Judicial Bouts Reveal Power of Persuasion, © The New York Times, April 21, 2010, by Sheryl Gay Stolberg, photo of Diane Wood in 2008 from Wikipedia, commentary by Evans Liberal Politics owner Paul Evans, excerpt quoted verbatim:

WASHINGTON — There were few liberals and just one woman on the federal appeals court in Chicago when Diane P. Wood, an antitrust expert with a flair for foreign language and an ear for playing the oboe, showed up in the summer of 1995. The chief judge, a scholarly conservative named Richard A. Posner, promptly gave her some advice.

The appeals bench, Judge Posner warned, was like “a system of arranged marriage with no divorce.”

His message to his junior colleague was clear: Pick your battles carefully. Compromise when you can.In the 15 years since, Judge Wood, 59, has done just that, playing the role of philosophical outlier, a left-leaning woman in a world of right-leaning men, including Judge Posner and Judge Frank H. Easterbrook, a sharp-tongued intellectual who is now the court’s chief. The three have a long history together; all are former law professors at the University of Chicago, where an ambitious young state senator named Barack Obama made a name for himself lecturing on constitutional jurisprudence.

Now President Obama is considering Judge Wood as a possible Supreme Court nominee. With conservatives attacking her as too liberal, her long relationship with Judges Posner and Easterbrook — sometimes yielding surprising consensus, at other times spirited dissent — offers hints into just what kind of justice she might be.

“Essentially, she’s a controlled fighter who likes to counterpunch,” said Richard A. Epstein, a Chicago professor and prominent libertarian thinker who knows all three.

Those counterpunches are often in evidence on the United States Court of Appeals for the Seventh Circuit in Chicago. Off the bench, the three judges maintain friendly relations. Judge Posner officiated at Judge Wood’s third wedding, and Judge Easterbrook and Judge Wood run into each other regularly at the symphony. On the bench, they conduct a regular three-way legal boxing match.

In a 2009 case that drew wide publicity, they parried over whether a condominium association could strip a mezuzah from the door of a Jewish family on the grounds that no hallway decorations were allowed. A three-judge panel, led by Judge Easterbrook, had ruled in favor of the association, with Judge Wood dissenting.

When the full court heard the case last May, those two judges, along with Judge Posner, fired questions at the family’s lawyer, cutting him off repeatedly. Passions ran high when Judge Easterbrook suggested the no-mezuzah rule was not discriminatory, but perhaps put forth “with a completely empty head by people who didn’t have a clue about the religious significance of the mezuzah.”

Judge Wood disagreed. In the end, Judge Easterbrook reversed himself to join a unanimous opinion that reflected her stance — an outcome that has drawn attention from longtime court watchers like Thomas C. Goldstein, the editor of scotusblog.com, which tracks the Supreme Court.

“It’s hard to find more confident and strong-willed judges than Frank Easterbrook and Richard Posner — they’re brilliant and they know it,” Mr. Goldstein said. “If she can have a decades-long relationship with these judges and maintain their respect, and do things like have Easterbrook come around in the mezuzah case, it really shows that she’s not tilting at windmills. She is very invested in persuading.”

That is precisely why President Obama is interested in her. On Wednesday, the president began consulting with senators for advice on a successor for Justice John Paul Stevens, who is retiring. Mr. Obama is seeking someone who can serve as an intellectual counterweight to Chief Justice John G. Roberts Jr., but who possesses the same consensus-building skills as Justice Stevens — skills that might tip a 5-4 court toward more liberal outcomes.

Judge Wood’s dealings with Judges Easterbrook and Posner reveal flashes of both.

Read the full article, here

Read the Wikipedia article about Diane P. Wood, here.

Watch Ms. Wood moderate in Our Legal Foundation: The Invisible Constitution and the Rule of Law, YouTube video from Chicago Humanities festival: 1:22:17.

Commentary by Evans Liberal Politics owner Paul Evans. MSNBC this morning had a back and forth with one of Judge Wood’s former clerks advocating for her to be the nominee versus a somewhat questioning person who asked about the judge’s stance on abortion as an issue. Apparently Judge Wood once issued an opinion to the effect that a demonstration against abortion crossed the line towards anti-abortion violence. Actually, the former clerk answered, Wood was actually simply following the then-existing precedent about overly vociferous demonstrations, and set no tone at all about the larger abortion question. She is however known to be pro-choice, and that is believed to be a liability for the nomination. Some wisdom has it that Obama should go with someone who is less controversial in terms of any abortion litmus test. Obama, it should be noted, has a long-standing relationship with Diane Wood going back to University of Chicago law school days. Certainly the judge is a good facilitator of compromise and also very persuasive, and would not be a bad choice for SCOTUS, unless the Republicans would get all ideological about abortion and decide to filibuster. She sounds good to me, and that’s speaking as someone who is largely not pro-choice.

Even if I do see the huge problem with 300,000 unwanted infants each year, I can’t see abortions on fetuses after 8 days after conception, since at that point they have recognizably human brainwaves. In other words, if you abort a fetus after eight days after conception, you are killing an an entity which is in fact in measurable ways a human being. To me, it’s not a “logistical” or social services nightmare issue, but one of ethics and morality. And I’m NOT saying pro choice people are immoral or unethical, they just see the welfare of the mother and society in different terms. So the question is not really a simple one, but I myself can’t get past the life of a human entity as decisive in abortion law.

It remains for me, a huge dilemma and an issue I am still coming to grips with, as is, I think, our nation as a whole. It is NOT, however, something to kill a doctor about! Unfortunately, rather than go with existing precedent in the matter, which does at least satisfy many if not most people, Republicans will probably make the abortion litmus test THE issue on any SCOTUS nominee. They will do that because it is a way to ignite their base. That’s rather sad, and is a political calculation rather than doing what’s best for the country as to the fate of any SCOTUS nominee. This fact may cause Obama to play it safe and nominate someone more middle of the road or less controversial on abortion, less readily identifiable as left wing or (gasp!) “liberal”. This nation has become so polarized, and abortion is one of the primary divisive issues. A start would be the recognition that the issue is complex and that there is more than one factor involved, and to not demonize “the other side”.

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Dean Baker is a macroeconomist and co-director of the Center for Economic and Policy Research in Washington, DC. He previously worked as a senior economist at the Economic Policy Institute and an assistant professor at Bucknell University. He is a regular Truthout columnist and a member of Truthout’s Board of Advisers.

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