Supreme Court Nomination Update: Potential Justice Offers a Counterpoint in Chicago

May 12, 2009

By NEIL A. LEWIS, New York Times

WASHINGTON — When President Bill Clinton had a rare opportunity in 1995 for a Democratic president to fill a vacancy on the federal appeals court based in Chicago, a bastion of conservative thinking, he received an unusually strong recommendation from Senator Paul Simon.

Mr. Simon, an outspoken liberal from Illinois who died in 2003, told the president the new judge should be a reliable progressive who would be cerebral enough to go up against the court’s two formidable conservatives, Judges Richard A. Posner and Frank H. Easterbrook. He said it should be Prof. Diane P. Wood of the University of Chicago law school.

In the years since Mr. Clinton took that advice, Judge Wood has established herself on the United States Court of Appeals for the Seventh Circuit, in the view of scholars and lawyers, as an unflinching and spirited intellectual counterweight to Judges Posner and Easterbrook. She has taken on that pair and some of the court’s other conservative judges across a wide range of cases including abortion, immigration and access to courts.

Judge Wood, 58, now ranks high on the lists of many lawyers, politicians and scholars who are speculating as to President Obama’s choice to succeed Justice David H. Souter on the Supreme Court.

Beyond her record of ideological combat, Judge Wood enjoys some other advantages in the early handicapping. Mr. Obama knows her from the time they spent as colleagues on the faculty of the University of Chicago law school, where they were friendly but not close. And some of Judge Wood’s opinions seem to speak to Mr. Obama’s expressed desire for justices who have “empathy” for people who come before the courts.

In a 1999 case, Judge Wood wrote the majority opinion for a three-judge panel overturning a deportation order for Natalia Nazarova. An immigration judge had issued the order after Ms. Nazarova was two hours late to a hearing because her interpreter could not be found.

In great detail, Judge Wood recounted Ms. Nazarova’s travails in dealing with the immigration system, saying her ordeal was reminiscent of “Richard Gere’s character Jack Moore in the 1997 movie ‘Red Corner.’ ”

Ms. Nazarova, she wrote, was told that an interpreter would be provided for a preliminary hearing but was not given one. So, Judge Wood wrote, Ms. Nazarova took steps to get her own interpreter for the formal deportation hearing.

The interpreter did not meet her until nearly two hours after the scheduled 10 a.m. start time, and when they arrived at the court, she discovered that the judge had already ordered her deportation because she “failed to appear.” Worse, Judge Wood wrote, she was ordered deported to Russia, even though she was from Ukraine.

“When her interpreter failed to appear on time, Nazarova faced a serious problem to which there was simply no good solution,” Judge Wood wrote. She could have gone without the interpreter, but the proceeding would have been “incomprehensible gibberish” to her, as it was at the earlier hearing, the opinion said. Ms. Nazarova, Judge Wood wrote, deserved another chance because “she would have been deported without ever having the opportunity to be heard.”

Judge Daniel A. Manion, a noted conservative on the Seventh Circuit, dissented, saying he would uphold the deportation order because Ms. Nazarova had had a third choice: trying to explain her situation to the judge.

Judge Wood dissented in an opinion by Judge Easterbrook that would bar a Jewish family from bringing a lawsuit against a condominium association for repeatedly removing the family’s mezuza, a religious item, from their door frame. The case is to be heard by the entire Seventh Circuit on Wednesday.

Geoffrey R. Stone, who was provost of the University of Chicago and dean of its law school, said, “Diane is a serious and accomplished scholar who has demonstrated the ability to go toe to toe with Dick and Frank,” both of whom, he added, “can be intimidating figures.”

The first-name references reflect that Mr. Stone and all three judges — along with Mr. Obama — know one another from having taught simultaneously at the Chicago law school, known for its competitive hothouse atmosphere. It is a world Mr. Obama knows well and can draw on as he makes his selection.

To read the full article visit The New York Times at:  http://tiny.cc/YihyW