Bench Memos

Jeffrey Rosen on Diane Wood

After raising concerns that Sonia Sotomayor just isn’t smart enough for the job, the New Republic’s Jeffrey Rosen touts Seventh Circuit judge Diane Wood as a great pick.  I’m thoroughly unpersuaded. 

Rosen’s case rests almost entirely on praise from three of Wood’s academic colleagues at the University of Chicago—Martha Nussbaum, Richard Epstein, and Geoffrey Stone.  Legal academics are prodigal in heaping undeserved praise on each other, and Stone’s praise in particular—“very careful,” “respectful of precedent,” “a craftsperson,” “not in any way result-oriented”—ought to be regarded as a contraindicator of quality, given how wild his rantings are (see, for example, here, here and here, including links within those posts). 

Epstein’s assertion that “lawyers who appear before [Wood] know that they will get a respectful hearing” is, alas, belied by the evidence.  As for his assertion that Wood is “nondogmatic”:  On issues relating to abortion—to take just one example—I doubt that there is a more dogmatic and willfully lawless judge in the country:  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 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.

Rosen is a big admirer of Justice Ginsburg, who, he asserts parenthetically, “of course … has surpassed [his own very high] expectations” for her.  The subheadline of Rosen’s piece calls Wood “the second coming of Ruth Bader Ginsburg,” and Rosen identifies Wood as the Supreme Court candidate whose “moderate, incremental liberalism most resemble Ginsburg’s.”  For those of us who assess Ginsburg very differently—and for the many Republican senators and conservative judges who somehow expected Ginsburg to be much better than she has proven to be—that comparison ought to be more warning than comfort.

Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

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