During the Supreme Court nomination process last year, Media Matters documented that members of the media smeared Sonia Sotomayor with baseless claims that she lacked the intelligence to be an “intellectual force on the court.” Some contrasted her intellect to that of other candidates -- namely Judge Diane Wood or U.S. Solicitor General Elena Kagan -- whom they described as, for example, having “big brains.” Now that Kagan and Wood are reportedly among the front-runners to replace retiring Justice John Paul Stevens, will these media figures stick by their praise? Or will they baselessly attack Kagan's and Wood's intelligence as well?
Dana Milbank: Kagan and Wood are “big brains who could serve as a counterweight to the court's conservative philosophers.” From Milbank's May 27, 2009 Washington Post column:
It was an unusual way to introduce the woman who would succeed Justice David Souter, but Sotomayor's nomination is itself a bit of a curveball.
Some thought Obama would nominate Judge Diane Wood or Solicitor General Elena Kagan -- big brains who could serve as a counterweight to the court's conservative philosophers. Others expected a well-known politician such as Michigan Gov. Jennifer Granholm.
In selecting Sotomayor, Obama opted for biography over brain. As a legal mind, Sotomayor is described in portraits as competent, but no Louis Brandeis. Nor is Sotomayor, often described as an abrasive jurist, likely to be the next Earl Warren. But her bio is quite a hit. In Spanish, her surname can be translated as “big thicket” -- and that's just where Republicans could find themselves if they oppose this up-from-poverty Latina.
Jonathan Turley: Wood is “blazingly brilliant.” On the May 26, 2009 edition of MSNBC Live, George Washington University constitutional law professor and frequent legal commentator Jonathan Turley opined:
I do think that there is a problem here when we talk about temperament and empathy. You know, we're not selecting a house pet. I mean, we're selecting a Supreme Court justice. And as an academic, I have a certain bias. And that is, does she have the intellectual throw weight to make a difference on the court?
And I have to tell you, the optics are better than the opinions in this case. I've read a couple dozen of her opinions. They don't speak well to her being a nominee on the Supreme Court. She will be historic in many ways, like Thurgood Marshall. But I'll remind you, Thurgood Marshall was not a lasting intellectual force on the court. He was historic because he was first.
And I think that a lot of academics are a little bit disappointed. I am, in the sense that Diane Wood, Harold Koh were not the ultimate people to prevail. These are people that are blazingly brilliant. They would have brought to the court intellects that would frame it in a conceptual way.
Rosen: Wood's “combination of moderate liberalism and a judicious temperament would make her a worthy successor.” Before Sotomayor was chosen as the nominee last May, The New Republic's Jeffrey Rosen wrote a widely criticized May 4, 2009 article titled “The Case Against Sotomayor,” in which he cropped a quote from Sotomayor's colleague, leaving out their description of Sotomayor as “smart,” and portrayed the quote as an example of someone describing Sotomayor as "not that smart"; Rosen also relied heavily on anonymous sources making similar arguments. Then, on May 20, Rosen wrote an article calling Wood “a worthy successor” to retiring Justice David Souter, praising her “judicious temperament” and noting her “scholarly record.” From Rosen's article:
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.
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But the area in which she would bring the greatest degree of intellectual diversity is in her specialty: antitrust law. There are, on the current Court, no economic populists in the mode of William O. Douglas, who boasted that he wanted “to bend the law against the corporations and in favor of the environment.” The current Democratic justices, led by former antitrust scholar Stephen Breyer, are relatively moderate on antitrust enforcement. (During its first two terms, the Roberts Court heard seven antitrust cases and decided all of them in favor of the corporate defendant.) Wood's scholarly record suggests she might be more vigorous. She came to argue for voluntary cooperation among international antitrust agencies in the hope that cooperation may eventually lead the way to binding agreements between countries about how to police international economic competition.
Because of her age (she will be 59 on July 4) Wood may be less appealing to the White House than Sonia Sotomayor (54) or Elena Kagan (49).And as an antitrust scholar and a circuit judge, Wood has not had the opportunity to develop an overarching constitutional vision-unlike Ginsburg who, as head of the women's rights project of the ACLU, developed a pioneering approach to gender equality. As an incrementalist who believes that courts should rule narrowly and move cautiously, she may be unlikely to offer bold liberal leadership on the Court. But in a 1995 speech at NYU, she made a powerful argument about how liberals can respect the text and history of the Constitution while still understanding the words at a “high level of generality,” in order to ensure that constitutional “evolution will continue to occur through adjudication.” Her combination of moderate liberalism and a judicious temperament would make her a worthy successor to David Souter.