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The Case For Diane Wood


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 Supreme 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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