Among the many progressives (including me) who see Diane Wood as the superior choice on the speculative Supreme Court shortlists, one crucial factor is her status as an intellectual force on the right-leaning 7th Circuit. A good article by Sheryl Gay Stolberg today provides a good account of this. Her ability to persuade is not just about collegiality -- in and of itself, who cares? -- but about the actual, concrete influence of good legal arguments:
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.
[...]
In 1995, just months after President Bill Clinton appointed Judge Wood, the Seventh Circuit took up the case of Gary Burris, a convicted murderer from Indianapolis who was contesting his death sentence. A three-judge panel, including Judge Easterbrook, deemed the challenge ineligible. But the full court reversed the opinion after Judge Wood pinpointed a flaw in the evidence supporting the original ruling.
“Needless to say, Judge Easterbrook was not pleased,” said Thomas Brown, at the time a clerk for Judge Wood.
I don't know about you, but that's who I want on the Court in a major case where Kennedy is the swing vote.
--Scott Lemieux
