Now that President Obama has interviewed the four finalists for the U.S. Supreme Court seat he has to fill — Judge Merrick Garland (D.C. Cir.), Solicitor General Elena Kagan, Judge Sidney Thomas (9th Cir.), and Judge Diane Wood (7th Cir) — the nominee could be announced any day now. Who will it be?
We realize that the betting men (and women) favor Solicitor General Elena Kagan. Kagan is also the pick of Tom Goldstein, the veteran Supreme Court litigator and founder of SCOTUSblog, who correctly forecast the nomination of Sonia Sotomayor (a nomination that the White House sought his counsel on).
But we’re going to go out on a limb and make a crazy prediction: President Obama is going to nominate Judge Diane Wood, of the Seventh Circuit, to the Supreme Court. He’ll announce the nomination on Monday, May 10 — the Monday after Mother’s Day. (That’s significant, for reasons we’ll get to later.)
Right out of the starting gate, immediately after Justice John Paul Stevens announced his retirement, Solicitor General Elena Kagan emerged as the frontrunner for his seat. And Kagan is still widely regarded as the leading candidate.
But, in the past week and a half or so, we’ve felt a slight, almost imperceptible shift in the wind, in favor of Judge Wood….
At the outset, we have a caveat: we are being predictive here, not prescriptive. We’ve listed below the reasons why we think President Obama will nominate Judge Wood, as opposed to the reasons why he should nominate her (although there’s overlap, to be sure). For the “should” case, see generally Glenn Greenwald, or watch this video (featuring appellate litigator David Gossett, a Mayer Brown partner and former Wood clerk).
In predicting that Judge Wood will be the nominee, we intend no disrespect to the other short-listers. We have the utmost respect for Judge Garland, Judge Thomas, and Solicitor General Kagan. (We’re especially big fans of General Kagan and Judge Thomas, whom we know personally and like a great deal.)
(Also, if we were being prescriptive rather than predictive, we wouldn’t be looking at these four candidates anyway — especially not Judge Wood, who might be the most far left of this foursome. Our taste in Supreme Court justices runs more right-of-center, more Federalist Society — like the judge for whom we clerked, Judge Diarmuid O’Scannlain, or his more libertarian colleague on the Ninth Circuit, Chief Judge Alex Kozinski. But, as members of the reality-based community, we recognize that Judge Garland is as conservative as Obama will ever go. So, onward….)
Before we get to the “pros” for Obama of nominating Wood, let’s address the big “con.” The main stumbling block for Judge Wood is her abortion jurisprudence — and the political opposition it would engender. But we don’t see this as insurmountable. If Judge Wood gets raked over the coals for her abortion-related rulings by a Republican senator, trying to cast her as a rabid baby killer at her confirmation hearings, we imagine her responding as follows:
“Senator, I embrace the joys and pains of motherhood with open arms. People have been calling me ‘Judge’ for fifteen years, but the title that will always come first in my life is ‘Mom.’ It’s a title I’ve held for twice as long — over 30 years.”
“I love my six children” — here Judge Wood looks smilingly at her three children and three stepchildren, sitting in the first row of the hearing room — “more than words can say. I have chosen motherhood time, and time, and time again.”
(Three “times,” one for each of her kids. Then, almost on the verge of tears — because tears work beautifully at a Supreme Court confirmation hearing — Judge Wood continues….)
“But even though I’m a mother many times over, I recognize that other women might want — or need — to make different choices. Painful choices. And I firmly stand by a woman’s right to choose. So did my late boss — the great Justice Harry Blackmun, may he rest in peace — who authored the Court’s opinion in Roe.”
Game, set, match. And if this were a Lifetime television movie, or maybe a Christopher Buckley novel, Judge Wood would add: “So please don’t lecture me about being ‘pro-life’ until you’ve brought as much ‘life’ into the world as I have. How many babies have you popped out, Senator?”
With that out of the way, here’s our top ten list of reasons why President Obama will nominate Judge Wood. Some of these factors are major, and some are minor. Taken together, however, they present a very strong case for Judge Wood. We’ve ordered them, very roughly, in order of significance.
