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The Case For Diane Wood

[ 26 ] April 22, 2010 |

I was commissioned by my editors at the Prospect to write an article about Diane Wood.    While  I was polishing it, someone in our comments linked to an excellent Green Greenwald post that used similar sources to reach similar conclusions.    Which is a good thing in terms of alerting progressives to the fact that she’s by far the best candidate on most shortlists!    But, alas, it also meant that the market for my article had pretty much evaporated.     But, for the record, my own argument in favor of nominating Wood is below the fold:

Because President Obama’s forthcoming Supreme Court nomination will not affect the Court’s median vote in most cases, it is easy to think it will not be terribly consequential. Replacing Justice Stevens, however, has greater potential consequences than it might appear at first glance. First of all, there is a very real risk [http://ninthjustice.nationaljournal.com/2010/04/experts-predict-court.php] that Stevens’s replacement will shift the Court to the right. And second, the retirement of the leader of the Court’s liberal wing leaves a real void on the Court, one that will only be compounded with the likely retirement of Justice Ginsburg next year.

In a recent Prospect article, I argued that Obama should keep both of these issues in mind when appointing a replacement for Justice Stevens. Among the candidates who appear most often on informed shortlists, it is clear to me that Seventh Circuit Judge Diane Wood is the strongest candidate. Judge Wood would bring both sterling credentials and the judicial philosophy that represents the best of liberal constitutional thought to the bench. To summarize her strengths as a nominee:

A Sound Theory Of Judicial Interpretation. To the extent that judicial review is a normatively attractive institution, it increases the chances that individuals and groups that are marginalized by other political processes will have their rights protected. In addition, the modern regulatory state often requires judges to interpret regulatory statutes intended to protect the rights of citizens against powerful private interests. The Republican appointments who now dominate the federal courts tend to stand the best aspects of judicial review on their head, interpreting ambiguous constitutional and statutory provisions in favor of interests that are already greatly overrepresented in ordinary political processes.

Taken as a whole, Judge Wood’s record strongly suggests that her constitutional and statutory interpretation will belong to a tradition truer to the best values of the Constitution and the Great Society than the Court’s Republican majority. Two examples among many might serve as an illustration. Her dissent from a 7th Circuit opinion upholding a Wisconsin “informed consent” abortion regulation in spite of evidence demonstrating that the regulation posed a substantial burden on already disadvantaged women demonstrates not only a judge who (unlike a current majority of the Court) takes the reproductive rights of women seriously, but believes that it is not only burdens reproductive freedom that affect affluent urban women that demand real constitutional scrutiny. Wood also dissented from the denial of rehearing of a 7th Circuit opinion that upheld a Indiana Voter ID requirement that would disenfranchise some of the state’s most disadvantaged voters, despite the fact that the state could not cite a single actual example of vote fraud that the burden would prevent and the fact that the state left the much more fraud-prone absentee ballot system (which is generally used by more affluent voters) intact. And while the Supreme Court regrettably upheld the statute, the Indiana Court of Appeals unanimously struck it down a year later. Among many others, these cases reflect a judge who will interpret the law to enhance democratic representation and accountability rather than thwarting them.

Attenuating Ivy League Hegemony While it is not surprising or inappropriate that a significant number of Supreme Court justices have come from Harvard and Yale law schools, the utter domination of graduates from these schools on the current court reflects more of a lazy credentialism than a genuine meritocracy. Certainly, nothing about the history of the Court suggests that an Ivy League degree is necessary to become a good Supeme Court justice: just among important 20th century justices, consider Hugo Black (University of Alabama), John Marshall Harlan II (New York Law School), Earl Warren (Boalt Hall at UC Berkeley), Robert Jackson (attended Albany Law School without graduating), Lewis Powell (Washington and Lee), Thurgood Marshall (Howard), and Frank Murphy (Michigan). With Northwestern’s Stevens retiring, the remaining eight justices all attended Harvard or Yale Law. Judge Wood, who received both her undergraduate and law school degrees from the University of Texas at Austin, would provide some welcome diversity in this respect, in addition to addressing the Court’s still-substantial underrepresentation of women.

