“What I have most enjoyed is the opportunity from time to time to take a really hard problem and think my way through it, and on top of that, persuade my colleagues that the way I’ve thought through it is the right way to think about it.”
This transcript has been lightly edited for clarity.
David F. Levi: Hello, and welcome to Judgment Calls. I’m David Levi, director of the Bolch Judicial Institute at Duke Law School. It is such an honor to welcome Judge Diane Wood as our guest today. Judge Wood is visiting Duke as the Bolch Judicial Institute’s distinguished judge in residence, which means she is joining some classes, meeting with students, and taking time to talk to me today about her interesting life and amazing career — or should we say careers.
Judge Wood, you have been a judge, and for a number of years, the Chief Judge of the US Court of Appeals for the Seventh Circuit. Before that, you had a full career as a professor and associate dean at the University of Chicago Law School. And you’ve held positions in the US Department of State and the Department of Justice, where you were deputy assistant attorney general in the antitrust division. So you’ve done a lot in your life and the law.
Let’s start at the beginning. You grew up in New Jersey, but at age 16, which was probably something of a tender age, your folks moved to Texas and you finished high school in Houston. And then you went on to the University of Texas where you took both your BA and your law degree at Texas. What drew you to the law?
Judge Diane Wood: Well, it’s a great question, and thank you. Of course, it’s really a privilege to be here, “virtually visiting” Duke Law School. I certainly enjoyed my class with the students yesterday, and I’m looking forward to another one. Really in summary, what drew me to the law was the possibility it gave for engagement in the problems of the time of society. I nearly didn’t do it. What I was planning on doing as an undergraduate was going on to graduate school in comparative literature.
And I was admitted to really, a very fine program at Yale, the Comparative Literature Program. What changed me was the summer before I was supposed to start, I was working at Rice University with some economists and political scientists, and I would spend my spare time looking at the comparative literature journals, and I became increasingly dismayed at what I can only call the esoteric nature of what people were talking about.
And I finally thought, “This just isn’t for me.” So I told them I wasn’t coming. They were a little surprised, but it all worked out for the best because I started law school, and I thought, “This is it. This is what was missing.”
Levi: That’s it. That’s interesting. I think a lot of people feel that way about the study of literature or art. They love literature, but that doesn’t necessarily mean they want to be a literary critic or a literary scholar. So after graduation, you clerked for Irving Goldberg on the Fifth Circuit. The students may not recognize the name, but I certainly do. He was one of the great judges of his time, one of the great civil rights judges in the South. How did the clerkship come about?
Wood: That’s another great question. When I started law school, with this background of comp lit, I was one of those students — maybe some students here are — who knew nothing about the way you go about developing a legal career. I didn’t know about working for law firms in the summer, and I certainly didn’t know about judicial clerkships. But I did have some very wonderful professors who took the time to point me in the right direction.
One of them in particular suggested that I might be interested in working for Judge Goldberg. So I compiled a list the way people do even now — my list was probably shorter because we didn’t have OSCAR. I applied, among other people, to Judge Goldberg. One day I was studying for exams at the end of my second year of law school. The phone rang and it was Judge Goldberg calling after I’d applied, and said, “Well, when can you come up to Dallas?”
I pretty much said, “Well, whenever you want me, I’ll be there.” So I went to Dallas and interviewed with him. There is one funny story that the people who were then working for him told. Judge Goldberg’s judicial assistant — a woman named Thelma — and Thelma did not approve of the fact that I used my maiden name as my surname. So with great fanfare, Thelma had taken my application and thrown it in the wastebasket in front of the law clerks, who scrambled over and retrieved it from the wastebasket. Then things went on from there.
Levi: That’s pretty funny. And how did you get along with Thelma ultimately?
Wood: You know, the same as my co-clerks will say, I’m not sure Thelma was A+ on getting along with others, but she had worked for the judge for a long time. Anyway, it was fine.
Levi: That’s funny. Well, I know you’ve written about Judge Goldberg, and I know you admired him a great deal. Can you speak about his example and his effect on you? Because I think he was probably one of your main role models as a judge. Am I right about that?
