Saturday, May 23, 2009


Bulletin: Information is leaking out of Washington, DC that next week Barack Obama will name Judge Diane Wood, age 58, of Chicago (and the 7th US Court of Appeals) as his choice to replace David Souter on the US Supreme Court. This is single-source information, but it's from a very reliable individual.

Obama's political guru and senior adviser, David Axelrod, reportedly has "cleared" the choice with George Soros', a group that favored another candidate (Hispanic Sonia Sotomayor). Also, Diane Wood is a major favorite of the National Organization of Women (NOW).

She is notable for favoring the view of the Constitution as a "living document" (or "evolving document") which for strict constructionists means she sees it as something open to liberal "interpretations" by activist judges. Apparently, she disagrees ith the Oklahoma legislator who recently observed, "The Constitution either means what it says, or it means nothing at all."

Wood apparently was chosen over other candidates (incuding Sotomayor, Kathleen Sullivan of Stanford, and Elena Kagan, former Dean at Obama's alma mater, Harvard) because of her "real world experience." Specifically, she is a divorced mother of three with a legal background not confined to the academic world. Apparently, no male candidates received any serious consideration.

Obama interviewed Judge Wood last week.

Stay tuned for much more information on Judge Diane Wood.

Key articles by Diane Wood below:

"‘Original Intent’ Versus ‘Evolution’," The Scrivener 7 (Summer 2005) (also published in Green Bag Almanac & Reader 267, 2007.

"Our 18th Century Constitution in the 21st Century World," 80 New York University Law Review, 1079, 2005.

Obama proclaimed that a key quality for his appointee would be "empathy" (for the downtrodden). As you'll see from Ed Whelan's National Review Online articles (there are five) below, Judge Wood's empathy is clearly selective -- and don't apply to people with orthodos Christian beliefs:

Supreme Court Candidate Diane P. Wood—Part 5 [Ed Whelan]

I’ve just read two speeches turned into law-review articles by Judge Diane Wood, “Reflections on the Judicial Oath” (8 Green Bag 2d 177 (2005)) and “Our 18th Century Constitution in the 21st Century World (80 N.Y.U. L. Rev. 1079 (2005).) There is a lot wrong with both articles, but for now I’ll limit myself to a few points:

1. Wood gives no sign that she recognizes any meaningful bounds on the role of the Supreme Court. In her view, “the text of the Constitution tends to reflect broad principles, not specific prescriptions,” and “broad language may legitimately be interpreted broadly [by the Supreme Court], in a manner informed by evolving notions of a decent society.” (80 N.Y.U. L. Rev. at 1098.) Among the matters that Wood doesn’t address is how it is that the Court has the authority to override democratic enactments based on its own reading of language whose meaning is, in relevant respects, indeterminate.

2. Wood believes that it’s proper for the Supreme Court to revise the meaning of constitutional provisions to reflect contemporary international and foreign practices. Commenting on the Court’s decision in Roper v. Simmons, she states that “the Court appropriately chose to enrich its understanding of the issue by reviewing international practice, acknowledging implicitly that the American people are indeed part of the broader human community and at least presumptively share its core values.” (80 N.Y.U. L. Rev. at 1101.)

3. Wood evidently believes that the inclusion of “under God” in the Pledge of Allegiance violates the Establishment Clause and that a Supreme Court ruling permitting that phrase would “announce that the United States is a nation that has adopted monotheism as its official state dogma.” But perhaps I’m misreading her opaque and seemingly incoherent text, so I set forth the full paragraph here:

Last [of three cases involving “displays of patriotism”] is Newdow, in which Mr. Newdow tried unsuccessfully to raise the question whether the words “under God” in the Pledge of Allegiance to the flag violate the Establishment Clause of the Constitution. The Court ducked the issue. Ordinarily, that would be the end of the matter for now. And perhaps it will be here too, assuming that the Congress does not pass the legislation that has cleared the House that would strip the Supreme Court of jurisdiction to hear any case involving the Pledge. No matter what happens, however, it seems clear that no amount of pressure will cause the Court to announce that the United States is a nation that has adopted monotheism as its official state dogma.

(8 Green Bag 2d at 181.)

4. Wood strongly signals, in her discussion of Loving v. Virginia, that she believes that there is a federal constitutional right to same-sex marriage: “The right not to have the State prescribe a set of acceptable spouses, in the absence of the kind of powerful reason it would have for incest laws or laws designed to protect children, is implicit in the concept of liberty.” (8 Green Bag 2d at 184.)

(For more on Wood, see my [Whelan's] Parts 1, 2, 3, and 4 and this post on Jeffrey Rosen’s praise for Wood.)

Steve adds: The Declaration of Independence is not the Constitution, but at the very least, it informs us about the thinking of the Founding Fathers. In the Declaration, Jefferson says that we are "endowed by the Creator [singular] with certain inalienable rights, including life, liberty, and the pursuit of happiness." Jefferson certainly didn't believe that by saying so he was "establishing" a specific religious denomination's views (note to Judge Wood: monotheism is NOT a religion) as what she calls "the official state dogma."

For those still reading, I'd like to say one more thing. I'm sure Barack Obama, like many other liberals, believes Diane Wood is possessed of "intellectual firepower." In fact, as Ed Whelan observes, most of her thinking is incoherent and inflamed by political bias.

She has no business beingon the Supreme Court. She has no business being on the Court she currently serves. She's a simpleton.

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