Supreme Court Justice David Souter’s recent announcement that he will retire when the court’s latest term ends this June has launched widespread speculation about his successor, President Obama's first nominee to the Supreme Court. As part of an ongoing series, FrontPage Magazine will be reviewing the likeliest nominees. To read an assessment of Sonia Sotomayor, please click here. The series continues below with an examination of federal judge Diane Wood. – The Editors
After Sonia Sotomayor, federal judge Diane Wood of the 7th Circuit Court of Appeals is considered Barack Obama’s leading choice to replace the outgoing David Souter as a Supreme Court Justice. Fueling such speculation is Wood’s personal association with President Obama, with whom she once served on the University of Chicago faculty. Equally significant is that during her tenure with the 7th Circuit Court, where she has served since her 1995 nomination by Bill Clinton, Wood has shown a demonstrated commitment to what President Obama approvingly calls “empathy.” But Wood’s empathy has turned out to be highly selective, revealing a judicial temperament informed more by personal and political prejudices than sound legal judgment.
In 2004, Wood and the Seventh Circuit Court presided over Doe v. City of Lafayette. The case involved a convicted sex offender, dubbed “John Doe” by the court, with a long history of molesting and exposing himself to young boys. As Emily Bazelon reports in Slate magazine, Doe had earlier engaged in forcible oral sex with a 10-year-old and a 12-year-old; he had propositioned several boys to meet him for oral sex in an alleyway; and he had been arrested for such offenses as masturbating in view of children and “peeping” into the windows of an apartment.
Because of Doe’s repugnant history, the city of Lafayette, Indiana, banned him from its public parks—not only because he was a sexual predator but because he had every intention of continuing his assaults. Doe candidly told authorities and his psychologist that when he watched children playing in those parks, he experienced “urges” to “possibly expose myself to them” or to have “some kind of sexual contact with the kids.” Doe’s psychologist testified that she could give no guarantee that her patient would not offend again.
But Doe, by his own telling, also wanted to go to Lafayette’s public parks for reasons other than committing sexual assaults against children. For instance, he explained, he wished to engage in such harmless activities as playing softball, attending company picnics, and watching the games of a teen baseball league that were played there. Feeling victimized by the order banning him from the parks, Doe filed suit against the city. He complained that the ban punished him for his private sexual thoughts, and thus violated his First Amendment rights, and also prevented him from being able “to enjoy and wander through a public park,” thereby violating his Fourteenth Amendment right to “equal protection of the laws.”
The district judge who initially presided over this case ruled that the city’s ban on Doe was appropriate and was in the best interests of Lafayette’s residents. Then the case was appealed to the Seventh Circuit Court.
Enter Diane Wood, who sat on a three-judge panel that heard the evidence. In a 2-1 split, this panel, with Wood voting in the majority, reversed the district court’s decision. By Wood’s reasoning, the policy banning Doe from the public parks did indeed violate the man’s First Amendment rights. Subsequently, a larger panel of eleven judges from the same Seventh Circuit Court reheard the Doe case and, in an 8-3 ruling, reversed the decision of the three-judge panel. Wood, who was part of this eleven-judge panel as well, dissented from the majority opinion, sticking steadfastly to her belief that the molester’s civil rights and liberties had been violated.
If the Lafayette case revealed the kind of “empathy” Wood preferred, another case showed that there were some groups – especially conservative organizations – whose views she would make no effort to understand.
In 2006, the case of Christian Legal Society v. Walker came before Wood and the Seventh Circuit Court. As detailed by National Review Online’s Ed Whelan, at issue was a provision in the constitution of a Christian Legal Society (CLS) chapter at a law school. That provision stipulated that only people who shared the organization’s religious commitments—including its ban on extramarital sexual activity, whether heterosexual or homosexual—were eligible top serve as CLS leaders and voting members. The dean of the law school took exception to this policy, charging that the restriction against active homosexuals in particular violated the school’s equal-opportunity policies. Thus he revoked CLS’s official status as a student organization, prompting CLS to sue the law school on grounds that it had violated the group’s constitutional rights.
During the oral arguments at trial, Judge Wood betrayed her bias against religious Christians when she explicitly suggested, without a shred of evidence, that CLS considered homosexuals to be “less than fully human.” Not content to leave it at that, Wood informed CLS’s surprised attorney that Republicans too “have a tenet of their society that the Democrats are less than fully human.” However questionable Wood’s legal arguments, it was at least clear where she stood on the partisan divide. It was judicial activism at its most blatant.
Nowhere is Wood’s penchant for such activism more evident than in her rulings in abortion-related cases. This is not surprising. When President Clinton initially named Wood to sit on the Seventh Circuit Court in 1995, she was already a member of activist groups like the National Organization for Women (NOW) and Planned Parenthood of Metropolitan Chicago—two groups that oppose any and all limitations on taxpayer-funded abortion-on-demand.
As a member of the Seventh Circuit Court, Wood has ruled against legislation designed to ban the procedure commonly known as partial-birth abortion in Wisconsin and Illinois. In a case concerning an Indiana law which in no way restricted abortion rights—but stipulated only that women should receive counseling and pertinent information prior to undergoing an abortion—Wood wrote a dissent expressing her rejection of such a policy, even though the Supreme Court had upheld similar laws in other states.
In 2001 Wood sat on the Seventh Circuit Court panel that adjudicated a case known as National Organization for Women v. Scheidler, where NOW and a number of abortion clinics sued anti-abortion activists under the Racketeer Influenced and Corrupt Organization Act (RICO). Although RICO was designed chiefly to address the activities of organized crime, the plaintiffs in this case sought to apply RICO statutes to some illegal acts which pro-life demonstrators had allegedly perpetrated while protesting in the vicinity of abortion clinics. Ruling in favor of the plaintiffs, Wood wrote the panel’s opinion affirming the propriety of both a fine and a permanent nationwide injunction against the demonstrators. In 2003, however, the Supreme Court reversed this decision by an 8-1 margin, on the grounds that the defendants had not violated even one RICO statute.
But Wood and the Seventh Circuit simply ignored the Supreme Court ruling and proceeded to pursue the matter further. In a written opinion that cited four specific acts or threats of physical violence by the anti-abortion protesters in question, Wood issued an order remanding the case to the district court for further consideration. The Supreme Court subsequently overturned this ruling as well, by an 8-0 margin.
It’s easy to see why President Obama might select Wood. On the evidence of her judicial record to date, she would be as loyal a partisan in the Supreme Court as she has proved to be on the federal bench. Perhaps that is what the president meant when he vowed that his nominees would exhibit “empathy.”