Saturday, April 24, 2010

Supreme Court: Short List to Replace Stevens (Part 2: Diane Wood)

[Again, just to be clear: No, I'm not there. Just keeping it in mind. And while I'm at it, Chile, Indonesia, New Orleans, and wherever there is suffering that demands assistance and reminding.]

In part 1 of this series on New York Court Watcher, we took a look at Elena Kagan. She was considered by many to be the frontrunner among the possible nominees to replace the retiring Justice Stevens. But, as discussed in that first post, there are political considerations--having absolutely nothing whatsoever to do with merit, of course--that would make her politically risky for the President. In short, she's another New Yorker (that would make 4), another Jew (that would make 3), assertive on gay and lesbian right (she will be viewed as a vote for same-sex marriage or civil unions of for invalidating the DOMA [the Defense of Marriage Act]), and she is neither a white man (Obama needs to shore up support among them) nor a Protestant (with Stevens' retirement, the Court will be without one).

Now let's look at someone else who was on the short list the last time, and who almost certainly is in the top tier of the list this time around. Of course, that tier, as well as the list itself, is likely changing along with the changing political considerations and calculations. But this appeals court judge is certainly among the very serious possibilities that Obama is considering.

Diane Wood

This is a judge who, by all accounts, has the candlepower to challenge the conservatives on the Court. Lots of it.

She has been using it on the 7th Circuit, the conservative federal appeals court that sits in Chicago. She has been wrestling with Richard Posner and Frank Easterbrook, two of the acknowledged genuine brilliances of the federal judiciary. Her opinions on that court, majority and dissent, evince an uncowered intellect ready and willing to go toe to toe with the sharpest and most opinionated jurists on any court.

Wood has already worked at the Supreme Court, clerking for Justice Harry Blackmun shortly after her graduation from University of Texas law school. She practiced law at Covington & Burling, one of the nation's truly premiere law firms. She was a professor at Georgetown Law and then at Chicago (along with Obama), where she continues to teach on the side. She also served as an assistant attorney general in the Clinton administration until he appointed her to the appeals court.

In short, enormously well-qualified in terms of legal, academic, and judicial background.

Additionally--and this would seem extremely important for Obama--she has a reputation for persuasiveness. She apparently is very well respected and gets along very well with her colleagues, even her frequent ideological foes.

If Obama is to change the Court, move it in a less conservative direction, he needs to do more than simply replace one liberal vote with another. That's basically all he did with his appointment of Sonia Sotomayor. No one is accusing her of being particularly persuasive, and her reputation is not one of being particularly well-liked by those who have worked with her.

But Judge Wood's reputation is the opposite. She may be able to do what Justice Stevens and, even more so, Justice William Brennan before him were able to do. That is, to get a majority--i.e., a 5th vote, or even a 6th--for a more liberal position on some major issues, despite the conservative bent of the Court. Brennan did that quite frequently during the tenure of Nixon-appointed Chief Justice Warren Burger. Stevens has been doing that, if less frequently, during the William Rehnquist (appointed Chief by Reagan) and John Roberts (appointed Chief by Bush II) eras.

Political considerations:
Her dissents in some high profile cases, which are critical of her colleagues' conservative decisions, may serve as political fodder for Republican senators who want to take a stand against the President for nominating a "liberal activist" judge. (E.g., she dissented in Christian Legal Society v. Walker [2006] where the majority ruled in favor of a student religious organization; the state university had refused to recognize the organization because it excluded gays and lesbians and anyone else who did not disavow homosexuality.)

Likewise, some of her majority opinions may also serve as political fodder. (E.g., her opinion in National Organization for Women v. Scheidler (2001) in which she upheld a lower court order banning certain protests at abortion clinics; the protests were sometimes violent and often threatened violence. But the Supreme Court reversed Wood's decision by narrowly interpreting the law that, in Wood's view and that of the trial judge who had issued the order, seemed to make such protests illegal.)

So, if nominated, Wood is likely to face accusations that she favors the rights of gays and lesbians over Christians. That she is so radically pro-abortion that she favors the right to abortion over free speech. That her colleagues disagree with her and so does the Supreme Court.

Also, Wood has been married 3 times. The 1st 2 ended in divorce. Don't be surprised if the implications that some self-righteous senators might find on "family values" seep into the hearings. Some might well detect a common thread to be inferred from pro-gay + pro-abortion + pro-divorce. (If you think that's preposterous and far-fetched, just remember the huge bruhahah over Sotomayor's "wise Latina" comment. These hearings are rarely about merit!)

And, let's not forget, Diane Wood not a white guy. Obama needs to shore up his popularity among that part of the electorate. Nominating a 2d woman in a row to the Court will not do that. Nominating another woman will only serve to underscore the impression that Obama and the Democratic Party are more concerned and more supportive of women and minorities than they are of white men.

So it's not just Obama's conservative Republican opposition that will be concerned with non-merit considerations. The President himself, like all presidents before him, will be weighing purely political considerations as well. Even some that would seem utterly outlandish for choosing a Justice on the Supreme Court to participate in making decisions about the nation's most fundamental principles and critical issues.

Next post--unless Obama makes his decision by then--another possible nominee or two likely on the short list.