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Possible Court Pick Is Used to Dueling on Bench

Wood, a Contender to Replace Souter, Often Spars With Conservative Colleagues on the 7th Circuit

Judge Diane P. Wood has served as an appellate judge since 1995.
Judge Diane P. Wood has served as an appellate judge since 1995. (By Lloyd Degrane -- University Of Chicago Via Ap)
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Washington Post Staff Writer
Saturday, May 16, 2009

CHICAGO -- The verbal sparring began quickly.

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Less than two minutes into the lawyer's argument, U.S. Appeals Court Judge Diane P. Wood launched the first question. A Chicago condominium board had repeatedly removed a mezuzah from a Jewish resident's door frame, and Wood viewed it as a violation of religious freedom.

To her right, Judge Frank H. Easterbrook disagreed. Firing his own questions, he suggested that the dispute over the small case containing Torah verses was rooted in nothing more than a condo association's effort to eliminate hallway clutter.

Back and forth they went during oral arguments at the U.S. Court of Appeals for the 7th Circuit. It was a familiar dance, joined energetically by Judge Richard A. Posner, who most often aligns with his fellow Reagan appointee Easterbrook.

Wood's 14 years alongside Posner and Easterbrook, who often serve together as a panel of the circuit court, are being studied afresh as President Obama prepares to make his first nomination to the Supreme Court. Wood, described by associates as smart, progressive, steadfast and collegial, is a onetime colleague of Obama's at the University of Chicago and is considered by many to be on the shortlist of potential replacements for retiring Justice David H. Souter.

Wood knows what it is like to duel two of the most formidable and prolific conservative jurists in the country, a key element of Obama's search as he tries to shift the dynamic of a court led by Chief Justice John G. Roberts Jr. and Justice Antonin Scalia.

"She's as bright as Posner and Easterbrook and really holds her own, and I think she would hold her own with the great intellects on the high court as well," said Chicago lawyer Fay Clayton, who has argued many 7th Circuit cases. "Everything she does is based on precedent and statutory construction and the facts."

Clayton, noting Obama's much-discussed desire to nominate a justice who has what he describes as empathy and real-world understanding, said Wood's work "reflects an understanding of human nature. She very much tries to figure out the logical meaning of the statute."

Wood, who turns 59 on July 4, is an oboe-playing graduate of the University of Texas and its law school who performs in three local orchestras. A former law clerk for the late Justice Harry A. Blackmun, she also worked in the Clinton Justice Department's antitrust division and, years earlier, in the State Department legal adviser's office.

In a letter to Georgetown University, which hired Wood as an assistant law professor in 1980, Blackmun called her a "good analyst" who is "able to take a position and stand by it."

Neither Easterbrook nor Posner is shy about displaying intellectual candlepower. In the mezuzah case, Easterbrook interrupted a lawyer to intone: "We're not interested in what you think. We're interested in what the statute says." At another point, he said dismissively, "That's just op-ed-page rhetoric."

Yet in parts of the discussion, Wood found herself speaking up for Posner and Easterbrook. That prompted one of the lawyers to compare the experience to tag-team wrestling.


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