Wood: Absolutely. He certainly was. And one of the things I learned from Judge Goldberg was the value of preparation. He knew everything about every case he ever heard. I was frankly just amazed at his memory. We would sit down and talk to him about the cases, and then the next day or so, he’d be out there in the bench. He missed nothing. He was just as smart as could be, but as compassionate as could be, a people person from the start to the finish and the kind of person — actually as was Justice Blackmun in a different way, a very different style I would say — but very concerned with the litigants in front of him. He realized it was their case.
Levi: Well, you mentioned Justice Blackmun, and that was your next clerkship. So that was the following year. You went onto the Supreme Court, and you clerked for Justice Blackmun. What was that like?
Wood: Well, stylistically very different from Judge Goldberg. Judge Goldberg would just wander in and out, chat, very gregarious. Whereas Justice Blackmun was a very organized person. He did things certain ways. You had breakfast with him every morning at eight o’clock, and then you went back to chambers and you wrote bench memos, you wrote everything down. Everything. I became an excellent what I would’ve called then typist. These days, I guess we should call it keyboarding. But I’m dynamite on that because I wrote so much for the Justice. But he, too, was in his own way, a wonderful role model.
Levi: And how would you describe that? The Blackmun role model.
Wood: Yeah. He was so careful. I mean, with the facts and the situation of a case. I thought about this a lot, actually, because academics will write articles about Supreme Court justices, and some of them are lionized and some of them are thought to be not as distinguished. A lot of academics did not think that Justice Blackmun was among the more distinguished people on the court. In fact, if you look carefully, you see the same criticism was raised against Justice O’Connor.
They both, I think were more concerned about developing the law a step at a time than they were about taking a grand theoretical construct and wedging each case under one part or another of that construct. And I attributed that to Justice Blackmun’s mathematical and scientific background. Mathematical — a graduate from Harvard and math for his undergraduate career — and medical, from his years at the Mayo Clinic. He really wanted the data to drive the decision.
Levi: Yeah, Justice Blackmun was one of those justices who was appointed by a Republican president, and he came on the court and people assumed he would be conservative, but over time he shifted, the court shifted, and he found himself, I think, what is fairly described as in the liberal wing of the court. He was probably in transition during the time you clerked for him. He’d written Roe v. Wade in the early seventies. He had begun to move away from the Chief Justice, Chief Justice Burger, who had been his very close friend. Were you aware of that as a law clerk, this transition that was occurring?
Wood: I certainly remember when… Unlike what people do these days, when I applied to the Supreme Court, I did not just apply to all of the justices. Some of them were well known for never taking women to begin with. It was early on in that process. But one of the things that really attracted me about Justice Blackmun among others was I thought that he hadn’t made up his mind about every issue. I thought that he was really open to thinking about the right way to decide a case.
Obviously, I was just going to be the law clerk, he was going to decide how he wanted to, but it seemed that there was a real possibility for a rich discussion about what to do, and to learn from how he weighed those various things. I think that did turn out to be the case.
Levi: You and I are old fashioned in this way, maybe. I hope not. I hope it is the fashion still, but the idea that judges should actually approach a case with an open mind, and read the briefs and listen to the oral argument, and not just know how they’re going to go when you tell them what the question is. After clerking, you went to the state department. You became an attorney adviser in the Office of Legal Adviser. So that’s not customary, I don’t think for a Supreme Court clerk, or really for anyone. Tell us why you did that, and what that experience was like.
Wood: I see it as fallout from what had made me interested in comparative literature, actually, to begin with. I had a tremendous interest in international matters. I had taken the trouble by that time — I started out learning Latin, then I learned French, then I learned German, and I later added Russian to that. Don’t talk to me in any of those other than French right now because I’m quite rusty! But I was just very interested in international matters, and the state department seemed like a great place to go. And I have to say to this day, when I have law clerks or students who have an international law interest, “L” as they call it, the Office of the Legal Adviser is a spectacular place to go.
Levi: So what kinds of issues did a young lawyer like you work on? Do you remember it? It’s going back for years.
Wood: Oh, vividly. Vividly. And this explains why I didn’t stay at the legal adviser’s office too long. I never could quite clarify what my role was going to be with the person who was at that time legal adviser, because having been a law clerk for two years, I was very eager just to be a line attorney and just do the real work. The policy stuff is fine, but I wanted to do that. I wound up with a little bit of both.