Superior Abilities and Work Ethic. I spoke with several of Judge Wood’s former clerks, all of whom confirmed the general perception that her abilities and temperament make her overwhelmingly qualified for a position on the nation’s highest court. All of her former clerks praised the exceptional diligence and preparation of a judge whose mastery of case facts sometimes exceeded that of the litigators. This work ethic seems especially remarkable for a judge who was raising children and kept up with a variety of extracurricular pursuits, including teaching at the University of Chicago law school and playing the oboe for the Chicago Bar Association Symphony Orchestra. Her intellect is clearly first-rate, enabling her to more than hold her own within the famously brainy and right-leaning Seventh Circuit, home to the conservative giants Frank Easterbrook and Richard Posner.

The Ability to Exert Real Influence In itself, appealing personal qualities and the ability to maintain the respect of more conservative colleagues does not justify a Supreme Court nomination; on a position of this importance, getting the law right matters more than getting a nice, well-rounded person on the Court. What makes Judge Wood’s personal qualities relevant (in addition to increasing the chances of her confirmation) is evidence from her record that she has the intellect and interpersonal skills to actually effect case outcomes. Consider the 2008 religious discrimination case Bloch v. Frischholz. In federal circuit courts, cases are first heard by a randomly selected three-judge panel, and in some cases are reheard in an “en banc” hearing by the entire court. In Bloch, the initial panel voted over Judge Wood’s dissent to deny a religious freedom claim. After the en banc hearing, however, the 7th Circuit unanimously – and therefore including the judges who had additionally disagreed! – voted to adopt the reasoning of Judge Wood’s dissent rather than the panel’s majority opinion. The case indicates a judge whose skills lead to real influence, and as Greenwald notesalso destroys the ridiculous right-wing canard that she is in some way hostile to religion.

Since 1916, the seat on the Supreme Court that is about to become vacant has been held by three of the most important liberals in the Court’s history: Louis Brandeis, William O. Douglas, and Stevens. Between her intellect and constitutional philosophy, there is every likelihood Judge Wood would be a worthy successor to this triumvirate. Hopefully President Obama will nominate his former University of Chicago law school colleague.

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Comments (26)

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  1. Bill Michtom says:

    typo: “Wood also Wood also dissented”

  2. Fred X. Quimby says:

    Great succinct article. I think Kagan and Wood are both fine legal scholars, but Wood is a triple-threat, while Kagan is a bench warmer.

  3. IM says:

    Why do you all praise Wood? Is this a campaign to drive Lieberman et al into opposition?
    You should attack her as an boring, weak-willed centrist.

  4. Davis says:

    She’s not Catholic, is she? Jewish? As a WASP, I demand representation!

  5. IM says:

    She is already a non Ivy League token, so demanding she should represent wasps too is a bit much.

  6. tz says:

    What bothers me is that the support is still completely political. Do you really care that she is an intellect, a sound reasoner, a great debater, or only that she seems liberal and would be more effective?

    Does the quality of the justices on the court matter as if you would be picking referees who should hold the truth and constitution foremost, or because she will cheat and be corrupt in your direction?

    Being a good team player should be the ultimate insult for a referee.

    Also remember the Bork hearings and vote and the High-Tech Lynching which occurred just afterward. It was important to keep good judges – honest men, scholars, great minds off the court – because they didn’t agree with your side?

    No one seems to want actual justice. Proper interpretation. A good balance (except if one far to your side is being replaced). Is the Court supposed to be political or not?

    If the best thing that can be said about a judge is that you would have voted for her or him, then why bother with an independent judiciary anyway, just elect them directly. It would probably result in less corruption.

    Reading this article, the praise does not seem so much for her quality as a Judge (which I could support and respect although I am a conservative), but only because she is first and foremost very liberal and good at pushing that point of view. Would you be praising an equally scholarly judge from the right – whose arguments were equally good and persuasive but against your position? So are you praising her position or her erudition as the reason she should be on the court?

