The Compelling Case For Diane Wood

By Big Tent Democrat, Section Supreme Court
Posted on Mon Apr 19, 2010 at 03:11:58 PM EST
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Glenn Greenwald writes a very compelling case for Seventh Circuit Judge Diane Wood to sit on the Supreme Court. I'm convinced. Now, how to convince Obama? I think the tail end of Glenn's article makes the best case for why picking Wood to replace Justice Stevens is not only good progressivism but good politics:

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.

Given the need to persuade Justice Kennedy (and I have been convinced by some smart people that in fact Kennedy is persuadable), this is a critical skill. But there is another political upside - putting forth an intelligent exposition of the progressive view of the law, and putting it to the test. In that sense, Greenwald's associate Daniel Novack makes a strong point:

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.

I would not endorse the critique of Kagan Novack provides on this point, but I do endorse the view that Wood has been a proud, effective, intelligent AND public proponent of progressive jurisprudence.

This matters a great deal.

In short, FWIW, I endorse Judge Diane Wood for the Supreme Court.

Speaking for me only

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The Compelling Case For Diane Wood | 56 comments (56 topical)

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Me too. Shall we jointly march fully armed (5.00 / 3) (#1)
by oculus on Mon Apr 19, 2010 at 03:29:32 PM EST

on the WH?

Hear, hear! (5.00 / 3) (#2)
by Cream City on Mon Apr 19, 2010 at 03:34:45 PM EST

I've expressed my view of Wood and reasons for it before here, in more detail, so allow me to summarize: She's got principles, persuasive abilities, and just downright guts to do the right thing -- not just on principle but also for people whose lives will be affected by rulings.

I so easily could have been one of those people, as it was one of my coworkers who finally received justice, resoundingly so, thanks to Judge Wood.

And I know that she is "too old" for some here -- but we never know when the bell will toll. I'm betting she's got a good quarter of a century to give to more principled and resounding rulings.

July 4, 1950: too old? (none / 0) (#3)
by oculus on Mon Apr 19, 2010 at 03:42:45 PM EST

That's young to me (5.00 / 1) (#23)
by Cream City on Mon Apr 19, 2010 at 04:40:26 PM EST

but I am attempting to preempt that point, which prematurely ended an earlier attempt here at discussion of her.

Sixty is the new fifty, after all. And anyone who has read Amanda Cross mysteries knows that Harvard is hard on women, so Wood could outlive Kagan!


Turns out she plays the oboe. (none / 0) (#4)
by oculus on Mon Apr 19, 2010 at 03:44:38 PM EST

All good.


High Mortality Rate (none / 0) (#13)
by squeaky on Mon Apr 19, 2010 at 04:13:25 PM EST

Oboists have an extremely high mortality rate. It is not from the having to exert so much pressure on the double reed in order to get a sound that their head explodes. It is that the endless task of making a perfect double reed exerts puts so much pressure on poor oboist that their heads explode..


They are all OCD, shaving away. (none / 0) (#14)
by oculus on Mon Apr 19, 2010 at 04:19:21 PM EST

And Diane Wood isn't a career oboist. (none / 0) (#19)
by FoxholeAtheist on Mon Apr 19, 2010 at 04:23:49 PM EST

More background: (none / 0) (#20)
by oculus on Mon Apr 19, 2010 at 04:32:39 PM EST

Business Week


And (none / 0) (#34)
by squeaky on Mon Apr 19, 2010 at 05:20:44 PM EST

Oboists do not have a high mortality rate...


Actually, they do (5.00 / 3) (#37)
by Peter G on Mon Apr 19, 2010 at 05:46:20 PM EST

... 100% ... eventually


: Black humor . . (none / 0) (#39)
by Big Tent Democrat on Mon Apr 19, 2010 at 05:53:03 PM EST

rim shot!

: So, that's how it's done...nice. (none / 0) (#49)
by FoxholeAtheist on Mon Apr 19, 2010 at 06:32:26 PM EST

Squeaky, do you favor Wood over Kagan? (none / 0) (#45)
by FoxholeAtheist on Mon Apr 19, 2010 at 06:22:10 PM EST

Whoever is More Liberal (none / 0) (#50)
by squeaky on Mon Apr 19, 2010 at 06:32:55 PM EST

I really do not know much about either of them. Both seem fine to me, although if what is said is true about Woods, she seems better.


Me too... (none / 0) (#51)
by FoxholeAtheist on Mon Apr 19, 2010 at 06:46:50 PM EST

If the choice rests on executive power, don't you think the record (thus far), clearly indicates that Kagan is farther to the right than Wood?

Greenwald has covered Kagan and Wood pretty extensively, with links to other sources - and TL has also done well in that regard.