I got myself assigned to the economic business and commerce section of the legal adviser’s office, which corresponds to that division in the state department. I began looking at a problem of international bridges, but my big issues were transfer of technology and negotiations in the UN conference on trade and development about restrictive business practices, about intellectual property, and also foreign corrupt practices. Because while I was at the department, Congress passed the first version of the US Foreign Corrupt Practices Act.
Levi: All of those topics are highly relevant today. You were right there at the beginning, I think. So you were there for I think a little over a year, then you went into private practice for a couple of years in DC, and then you decided to become an academic, and you went first to Georgetown for a year, and then you came to Chicago where you flourished, and that was where your career has been, at the University of Chicago. So what drew you into the academy?
Wood: Again, I take it all the way back to the comp lit interest in a way. While I was at the Supreme Court, it’s customary, or at least it was then, probably still is, for law schools to reach out to you. And I felt very firmly at that time that I wanted some experience before I started teaching. It seemed to me that that was a desirable thing. So when I went to Covington, which was the firm I went to, I had been there about six months. And the person who was about to become dean at the University of Chicago, Gerhard Casper, contacted me and said, “I’d like to talk to you about teaching, and I’m going to be in Washington. Can I come see you?” So I thought, “Sure you can come see me because this is, in fact, something I might want to do.”
So Gerhard came to my office, and I actually interviewed at Chicago that fall, but told them that I just was concerned it was too early. I wasn’t really going to get the experience if it was just six months and done. So they said, “Fine. Here’s your job offer. And let us know when you’re ready to start teaching.” So as soon as I started teaching at Georgetown, I was back in touch with them. I forget who called whom, but anyway the rest is history. As you say, I moved after that one year to the University of Chicago.
Levi: So let’s talk about your academic and teaching and scholarship interests. Tell us what they were and are, and what it is that particularly engages you about those fields.
Wood: Sure. Well, I feel terrible because in some ways I was never able to really settle on just one thing because I had the two major interests. One of them arising out of some of that work I had done at the state department, and also actually from other sources, was this whole field of antitrust, international trade, international antitrust, or how do the economies work and what are we doing. So I continue to find that fascinating. The other big interest, which I attribute to the fact that I was fortunate enough at the University of Texas to be a student twice of Charles Alan Wright, who was a giant in the field of federal procedure, federal courts.
I don’t know if anyone actually looks at physical books of Wright & Miller anymore, but he was absolutely great in that area. I was just entranced by it, and still am. It’s something that I teach at the University of Chicago. I just finished teaching the first-year civil procedure class. I’ve done federal court seminars. So those two strands were really my two loves.
Levi: And are today.
Wood: And still are.
Levi: This goes back to my own family, my father. Chicago has this great history in applying economic concepts to the study of law, and particularly to antitrust law. Was that something you were interested in?
Wood: I was interested in it, but in a contrary sort of way. I was worried that people had lost the great insight that Ronald Coase and Aaron Director and some of the real giants of the law and economics movement had begun with, which was: Maybe we ought to look at what firms are doing and why they’re doing it, and figure out which practices are beneficial, which are neutral, which are anti-competitive with a good, solid empirical base.
That’s great. I was entirely in favor of that, but as time went on, at least as I perceived it, the law and economics movement began to assume away too many of the complexities of a real economy. Assume all customers are rational. Assume no business will ever engage in predatory pricing, assume this, and assume that. And I was disturbed, and during that phase, that they were overusing economics or oversimplifying, and that the world was actually a more complex place than that.
In time, of course, the economics began to catch up with it. You began to get the game theory, economics, people began to realize that strategic behaviors are possible. I’m not criticizing what people are doing today, but there was this period in the middle that I had some problems with.
The other thing I became concerned about — and this grew out of my interest in international antitrust — is I became quite familiar with the antitrust laws of other countries. They would call them competition laws, and I began to wonder whether we were mistaking something, to describe the US economy well, for an eternal truth. It seemed to me that we were making that mistake in a number of areas, and you could see it by looking at the counter examples elsewhere.
