By Thomas Vogel
As a new faculty member at the University of Chicago Law School in 1981, Diane Wood had two children, both under age 2.
Balancing motherly duties with workplace commitments, Wood sometimes tapped one of her colleagues, Antonin Scalia, for help. As the father of nine, he had a steady stream of clutch babysitters, including his son Eugene, now a 52-year-old partner at a Washington, D.C., law firm.
“When my child-care arrangements fell apart, I would bring them to the law school and Gene would keep an eye on them and play with them and take them out and throw a ball around the backyard,” Wood said. “I knew the family quite well.”
The last two times there was a vacancy, in 2009 and 2010, Wood was also considered and even traveled to Washington, D.C., to meet with Obama and his team. Those spots, however, went to justices Sonia Sotomayor and Elena Kagan, respectively.
Wood says she has not been contacted by the White House but would consider a nomination if President Obama offered.
“I don’t know very many people that would turn down a request from any president,” Wood said recently in her 26th floor office in the Dirksen Federal Building in Chicago’s Loop. “On the other hand, having been through it twice, I think I have done what I needed to do, we’ll see.”
It’s possible the 65-year-old Wood is too old for the position.
Presidents traditionally favor relatively young justices, who are able to influence jurisprudence long after a president leaves office, according to Vinay Harpalani, a professor at Savannah Law School in Georgia. Kagan, for instance, was 50 at the time of her appointment in 2010. And John Roberts was just 44 when he was named chief judge in 2005.
Harpalani expects the nominee to be a moderate circuit court judge, possibly from a minority group, like Sri Srinivasan, born in India and currently a judge on the D.C. Circuit Court of Appeals . By selecting a minority candidate, Obama could help mobilize Democratic voters in the upcoming presidential election.
A Beltway fight begins
The nomination — whenever it is announced — will be controversial. Senate Republicans have already announced they will not consider any candidate put forth by Obama, even refusing to hold confirmation hearings.
They argue, because it is an election year, the nomination should be delayed until a new president is elected. The Obama administration disagrees and points to constitutional language clearly stating nominations are the president’s prerogative, regardless of timing. Indeed, Article II of the U.S. Constitution gives the president power to nominate justices with the “advice and consent of the Senate.”
The last Supreme Court justice to be confirmed in an election year was Anthony Kennedy in 1988. But the last instance a candidate was both nominated and confirmed in an election year was Frank Murphy, named in 1940 by President Franklin Roosevelt.
Relative age aside, Wood’s credentials are robust. A well-respected federal judge, Wood has plenty of on-the-job experience. In more than two decades on the federal bench, Wood has authored many opinions, some concerning important social issues like abortion . In one well-known dissent in a 2008 religious discrimination case, Wood’s view was so convincing the Seventh Circuit eventually reversed its original judgment.
The vetting process is often an extensive investigation of a candidate’s past, including speeches, published papers, comments to media, interactions with co-workers. Despite the intrusiveness, it’s unlikely the extra scrutiny will dissuade possible candidates, like Wood, court-watchers say.
Moreover, presidents often rely on the federal bench for Supreme Court nominations, with Kagan the only sitting justice who did not serve on the federal bench prior to her appointment.
“My gut reaction is, you know, this is an opportunity of a lifetime,” Harpalani said. “This is kinda like their dream job.”
A ‘brilliant’ chief judge
Colleagues and former clerks praise Wood, who was appointed to the Seventh Circuit in 1995 and has served as chief judge since 2013. Wood’s thorough preparation process, intellectual prowess and respect for all were common themes.
“She doesn’t rest on the fact that she’s brilliant,” said Katherine Minarik, a former clerk and practicing attorney in Chicago. “She’s been a non-stop mentor to me.”
Steven Art, another former clerk, mentioned Wood’s ability to develop meaningful relationships with co-workers, beyond simple workplace interactions. Art said Wood’s collaborative approach with clerks reflects her teaching experience in academia.
“If there’s a spectrum, she’s all the way on the collegial side,” Art said.
Former clerks aren’t the only people with accolades: Fay Clayton is an attorney at a Loop law firm and has argued several cases in the Seventh Circuit.
“She is one of the absolute top judges I’ve argued in front of,” Clayton said. “She’s as good as any and better than many.”
Clayton also mentioned Wood’s preparedness, a compliment echoed by one of Wood’s fellow judges on the court, Richard Posner.
A Seventh Circuit judge since the 1980s, Posner, who served as chief judge for seven years, also praised her writing skills and “encyclopedic knowledge of judicial procedure.”
Posner says Wood’s educational and geographic diversity distinguish her from other candidates. Wood graduated from the University of Texas at Austin and, although born in New Jersey, has spent much of her professional life in the Midwest.
Every sitting Supreme Court justice, save for Justice Ruth Bader Ginsburg, is an alumnus of either Harvard or Yale.
Educational homogeneity aside, Posner identified a knowledge gap at the court, saying many of the justices do not emphasize foreign law enough, an increasingly significant field as globalization continues.
With Wood’s specialty in antitrust law and experience at the U.S. Justice Department, Posner says she’d be a welcome addition to the bench.
Acknowledging it’s hard to determine how the Obama administration will act, Posner said the entire discussion over a possible nominee is superfluous.
“It seems totally pointless since the Republican senators have made clear they are not going to consider any candidate that Obama appoints,” Posner said. “I don’t know what the point is.”
This latest vacancy is especially significant for several reasons, Harpalani says.
Without Scalia, the court is now split evenly along ideological lines, although Kennedy remains a wildcard. The vacancy also occurred in an election year, and Scalia’s outsized influence plays a role, too.
“Justice Scalia himself was just, you know, such a towering figure.” Harpalani said. “He really became like a public justice in terms of just espousing his theories of jurisprudence.”
Harpalani doesn’t think the political battle and heightened scrutiny will dissuade potential candidates, however.
But on Feb. 24, Brian Sandoval, the Republican Nevada governor and another rumored candidate, removed his name from consideration, releasing a statement saying he would not accept a nomination.
“If you’d rather be a politician, if you’d rather really be in the policy fray, you probably shouldn’t be on the court,” Wood said. “If you want to be applying the law, thinking about the constitution, then the court is a great place to be.”
As rumors continue, the eight-member court must continue functioning.
There are several important issues on the docket for the upcoming judicial term, including abortion and immigration. With the court’s current ideological makeup, it’s likely some decisions will end in a 4-4 tie, leaving in place the lower court’s decision.
“The court never takes a case unless it thinks it’s an important case to resolve,” Wood said. “So anytime they take a case and it winds up not being resolved, then there is a certain loss to the country.”
For now, Wood says her current role as chief judge provides more than enough to do, such as screening judicial misconduct complaints and representing the Seventh Circuit at the Judicial Conference of the United States, the 26-member body that helps govern the federal court system.
“It’s very flattering to have your name mentioned on the Supreme Court,” Wood said. “I’m just minding my own business and doing my own job. We’ll see what happens.”