April 23, 2010


Judicial Bouts Reveal Power of Persuasion (SHERYL GAY STOLBERG, 4/22/10, NY Times)

With conservatives attacking her as too liberal, her long relationship with Judges Posner and Easterbrook — sometimes yielding surprising consensus, at other times spirited dissent — offers hints into just what kind of justice she might be.

“Essentially, she’s a controlled fighter who likes to counterpunch,” said Richard A. Epstein, a Chicago professor and prominent libertarian thinker who knows all three.

Those counterpunches are often in evidence on the United States Court of Appeals for the Seventh Circuit in Chicago. Off the bench, the three judges maintain friendly relations. Judge Posner officiated at Judge Wood’s third wedding, and Judge Easterbrook and Judge Wood run into each other regularly at the symphony. On the bench, they conduct a regular three-way legal boxing match.

In a 2009 case that drew wide publicity, they parried over whether a condominium association could strip a mezuzah from the door of a Jewish family on the grounds that no hallway decorations were allowed. A three-judge panel, led by Judge Easterbrook, had ruled in favor of the association, with Judge Wood dissenting.

When the full court heard the case last May, those two judges, along with Judge Posner, fired questions at the family’s lawyer, cutting him off repeatedly. Passions ran high when Judge Easterbrook suggested the no-mezuzah rule was not discriminatory, but perhaps put forth “with a completely empty head by people who didn’t have a clue about the religious significance of the mezuzah.”

Judge Wood disagreed. In the end, Judge Easterbrook reversed himself to join a unanimous opinion that reflected her stance — an outcome that has drawn attention from longtime court watchers like Thomas C. Goldstein, the editor of scotusblog.com, which tracks the Supreme Court.

“It’s hard to find more confident and strong-willed judges than Frank Easterbrook and Richard Posner — they’re brilliant and they know it,” Mr. Goldstein said. “If she can have a decades-long relationship with these judges and maintain their respect, and do things like have Easterbrook come around in the mezuzah case, it really shows that she’s not tilting at windmills. She is very invested in persuading.”

That is precisely why President Obama is interested in her. On Wednesday, the president began consulting with senators for advice on a successor for Justice John Paul Stevens, who is retiring. Mr. Obama is seeking someone who can serve as an intellectual counterweight to Chief Justice John G. Roberts Jr., but who possesses the same consensus-building skills as Justice Stevens — skills that might tip a 5-4 court toward more liberal outcomes.

Posted by Orrin Judd at April 23, 2010 5:45 AM
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