Levi: Yeah, that’s very interesting. And after all, the Sherman Act was not drafted by a group of economists who were concerned mainly about consumer welfare as defined by economists. It was drafted at a particular time in our history when the trusts had become extremely large. There were all sorts of concerns about big business in effect, and it went well beyond concerns about efficiency. So even just interpreting the Sherman Act in the way that courts have, which is to further consumer welfare, it’s a little bit of a leap. It’s probably sensible in some respects, but it’s a bit of a leap.
Wood: Oh, I think it is. I mean, there’s actually a really interesting, fairly recent article in the Yale Law Journal about this, trying to go back to the legislative history. There are great studies of the legislative history, and it shows exactly what you said. Then, in one of the most influential books ever, Robert Bork comes along and says, “Oh, let’s cut through the clutter. This is really fundamentally all about consumer welfare as defined by economists.” And he may not have been wrong, that it gave you a law that was easier to administer, but I’m not sure that it gave you the law that Congress actually passed.
Levi: Yeah, that’s interesting. So then you returned to DC in 1993, you’d been teaching for, I don’t know, over a decade. You went back, and you went into the antitrust division of the US Department of Justice. You were a deputy assistant attorney general, and you were in, no surprise, in an international section. Also you had appellate and legal policy matters in your portfolio. So what were you doing? And why did you do that?
Wood: Well, this particular set of things just couldn’t have been more tailor-made for what my interests were. And Anne Bingaman, who was the incoming assistant attorney general for antitrust at that time, was very interested in raising the profile of the international work. I had done by this time a lot of things in the international sphere. Probably the most well-known was a monograph that I wrote with an English law professor, a man by the name of Richard Whish, studying eight particular mergers and acquisitions that had been reviewed by more than five or six countries, to try to figure out how global business was actually dealing with this rather scattered set of antitrust authorities.
That had been just an amazing project to work on. So with that and other things, two things with the international portfolio, one was at a policy level, I represented the Department of Justice at the national economic council. Quite frequently, I represented the US at the OECD, the Organization for Economic Cooperation Development. I traveled all over the place, to various capitals. Fortunately, I don’t suffer from jet lag, so that wasn’t a problem.
It was really policy questions. Then also we had a number of really interesting international antitrust enforcement cases. Some products sound so old that you probably don’t even know what they are anymore, but there was a plain paper fax — that smelly stuff that came off fax rolls — cartel. There was a plastic dinnerware cartel, of all things. We had the Royal Canadian Mountain police raiding people in Canada for us.
Levi: [Laughs] They’re plastic plates?
Wood: Yeah. Right. The little things that you’ll take on a picnic and throw it away, probably wastefully. Anyway, it was great. So that was the international side. Appellate, pretty obvious. Oftentimes we were the appellee, but I worked a lot with the solicitor general for amicus briefs in the Supreme Court, other kinds of things of that sort. Legal policy was legislation, and that sort of thing.
Levi: I mean, this field is still extremely hot. If you’re a major American company, you’re probably a multinational company. Certainly in the tech space, they are all subject to multiple regulatory agencies. The Europeans have been very aggressive. I imagine that there are a lot of conflicts that come up. If you do one thing in one country, it’s against the law, but you’re required to do it in another country. And it may be… I know this is true to some extent in your other fields of civil procedure because sometimes privacy laws in Europe are such that to meet your obligations in another country, you are actually violating some privacy rule in Europe.
Wood: GDPR. That’s right.
Levi: How do you see this?
Wood: It’s one of the things that I found most interesting about it, because… And it’s actually why I was always an opponent of trying to sit down and create some global antitrust code. There was a real movement afoot to do that during the years I was at the Justice Department and afterwards. When you peel away the glittering generalities, you discover that the Europeans — nevermind even other places — but the Europeans have a different idea of what to do with bigness, of what to do with dominant firms, than we traditionally have done. I guess we’ll see what Congress does, but their idea of dominance kicks in when a firm may have 30 or 35% market share. Whereas we still follow the old Learned Hand formula that it’s not really a big problem until you have 70%.
Well, it’s just huge difference in perspective. Because they have an administrative structure, they’re more willing to micromanage what the very big firms are doing. I don’t really mean that as a majority, but they’ll give you behavioral obligations, behavioral remedies. Whereas we, with a court-based enforcement system, are very cautious about doing that — as we should be — because judges didn’t become judges to be antitrust regulators. That’s just one example. There are many others, and trying to find a middle ground is something that you’ve actually got to do case by case.