: Too Many Variables (none / 0) (#55)
by squeaky on Mon Apr 19, 2010 at 06:53:04 PM EST

And too early in the game for me to tell... but as I said Woods appears more liberal.

Judge Wood would make (5.00 / 1) (#5)
by KeysDan on Mon Apr 19, 2010 at 03:52:42 PM EST

a great Associate Justice. In addition to the really important and cogent arguments made, she addresses some of the superficial, yet potentially distracting arguments such as too many Ivy Leaguers (she is a U of Texas Law graduate) and she is a Protestant. Age is a factor that has been bandied about in a general way (President Clinton, at age 63, thinks he is too old), but at 59, and soon to be 60 on July 4, she brings a demonstrable, cumulative record of achievement. Of course, opponents reactions will be predictable with any nominee of President Obama, the protest signs are already made, only the name needs to be crayoned in.

"Born on the Fourth of July" (5.00 / 1) (#36)
by Peter G on Mon Apr 19, 2010 at 05:45:10 PM EST

too good


: OMG - too good, but still true. (none / 0) (#42)
by FoxholeAtheist on Mon Apr 19, 2010 at 06:12:40 PM EST

We haven't seen that in a while.

Right wing take on Woods (none / 0) (#28)
by MO Blue on Mon Apr 19, 2010 at 04:59:05 PM EST

chances for being nominated.

If President Obama nominates U.S. Circuit Judge Diane P. Wood to replace retiring Supreme Court Justice John Paul Stevens, social conservatives say they intend to make her rulings on abortion rights the primary point of contention.
"That's her Achilles' heel," said Curt Levey, executive director of the Committee for Justice, which opposes Wood's rulings on abortion. "It tells you that she's probably not going to be selected, because Obama doesn't have the stomach for this to be about an abortion debate." link

: Emily Bazelon (5.00 / 1) (#46)
by Peter G on Mon Apr 19, 2010 at 06:23:10 PM EST

demolished the lies behind the attack on Judge Wood for her "abortion decisions" the other day at Slate.

: Oh, if they don't have the goods (none / 0) (#29)
by Cream City on Mon Apr 19, 2010 at 05:00:57 PM EST

on a nominee, they make 'em up, anyway.
We will see whether 59 votes in the Senate means something. Or not.

: The right is using Wood's pro-choice rulings (none / 0) (#43)
by FoxholeAtheist on Mon Apr 19, 2010 at 06:19:34 PM EST

to divert attention away from their real problem with her - namely, her critique of executive power.
Which is fine with Obama since he, no doubt, has even less of a stomach for an executive power debate than an abortion debate.

Not just "some here," but DW is perhaps (5.00 / 1) (#11)
by brodie on Mon Apr 19, 2010 at 04:04:16 PM EST

too old for Bill Clinton, if I read his recent comments correctly about the need for a Justice younger than he and Hillary, both of whom are roughly Wood's age.

For me, though I prefer her more outspoken liberal stances, her age was always a deal-breaking factor given the comparison with the much younger and acceptable Kagan.

That was yesterday however.

I saw a recent item at Salon which reported on Kagan's several less than stellar appearances before the Ct in her SG role. Not only was she having trouble answering the conservatives, but some of the Court liberals didn't seem pleased with her answers.

Persuasive power, I'd read somewhere, was supposed to be one of EK's major attributes. Maybe in academia, but not apparently with this Court.

My new preferences are 1) D Wood 2) P Karlan 3) Kathleen Sullivan 4) Koh

Justice Ginsburg was 60 when Clinton appointed her (5.00 / 3) (#17)
by FoxholeAtheist on Mon Apr 19, 2010 at 04:22:16 PM EST

in 1993 - and pancreatic cancer didn't make her quit!

Diane Wood is a robust 59 - she's good to go - on the Supreme Court - this year!


Salon story on Kagan's appearances before SCOTUS (5.00 / 1) (#21)
by FoxholeAtheist on Mon Apr 19, 2010 at 04:33:04 PM EST

On the Supreme Court, not a lot of respect for Elena Kagan, indications that she has had run-ins with liberals on the court; and is not sufficiently persuasive, nor quick on her feet, to deal with the conservatives:

Largely overlooked, is an issue that is ultimately far-reaching: whether Kagan would be an effective liberal on the court -- that is, whether she has the skills to win over Anthony Kennedy, who casts the decisive vote in nearly all of the court's most closely divided cases, and whether she could match wits with Antonin Scalia and John Roberts, the court's conservative fire-breathers.
Based on a review of the transcripts of Kagan's appearances before the court as President Obama's solicitor general, there is little reason to believe that she possesses particular deftness on either front. Even more surprisingly, Kagan has not infrequently raised the ire of the court's more liberal members, her supposed ideological allies.

