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CARLOS JAVIER ORTIZ FOR THE WASHINGTON POST
Potential court pick Diane Wood, center, rehearses last year with the Chicago Bar Association Symphony.
Wood’s critics focus on abortion
by Peter Slevin
chicago — If President Obama nominates U.S. Circuit Judge Di- ane P. Wood to replace retiring Su- preme Court Justice John Paul Stevens, social conservatives say they intend to make her rulings on abortion rights the primary point of contention. “That’s her Achilles’ heel,” said
Curt Levey, executive director of the Committee for Justice, which opposes Wood’s rulings on abor- tion. “It tells you that she’s prob- ably not going to be selected, be- cause Obama doesn’t have the stomach for this to be about an abortion debate.” Obama’s intentions remain un-
clear, but Levey’s comments en- capsulate a message that Wood’s foes are sending as the White House ponders a list of possible candidates. For Wood, who turns 60 in July and was on the shortlist of possible nominees when Justice David Souter retired last year, this vacancy is likely to be her last shot at the court.
Widely seen as studious and disciplined, she serves on the closely watched U.S. Circuit Court of Appeals for the 7th Circuit and teaches at the University of Chica- go, where Obama was a law pro- fessor. If nominated and con- firmed, she would be the only jus- tice without an Ivy League degree —she graduated from the Univer- sity of Texas and its law school. Wood is an antitrust expert with an interest in international law and a history of opinions sup- porting court access for people claiming discrimination or chal- lenging government rules. She has spoken against a “narrow, literal” reading of the Constitution, sug- gesting that jurisprudence best evolves through “an interactive process” that involves society, scholars and the courts. Liberal supporters praise Wood for her willingness to challenge 7th Circuit Judges Frank H. Easter- brook and Richard A. Posner, for- midable thinkers admired by con- servatives. Despite their ideologi- cal differences, the three are friends who often eat lunch togeth- er.
‘Carefully reasoned’
Critics “are misconstruing some
carefully reasoned opinions for their own political ends,” said Nan
Aron, head of the liberal Alliance for Justice, who noted that Wood’s support for abortion rights is not unusual. “No one expects a Demo- cratic president to appoint a jus- tice or a judge who is anti-choice.” Social conservatives criticize
Wood for drafting opinions op- posing a ban on late-term abor- tion and an Indiana law that re- quired a waiting period for wom- en seeking abortions. In her 2002 Indiana dissent, she said the majority, led by Eas- terbrook, misapplied Supreme Court precedent, “substituted its own factual assumptions for evi- dence” and “failed to focus on the women for whom the statute will create problems.” Last year, an Internet advertise- ment sponsored by an organiza- tion then known as the Judicial Confirmation Network focused on Wood’s rulings in a complex law- suit designed to halt violence at abortion clinics. The case went to the Supreme Court three times and took nearly 20 years to re- solve. The high court overturned two Wood decisions, by votes of 8 to 1 and 8 to 0. The case, known as NOW v. Scheidler, pitted lawyers for the National Organization for Women against the Chicago-based Pro- Life Action League. Filed in 1986, the lawsuit sought an injunction to prevent violence at abortion clinics. In 1984 alone, there were 24 bombings or fires set at abor- tion clinics or abortion rights of- fices across the country. The presiding judge said pro- testers forced their way into a Del- aware clinic and “wreaked havoc,” destroying medical equipment and cabinets and chaining them- selves to operating tables as pa- tients were being seen. In Washington, protesters rushed the doors of a clinic, pin- ning workers and volunteers against the building. In California, a woman seeking postoperative care after ovarian surgery lost consciousness after being grabbed by protesters.
Wrong on RICO?
When Wood joined the 7th Cir-
cuit in 1996, the case had already gone to the Supreme Court, which gave the green light to NOW’s at- tempt to invoke the federal Rack- eteer Influenced and Corrupt Or- ganizations (RICO) Act against the protesters.
In a subsequent seven-week trial, a federal jury concluded that the protesters had repeatedly bro- ken the law. Jurors awarded dam- ages to two clinics, and the trial judge imposed a nationwide in- junction on Joseph M. Scheidler, the head of the Pro-Life Action League, and his organization. When Scheidler appealed, a panel that included Wood noted that the protesters had broken the law and affirmed the verdict, 3 to 0. “No one disputes that the de- fendants’ speech labeling abor- tion as murder, urging the clinics to get out of the abortion business and urging clinic patients not to seek abortions is fully protected by the First Amendment,” Wood wrote in the 2001 opinion. “It is equally clear, however, that the First Amendment does not pro- tect violent conduct.”
When the case went to the Su- preme Court a second time, the justices agreed that the protesters had broken the law. But they found that the 117 violations did not amount to extortion, an essen- tial component of the RICO Act, which was designed to pursue mobsters but was commonly used in other types of cases. In an 8 to 1 ruling, the justices sent the case back to Chicago, where Wood reviewed their deci- sion, asked for briefs from the dueling parties and concluded that the high court had left an im- portant element of the RICO claim unaddressed. She empha- sized that she was not challenging the justices’ conclusions. The ruling was not “a green light to start this old litigation anew,” Wood wrote. “This does not open Pandora’s Box. It merely re- solves the final loose ends in this long-running litigation in a man- ner that is fair to both sides.” Fellow 7th Circuit Judge Daniel
A. Manion thought Wood had mis- read the Supreme Court ruling. He wrote, “I believe the Supreme Court meant what it said.” After reciting the high court’s wording, he concluded, “At that point, we should have closed the case.” Wood sent the case to the trial
judge, but the Supreme Court soon interceded and declared by an 8 to 0 vote that it had, indeed, intended to shut the door on the use of the RICO law. Stevens had backed Wood’s original ruling, but this time he joined the majority.
slevinp@washpost.com
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