Levi: Well, so here you were in Washington, in the antitrust division. And then, I don’t think you had come back to Chicago yet when lightning struck in 1995, and you were appointed to the Seventh Circuit. So what’s the story there? How did that happen?
Wood: I mean, I did think it was lightning striking, but I also, as it just happened, knew a lot of people in the Clinton administration, from one connection or another, could be the University of Chicago, could have been other paths. I had done a lot of work with the bar. It was really the first time I allowed myself to think, “Maybe I really could become a federal judge.” And then I was helped by so many people. I mean, I just couldn’t begin to say, but one of the key people was Anne Bingaman, who I mentioned before, who I was working for.
And Anne and I were on one of these long 12-hour flights going to Tokyo to meet with the Japanese. We were just chatting, and Anne said, “What are you seeing for the long term?” And I said, “Well, actually, thinking big, I’d love to be on the federal court of appeals.” Ann, whose husband was Jeff Bingaman, who was at that time the Senator from New Mexico. Ann just looked at me and she said, “That would be great. I think this is going to be my project.”
I was like, “Fabulous!” I can’t imagine a better friend. But over time, first, of course we needed a vacancy, but then a vacancy did arise in the fall of 1994. I was on this two-year leave of absence from the university. So I hadn’t been planning on going anywhere until the summer of ’95 anyway, but with an enormous amount of help from a lot of people, and just accidents such as the fact that the White House Counsel at that time for President Clinton was Abner Mikva, who was deeply from Chicago, who had very great connections with the University of Chicago whom I knew. Just a lot of pennies dropped in the right way, and it happened.
Levi: Yeah. Abner Mikva, just so students know, he’d been a member of Congress for a very long time, but then he’d been on the DC Circuit, where he had quite a distinguished career as a judge. Then late in life he became White House Counsel. I knew him, too. He was a great person. When your name starts to circulate as someone who might be a judge, you’ve talked about part of how this happens, you have to have help from a lot of people. It really helps to have a champion like Anne Bingaman because there’s so much you can’t do for yourself, really. It seems unseemly. Would you say you ran for it? I mean, how do you put those pieces together?
Wood: Funny that you should put it that way because one of the things Ab said to me as the process was unfolding is — he always was quick with a phrase — and he said, “Well, Diane, this isn’t something you can just stand for. You have to run a little.” And so what he meant essentially is that you had to have people peppering the White House Counsel’s office with letters of support, saying that they thought you would be a good person. And given when I was hoping that this might happen, it was a time — as you will remember for sure, David, and others might — it was the election of 1994 that switched control of both houses of Congress to the Republicans. So instead of looking at a Democratic Senate judiciary committee, all of a sudden Orrin Hatch was chairing it.
I remember thinking, “Who do I know who are Republicans? Can I get them to say that this was going to be fine.” And in fact, a great number of people, I was very touched to see, did. I got some great advice from a woman I know in DC who said, “Do whatever you can think of doing for this because your threshold for what’s over the top is so much lower than what the real top is.”
I had one crazy example. I had worked at Covington with Paul Tagliabue doing some antitrust cases. Paul Tagliabue later wound up commissioner of the National Football League, which is what he was doing at the time I was being considered. I got in touch with Paul, and I said, “How about it? You want to write a letter to the White House?” Paul said, “Sure, I’m glad to.” Crazy things like that actually draw people’s attention.
Levi: Well, I was a judge already when you were appointed. I remember how pleased I was, how excited I was that you were coming onto the bench. You joined a very interesting court because you had two of your University of Chicago colleagues, Republican appointees Frank Easterbrook and Richard Posner, both of whom had huge reputations, particularly Posner’s. He is a giant in the academy and was a very good judge. What was that like? You had this preexisting relationship with them, and now… And I think this is rather unusual, it’s hard to think of another circuit, maybe the Second Circuit, where you have established academics going on to the bench in numbers.
Wood: Yeah, I think the Second Circuit is the only other one, too. First of all, I thought it was great because thanks to the culture of the University of Chicago, we were completely accustomed to talking with each other, to batting ideas around. Nobody minded if you didn’t agree with the other person. In fact, that was almost a plus. It meant that you could have a much better conversation. So I looked forward to working with both of them.