1. QUALIFICATIONS: Judge Wood’s qualifications and experience are impeccable. She has a long and distinguished tenure on one of the nation’s most prestigious appellate courts, the Seventh Circuit. Before taking the bench in 1995, she worked in both private practice and at the Justice Department. She also taught law at the University of Chicago Law School, where she was the first female tenured professor (and where she still teaches — she had to cancel class yesterday, to interview with President Obama, her former U of C colleague). Most fabulously, she’s a former Supreme Court clerk (OT 1976/ Blackmun).
As has been noted on countless occasions, during her 15 years on the Seventh Circuit, Judge Wood has held her own — and then some — against conservative heavyweights like Chief Judge Frank Easterbrook and Judge Richard Posner. This shows she could go toe-to-toe with Chief Justice Roberts and Justices Scalia, Thomas, and Alito.
But Judge Wood isn’t in constant combat; she’s not abrasive or difficult. Her conservative colleagues are some of her closest friends. And she has managed to persuade them on many occasions, even getting them to change their original positions in certain cases (like the famous mezuzah case). This suggests she might be effective in winning over Justice Kennedy.
In sum, to quote one of her admirers, on the conservative side:
That woman is wicked smart. Wood is an excellent writer, and (unlike many judges) she sees the entire jurisprudential landscape. Like Scalia, Wood is always thinking a step ahead of the game and setting herself up to rule a certain way in the next case. In short, she is a liberal version of Nino; and that’s what makes her so freakin’ scary…
We’ve even heard, from some pointy-headed law professor types, that Judge Wood should be picked because she’s the most brilliant of the candidates — even smarter than Kagan, and just as smart as Garland (who has been described to us, by multiple people, as “the smartest person I’ve ever met”). But we’re not going to go there; we’ve been burned by recent attempts to speculate on intelligence. Suffice it to say that all four of the short-listers are extremely, extremely intelligent (and, at a certain point, IQ is less important than EQ — even at the Supreme Court).
2. POLITICAL CONSIDERATIONS: Of the top three contenders — Solicitor General Kagan, Judge Garland, and Judge Wood (no offense, Judge Thomas) — Judge Wood would be the most difficult to confirm (primarily because of her abortion rulings, including 8-0 and 8-1 reversals by the Supreme Court). Normally this would weigh against her nomination — but not now, given the political terrain.
The Democrats currently have 59 seats in the Senate. After the midterm elections this fall, this number is going to go down. So President Obama should put his best — i.e., most liberal — foot forward, by nominating Judge Wood. Those 59 Senate seats are like frequent flyer miles: use them now, before they expire.
It’s very likely that President Obama will get a third Supreme Court appointment, whether due to the departure from the Court of Justice Ginsburg, who has had health issues, or due to another justice leaving (Justices Scalia and Kennedy both turn 74 this year). At that time, he’ll have a much slimmer Democratic majority to work with (assuming the Dems even retain their majority). And that is the time he’d want to have a Kagan or a Garland to put up.
Kagan wouldn’t be a cakewalk. But since she got confirmed as Solicitor General by a vote of 61-31, and hasn’t done anything crazy as SG, it’s likely she could win SCOTUS confirmation in the end. And Garland would be a cakewalk. Prominent conservatives who are active in the judicial confirmation wars, like Ed Whelan and Curt Levey, have already stated publicly that they can live with a Justice Garland. As a White House official recently stated, Judge Garland is “the guy you go with when you only have 51 Democrats in the Senate.”
3. AGE: Of the three top contenders, Judge Wood is the oldest, at 59. Judge Garland is 57, and Kagan just turned 50. Normally this would cut against confirmation, but the logic is the same as for “political considerations,” supra. President Obama should nominate Judge Wood while he still can, before she hits the big 6-0.
Is Judge Wood, at 59, already too old for the Court? Not at all. Sometimes “older is better” when it comes to SCOTUS picks — see this excellent piece by Montgomery Kosma, in the Washington Post. Some of our nation’s most influential justices were appointed at older ages, including Oliver Wendell Holmes (61) and Louis Brandeis (59).