(Brodie mentioned this story earlier.)


Thx for citing that one for me (none / 0) (#27)
by brodie on Mon Apr 19, 2010 at 04:50:21 PM EST

(while I'm flying around this board catching up on things)


: My pleasure brodie. (none / 0) (#47)
by FoxholeAtheist on Mon Apr 19, 2010 at 06:25:07 PM EST

Bill Clinton has had health issues (5.00 / 1) (#25)
by Cream City on Mon Apr 19, 2010 at 04:42:43 PM EST

that make a big dawggone difference. Wood seems quite youthful despite her years, while wise from them.


This is, in my view, a good ordering (none / 0) (#15)
by KeysDan on Mon Apr 19, 2010 at 04:19:50 PM EST

of potential nominees, although I am still a fan of the Solicitor General. However, there are in this line-up possible controversies with regard to affectional orientations. And, I would be surprised (very pleasantly so, but surprises none the less), based on what we know of President Obama's fierce advocacy put to practice in this area, if he would be willing to take this head-on.


One or two in there, yes, (none / 0) (#26)
by brodie on Mon Apr 19, 2010 at 04:48:21 PM EST

with those "controversial affectional orientations".

But we're already getting some nastiness on this score with those commenting about Kagan, who denies the rumors.

I think the Rs in Congress at this point would be more up in arms about the strong unapologetic liberalism of some of these people on my list, and less in full lather about their personal proclivities.

Though it's possible that Obama, already probably reluctant to appoint a real liberal, would especially be disinclined to invite a fight that could involve both ideology and personal orientation.


: Well, the rumors about Kagan's (none / 0) (#31)
by FoxholeAtheist on Mon Apr 19, 2010 at 05:14:58 PM EST

affection for other women certainly has taken the spotlight off her affection for executive power. Both the GOP and Obama stand to benefit from that diversion.
If Kagan goes forward, the GOP will continue to focus on sexual orientation and then look like they've 'compromised' when they approve her nomination; in the meantime, Obama supporters will focus on his support of his alleged LGBTQ nominee.
If it plays out this way, in the end Obama and the GOP will get what they both want: a pro executive power appointee.

: Yes, as soon as Solicitor General Kagan (none / 0) (#35)
by KeysDan on Mon Apr 19, 2010 at 05:28:21 PM EST

was mentioned as a leading potential nominee, stories were put out of this nature, which the White House denied, as well as the comments on her performances before the Supreme Court, including the notion that she and the Chief Justice are often at odds--not, in my view, that there is anything wrong with that.

Go Wood! (5.00 / 1) (#44)
by WS on Mon Apr 19, 2010 at 06:19:40 PM EST

I want her to get it for her sake but also to quelch the whole "must pick a moderate" for the Court media narrative.

: Greenwald says Wood is a moderate = public option. (none / 0) (#53)
by FoxholeAtheist on Mon Apr 19, 2010 at 06:49:05 PM EST

This attribute (none / 0) (#6)
by Maryb2004 on Mon Apr 19, 2010 at 03:55:49 PM EST

of Wood:

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.

would be a bonus.

I don't know if Kennedy can be persuaded or not but I do know that time and effort must be taken to try to persuade him.

Personally, I want all four of the justices on the "liberal" wing (which really isn't liberal) to be acting as persuaders.

What I don't want is for any of them to be spending time that could otherwise be spent on Kennedy, trying to persuade Kennedy AND the new justice.

That's why Kagan's lack of record concerns me. The person who replaces Stevens needs to be a sure vote, not someone who needs to be persuaded. Especially since it seems likely that Ginsburg will retire soon too and we are going to end up with three brand new justices on the "liberal" wing, none of whom are likely to be very liberal given Obama's lack of concern with appointing liberals.

It would be great if the person who replaces Stevens also has the skill to persuade Kennedy some of the time.

I was skeptical about this too (none / 0) (#7)
by Big Tent Democrat on Mon Apr 19, 2010 at 03:59:17 PM EST

"I don't know if Kennedy can be persuaded or not but I do know that time and effort must be taken to try to persuade him."

But someone smart pointed to 5 important cases where it really looked like Stevens brought Kennedy over.


I can't remember where I read it (5.00 / 1) (#18)
by Maryb2004 on Mon Apr 19, 2010 at 04:22:20 PM EST

but someone theorized that Stevens used his power to assign the writing of opinions as a way to bring Kennedy around.

With Stevens gone, Kennedy now has the most seniority behind Scalia (who votes with Roberts) so he would assign opinions himself where he joined with a majority against Roberts/Scalia.

I can see someone who is a good persuader working that angle.

Maybe it was Scotusblog.


