J. Michael Luttig

On April 23, 1991, President George H. W. Bush nominated Luttig to fill a newly created seat on the United States Court of Appeals for the Fourth Circuit. He was confirmed by the United States Senate on July 26, 1991 and received his commission on August 2, 1991.[11] He became the youngest judge (at age 37) on a federal appeals court at the time of his appointment.

On the bench, Luttig was compared to Justice Scalia for his analytical rigor and for criticizing his colleagues for inconsistencies or embellishments in their judicial opinions and right-wing extremism.[12] He was also similar to Scalia in that his judicial philosophy sometimes led to what were seen as some anti-conservative opinions.[3][10]

Luttig was mentioned frequently as being near the top of George W. Bush's list of potential nominees to the Supreme Court of the United States despite opposition from the U.S. Chamber of Commerce and a dispute between Luttig and the Bush administration over the handling of the case of alleged "dirty bomber" Jose Padilla (see below).[13][14] Bush interviewed Luttig but ultimately did not choose him to fill either of two Supreme Court vacancies in 2005. Those two seats were filled by John Roberts and Samuel Alito.

Luttig was among the leading feeder judges on the U.S. court of appeals, with more than 40 of his law clerks going on to clerk with conservative justices on the Supreme Court.[15] Of those, 33 clerked for either Justice Thomas or Justice Scalia.[16] Luttig's clerks have nicknamed themselves "Luttigators".

Luttig's father, John Luttig, was fatally shot in 1994 in a carjacking by Napoleon Beazley, who at the time of the crime was a seventeen-year-old minor.[17] Luttig testified in the sentencing portion of the trial, supporting imposition of the death penalty.[17] Beazley was convicted, condemned to death, and eventually executed after twice appealing to the Supreme Court.[18][19] Justices Antonin Scalia, David Souter, and Clarence Thomas recused themselves because of past association with Luttig. Scalia recused himself because Luttig had clerked for him; Souter and Thomas recused themselves because Luttig led the George H. W. Bush Administration's efforts to win their Senate confirmation. [20]

In September 2005, Luttig wrote the opinion for a three-judge panel of the Fourth Circuit that upheld the government's power to designate José Padilla, the alleged "dirty bomber" who was captured at a Chicago airport, as an "enemy combatant" and to detain him in a military brig without charge.[21] In December, the Bush administration, anticipating a reversal in the Supreme Court, petitioned the Fourth Circuit for approval to transfer Padilla to civilian custody for a criminal trial. The move set off a dispute between the Bush administration and Luttig.[22] Luttig's panel refused to grant the transfer and castigated the government for potentially harming its "credibility before the courts."[23] The government petitioned the Supreme Court to allow the transfer by arguing that the appellate court's refusal encroached on the power of the President. The Supreme Court granted the government's request.[24]

In the case of Hamdi v. Rumsfeld, Luttig disagreed with the majority opinion of his colleagues on the Fourth Circuit and argued that Yaser Esam Hamdi, an American citizen captured in Afghanistan and held as an enemy combatant, deserved "meaningful judicial review" of his case.[3] The Supreme Court eventually reversed the Fourth Circuit's judgment.

On May 10, 2006, Luttig resigned his federal judgeship to become general counsel and senior vice president for the American airplane manufacturer Boeing.[25][26][27] He replaced Douglas Bain.[28] In his resignation letter, Luttig wrote, "Boeing may well be the only company in America for which I would have ever considered leaving the court."[29] He also mentioned his two children's upcoming college education; the position at Boeing promised more pay than the federal judgeship. At the time of his resignation, federal appellate judges were paid $175,100 annually.[30] According to Boeing's 2008 Annual Report, Luttig's total compensation for 2008 was $2,798,962.[31] In 2015, Luttig was named the 7th highest paid general counsel in the United States by Above the Law with a salary of $4,236,580.[32] Luttig resigned as general counsel to Boeing in May 2019. He was replaced by Brett Gerry.[33] Luttig's resignation coincided with the terminations of former CEO Dennis Muillenberg and former Commercial Aircraft Executive Kevin McCallister that year, during the Boeing 737 MAX groundings crisis.[34] In January of 2021, he was hired by Coca-Cola Company to be counselor and senior advisor for tax matters.[35]

On January 5, 2021, John Eastman, an attorney representing president Donald Trump, and who had clerked for Luttig, met with vice president Mike Pence in the Oval Office to argue that the vice president had the constitutional authority to alter or otherwise change certified electoral votes for the presidential certification in Congress the next day. According to Eastman, he told the vice president that he might have the authority to reject electoral college votes, and he asked the vice president to delay the certification, a proposal which came to be known as the Pence Card. Pence rejected Eastman's argument and instead agreed with Luttig and another conservative scholar, John Yoo, that a vice president has no such constitutional authority. Pence released a letter on January 6 stating he would not attempt to intervene in the certification process, citing Luttig by name, who later said it was "the highest honor of my life" to be involved in preserving the Constitution.[36][37][38][39][40][41][42]

On June 16, 2022, Luttig testified during a televised hearing conducted by the United States House Select Committee on the January 6 Attack.[43] Before the hearing, Luttig wrote a statement for the record,[44] stating that Trump and his allies "instigated" a war on democracy "so that he could cling to power." He continued, "It is breathtaking that these arguments even were conceived, let alone entertained by the President of the United States at that perilous moment in history" and that January 6 "was the final fateful day for the execution of a well-developed plan by the former president to overturn the 2020 presidential election at any cost." At the close of the hearing, Luttig said:

Donald Trump and his allies and supporters are a clear and present danger to American democracy. They would attempt to overturn that 2024 election in the same way that they attempted to overturn the 2020 election, but succeed in 2024 where they failed in 2020. I don't speak those words lightly. I would have never spoken those words ever in my life, except that that's what the former president and his allies are telling us.[45]

Luttig co-authored a 69-page report refuting 2020 election-fraud claims published in July 2022.[46]