Also, to the extent that age is a proxy for health, Judge Wood appears to be in excellent shape. She seems to be more fit than Elena Kagan, and she’s also a non-smoker. (We don’t know whether Kagan still smokes, but she was a smoker back when she was Dean at Harvard Law School — as Elie, a fellow smoker at HLS, can confirm.)
4. GENDER: This is a biggie. From Newsweek:
Two senior administration officials say the prospect of adding significant gender diversity to the high court has been a major consideration for Obama. Obama has privately told friends and aides, these sources say, that he would like nothing more than to be the first president to elevate three women to the bench.
This is why Judges Garland and Thomas are long shots compared to Judge Wood and Solicitor General Kagan. It would be one thing if Obama confronted a trade-off between qualifications and gender. But in this case, given that all four short-listers are superbly qualified, why not go for one of the two with two X chromosomes?
Since the Court has only nine members, proportional representation of all demographic groups is not a realistic goal. But, in a nation full of amazing female lawyers and judges, isn’t it reasonable to expect at least three out of the nine justices to be women?
5. MOTHERHOOD: Judge Wood isn’t just a woman; she’s a woman with children. As noted supra, playing the “motherhood” card provides some insulation against abortion attacks. In addition, there’s an independent case for appointing another mother (Justice Ginsburg is a mom too). See this Daily Beast piece, by Peter Beinart, who writes:
[I]t’s important not just to have lots of women in positions of political power, but to have lots of women with kids. It’s important because otherwise, the message you’re sending young women is that they can achieve professionally, or they can have a family, but they can’t do both….
Eighty percent of American women over the age of 40 have children. But look at the women who have held Cabinet posts in the last three presidential administrations. Only two of the Clinton administration’s five female Cabinet secretaries had kids…. In the Bush administration, the figure was two of seven. In the Obama administration, so far, it is two of four. And if Obama chooses Elena Kagan for the High Court, the figure there will be one of three.
If Obama nominates Wood, we expect him to announce it on the Monday after Mother’s Day. He can open his speech by wishing the mothers of this nation a belated Happy Mother’s Day — and then unveil his nominee, Judge Diane Wood, a mother herself.
6. RELIGION: As we discussed with two of our fellow SCOTUS-watchers, law professors Eugene Volokh and Joseph Thai, the religion of Supreme Court justices isn’t as big a deal as it once was. But still, people notice it. It might be a small factor, but it weighs in Wood’s favor.
If Obama goes with either Garland or Kagan, the Court will be composed of six Catholics and three Jews — in a country that still has a Protestant majority. If he goes with Wood, in contrast, the Protestants would still have at least some representation on the high court.
UPDATE: This would also be an advantage for Judge Sid Thomas, who is Protestant — Presbyterian, specifically (according to a Ninth Circuit representative).
Who would have thought that we’d live to see the day when we’d be in need of a “token Protestant” on the SCOTUS?
7. RALLYING THE BASE: Among the final four, Judge Wood is the definite favorite of progressives. Over at Salon, Glenn Greenwald laid out the liberal case for Judge Wood quite well, citing her “long, clear, inspiring record.” He wrote: “If one were to analogize the search for Justice Stevens’ replacement to the recently concluded health care debate, Seventh Circuit Court of Appeals Judge Diane Wood would be the public option.”
Thus far in his presidency, Obama hasn’t exactly pandered to his base. In fact, many on the left are angry and disappointed at Obama about various things, ranging from LGBT issues to civil rights (although he did deliver health care reform, no small feat).
But Obama and his advisers realize that, in order to limit Republican gains in the midterms, they need to rally the base. Obama has recently stated that he plans to reach out to “the young people, African-Americans, Latinos and women, who powered our victory in 2008.”
One good way to do that: by nominating Judge Wood.
8. GEOGRAPHY: The eight current justices all come from either the East or West Coasts — mostly the East Coast. Aside from Justice Kennedy, a Californian, all of the current justices did their prior judicial service in courts along the so-called “Acela corridor” (from Boston, through New York and Philadelphia, and down to D.C.).
