If one were to analogize the search for Justice Stevens'
replacement to the recently concluded health care debate, Seventh
Circuit Court of Appeals Judge Diane Wood would be the public
option. Just as the truly left-wing health care approach (a
single-payer system) was eliminated from consideration before the
process even began, so, too, have the truly left-wing candidates to
replace Justice Stevens (Pam Karlan, Harold Koh) been ruled out as "not
viable." As a result, the moderate-progressive compromises (i.e.,
the public option for health care and Diane Wood for Stevens'
replacement) are falsely depicted as some sort of liberal extremism,
merely because they're the least conservative options allowed to be
considered. Contrary to how she's now being cast, Judge Wood is a very
cautious and law-based jurist who resides far from the furthest left end
of the mainstream judicial spectrum. In fact, one of her most
distinctive attributes is the uniform respect and collegial
relationships she has with her conservative colleagues on one of the
nation's more right-wing courts.
Although many progressives would
likely choose a more ideological or left-wing legal theorist if they had
free reign to pick, an objective review of Wood's record -- as a
Clinton DOJ official prosecuting anti-trust cases, as the first female
tenured faculty member at the University of Chicago Law School, and as
an appellate judge for the last 15 years -- reveals what a truly ideal
replacement she would be for Justice Stevens. Having spent much time
reviewing her clear, lengthy and substantial
record, as well as interviewing former clerks and
colleagues (all on the record), there is ample compelling evidence
demonstrating why she would be such an asset on the Court:
Wood's ability to craft legal opinions to induce conservative
judges to join her opinions is renowned, as is the respect she commands
from them through unparalleled diligence and force of intellect. As a
political matter, she'd have a long list of right-wing judges and
professors at Chicago (where she still teaches) lined up to vouch for
her, thus blunting efforts to depict her as some kind of Far Leftist.
Her expertise in anti-trust and business law is (a) especially relevant
now given the cases likely to come before the Court in the wake of the
financial crisis and (b) rare for a federal judge on the
liberal/Democratic side. The similarity between her jurisprudence and
Justice Stevens' is striking and easy to document, thus ensuring that
(at the very least) she will maintain the Court's balance; unlike a
Kagan selection, there is no risk Wood will move the
Court to the Right and, in some important respects, could very well do
the opposite.
She has not refrained, due to careerism and personal ambition, from
issuing principled rulings (even in dissent) that she knew could be
used against her (such as the series of abortion rulings which are now
being used to depict her -- falsely -- as some sort of
pro-abortion extremist). That she graduated college and law school from
the University of Texas (before clerking for Justice Harry
Blackmun) will bring some much needed diversity to the Court; by all
accounts, this background (along with her raising three children while
piling up these accomplishments) causes her to bring a different
perspective to the circumstances of individual litigants as compared to
the typical Yale/Harvard federal judge or academician. As a result, her
judicial record evinces a steadfast commitment to ensuring (rather than
closing off) justice system access for ordinary Americans when the law
permits it. I document these attributes below.
* * * * *
But the starting point for seeing why Wood is such a superior
alternative -- what first convinced me -- is the
University of Chicago Law Review article she wrote in early
2003, entitled The Rule of Law in Times of Stress. This
courageous analysis was designed to warn the nation about the profound
threats posed to the rule of law and the Constitution by excesses in the
War on Terrorism, but also more broadly to set forth her general view
of the proper role of the Supreme Court when rights are being assaulted
and individuals from marginalized groups are being mistreated. By
itself, this article says more than I ever could about why she is really
the ideal replacement for Justice Stevens, using every standard which
progressives have always claimed to embrace regarding their views of
the Court.
At least as impressive as what she wrote in that article --
probably more so -- is when she wrote it. This was
early 2003, when the nation was marching to the War on Iraq -- the peak
of the country's repressive, 9/11-induced, Bush-revering climate. Half
of the Democratic Party -- and most of its leading officials (along with
the media) -- were serving as cheerleaders for the invasion and the
rapidly expanding, uncontrolled Surveillance State, and were petrified
of opposing or even questioning the Bush administration when it came to
counter-Terrorism policies. Democratic careerists everywhere were
desperately competing with one other to prove how militaristic and
"tough on Terrorism" they were (or were staying silent due to fear of
being marginalized).
Yet in the midst of all that, here was Diane Wood stepping out way
beyond the restraints typically accepted by federal judges, and
carefully -- though emphatically -- warning of the dangers all of this
posed and the rights being trampled upon, at a time when few others were
willing to do so. She obviously knew that writing this article could
harm her future career prospects in countless ways. It turned out years
later that expressing such critiques became essentially safe
and mainstream (which is when Elena Kagan finally got around to uttering
a few meek platitudes about John Yoo in 2007), but it was far from
clear back then that this would happen. In 2003, forcefully objecting
to the radical Bush/Cheney vandalizing of our political system as a
serious threat to liberty -- and insisting on the need for courts to put
serious limits on that assault -- was nothing short of heroic,
especially for someone who harbored ambitions for future political or
judicial advancement.
