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.
In the next stage of the case, Wood was reversed 8-0. This part is about a loose thread that Wood thought the Supreme Court had left dangling. On remand, the abortion clinics argued to the 7th Circuit that in analyzing the case the justices hadn't addressed four acts of physical violence by the protesters that might on their own support a new injunction. Wood agreed that this was possible: There were two ways to read the Hobbs Act on this point, she said, and the Supreme Court had never said which one was right. So she sent this single issue back to the district court—with a warning not to overreach. "This remand is not a 'green light' to start this old litigation anew," she cautioned. For the district court to renew its former nationwide injunction based only on the four acts of violence would be an abuse of discretion, "from what we can tell of the record." In other words, Wood cracked open only a small window for keeping the case alive.
The Supreme Court promptly shut it in looking at the case again in 2006. Eight justices (Justice Alito did not participate) said the Hobbs Act does not provide for a separate crime based on violent conduct that's not related to extortion or robbery. To read the law otherwise "would federalize much ordinary criminal behavior," Justice Stephen Breyer wrote. Once the court said so, it seemed obvious. But appellate judges don't necessarily do their jobs best by anticipating which way the Supreme Court will go (as opposed to making their own judgments). And there's nothing in Breyer's opinion to support Whelan's claim that Wood somehow defied the court's mandate. In fact, the justices agreed to hear that precise question—"whether the Court of Appeals improperly disregarded this Court's mandate," but then chose not to answer it, deciding the case instead on other grounds. The most that can be said here is that Wood made the wrong prediction in a hard case.
What about Woods' stance on state laws banning so-called partial-birth abortion? Before and after the Supreme Court struck down Nebraska's partial-birth abortion ban, Wood voted to stop Indiana and Wisconsin from enforcing their own bans, which made no exceptions for pregnancies that result from rape or incest, or fetal anomalies, or endangering the life of the mother. Joining a dissent by Judge Richard Posner—no one's idea of a flaming liberal—Wood agreed that the states' ban on one particular method of late-term abortion placed an undue burden on women by interfering with their doctors' judgments about the best method to use. That is the same criticism of these late-abortion bans leveled by Justice Breyer in his 2000 opinion striking down Nebraska's statute, which was, in fact, the law of the land until the Supreme Court reversed itself seven years later when it found—for the first time—that an abortion procedure was not protected by the constitution. *
Whelan also called out Wood for her dissent from a ruling by her colleagues that approved Indiana's provision for informed consent, which required two visits and a 24-hour waiting period. He's right that this statute was almost identical to the Pennsylvania law upheld by the Supreme Court in Casey. What changed between that 1993 ruling and Wood's dissent in 2002 was the factual record. Wood's panel had before it a new 1997 study published in the medical journal JAMA that found that abortion rates fell 12 percent more in Mississippi, which had a 24-hour waiting period, than they did in South Carolina, which did not. Meanwhile, the number of second trimester abortions in Mississippi increased 39 percent more. The Supreme Court in Casey didn't have the benefit of that study; Wood thought that Casey "left the door open, however, for later parties to present more evidence that would cure the gaps in the record that existed."
In revisiting a decade-old Supreme Court ruling that made abortions harder to obtain, Wood clearly took a pro-choice stance. But is this ruling radical or outside the mainstream of constitutional thought? Only if the right has succeeded in stifling every last judicial impulse to ensure that women can have unburdened access to abortion.
Supreme Court watcher Tom Goldstein understands the shift in this type of criticism: "It is worth pausing here to consider the fantastic, sweeping success of conservatives in dramatically shifting the debate over Supreme Court nominees," he wrote at the end of last week. "Judge Wood represents nowhere near the far left wing of potential Democratic candidates, but her nomination and confirmation would require a significant investment of the Administration's political capital." When it comes to abortion then, the right-wing attack groups can take the summer off, given the victory they've already won.
Correction, April 22, 2010: The original sentence incorrectly stated that the court found partial-birth abortion unconstitutional. (Return to the corrected sentence.)