The president doesn't want a fight. The Republicans don't really, either. So it's safe to predict that there will be what looks like a fight, but in the end the nominee will take his or her seat unscathed. That about sums up the chatter about the confirmation process for Obama's choice to replace Justice John Paul Stevens. It all points to the nomination of either the unobjectionable Judge Merrick Garland of the D.C. Circuit Court of Appeals or Solicitor General Elena Kagan, shortlisters who have hung out with Democrats their whole professional lives without marking themselves unmistakably as liberals. More marked, and thus less likely to be Obama's choice, is Judge Diane Wood, of the 7th Circuit Court of Appeals, who has actually played the part of the sort of liberal judge the president should want to appoint.
This is all very calculating and sensible. But before the left obediently backs a Kagan or Garland nomination, let's consider what it would give up by saying good-bye to Wood—and lets perhaps rethink how difficult she would really be to defend.
The Republican line of attack on Wood is obvious, as the NYT's Opinionator points out, quoting Ed Whelan of National Review:
No judge whom I'm aware of is more extreme than Wood on abortion. Her defiance of the Supreme Court's mandate in NOW v. Scheidler (and her incurring successive 8-1 and 8-0 reversals by the Court) ought alone to be disqualifying. In addition, Wood has (in dissent) voted to strike down state laws banning partial-birth abortion and (again in dissent) voted to strike down an Indiana informed-consent law that was in all material respects identical to the law upheld by the Supreme Court in Planned Parenthood v. Casey.
Let's go back to these old fights, starting with Scheidler. Here's a reworked version of what I wrote about the case when Wood appeared on last year's shortlist. The National Organization for Women and two abortion providers brought Scheidler as a suit against the Pro-Life Action Network, which included groups like Operation Rescue and some of its leaders, over tactics being used in the 1980s to disrupt abortion clinics. In what they called "rescues," protesters stormed inside, wrecked medical equipment, chained their bodies to operating tables, and assaulted staff and patients. In Los Angeles, protesters grabbed a patient who'd come to the clinic for a follow-up appointment for ovarian surgery. The rough treatment reopened her incisions, and she had to be rushed to the hospital.
NOW sued the protest groups under what's known as the RICO, or federal racketeering law, which triples damages for violations of another federal extortion statute called the Hobbs Act. The theory behind the suit was that the protesters' acts of planning, threats, and destruction effectively amounted to extortion. In its first crack at the case, in 1992, a three-judge panel of the 7th Circuit, which did not include Wood, ruled that RICO didn't apply. The Supreme Court reversed that ruling in 1994 and sent the case back for trial.
After a seven-week trial, a jury found PLAN liable for dozens of violations of extortion law and also for acts or threats of physical violence. The jury awarded the abortion providers damages and entered a permanent, nationwide injunction barring PLAN and its leaders from interfering with any more abortion clinic operations. In 2001, Wood and her panel approved the trial judges' rulings. The case went back to the Supreme Court, and in 2003, by a majority of 8-1, the high court reversed. This is a moment in which Wood looks as if she's out on a limb. Even Justice Ruth Bader Ginsburg agreed to reverse her, writing that "the Court is rightly reluctant, as I see it, to extend RICO's domain further by endorsing the expansive definition of 'extortion' adopted by the Seventh Circuit."
But Wood's expansive definition turned on the reading of a single word in the Hobbs Act. The Supreme Court held that PLAN's acts were criminal but did not constitute extortion for just one reason: Because PLAN did not "obtain" the abortion clinics' property. The protesters wrecked things and deprived the clinics of their exclusive right to control their business assets, the court continued, but they didn't "obtain" property, legally speaking, because they didn't receive something of value that "they could exercise, transfer, or sell." So goes statutory interpretation, and, often, diligent lower-court judges don't predict the Supreme Court's reaction accurately. Justice Stevens, in dissent, agreed with Wood's reading of "obtaining" property under the Hobbs Act, arguing that her interpretation matched "the uniform construction of the statute that has prevailed throughout the country for decades." Wood's interpretation of the law was not the Supreme Court's, but that doesn't mean it was far outside the mainstream, as the kiss-of-death formulation goes. It was the interpretation of the Hobbs Act that her court and others had long assumed correct.