    Are you also going to effusively praise any extreme liberal no matter how dense or confused their rulings are? No matter how badly argued? If so, what is the point of this encomium? Would not a compliant and malleable (i.e. corruptible) judge not be better than one who actually has principles?

    It seems all that is left of the 4th amendment are the emanations and penumbras protecting Roe V. Wade, and nothing else, but does it matter to anyone since that is enough. Roe was badly argued judicial activism and the left won that battle. But politicized the court since now it was a way of bypassing the legislative process FOR EITHER SIDE to get their laws into force.

    I’m still waiting for the suggestion from either side that the court be returned to interpreting the law along the rules and guidelines traditionally used going back before we broke from England. And that political fights go back to the legislature where it is far messier and less convenient.

    I’ve seen very few arguments that Ms Wood would make a good judge under such a system, but that is the argument I would respect the most.

    • DocAmazing says:

      You’re not seriously suggesting that the deeply weird Judge Bork is a “good judge” or representative of “honest men, scholars, great minds” in any way, are you? Even his supporter didn’t try to use that line…

    • Anonymous says:

      Srsly? BORK?

      1987 is calling, and it says you should go back to 2010.

      And, btw, your understanding of the role of the judge and legal history is seriously flawed.

      • Yeah, you’ll have to search the archives for by discussion of this, but your argument only makes sense if judging at the Supreme Court level is just a matter of mechanical technical expertise, and since that’s transparently silly there’s not much to engage with.

  7. mds says:

    Well, I’m convinced. A majority of the Dems on the Judiciary Committee have to stand up and declare, “President Obama needs to give us Wood.”

    I also hope that Jefferson [Davis] [P.G.T.-] Beauregard Sessions III then asks Judge Wood the tough questions, such as “What color of blinds I should buy if I have brown color all my doors and windows color inside my house?”* Because Senator Sessions has certainly made it clear that brown color vexes him in some fashion.

    *Usually, when I make a joke that relies on a spam comment or trackback, the spam gets cleaned up, and I end up looking like a deranged babbler. But this is not actually inaccurate, so I keep going with it.

  8. Halloween Jack says:

    Let me suggest a title: “Why Obama Should Get Wood.”

    No problem, I live to serve.

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  10. [...] Lemieux chimes in with more here, writing that “Judge Wood would bring both sterling credentials and the judicial philosophy [...]

  11. Jotman says:

    You forgot to mention one other significant point. Wood’s major career passion is for law, not administration duties, coffee machines, and fund raising:

    http://jotman.blogspot.com/2010/04/does-dean-position-qualify-elena-kagan.html

  12. Nice site, very informative. I like to read this.,it is very helpful in my part for my criminal law studies.

  13. [...] political experience, and no record of influential scholarship — is a better choice than Diane Wood or Sidney Thomas, because the proposition is pretty much indefensible.   When you’re [...]

  14. [...] 9750 Words on Elena Kagan – More than you ever wanted to know. From the SCOTUS Blog. The title is a bit exaggerated, you’ll have to click through and read Kagan’s published work to get a real sense of her legal point of view. Executive authority has expanded directly and by way of presidential directed agencies over the last 25 years. Kagan thought that Clinton’s expansion were justified in the sense of regulatory power to protect the nation and consumers when pressing issues were not properly handled or expedited by Congress. Not a bad thing some liberals might think on first impression, but a tack that can be abused – see Bush, John Yoo, David Addington, the DOJ under Gonzales and the abuses by the CIA as directed by the White House. I would have rather done a post celebrating the nomination of Judge Diane Wood (7th Cir.). [...]

  15. [...] limited political experience, and no record of influential scholarship — is a better choice than Diane Wood or Sidney Thomas, because the proposition is pretty much indefensible. When you're reduced to [...]

  16. [...] progressive, a Pamela Karlan or Harold Koh or Erwin Chemerinksy, or even actual short-lister Diane Wood, it could have served a meaningful purpose. Any of those (among others) would be a nominee the [...]

  17. [...] Lemeiux today publishes his excellent “Case for Diane Wood.”  Scott says that his piece was originally meant to be published in The American Prospect, but [...]

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