06/20/2009 05:12 am ET Updated May 25, 2011

Diane Wood, Supreme Court Prospect: A Definitive Take

About two weeks ago, I criticized Jeffrey Rosen for a profile of potential Supreme Court nominee Sonia Sotomayor. Purporting to be "The Case Against Sotomayor," the article was over-reliant on unnamed sources and included an admission that her opinions had not been studied to the degree necessary "to have a confident sense of them." At the time, I could hardly believe that Rosen would have tolerated a similar article - cloaked in anonymity, without regard for his actual writing - directed at himself. As it turned out, there was a bit of a pile on, then a response from Rosen, and then a second round of criticism. Now we have the second profile of a potential nominee from Rosen, and it should be stated - the major deficiencies of the Sotomayor piece are not repeated.

Rosen's latest, a profile on Judge Diane Wood titled "The Conciliator," is -- first and foremost -- replete with on the record sources. And while it relies heavily on the faculty of the University of Chicago's law school, Rosen still manages to capture Wood in a nice diversity of settings -- you get a feel for Wood's courtroom demeanor, and her classroom inquisitiveness. Her passion for teaching and service is well depicted in a trip abroad to India. And the Almanac of the Federal Judiciary which Rosen cited in his response to the Sotomayor profile, but not in the profile, is properly referenced here.

Secondly, the piece is not the over-reaching "Case Against" that the first one claimed to be despite its admissions of inadequacy. Although it should be said, this piece may swing too far in the other direction, as a potential "Case For" Wood. I find Rosen's piece to nevertheless be far less definitive. And if it is declarative, Rosen at least puts himself in the picture, as opposed to letting unnamed sources run wild. Rosen notes his "enthusiastic" advocacy of Justice Ruth Bader Ginsburg's nomination ("Of all the candidates Clinton considered," Rosen says, "Ginsburg was the most respected by liberals and conservatives and the most likely to win over the swing justices.") and sets about making a comparison to Wood:

When Clinton appointed Wood to the appellate court, she was little known outside the legal academy--unlike Ginsburg at the time of her appellate nomination. I lamented the fact that Clinton was not appointing more "legal scholars with national reputations"--scholars "of the caliber of Ginsburg and Breyer, his superb Supreme Court nominees," in order to create a deep bench of "liberal intellectuals who could challenge the conservatives." (Indeed, if President Clinton had appointed to the appellate courts scholars such as Stanford's Pam Karlan and Kathleen Sullivan, both of whom would make stellar justices, President Obama might find it easier today to appoint them to the Supreme Court.)

But I underestimated Wood. After nearly 14 years on the appellate court, she has proved to be such an impressive match for her conservative colleagues that it appears that, of all the current Supreme Court candidates, her temperament and moderate, incremental liberalism most resemble Ginsburg's.

There's one other thing that bears mention. Ever since President Barack Obama broached the subject of empathy, there's been a lot of discussion about it in the news and among politicians, most of it being shallow nonsense from wide-eyed simpletons. Rosen, to my mind, finds a couple different ways of demonstrating how empathy actually should be a part of the discussion, and how it actually works in the hands of a judge:

"She is very careful, she is respectful of precedent, she is a craftsperson, and she is fairly incremental in her approach," says Geoffrey Stone of the University of Chicago and the author of a book on the suppression of speech during war. "I think she does believe that the role of judges, in part, is to ensure that the oppressed and the disenfranchised and dissenters get a fair shake in the political system, which would be a significant part of the moderate liberal element of Diane. But she's certainly not in any way result-oriented."

I think that Rosen does a fine job, advancing the virtues of empathy here -- and a good job distinguishing between the consideration for others that informs judgment with the need for an end product that passes legal muster. Time -- and subsequent profiles -- will determine if criticism has altered Rosen's approach or if this profile reads differently simply because its subject is a candidate who Rosen clearly favors. Nevertheless, it can be fairly stated that Rosen has gone to great lengths to avoid the more glaring sins of the Sotomayor piece.

The Conciliator [The New Republic]

TNR's "Case Against Sotomayor" Reliant On Anonymous Sources, Uninformed Opinion
Unlike TNR, WaPo Finds Sources With Actual Names To Talk About Sotomayor [UPDATED: Rosen Responds In TNR]

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