Possible Court Pick Is Used to Dueling on Bench
Wood, a Contender to Replace Souter, Often Spars With Conservative Colleagues on the 7th Circuit
By Peter Slevin
Washington Post Staff Writer
Saturday, May 16, 2009
CHICAGO -- The verbal sparring began quickly.
Less than two minutes into the lawyer's argument, U.S. Appeals Court Judge Diane P. Wood launched the first question. A Chicago condominium board had repeatedly removed a mezuzah from a Jewish resident's door frame, and Wood viewed it as a violation of religious freedom.
To her right, Judge Frank H. Easterbrook disagreed. Firing his own questions, he suggested that the dispute over the small case containing Torah verses was rooted in nothing more than a condo association's effort to eliminate hallway clutter.
Back and forth they went during oral arguments at the U.S. Court of Appeals for the 7th Circuit. It was a familiar dance, joined energetically by Judge Richard A. Posner, who most often aligns with his fellow Reagan appointee Easterbrook.
Wood's 14 years alongside Posner and Easterbrook, who often serve together as a panel of the circuit court, are being studied afresh as President Obama prepares to make his first nomination to the Supreme Court. Wood, described by associates as smart, progressive, steadfast and collegial, is a onetime colleague of Obama's at the University of Chicago and is considered by many to be on the shortlist of potential replacements for retiring Justice David H. Souter.
Wood knows what it is like to duel two of the most formidable and prolific conservative jurists in the country, a key element of Obama's search as he tries to shift the dynamic of a court led by Chief Justice John G. Roberts Jr. and Justice Antonin Scalia.
"She's as bright as Posner and Easterbrook and really holds her own, and I think she would hold her own with the great intellects on the high court as well," said Chicago lawyer Fay Clayton, who has argued many 7th Circuit cases. "Everything she does is based on precedent and statutory construction and the facts."
Clayton, noting Obama's much-discussed desire to nominate a justice who has what he describes as empathy and real-world understanding, said Wood's work "reflects an understanding of human nature. She very much tries to figure out the logical meaning of the statute."
Wood, who turns 59 on July 4, is an oboe-playing graduate of the University of Texas and its law school who performs in three local orchestras. A former law clerk for the late Justice Harry A. Blackmun, she also worked in the Clinton Justice Department's antitrust division and, years earlier, in the State Department legal adviser's office.
In a letter to Georgetown University, which hired Wood as an assistant law professor in 1980, Blackmun called her a "good analyst" who is "able to take a position and stand by it."
Neither Easterbrook nor Posner is shy about displaying intellectual candlepower. In the mezuzah case, Easterbrook interrupted a lawyer to intone: "We're not interested in what you think. We're interested in what the statute says." At another point, he said dismissively, "That's just op-ed-page rhetoric."
Yet in parts of the discussion, Wood found herself speaking up for Posner and Easterbrook. That prompted one of the lawyers to compare the experience to tag-team wrestling.
Friends and former law clerks say the three judges, all of whom teach at the University of Chicago, work well together. They routinely share lunch, and Posner officiated at Wood's wedding to Chicago neurologist Robert L. Sufit. The marriage is her third.
Wood has a record of supporting abortion rights, a history that abortion opponents are already highlighting. She dissented from decisions upholding late-term abortion bans and from a 2002 opinion written by Easterbrook that upheld an Indiana law requiring women seeking an abortion to wait 18 hours after a doctor's visit.
The court, she said in 2002, misapplied Supreme Court precedent, "substituted its own factual assumptions for evidence" and "failed to focus on the women for whom that statute will create problems."
Wood endorsed the National Organization for Women's attempt to use racketeering laws to target violence against abortion clinics. The Supreme Court had given a unanimous green light to the strategy in 1994, before Wood was a judge.
But after a trial verdict that was upheld by Wood and the 7th Circuit in 2001, the Supreme Court ruled 8 to 1 that the actions of the anti-abortion protesters were criminal yet did not constitute extortion, a key part of the racketeering claim.
In a different case, Wood helped overturn a deportation order against a Ukrainian woman who showed up two hours late for a court hearing. The immigration judge said the woman, who was delayed while waiting for her interpreter, had missed her chance. Wood said she had a right to a hearing.
Wood also took a more expansive view in a case that targeted the Indiana General Assembly's opening prayer as too often overtly Christian.
Again on the losing side of a 2 to 1 decision, she objected to the court's ruling that four Indiana residents -- a Quaker, a Methodist and two Catholics -- had no standing to file suit because they did not connect the spending of tax dollars to a violation of the Constitution's establishment clause.
Wood drew on writings including the Federalist Papers and the State Department's religious freedom report. She noted James Madison's worries about unchecked legislatures and his comment that strong majorities can make minority rights "insecure." She said a careful reading of an opinion by Justice Samuel A. Alito Jr. supported her view that the plaintiffs deserved their day in court.
Wood often gets away from the judicial world by playing her oboe. She is "serious about her music, but still fun-loving and whimsical about it," said Julia M. Nowicki, a former local judge who plays cello for the 55-member Chicago Bar Association Symphony Orchestra.
"So many judges end up living in ivory towers," said trumpeter Michael Poulos, "it's nice to see people in lofty places making lofty decisions still living in the real world."
John S. Vishneski III, who has played clarinet for two decades in the chair next to Wood, said her fellow players asked her about becoming a justice.
"Her only comment to us," Vishneski said, "was it would be a really good thing."
Staff writer Kari Lydersen in Chicago and news researcher Madonna Lebling in Washington contributed to this report.