Interview: Chief Judge Diane Wood

Joe Hanlon recently spoke with Diane Wood, who is Chief Judge of the United States Court of Appeals for the Seventh Circuit. They talked about the importance of civic engagement, the judiciary’s role in a functioning democracy, and the past Supreme Court justice she would most like to have dinner with.

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Diane Wood

Tell me about your high school experience. What was on the forefront of national discussion, and how were you involved?

My high school experience was somewhat scattered because, between my sophomore and junior years of high school, I moved from Westfield, New Jersey down to Houston, Texas. So that was disruptive, as you might imagine. Houston was a place that was very open in those days. I went to one school down there in my junior year, but it was so big that it had to split in half. So I went to a different school for my senior year.

At the time, two huge things were happening nationally. First of all, the war in Vietnam was accelerating, and the 1968 election was shaping up to be one where the war was going to be a big issue. And President Johnson wasn’t going to run for office again; that was a constant subject of conversation. The other major things that were happening were all related to the civil rights movement. First you get the Civil Rights Act in 1964, and then you get the Voting Rights Act and the Fair Housing Act of 1968 — you get lots of other aspects of ‘The Great Society,’ so that was very much in people’s minds.

What influenced you to go to law school?

I decided to go to law school largely because I was looking for some kind of career that would allow me to remain engaged in the society around me. I had thought very seriously of doing graduate work in comparative literature, but I decided that was too ivory tower. It seemed like law was the best way to go. And literally from the moment I started law school, I was very happy with the choice and knew that I had made the right decision.

What was it like to clerk for Justice Blackmun?

It was an amazing experience. You’re involved with every detail of the Supreme Court’s work for that period of time, whether it’s the cert petitions, what the justices are thinking about in their conference, how their opinions evolve, looking at how the press covers opinions — not always as accurately as they should — it was altogether just the most enriching experience. My fellow co-clerks, both in the Blackmun chambers and around the building, have been lifelong friends.

What was the most important lesson you learned while clerking?

I think the most important thing that I learned, which I have taken forward into my own career as a judge, is to pay meticulous attention to the record in every case — to the facts and the law. Don’t take shortcuts, listen to other people, and do the best you can to decide the case in a fair way in light of everything.

How can we get more people involved in public life?

It’s interesting that you should ask that. I’m involved with a group right now at the American Academy of Arts and Sciences on what we’re calling the practice of democratic citizenship, and that’s precisely the question we’re trying to answer. My own feeling is that it begins at the community level: it begins in schools at your age, and it goes forward to governance of a school board, a town, an issue perhaps that you are interested in, and people really make a mistake if they don’t pay attention to their state. The state level is critically important. The federal government is very high-profile, and you should vote for president and your senators and representatives, but government at all levels is important. I think that many people overlook the opportunities to serve and also the importance of it.

Did your nomination feel like a culmination of your hard work? What was your reaction when it approached?

I wasn’t expecting it. I mean, you can’t really expect these things because they come along so infrequently. At the time I was nominated, I was on a leave of absence from the University of Chicago Law School, so I was more or less commuting from Chicago to Washington, D.C. and working at the US Department of Justice. I became aware of the upcoming vacancy in the Seventh Circuit and was very fortunate to have quite a few people willing to recommend to the White House that I be the nominee. I had no idea until I got the call that it was going to work out, but I was certainly thrilled that it did.

How does your role as Chief Judge of your circuit differ from that of a circuit judge in general?

The Chief Judge — and I’ve been chief now for more than five years — is responsible for quite a few administrative things around the court, many of which are quite important. The Chief Judge, for example, looks at all complaints about judicial conduct and disability to see which ones need further investigation and gets the committee together to do that. The Chief Judge is the administrative head of the court. The Chief designates people to sit elsewhere and represents the circuit on the judicial conference. So all told, it’s probably a few hours of work every day on the administrative things — and on our circuit, the Chief Judge still takes a full caseload. And the Chief Judge assigns the writing responsibility for all opinions if the Chief is on the panel, and certainly presides over the en banc court. So there’s a lot that goes with it.

When a case is before you, what is your process for attempting to resolve it?

We normally hear six cases in a day for oral arguments, and our court believes very much in oral argument. So I’ll sit down and read all of the briefs, plus background materials, in each of the six cases. My estimate is that by the time all’s said and done, I probably read two thousand pages for every day of oral argument. You have an opening brief, a reply brief, whatever the lower court did, any pertinent cases, materials for the record and so on, times six. I’m very interested to know what the parties think is either wrong or right, what kind of relief they want, whether that’s something the court is in a position to give them, how the Seventh Circuit fits in with what the other circuits are doing, and, obviously, if the Supreme Court has done anything in the area that I need to know about. It’s a lot of preparation.