The middle of the country, dismissively referred to by coastal snobs as “flyover country,” is huge, and it’s key to electoral victories. Judge Wood is a Midwesterner — with additional ties to Texas, where she went to school (see infra) — and this is a plus for her. If Obama goes with either Kagan or Garland, the heartland will have absolutely no representation on the Supreme Court.
(Geography also helps Judge Sidney Thomas, out of Montana. But he doesn’t have some of the other advantages that Judge Wood enjoys. E.g., breasts.)
9. NON-IVY LEAGUE: All of the eight current justices graduated from Ivy League law schools — mostly Harvard and Yale, with Justice Ginsburg getting her J.D. from Columbia (although she did spend her first
year two years at HLS). And as we know, from the recent congressional hearings where SCOTUS clerk hiring was discussed, people are concerned about Harvard-Yale dominance at One First Street.
Judge Garland and Solicitor General Kagan, both Harvard Law School graduates, would not help in this regard. In contrast, Judge Wood, a graduate of the University of Texas (undergrad and law), would break the Ivy League monopoly (but without going TTT, or triggering the kind of snob reaction that greeted the nomination of SMU Law alum Harriet Miers — UT is still a top law school, despite the complaints of some current students).
10. SENTIMENTAL REASONS: This ties into some of the considerations mentioned above, such as religion and geography, but there’s a bit more here. The seat being vacated is currently occupied by Justice John Paul Stevens. Prior to his appointment to the Court, Justice Stevens was a highly respected, Protestant, Chicago-based Seventh Circuit judge, who had once clerked on the Court himself (OT 1947 / Rutledge).
So wouldn’t it make perfect sense to replace Justice Stevens with Judge Wood — a highly respected, Protestant, Chicago-based Seventh Circuit judge, who had once clerked on the Court herself? And emphasis on “herself,” since Judge Wood is sort of like “Justice Stevens 2.0″: new and improved, with added gender diversity!
A Wood appointment would offer wonderful continuity, fantastic symbolism, and a great opportunity for President Obama to honor the legacy of Justice Stevens. The president’s nomination speech basically writes itself (with that intro keyed to Mother’s Day).
So this is why we think Judge Wood will get picked. And, although we’re in the minority on this, we’re not alone. From the AP:
Wood has been considered a front-runner all along. She interviewed with Obama for last year’s court opening and was said to have impressed the president. He ultimately chose Sotomayor, making her the first Hispanic to serve on the high court upon her confirmation by the Senate.
As for this time, Obama’s announcement of a nominee is expected any day.
Indeed. Good luck to all the short-listers — Judge Garland, Solicitor General Kagan, Judge Thomas, and Judge Wood.
And, since we’ve already given unsolicited advice to General Kagan — to wit, a makeover — here’s some advice for Judge Wood: don’t eat too much when your kids take you out for Mother’s Day brunch. Avoid waffles like the plague — super-carby.
After all, Lady Di, you don’t want look all bloated for that White House press conference on Monday. You look like a size zero, but remember: the camera adds twenty pounds!
UPDATE: We didn’t see this until today, but back in December, well before Justice Stevens retired, Mike Sacks offered similar analysis over at First One @ One First. Nice post, Mike!
Obama interviews Wood for Supreme Court vacancy [CNN via BLT]
Obama Interviews Appellate Judge Wood [Ninth Justice]
FantasySCOTUS.net – Our Final Predictions – Elena Kagan FTW [Josh Blackman]
Obama interviews Diane Wood for Supreme Court [Associated Press]
Supreme Close-Up: Diane Wood [Daily Rundown / MSNBC]
Women’s Court [Newsweek via WSJ Law Blog]
Put a Mom on the Court [The Daily Beast]
When Obama picks a new Supreme Court justice, older is better [Washington Post]
The long, clear, inspiring record of Diane Wood [Glenn Greenwald / Salon]
Follow-up on Supreme Court selection process [Glenn Greenwald / Salon]