And certainly during all of the years Dick was on the bench it was just a pleasure. He’s a public intellectual par excellence. I could sit there and toss off a couple of pages of comments on an opinion; he’d circulate it, and he would carefully respond to each one. “I agree with this. I don’t agree with that.” Or maybe, “Here’s the place where our paths vary.” It was great. I really loved it.
Frank is the same. Frank has a very different style from Dick’s, but Frank and I are great friends off the bench. That doesn’t mean we agree on all things. We certainly don’t, but we agree on plenty of things. I think we agree on a process. We agree on the way the courts ought to run. I thought it was terrific.
Levi: All three of you continued to do a little bit of teaching, I think, as well, at Chicago. Well, here it is. It’s more than 25 years later that you’ve been a judge. So what have you most enjoyed about being a judge? And what have you least enjoyed?
Wood: Well, certainly what I have most enjoyed is the opportunity from time to time to take a really hard problem and think my way through it, and on top of that, persuade my colleagues that the way I’ve thought through it is the right way to think about it. There have been — not a huge number — but there have been a not insignificant number of occasions in which I was on a panel, dissenting on the panel, and the en banc court took the case.
And the entire court, including the two panel members from whom I dissented, agreed with what I thought was the right way to do it, and I thought, “This comes from hard work from thinking about what it is that the other side is concerned about. What’s the answer to that.” And also, always having that atmosphere of mutual respect. You don’t just sort of slap something down on the table and say, that’s it. You invite conversation.
So that happened in a number of cases, and it’s very gratifying to see it happen. You can’t ask for it all the time. And I like sitting on the day-to-day cases, too. I have to say there are some types of cases that I would not weep if they went away. One of my thoughts — I think this actually was in a 1990 project that the judiciary had launched, you must have been involved in this, right? — to re-examine the federal courts.
Levi: And it was actually called the… It was the Biden Bill. It was the Senator Biden Bill.
Wood: That one. Yeah. I was involved in that, too, actually. But there was a 1990 investigation of things, and one of the ideas was that appeals in social security disability cases — supplemental security income, disability benefits — which already go from the agency to the district court, and then they go to the court of appeals, all under a very deferential standard of review that requires you, if there’s substantial evidence upon which the administrative law judge relied, you’re supposed to affirm. If it’s possible to have too much due process, this is too much due process.
My thought was, and others have said this, too — fine, have the appeal, go to the district judges, and then have something like rule 23(f) or cert or something. You could ask the court of appeals to take the case, if there was something just wildly off base. Because, of course, the Supreme Court would never take a case like that. But it’s a lot of work, and there you are reading on for pages and pages about somebody’s orthopedic surgery, and I just don’t know what the value added is.
Levi: That’s interesting. Well, I worked on a lot of those cases.
Wood: Oh sure you did.
Levi: I know what you’re talking about. Obviously, this goes without saying they’re extremely important to the person who brings the case because it’s —
Wood: Of course they are.
Levi: It’s their income. So from 2013 to 2020, so pretty recently, you were the chief judge of the Seventh Circuit. And that’s, you don’t get elected for that. You don’t have to stand or run for that. You get that by virtue of your seniority. Can you talk about that? It’s a very important position. Can you talk about that and how you did it?
Wood: It is an important position, and actually Dick Posner had the greatest line about it. As you say, you don’t get elected to it. You don’t earn it in any fashion. He said that it was like Banquo watching the progression of the Kings of Scotland. You know in advance, unless somebody’s hit by a bus or something, who the chief is going to be for really quite some time to come. So, right now our chief judge is Diane Sykes. She’ll be succeeded by Mike Brennan.
That’s just the way the seniority works, and unless Mike decides he’s tired of being on the court or something, I can’t imagine that happening. In my turn I became chief, succeeding Frank Easterbrook. I will note that the day I became the chief judge, to Frank’s great amusement, the government shut down for one of those government shutdowns that we seemed to be having during those years.
