Possible Supreme Court nominee Diane P. Wood asked the most questions and showed no extra measure of caution yesterday as Chicago’s federal appeals judges plunged into a bitter dispute over alleged housing discrimination. Wood, 58, has been mentioned as a possible pick by President Obama for the seat of retiring Supreme Court Justice David Souter.Wood taught at the University of Chicago the same time Obama was a lecturer at the Law School there, according to NPR, which first broke the story of Souter’s retirement. Wood is still on the faculty of the U of C Law School as a senior lecturer.
Wood showed no inclination to make herself a smaller target for critics by avoiding combat yesterday, asking more than 30 questions at the 70-minute hearing, more than any of the seven other judges at the extraordinary full-court session.
The case involved a condo association accused of discriminating against a Jewish family by taking down its mezuzah.
Wood repeatedly cited what she said was evidence of discrimination in the case. She dismissed an association claim that it had not discriminated and merely enforced a rule barring extraneous objects from halls.
She pointed to the fact that the association put up a clothing rack outside condo owner Lynne Bloch’s door for use after a funeral while taking down the mezuzah.
“They dropped off the coat rack but they pulled down the mezuzah,” she said.
As for claims by the association that the rule was neutral, she said it appeared the mezuzah was taken down “because of the religious significance and not because somebody had a fetish for clean doors.”
In the case before the court, the Shoreline Towers Condominium Association repeatedly removed a mezuzah from Bolch’s front door. The association said it violated a rule against placing any objects, religious or otherwise, on doors or in common halls.
Bloch, who helped write the rule, sued, saying she was a victim of religious discrimination. U.S. District Judge George W. Lindberg threw out the case and the appeals court affirmed his decision 2-1.
Chief Judge Frank Easterbrook, writing for himself and Senior Judge William Bauer, said the rule was “neutral” and “potentially affects every owner” without regard to religion and thus was not discriminatory.
“It bans photos of family vacations, political placards, for-sale notices and Chicago Bears pennants,” he wrote.
Wood dissented, saying it could been seen as a violation of federal housing law because observant Jews would be unable to live in a condo with no mezuzah.
“Thus in a real sense, Hallway Rule 1 makes condominium units at Shoreline Towers functionally unavailable to observant Jews like the Blochs and, if it could be enforced, the rule would effect their constructive eviction,” Wood wrote.
“The association might as well hang a sign outside saying, ‘No observant Jews allowed,”‘ she wrote. She said Bloch and her family should be able to take their case to trial.
New city and state laws and a new condo association rule give observant Jews the right to put up a mezuzah.
But the question of damages for discrimination remains to be resolved.
Wood’s broad definition of religious discrimination in the case should not be viewed as either a liberal or a conservative opinion, said professor Mark Tushnet of Harvard University Law School.
“Lots of conservatives like broad definitions of religious discrimination, some liberals do as well,” Tushnet said. But Wood’s view could reflect something Obama said he hoped to find in his judicial nominees — empathy, Tushnet said.
“It helps a lot to see what the experience is from the point of view of the person claiming to be discriminated against, from the point of view of an evangelical Christian who may not be able to hand out leaflets or an observant Jew who may be prevented from putting a mezuzah on his door,” Tushnet said.
Some conservatives are already criticizing Wood.
The Judicial Confirmation Network, established to help former President George W. Bush’s nominees get approved by the Senate, has blasted her as too liberal.
Among other things, it cited her 2001 opinion in the National Organization for Women v. Scheidler case that upheld a lower court order banning anti-abortion groups from using force to blockade clinics. The Supreme Court reversed it.
But legal scholars say there is nothing extreme about her views.
“She’s obviously in the broad center of American constitutional law,” said professor Robert W. Bennett of Northwestern University Law School.
Wood has often been cast as a counterbalance on the appeals court to Easterbrook as she was in the mezuzah case and to another conservative judge, Richard A. Posner.
All three have been faculty members at the University of Chicago law school. But professor Geoffrey R. Stone of the law school said as much as they disagree at times the three judges share a mutual respect.
“I’ve had many conversations with Posner and Easterbrook in which they have commented to me that Diane is a terrific judge,” he said. “That doesn’t mean that they always agree with each other. They don’t.”
“But they have a civil and mutually respectful relationship in which they can disagree without being disagreeable,” he added.
{CBS-2 Chicago/Noam Amdurski-Matzav.com Newscenter}
