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 rein 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.
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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.
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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 Justice 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 the cases which really 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.
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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.
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