I spent the first two weeks of being chief on all sorts of lengthy phone calls with all the other chiefs, trying to figure out how long we could hang on before something drastic had to happen. Luckily, Congress bailed us out around day 13 of that particular round, but it certainly taught me right away of the governance responsibility that chiefs have.
And the Chief Judge and one district court representative for each circuit make up the judicial conference as you well know. That is the body that makes the policy for the federal courts, and the budgets, and all sorts of things. So that was tremendously important work and work that was really largely done not in Washington at the meetings, which were more confirmatory of what had gone on, but in the trenches on the committees that the conference has.
As you know, I was, before I became chief, for six years on the standing committee on the rules of practice and procedure. Part of my procedure love. I loved that committee. I thought it was really the greatest treat of my life to be on it, but I’d also spent some time in the international judicial relations committee, which I thought was great. So once you’re chief, you’re right in the middle of that. The other thing that you do as chief is that you are the person who is the ultimate authority in the circuit, and that could be things as mundane as somebody needs to have new space, where the courthouse in Rockford, Illinois, is uninhabitable, which actually turns out to be true, and we had to go through all sorts of machinations to allow them to borrow some space across the river in Iowa because somebody said, “Oh, but I was in the Eighth Circuit. How can the district court for the central district of Illinois be over in the Eighth Circuit?” So we solved that problem.
Judicial conduct and disability began to take on a very high profile during the years I was on the court. Because of some rather unfortunate incident — a couple of them actually, not just one — I got the Seventh Circuit to revise its rules, actually, even before the national rules were looked at again. I had my share of very delicate cases because, especially if it’s an active judge, you don’t have very many tools to work with. Impeachment is possible, and that did happen — or at least up to the brink of impeachment, then the person resigned. Not in my circuit, but something I was involved with for the judicial conference. You just have so few tools, other than just persuasion and trying to get somebody to understand that it’s time to go.
I would sharply distinguish between misconduct, which I saw much less of, and disability, because judges are humans just like everybody else. An older judge might begin to suffer from dementia, or an older judge might be on medications that are necessary but just simply don’t allow the job to be done as it should be. It’s just part of life, but you still need to deal with it.
Levi: That’s interesting you bring that up because I was a chief judge in the district court in California, and dealing with judges who are elderly and who need to retire, that is one of the most difficult parts of the job. I wonder whether there should be some sort of age limit for judges since it’s contrary to the way things have moved and probably would take a Constitutional Amendment? Maybe it’s not all that practical. But if you set it 75 or 78 or something of that sort, maybe even 80 in these days, it would give you some protection, I think.
Wood: I would favor something like that. At this stage of my life, I probably say that against interest. But again, I have this comparative perspective — [for example,] Bob French, who used to be the Chief Justice of Australia, somebody I know well, and life went on, the Australians have a fine court system, and their judges and justices retire at a certain age. Richard Goldstone from South Africa, Nick Phillips from the UK, just so many examples.
So I agree with you, if you just had a flat age limit, I think you would have to amend the constitution. There’s the more ambitious term limits proposal that you’re appointed as a justice and you serve as a justice for 18 years, and then you start sitting on the courts of appeals, which would make it look like we were in the early 19th century when Supreme Court justices, in fact, sat on district courts or trial-level courts. I shouldn’t mess up the terminology, but that’s a more intriguing thought.
The people who wrote the Constitution didn’t think that everybody was going to live to 90 and keep on serving as a judge because life expectancies just weren’t that high.
Levi: I was on the Supreme Court Commission, and we looked at term limits. It’s intriguing, but complex. It would take 52 years to implement, for one thing. It does, I think, in the judgment of most people require a Constitutional Amendment, and it doesn’t necessarily address the question we’re talking about, which is some of the health issues that are associated with advanced age. There are other complexities about it that aren’t evident until you get into it rather deeply what a term limit would mean, but I’ll just give you one.
One proposal is 18 years and another proposal is 12 years. Take the 12 year proposal, that would mean that a two-term president would appoint six justices to the Supreme Court, and that six justices would be appointed before the president had served out the second term. So that’s fairly extraordinary. You have to have a lot of faith in the stability of our system, I think, before you would say, “Oh, yes, we’re ready to have not just a majority, but an overwhelming majority of our court appointed by a single president.”