Wood began her argument by reviewing the numerous Constitutional
abuses and civil liberties violations prompted by war throughout
American history: Lincoln's suspension of habeas rights; Wilson's
imprisonment of World War I opponents; Roosevelt's internment of
Japanese-Americans (accomplished by declaring the entire Pacific Coast a
"military area") and guilt-by-association
treason prosecutions for German-Americans; the persecution
of Communists. She celebrated the Supreme Court's historic (albeit
imperfect) role in enforcing the Constitution to protect the core rights
even (especially) of the most scorned, as well as to prevent war-fueled
majoritarian tyranny. The question she set out to address directly in
this law review article was the crucial legal issue of the last decade:
She then proceeded to identify what she called "a number of
troubling propositions that have been advanced as the United States has
sought a proper response to international terrorism" -- core Bush/Cheney
policies which, she wrote, "pose[] a significant
threat to the continued observance of the rule of law." Among
those were the claim that the Constitution applied only to U.S.
citizens; that racial and ethnic profiling were legitimate even as
applied to U.S. citizens; that "personal privacy . . . is a luxury that
must be sacrificed so that intelligence gathering activities can be
conducted more effectively"; that "public hearings and legal
representation are no longer appropriate for arrestees suspected of
terrorist activities"; and that non-Executive-branch tribunals (i.e.,
Article III courts) are "inadequate to hear charges against suspected
terrorists."
Wood expressly recognized that, as was true especially back then,
many of those policies were concealed from public view and thus
difficult to examine in detail, but just listen to what she had to say
about that pervasive secrecy:
Wood then systematically reviewed, one by one, the formally
recognized requirements for a society that lives under "The Rule of
Law" and detailed why the Bush/Cheney approach to Terrorism --
particularly the asserted supremacy of the Executive Branch to operate
without real accountability -- ran so radically afoul of it. I know
this is a long excerpt, but I really urge everyone to read it (even if
you read nothing else) because it provides the clearest evidence for the
kind of Justice she would be. Just as important, the positions Wood
advocated back then continue to have great resonance for so many of the
current, lingering disputes under the Obama administration:
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To read the positions Wood advocated, and the unapologetic
conviction and clarity of her tone, is to know that she was motivated by
only one consideration: a recognition of the crisis in law and liberty
posed by the excesses of the Bush/Cheney "War on Terror" and the
resolve to use her platform and credibility in whatever way she could to
oppose it, regardless of how unpopular that stance was at the time,
regardless of the effect it might have on future career prospects. Isn't
that courage and conviction exactly what any progressive --
any American -- should crave most in a Supreme Court Justice?
The observations Wood made in that law review article concern far
more than a narrow set of Bush/Cheney Terrorism policies. After all,
this clear devotion to checking and limiting the Executive with an
insistence on transparency, due process, and accountability --
especially when political pressure to trample on those values is at its
highest -- is what the Supreme Court, as much as anything, is designed
to do. It is those values which form the crux of our Constitutional
system.
Similarly, in a
2007 Howard Law Review article, Wood aggressively
challenged the constitutionality (and necessity) of statutes
vesting "emergency powers" of secrecy, detention and surveillance in the
President during natural disasters. Entitled The Bedrock of
Individual Rights in Times of Natural Disasters, that article also
questioned the legality of military commissions, as she wrote: "the
principle is well established that extraordinary tribunals, such
as military commissions, are not authorized to open if normal courts
are open for business." Just as she did in her 2003 article,
she insisted that the Rule of Law cannot be trampled upon in the name of
emergency or security.
Why would any progressive possibly support or accept a nominee ever
-- let alone one to replace Justice Stevens -- for whom there was no
similar, specific evidence of such commitments and judicial philosophy?
That question is particularly difficult to answer when there is a
leading candidate like Diane Wood for whom there is such clear,
compelling and inspiring evidence. Nobody needs to place blind faith in
anyone's assurances to know what kind of Justice Diane Wood would be;
everyone can examine the long, impressive record she's produced and know
that for yourself.
* * * * *
What makes Wood so unique is that she combines her principled
convictions with an extraordinary ability to secure the support of other
judges for her opinions. Her creative and flexible intellect enables
her simultaneously to stay within the confines of the law while finding
the most equitable outcomes that attract a broad range of support. The
7th Circuit is one of the more conservative circuits in the country, yet
Wood's influence on that court and her ability to induce right-wing
judges to support her rulings is remarkable, an attribute particularly
important for replacing Justice Stevens. It's impossible to provide
anything close to a comprehensive assessment of her 15 years of written
opinions in this regard, but a few illustrative cases can be
highlighted.
