttig criticized the claim as “a mockery of our system of justice, and an affront to law-abiding citizens who are already rightly disillusioned with that system.”
The short concurrence cut to the heart of the gamesmanship that pervades and characterizes so much capital litigation. When I was a law clerk at the Supreme Court, Justice Clarence Thomas, who is also close friends with Judge Luttig, kept a copy of Judge Luttig’s opinion in this case under the glass on his desk in his chambers.
As Kennedy v. Louisiana demonstrated, five justices far too often have believed that they have the arbitrary power to resolve contested policy issues concerning criminal law and the death penalty. But that is not the role of judges under the Constitution. For those who wish to change the substantive standards, that responsibility is left to elected legislatures. And yet, in case after case, involving the very worst criminals committing the most unspeakable crimes, a host of lawyers, advocates, and activist judges continue to frustrate the carrying out of the laws.
When it comes to capital punishment, activist judges try to subvert the law rather than apply it. They do the same thing when they argue against particular cocktails of drugs used in lethal injection cases. This litigation strategy is an unabashed abolition strategy, trying to get the Court to revisit the four-year period, from 1972 to 1976, when every