You brought up what the other circuits are doing, and I’ve been interested in that lately because I’ve seen a lot of things go to the Supreme Court with a circuit split. How much weight do you give another circuits’ decision when deciding a case?

We give it a fair amount of weight. Our court has an unusual procedure that we use when we’re thinking of creating a conflict with another circuit. This is what our panel will do if there is no existing conflict, but we think one or more circuits out there have the wrong answer. We circulate an opinion to the full court and say, “We’re proposing to create a conflict with circuits A, B, and C — here’s why, here’s the explanation.’ All judges on the court will vote before a conflict is created. We do that because it’s important, because we know that it would trigger rule ten of the Supreme Court’s rules, and we don’t want to do that lightly.

As a judge, what is most rewarding about your role in our society? What is most difficult?

*laughs* It’s both. As your question implies, it’s rewarding and difficult. It’s very rewarding to have the trust of people, to be in the position to resolve disputes in such a wide range of subjects. I’ve traveled quite a bit internationally and met with judges from a very large number of other countries, and they’re often astonished that we have constitutional, administrative, criminal, civil, state, and federal responsibilities. I find it a great challenge, but it’s also a great privilege.”

What are some reasons you think an independent judiciary is outlined in our Constitution? Why are these important?

Well, I’m sure you’ve read the Federalist Papers. The drafters of the Federalist Papers and the drafters of the Constitution itself knew that you had to have a judiciary that would apply the law fearlessly, and not be under the thumb of — whether it’s King George III or somebody today — any sort of executive influence. Because we want to be a society under the rule of law — not some executive whim. So of course they put in the very famous protections: you have your job during your ‘good behavior,’ which is essentially life tenure, and the protection of salary. I have thought many times what smart people these were and what a good structure this is.

The appointment structure works quite well because you don’t have to run for office — you call it as you see it. You do the very best you can to apply the law as you understand it to be. We of course do have provisions in our country to fix things, whether it’s mending the Constitution at the Supreme Court level or having lower courts, if somebody thinks we’re wrong, appealing to the Supreme Court about it. I think that’s all critical. I have often seen the opposite in other countries where the judges have been arrested, the judges have been taken away from their office, the judges have been persecuted in certain ways, and that does not lead to a rule of law society.

What are the most common misconceptions about the judiciary in America?

They all think you’re Judge Judy. *both of us laugh* I don’t think people are aware that there are two parallel systems of courts — state courts on the one side and federal courts on the other. So that’s already a profound structural misunderstanding about the system we have. The state courts are incredibly important, as they easily do nine tenths of the judicial business of the United States. We need very much to pay attention to measures that will allow them to work effectively. As for the federal courts, I think people don’t understand the difference between judicial independence on the one side and doing whatever you feel like doing on the other side. Independence doesn’t mean doing whatever you feel like doing;  independence means you decide according to your best understanding of the law.

If you could have dinner with any non-sitting Supreme Court Justice, who would you choose and why?

*laughs* A lot of them that would be interesting… I’m going to say Robert Jackson, one of my most admired justices. First of all, he was an amazing lawyer. He was actually one of the last people — maybe the last person —  to sit on the Supreme Court who didn’t go to a formal law school. He read law. In every role he had, as Attorney General, as Supreme Court justice, as the chief Nuremberg prosecutor, he was brilliant and effective, and he had a very clear and extraordinarily adept way of expressing himself. I would very much imagine that would be an interesting dinner.

Didn’t he take off a year to be the Nuremberg prosecutor?

Yes, he took a leave of absence to go do that. It’s something that probably wouldn’t happen now, by the way. Before he agreed, he said, ‘I’m not going to do this unless it’s understood by everybody that the results of these proceedings might be convictions, but they might be acquittals. I’m not going to preside over a kangaroo court.’ And they said, ‘We get it. This is court that is going to be serious, that is going to decide based on a record.’ And indeed, there were some acquittals.

What is one message you would give to students who are passionate about law and public service?

I would say, “Good for you!” Don’t lose that passion, and work for whatever issues seem worthy to you. Everybody’s going to have their own list of things that they think are important, and that’s great. That’s exactly how our country should work. If people don’t have those important issues, then our democracy is not going to work the way our Constitution’s drafters and the people who suffered during many wars and elsewhere meant for it to be for us. So I think it’s a very high civic duty, and I hope that as many young people as possible will becoming lifelong public participants.

Joe Hanlon has also interviewed Edith Roberts, an editor of SCOTUSblog. 

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