In last year's high-profile case of Bloch
v. Frischholz, a Seventh Circuit panel (by a 2-1 vote)
dismissed a religious discrimination case brought by a condominium unit
owner who was barred from displaying a mezuzah on his door. Wood was
the dissenting judge, arguing that ample evidence of intentional
discrimination against the Jewish unit owner entitled him to a trial on
his discrimination claims. The case was then heard en banc by
the entire Seventh Circuit, which reversed the panel ruling and adopted
Wood's dissenting rationale unanimously -- including,
even, the two judges (Easterbrook and Bauer) who originally comprised
the panel majority, along with several of the court's most right-wing
judges (who typically find ways to dismiss discrimination claims). In
the process, important precedent (backed by a unanimous, en banc
Seventh Circuit court) was created that made it easier for
discrimination plaintiffs in general to have their
cases brought to trial, and was thus hailed
by civil rights lawyers as a vital advancement. That all happened
because Judge Wood convinced even the most conservative judges to adopt
her pro-plaintiff analysis. That case also gives the lie to one of the emerging
right-wing smears against Wood: that she is hostile to religious
freedom cases.
In Tyus
v. Urban Search Management, Wood wrote a lengthy opinion
reversing the lower court's ruling in favor of the defendants (large
Chicago building developers) in a major racial discrimination case
brought by African-American plaintiffs, who alleged that the defendants'
upscale Chicago residential building wanted only white residents. The
decision established critical pro-plaintiff precedent in the area; most
notably, joining Wood's opinion were the Circuit's two most prominent
conservatives: Richard Posner and Easterbrook. In the 2007 case of U.S.
v. Thompson, a panel comprised of Wood, Easterbrook and
Bauer not only found that a state worker had been wrongfully convicted
of federal corruption charges, but also took the extraordinary step
(particularly for a conservative court) of ordering her
immediate release from prison the very day they heard the Oral Argument.
These cases are merely illustrative of Wood's extraordinary ability
to attract conservative support for her legal approach. Vince Buccola,
who clerked last year for the right-wing Judge Easterbrook, described
to me the close professional and personal relationship Wood has
developed with the court's conservatives. "She's lightning quick,
amazingly well-prepared, very smart and also very knowledgeable about
law," he said, and "because she has that reputation, her arguments carry
a lot of weight" with conservative judges. He added that, as any
observer of the Seventh Circuit knows, Judge Easterbrook "feels very
fondly of her personally, really values her and learns a lot from her as
a colleague." Having witnessed Wood's work while he clerked for a very
conservative judge, Buccola said he believes she would excel at forging
constructive relationships with the conservative Justices on the
Supreme Court:
Her credibility as an excellent legal thinker, who is also an
easy person to get along with, probably increases her sway on things
that are a little bit more divisive. She's very likable, has a great
demeanor, is really smart, and doesn't come across as being sharply
ideological, the way a political hack would. She's not ridigly
ideological; her judging doesn't show that's how she approaches cases,
and she doesn't come across personally that way -- and that will be
clear to everyone. . . . That makes conservative judges much more
receptive and open to her arguments.
Fatima Goss Graves, one of Judge Wood's former clerks and now the
Vice President of the National Woman's Law Center, told me: "Judge Wood
has managed not only to craft decisions in a way that have brought some
of the more conservative members, but there are several cases where she
changed their minds when they've gone full court."
Margo Pave, another former clerk and now a partner in a D.C. law
firm, added: "Throughout her entire time on the bench, she has had that
ability to convince her conservative colleagues, as well as her
moderate and liberal colleagues, to adopt her view of an issue. She
does this by figuring not only what is the right interpretation of the
law, but an approach to it and argument for it that even convinces the
Judge Posner and Easterbrooks of the world." For that reason, Pave --
who, like most people I spoke with, described Judge Wood as "brilliant"
-- said she'd make a "phenomenal addition to the Court, particularly for
the seat being vacated by Justice Stevens, who has also excelled at
forging consensus with Court conservatives."
Judith Miller, former General Counsel of the Clinton Defense
Department and of The Bechtel Group and a long-time partner at Williams
& Connolly, has known Wood since they clerked on the Supreme Court
together. Miller told me that Wood's brilliance has been recognized
each place she has been, but that her background -- a graduate of Texas
who raised three small children while building her career -- "brings to
her judging now a groundedness about what the country is about that is
rare and valuable." Both Miller and Goss emphasized -- as Goss put it
-- that as a result of Wood's background, "she takes her role in
providing access to courts very seriously."