: Lyle Denniston, at SCOTUSBlog, (5.00 / 2) (#38)
by Peter G on Mon Apr 19, 2010 at 05:50:43 PM EST

wrote an excellent piece on this point -- the power of assigning opinions, that goes to the Chief Justice for the side he's on, and to the justice with the most seniority for the opposing side's opinion.

Without knowing which 5 (5.00 / 1) (#22)
by brodie on Mon Apr 19, 2010 at 04:37:44 PM EST

cases those were, I'd trade them all if Stevens had only been able to bring Kennedy over on one -- Bush v Gore.

I'd probably trade 3 or 4 of those cases for corralling Kennedy on Citizens United. Maybe all 5 there, too.

Those were the two most important cases in my view in recent Ct history.


SCOTUS blog? (none / 0) (#8)
by oculus on Mon Apr 19, 2010 at 04:01:12 PM EST

: No (none / 0) (#9)
by Big Tent Democrat on Mon Apr 19, 2010 at 04:02:12 PM EST

Someone else.
Can't say who. Sorry.

I was particularly struck (none / 0) (#10)
by Anne on Mon Apr 19, 2010 at 04:04:11 PM EST

by Wood's willingness to speak out, early, about the issues engendered by the events of 9/11; it's so much easier to know where someone stands when they tell you, isn't it?

She should be everything Obama says he is looking for in a nominee; he should be impressed by Wood's powers of persuasion and ability to get along with those who perhaps do not share her philosophy or ideology, so all I can really hope is that Kagan is the head fake for Wood, who will, by comparison, look so much more qualified that it will ease Wood through the process. I would much rather see her wooing the Senate Republicans to her views than see Kagan rhetorically lick their boots.

It's actually probably more of a dream than a hope, but whatever...

: Speaking out not long (5.00 / 1) (#12)
by brodie on Mon Apr 19, 2010 at 04:10:20 PM EST

after 9/11 does count major points with me. That was a tough time where we were cautioned by someone at the WH to watch what we said in addition to what we did, and too many public liberals were cowering. The MSM fell in line completely, and Dan Rather went on teevee to volunteer his services should George W. Bush want him for some duties.
She gets double, maybe triple points, depending, if she also spoke out forcefully either at the time of the attempted coup against Clinton or after the B v G Sup Ct atrocity.

Iimpressive illustration of flexibility. (none / 0) (#16)
by oculus on Mon Apr 19, 2010 at 04:22:08 PM EST

And for an advocate of hard bargaining, as opposed to giving up the store from the get-go.

Today, imo, you are a BIG MAN BTD. (none / 0) (#24)
by FoxholeAtheist on Mon Apr 19, 2010 at 04:40:47 PM EST

You were convinced, by the evidence, to shift your support from Kagan to Wood. No hubris, nor ego, ruled the day. Kudos galore.

Not what he did, really (none / 0) (#30)
by andgarden on Mon Apr 19, 2010 at 05:09:51 PM EST

So, what did he really do then? (none / 0) (#32)
by FoxholeAtheist on Mon Apr 19, 2010 at 05:16:53 PM EST

He says he endorses Wood, (none / 0) (#33)
by andgarden on Mon Apr 19, 2010 at 05:20:03 PM EST

not that he wouldn't support Kagan (whom he never "endorsed" IIRC).


I didn't say BTD 'wouldn't support Kagan' (none / 0) (#40)
by FoxholeAtheist on Mon Apr 19, 2010 at 06:10:52 PM EST

if she is the eventual nominee. I was giving the man some credit for "shifting his support from Kagan to Wood" at this point in the process. That was clear in my initial comment.


I'm saying that I don't see a "shift" (none / 0) (#41)
by andgarden on Mon Apr 19, 2010 at 06:12:00 PM EST

from one person to another. "Support" in this context is not mutually exclusive.


What is your point, really? (5.00 / 1) (#48)
by FoxholeAtheist on Mon Apr 19, 2010 at 06:30:19 PM EST

Is it that you prefer Kagan? If so, say so - and stop splitting hairs - it's tedious.


No, I really don't (none / 0) (#52)
by andgarden on Mon Apr 19, 2010 at 06:49:03 PM EST

I just think you're seeing something that isn't there.


: Ditto my friend ;-) (none / 0) (#54)
by FoxholeAtheist on Mon Apr 19, 2010 at 06:49:42 PM EST

Not a chance in hell (none / 0) (#56)
by Bornagaindem on Tue Apr 20, 2010 at 07:56:58 AM EST

It is precisely that Wood would be such a great justice that Obama will not nominate her. His be all end all is promoting Obama and he doesn't want a fight that will hurt HIS reelection. Obama has no interest in promoting the progressive agenda- none, nada, kein.

Having said that I would love to have Diane Wood as the nominee and agree with everything Greenwald said.