The fictional exchange is surprising, mostly because of who wrote it. It appears in a novel released in February by J. Harvie Wilkinson III, one of the most conservative judges on the US Court of Appeals for the 4th Circuit, appointed by Ronald Reagan in 1984.
Wilkinson, 77, said in an interview that in writing the book, published by Milford House Press, he wanted an escape from “the acrimony and the intolerance and the venom” of political life. His protagonist, Leah, wrestles with deeply personal problems: whether to leave her small Pennsylvania town for better professional options, how to process a tragic death, whether to forgive an intimate betrayal. While “romantic,” it’s not exactly a romance novel, the judge said.
“Sometimes things are more titillating when they’re hinted at than when they are just stripped bare,” Wilkinson said. “I don’t think [these characters] would have wanted their private sexual acts just spread across pages for everybody to visit.”
He said he wanted to write from a female perspective in part to build his own empathy.
“I wanted to reach out into worlds beyond my own little insular conclave,” he said.
In his day job, his positions remain staunchly conservative. In a recent case over whether a North Carolina charter school could require girls to wear skirts, Wilkinson wrote a controversial dissenting opinion sitting with the school. He argued that applying the equal-protection clause of the 14th Amendment to a charter school — the core issue of the case — could “extinguish the place of historically black colleges and universities (HBCUs) in the educational system” and opened that “to a great many people, dress codes represent an ideal of chivalry that is not patronizing to women, but appreciative and respectful of them. ”
In written opinions, other judges took aim at Wilkinson’s comments.
James A. Wynn Jr., a Black judge appointed by President Barack Obama, called out what he asserted were Wilkinson’s “borderline insulting insinuations” that HBCUs are “benefitting from unconstitutional racial discrimination.” (HBCUs are open to all races; they receive the HBCU design if they were founded before 1964 and primarily focused on educating Black Americans.)
Judge Barbara Milano Keenan, also appointed by Obama, questioned the invocation of “a time when men could assault their spouses and commit other crimes against them with impun violence.”
The two other judges who signed on to Wilkinson’s dissent are White men.
Wilkinson would not talk about the case, but regarding his views, he said: “I do recognize that my perspective is limited, that I’ve got to grow, that I’ve got to identify with other situations and with other people. There’s room for change, and room for reaching out. But also, I am who I am.”
Wilkinson made his protagonist, Leah, a defense lawyer who stakes her credibility on a client who has committed a violent assault. But he says his thinking on crime and punishment, where his rulings tend to favor prosecutors, hasn’t changed much. Leah spends more of the book stressing over pay and hours than systemic injustice.
Some of his views have changed over time, though, as reflected in the book.
In a 2006 Washington Post column opposing state constitutional amendments to ban same-sex marriage, Wilkinson argued that gay people had no right to marry under the US Constitution, and noted he was not asserting “That same-sex marriage is a good or desirable phenomenon.”
“In the theoretical, sense I think I was right as a matter of constitutional structure,” he said in an interview. “But in a more personal sense and in a deeply humanitarian sense, I was wrong. … I’m happy the Supreme Court did what it did.”
The Supreme Court ruled in 2015 that the Constitution requires that same-sex couples be allowed to marry. But some legal experts say they fear that opinion might be reversed. The concern is based on reasoning in a leaked draft opinion suggesting that the court will end the constitutional right to abortion. The same logic, analysts said, might be applied to the decision on same-sex marriage. A new wave of anti-LGBT legislation and rhetoric has spread across the country.
Wilkinson said it would be “beyond cruel” to undo existing same-sex marriages.
The judge sends many clerks to the conservatives on the Supreme Court — including Louis Capozzi, a current clerk for Justice Neil M. Gorsuch who helped Wilkinson with the novel. (Capozzi did not respond to a request for comment.) Gorsuch was the surprise author of a recent opinion expanding gay and transgender protections.
“I have a great deal of faith in the Supreme Court that they would never take that step,” Wilkinson said of a possible reversal of the decision on same-sex marriage. “That would be so harmful to so many individual lives, and it would visit such pain. And the legal consequences of it would be so difficult to unravel.”
He said he also wanted to use the book to highlight the intolerance he still sees in this country seven years after that decision.
“I can point out the problem; I don’t know the answer,” he said. “What I was concerned about is we are too much a nation of enclaves, where minorities or gay individuals feel perfectly safe and valued in many locations, and then 100 miles different or even far less they have to be on their guard.”
Now he’s working on his next novel, about a friendship between an isolated man and his neighbour.
“I don’t think a federal judge has written a love story before,” he said. “Maybe it’s unignified, but I don’t think so.”