Miller, who also knows both Judges Easterbook and Posner quite
well, said that Wood has "demonstrated consensus-building skills on a
very conservative court by the sheer force of her thinking, her
intellect and her ability." Her personal relationship with these
conservative judges is so close that Posner presided at Wood's wedding.
Miller added that Wood's expertise in anti-trust and business law means
"she won't be a student on those issues when cases in that area come
before the Court," and she is "unusually respected in those areas" and
thus able to sway judges across the spectrum in cases requiring an
in-depth knowledge of business.
Perhaps most striking of all is the similarity between the
jurisprudence of Stevens and Wood. It's not possible, of course, to
comprehensively chronicle all the times they have been on the same side
of contentious legal issues, but it has happened with great frequency.
See, for instance, Bd. of
Regents. v Southworth (Supreme Court and Stevens adopts Wood's
dissent on First Amendment case); City
of Indianapolis v. Redmond (Supreme Court majority, with
Stevens, adopts Wood's position finding City's searches to be in
violation of the Fourth Amendment); Miller
v. French (Supreme Court reversed Wood's position that prison
inmates were entitled to injunction to improve conditions; Stevens
dissented and adopted Wood's position); Scheidler
v. NOW (Supreme Court, by 8-1 vote, reverses RICO finding
against abortion protesters which Wood [on a unanimous panel] upheld;
Stevens was the one dissenting judge supporting Wood's position); Tellabas
v. Makar (Supreme Court, by 8-1 vote, reverses Wood panel that
removed pleading barriers blocking plaintiffs from recovering for
securities fraud; Stevens was the one dissenting judge supporting Wood's
position); Hein v.
Freedom from Religion Foundation (Wood's panel held that
plaintiff-advocacy group had standing to challenge constitutionality of
Bush's faith-based programs; Supreme Court reversed, with Stevens in
dissent adopting Wood's view).
There were, of course, a few instances over the last 15 years where
Wood and Stevens reached different conclusions, including when the Supreme
Court adopted new legal standards, in the second
stage of the Scheidler RICO/abortion case, and where a unanimous
Seventh Circuit panel was found by a unanimous Supreme Court to have
erred on a technical issue. But in those cases which reveal the two
judges' philosophical approach to the law and to judging, there is a
remarkable similarity over the years that completely negates any
possibility that a Wood-for-Stevens replacement (unlike a
Kagan-for-Stevens replacement) could move the Court to the Right.
* * * * *
One last point I want to make about the comparison of Wood and
Kagan. Over the past week, I've had several people contact me who know
Kagan well and whose judgment I respect. They claim (while refusing to
be quoted) that the real Elena Kagan is different from the impression
created by her public record (or, more accurately, her lack of
record): that if one only knew her personally rather than just her
public record, one would know that, deep down, she's a deeply
principled, talented progressive who would be a real force for good on
the Court.
That very well may be the case (or it may very well not be). One
of the benefits of being an excessively cautious, institution-loyal,
offend-nobody careerist is that it enables the person to arrive at the
point where they are considered for an appointment on the Supreme Court
without having any positions or statements anyone can really use to
define them. The downside, though, is that -- for anyone wanting to
assess potential Justices by critically assessing the available evidence
rather than putting blind faith in the unverifiable testimonials of
their friends -- they are going to look like a soul-less, unprincipled,
careerist hack who believes in nothing but their own advancement, even
if that's not really what they are. Daniel Novack, the second-year
NYU law student who spent the last several weeks doing little else but
immersing himself in the records of Wood and Kagan in helping me write
these pieces, sent me an email yesterday saying this:
Another point I'd consider adding is the message a Wood
appointment sends versus Kagan. Appointing Wood is an affirmation that
one need not check their values at the door in service of ambition.
Wood is undoubtedly ambitious, but she clearly hasn't sacrificed her
identity or beliefs for the sake of advancement. She is an affirmation
of the best kind of meritocracy in America.
Selecting Kagan sends the exact opposite message - that we should
simply serve power relentlessly until we get our shot at the big time.
Given that only a handful of lawyers ever go on the high court, do we
really want to create thousands more Elena Kagan-style careerists
running around refusing to speak their minds in the vain hope they might
get an appointment to a lifetime seat? I think we have enough of
those.
Do we really want to encourage "earning" a seat by literally
saying and doing nothing to ever offend anyone? It's like Kagan has
taken Supreme Court confirmations to a new level: she's crafted an
entire career out of being a blank slate. Wood has made her mark both
because of and despite her strong beliefs.
Whatever else is true, progressives should demand a replacement for
Justice Stevens whose values, approach to the Constitution, and
judicial philosophy they can know, as well as someone
who has embodied the function the Supreme Court is intended to serve in
our political system: namely, one which checks and limits the other
branches and safeguards core Constitutional liberties, especially when
the political climate makes it most likely that those rights will be
assaulted.
