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Nominee Analysis: Judge Diane Wood

Continuing our examination of the “shortlist” candidates to replace Justice David H. Souter, below is a profile of Seventh Circuit Judge Diane P. Wood and brief analysis of how her opinions have intersected with the Supreme Court’s decisions. [Embedded links direct to document files and relevant news articles.]

Articulating her understanding of constitutional interpretation in a lecture entitled, “Our 18th Century Constitution in the 21st Century World,” Seventh Circuit Judge Diane P. Wood laid out her view that judges should not confine their interpretation of the Constitution to the narrowest reading of the text. Rather, the Framers understood that courts would find “unwritten” law that allowed the text to adapt to contemporary needs: “[t]here is no more reason to think that they expected the world to remain static than there is to think that any of us holds a crystal ball. The only way to create a foundational document that could stand the test of time was to build in enough flexibility that later generations would be able to adapt it to their own needs and uses.”

As an articulate proponent for a dynamic Constitution, Wood could provide the Supreme Court with a counterpoint to conservative jurisprudence of the right. In her 14 years on the Seventh Circuit, Wood has often played that role with respect to her conservative colleagues Justices Richard Posner and Frank Easterbrook.  She has written over 50 dissents and concurrences and joined dozens more.

Wood, 58, was appointed by President Clinton in 1995 and became the second woman on the Seventh Circuit. She was recommended for the bench by late Illinois Senator Paul Simon and received a “well qualified” rating by the ABA Standing Committee on the Federal Judiciary. A transcript of her nomination hearing and her nomination questionnaire can be found here.

Wood’s nomination would maintain a Supreme Court composed entirely of former federal judges. But she came to the appellate court from academic roots: she has taught at University of Chicago Law School since 1981, served as its the associate dean for three years, and was for a time the only woman on the faculty. Her tenure at Chicago overlapped with President Obama’s lecturer position there. With an academic background primarily in antitrust law and international finance, she might assist the Court as it answers legal questions emerging from the global economic crisis and the Department of Justice’s increased efforts at antitrust enforcement.

Wood would bring some geographic and educational diversity to the bench: eight of the nine current Justices attended Harvard or Yale and seven of the nine served on East Coast circuits. Calling Texas her “adoptive home state” (she moved at age 16), Wood received her undergraduate and law degrees from University of Texas, Austin, graduating from the law school with high honors in 1975. She clerked for the Attorney General of Texas during law school and for Judge Irving L. Goldberg of the Fifth Circuit upon graduating. She then clerked for Supreme Court Justice Harry A. Blackmun in the 1976 term.

Wood’s formative clerkship with Justice Blackmun gives some hints to how she envisions the role of the highest court. Blackmun, who authored the majority opinion in Roe v. Wade in 1973, was a firm advocate for individual rights against government intrusion. Wood has praised Blackmun’s vision, as he demanded hard evidence of compelling state interests that would justify intrusions on individual liberty. In particular, Wood has referenced Moore v. City of East Cleveland (1977), in which Blackmun joined the plurality reversing a city housing ordinance that strictly defined a family unit. In Wood’s view, the Burger Court correctly read the Fourteenth Amendment to protect the “basic value” of the “sanctity of the family.” In the Roberts Court, it is possible that cases on same-sex marriage would give Wood an opportunity to further “the right to be free of discrimination” and “the right to be left alone.”

A focus on individual rights and specific facts permeates many of her opinions in the Seventh Circuit. In her dissent from denial of rehearing en banc in Crawford v. Marion County Election Board, 484 F.3d 436 (2007)-in which the Supreme Court later disagreed with her view and sustained Indiana’s voter identification law– Wood wrote: “where election law has been passed with the intent of imposing an additional significant burden on the right to vote of a specific group of voters, the court must apply strict scrutiny…to ensure that state law is not being used to deny these citizens their fundamental right to vote.” Wood considered recent studies on how small percentages of voters could affect elections and was unconvinced by the state’s evidence of voter fraud.

In St. John’s United Church of Christ v. City of Chicago, 502 F.3d 616 (2007), Wood’s majority opinion rejected the church’s claim that legislation to expand Chicago-O’Hare airport, exercising eminent domain over cemeteries, violated the Free Exercise and Equal Protection clauses and the Religious Land Use and Institutionalized Persons Act (RLUIPA). Wood wrote that “[t]here are simply no facts in the voluminous record…that support any such claim of targeting religious institutions or practices.” Her opinion highlighted the compelling statistics on the economic interest of the airport expansion and looked to plain language of state laws and of RLUIPA.

Wood’s ideas on constitutional interpretation and her opinions would place her firmly on the left in the Court, likely to vote along the same lines as Justice Souter. Although relatively few of her opinions have come before the Roberts Court, the more liberal Justices have generally agreed with her views, and her opinions have generally fared well before the Court as a whole. A 7-2 opinion, delivered by Justice Scalia, affirmed Wood’s opinion in  Wallace v. Kato (2007), regarding the statute of limitations in Section 1983 cases.

On the other hand, Justice Ginsburg, in an 8-1 opinion (Stevens dissenting), vacated and remanded Wood’s opinion in Tellabs v. Makor Issues (2007). Wood also had joined the panel in Hein v. Freedom from Religion Foundation (2007) that decided tax payers had standing to bring Establishment Clause suits against the Office of Faith-Based and Community Initiatives. A closely divided Supreme Court reversed in a plurality opinion by Justice Alito. Justice Stevens’ Crawford opinion invoked her dissent to the denial of rehearing en banc as evidence of why the Court should hear the case; while the majority affirmed the Seventh Circuit, Souter’s dissent employed the argument Wood presented below.

Earlier, in Burlington Industries v Ellerth (1998), Justice Kennedy wrote for a 7-2 court to affirm her majority opinion, following Wood’s reasoning that agency law principles -not the category of sexual harassment claim or whether the threat was carried out- governed an employer’s vicarious liability under Title VII. In Board of Regents of University of Wisconsin System v. Southworth (2000), Kennedy’s unanimous opinion reversed the Seventh Circuit’s judgment and shared Wood’s opinion dissenting from the denial of rehearing en banc that the appeals court had created an untenable rule on opting out of the university’s student activity fee because of First Amendment complaints.

Her most commonly discussed reversal is in Scheidler  v. National Organization for Women (2003), in which an 8-1 Court (Stevens dissenting) rejected the Seventh Circuit’s application of RICO laws in a suit against abortion protest groups. But Wood’s opinion was a judgment primarily about injunctive relief and the breadth of the racketeering statute, not on the right to provide an abortion or to protest.

As for the Court’s docket in OT09, Wood participated in two cases granted certiorari: she joined the unanimous denial of rehearing in Union Pacific Railroad Co. v. Brotherhood of Locomative Engineers and joined Judge Posner’s dissent from denial of rehearing en banc in Jones v. Harris Associates (08-586), on mutual fund adviser fees.

Wood arrived in Washington, D.C yesterday to attend a legal conference at Georgetown University Law Center today, sparking speculation that her visit might actually be for an interview with President Obama; at least one source said the meeting had already happened.