Conservative Wilkinson Joins in Rejecting Wrongful Deportation

Judge Harvie Wilkinson’s no-nonsense concurrence in a unanimous refusal by the US Court of Appeals for the Fourth Circuit to block a lower court ruling ordering the return of a Maryland man mistakenly deported to El Salvador was consistent with his reputation as a fiercely independent jurist with a sharp pen.

“There is no question that the government screwed up here,” the Ronald Reagan appointee wrote Monday as he joined a unanimous three-judge panel in refusing to block a district court order to facilitate Kilmar Abrego Garcia’s return from El Salvador. “The withholding of removal order was country specific; it banned the government from removing Abrego Garcia to El Salvador and El Salvador only.”

The Trump administration alleged that Garcia was connected to the MS-13 gang. The Justice Department said it no longer has any legal authority over Garcia as he’s now in El Salvador’s custody.

“The facts of this case thus present the potential for a disturbing loophole: namely that the government could whisk individuals to foreign prisons in violation of court orders and then contend, invoking its Article II powers, that it is no longer their custodian, and there is nothing that can be done,” Wilkinson said.

“It takes no small amount of imagination to understand that this is a path of perfect lawlessness, one that courts cannot condone,” he continued.

Later Monday, Chief Justice John Roberts paused the lower court’s order requiring the administration to bring Garcia back while the justices consider the case further.

Conservative Jurist

Wilkinson, 80, who was nominated to the bench when he wasn’t yet 40, is a reliable conservative voice on one of the nation’s more evenly balanced appellate courts. He was once considered a Supreme Court short-lister under George W. Bush.

He described the job of being a judge as: “You leave politics completely behind when you go on the bench, but you also have a feeling of gratitude” for what people in politics did for you, in a 2013 SCOTUSBlog interview.

“The way you show that respect is by doing a good job, by being independent, by being dedicated, by giving every case the best you can,” he continued.

His concurrence comes as Trump and his allies have waged an ongoing battle against judges appointed by presidents of both parties who’ve ruled against the administration’s early actions, at times labeling these jurists as “activist judges.”

“Judge Wilkinson is a respected conservative jurist, not a radical,” said Neil Siegel, a Duke law professor and a former Wilkinson clerk. “Respected conservative jurists, like respected liberal and moderate jurists, believe that the rule of law also binds the government, not just the governed.”

Another former clerk, Ninth Circuit Judge Daniel Bress, praised his former boss’s “judicial courage” in a 2024 law review article honoring Wilkinson’s 40th anniversary on the bench.

“He did not believe judges should manufacture controversy, least of all for their own self-promotional reasons. But nor did he believe that judges could duck the hard issues,” Bress wrote.

Journalist, Candidate

Wilkinson was born in Brooklyn, where his father had served in the Army during World War II, and returned to his family’s native Virginia at the age of two, he said in a 2019 oral history with NYU’s law school.

His mother came from a family of dairy farmers and his father was a Richmond banker who he said “came to breakfast on Saturday morning with a coat and tie and he wore his bank pin on the lapel of his pajamas.”

He went to Yale for college and earned his law degree from the University of Virginia in 1972. He paused his legal studies at one point to run as a Republican for a US House seat, which he lost. He clerked for Justice Lewis Powell.
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Wilkinson returned to UVA as a law professor after his clerkship before working at the Virginian-Pilot as editorial page editor between 1978 and 1981. He credits the experience for strengthening his knowledge of “how local government ticks,” he said during a 2012 Duke Law event.

He served in the Reagan Justice Department’s Civil Rights Division as deputy assistant attorney general between 1982 and 1983.

The Senate confirmed him to the Fourth Circuit, 58-39, in 1984.

“I’m very proud of the fact that some fine Democrats voted for me, and I’ve tried to reciprocate by being as non-partisan a judge as I could possibly be,” Wilkinson said in the 2019 oral history.

His books include a biography of former Virginia Sen. Harry Byrd, which he authored soon after college, and a 2022 romance novel, “Love at Deep Dusk.” He told the Washington Post he wrote the novel to escape “the acrimony and the intolerance and the venom” of political life.