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Judge Diane Wood, Solicitor General Elena Kagan Seen as Supreme Court Hopefuls

Diane P. Wood of the U.S. Court of Appeals for the 7th Circuit.
Diane P. Wood of the U.S. Court of Appeals for the 7th Circuit. (Lloyd Degrane - AP)
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By Robert Barnes and Shailagh Murray
Washington Post Staff Writers
Thursday, May 21, 2009

President Obama is intensifying his search for a Supreme Court nominee and has interviewed Judge Diane P. Wood of the U.S. Court of Appeals for the 7th Circuit in Chicago, believed to be among a handful of top contenders.

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Wood arrived in Washington on Tuesday to attend a conference at the Georgetown University Law Center, but she met with Obama as well, according to an individual familiar with the vetting process. Wood is a 14-year veteran of the federal bench and has known Obama since both taught at the University of Chicago Law School.

Wood was among a group of past, present, soon-to-be-past and perhaps future Supreme Court justices at the Georgetown event, the Sandra Day O'Connor Project on the State of the Judiciary. O'Connor was there, along with Justice Stephen G. Breyer and retiring Justice David H. Souter.

Several others mentioned as possibilities to succeed Souter also attended, but most of the buzz centered on Wood and Solicitor General Elena Kagan, who gave the keynote address. Both are said to be on the almost entirely female shortlist of candidates Obama is seriously considering.

Wood was surrounded by both reporters and lawyers at the conference, which she said she had long planned to attend. But when asked whether she would be meeting with anyone from the White House on her trip here, she ended the chat.

"No, no, I'm not answering any questions on that," she said with a laugh before moving on. An individual who is familiar with the vetting process said the meeting had already taken place and was part of a series of sessions with potential nominees that is expected to continue in the coming days.

The timing of the announcement remains a mystery, although Sen. Charles E. Grassley (R-Iowa) said Obama told him yesterday not to expect a decision before next week. Grassley is one of numerous senators on both sides of the aisle whom Obama has called in recent days to solicit names and other guidance on his first Supreme Court pick. A White House aide said the president has spoken to every member of the Senate Judiciary Committee.

But White House officials have warned that the timing is a moving target, contingent on when Obama makes up his mind.

Obama press secretary Robert Gibbs said the president is actively involved in the process but would not be more specific about where the decision-making stands.

"As somebody who has spent time studying the Constitution as a student, teaching the Constitution as a teacher -- and obviously the Constitution is the framework under which the president examines laws in his current job as president -- it's something that he's quite familiar with, and the decision-making progress on selecting a next nominee he's very active in," Gibbs said.

In the meantime, Obama is considering sending the Senate more nominations for lower courts. Rhode Island senators have recommended that he nominate state Superior Court Judge Ojetta Rogeriee Thompson to an opening on the U.S. Court of Appeals for the 1st Circuit in Boston. Thompson is Rhode Island's first black female state judge.

Conservative groups have criticized Wood and Kagan as well as others under serious consideration: Judge Sonia Sotomayor of the U.S. Court of Appeals for the 2nd Circuit and Michigan Gov. Jennifer M. Granholm (D), who was at the White House this week as Obama laid out his proposal for new vehicle emissions standards.

Wood, 58, is considered an expert on international trade and antitrust issues, and is held in high esteem in liberal legal circles in Chicago for serving as an intellectual counterpart to the circuit's star conservative judges, Frank H. Easterbrook and Richard Posner. "It's hard to overstate how well she is thought of" by Obama's legal allies, said one lawyer who has been consulted by the White House during the process.

Wood neither spoke at the conference nor was on a panel.

Kagan, 49, the nation's first female solicitor general, gave the keynote address. Her speech was about the independence of that office, but she began with a tribute to O'Connor and the pivotal role she played on a court that was often, as now, evenly divided between conservatives and liberals.

The nation's founders, Kagan said, would not have thought it a good idea to have the most important cases decided by "one person, appointed by one president, confirmed by one Senate." But she said O'Connor showed "enormous wisdom" and "understood the great responsibility that attached to her role, and performed that responsibility with a combination of modesty and grace and balance and common sense and understanding of the society in which she lived and the role of our courts in that society."

The solicitor general represents the government before the Supreme Court and in all appellate matters, and Kagan stressed the independence that is part of the job.

Obviously, she is part of the executive branch, and the president has an appropriate role in the office's decision-making, Kagan said. But she added that she also has an obligation to defend the work of Congress, even if the administration disagrees with it, as well as to be "scrupulous in every representation to the court."

"It's not that there are no masters, but that there are many," Kagan said. "And the job of the solicitor general is to balance those masters and to accommodate them all, each in their proper places, wisely and well and in so doing to represent the people of the United States."

The solicitor general is often referred to as the "10th justice," but Kagan said she doubts the court would agree.

"I think the nine justices think the solicitor general is the 35th clerk," she said.

Staff writer Michael A. Fletcher contributed to this report.


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