So here you are, you’re eligible now to take senior status, and, I think, you’re planning to do that. Students may not know, it’s not retirement actually. It just means that the president can appoint another judge, and then you get to decide how much work you want to do. I think you can do anywhere from a quarter to a hundred percent, but somebody with your wide range of interests, it would give you the ability to focus a little bit differently.
I know that you’re a very good oboe and English horn player. So I’m wondering whether maybe if you take senior, you’d be able to do more music? What are your thoughts?
Wood: Point one, I am planning on taking senior status, I informed the president, upon the confirmation of my successor, which is the formula most people seem to be using these days and did in the Trump administration as well. I’m not saying that it’s anything unique to this time.
The one thing that you significantly lose by being a senior judge is your ability to participate in the en banc court. You do not have any voice in which cases will go en banc, and you do not sit in the en banc court unless you were on the panel who’s work is being now… somebody’s taking another look at that work. I’m fine with that. I’ve been a judge for a long time. Out of the 2,600 cases or so that the Seventh Circuit gets every year, at the most we actually sit in a live en banc for about four of them.
And then maybe they’re another 16… maybe there’s a group of 20 from which the four is going to come. But the courts of appeals all really do their work through panels, and so I think in the end you’re still very involved.
Levi: You’re so highly regarded. I think you’d continue to feel very much a part of the court.
Wood: Oh yeah. In fact in the Seventh Circuit, we abolished the title “senior judge.” So if you look at any of our opinions, it’ll just say, “Ripple, circuit judge, with somebody else.” And Ken Ripple has been a senior judge for many years at this point because we’ve said, unless the statutes force us, everyone is a member of the court, period.
Levi: We’re getting into the lightning round here, and I have some questions about more fundamental things. I’ll try to be very succinct. Let’s see how much we can get through.
Levi: Do you have a judicial philosophy?
Wood: Well, you told me you were going to ask me that question. I think I do. It probably comes closer to what Steve Breyer has expressed in some of the books that he’s written at the Constitutional-level, where it seems, to me, it’s important in our democracy to understand that Congress is a co-equal branch of government, and to follow legislation rather than sit there and maybe impose Constitutional limits. I would give you healthcare as an example.
It really makes me very uncomfortable to think that close to 20 percent of the national economy might have been declared off limits as not affecting interstate commerce in the right way. I like the idea of leaving it in Congress’s hands. And if a different Congress comes up with something that repeals the Affordable Care Act, so be it. Let them do it.
That’s their job. I hope they don’t, but personally that’s up to them. So I have that in mind. I do, also, certainly share some of the pragmatism and the importance of facts, perspectives that we talked about at the outset from Judge Goldberg and Justice Blackmun. I think that’s really critical. Everybody wants to know about original intent versus some sort of evolving constitution. My view, and I’m not sure what label to put on this, is that the people who wrote the Constitution were very smart people. When they wanted to create an open-ended, standard based rule, they did. When they wanted to create something very specific, i.e. you know, the president must be 35 years old, or there will be no titles of nobility, they did. We don’t see a lot of litigation over those rather specific things. We do see litigation over the squishy ones about like what’s due process or what’s cruel and unusual punishment. So I think you follow the signal of the actual language that was used, and sometimes it is more of a standard, and sometimes it’s more of a rule.
Levi: You mentioned Justice Breyer, and he’s been trying to make the case to the American people, I hope effectively, that judges are not politicians. By that, I think, he means both that they aren’t partisan so they don’t actually identify any longer with the party of the president who appointed them. They don’t feel that it’s their job to advance that party or that president, or that president’s successor.
Also that they don’t decide cases politically in the sense of imposing their own policy preferences where Congress says other preferences or the Constitution does. Do you generally agree with that? Because you’re also an academic and academics don’t share that view of judging by and large, unfortunately. I don’t know whether academics share that view of the academic enterprise, but in any event…
Levi: …when it comes to judging, they think they see politicians in robes.
Wood: Well, it’s tough because what I worry about is that we get wrapped up in labels. Any judge I know, and I know a lot of judges, would certainly say that they are not a judge of the Republican party or the Democratic party, and are trying to follow the party’s platform down the line. I certainly don’t think that way about myself. On the other hand, people do recognize that there are competing theories of interpretation. There are competing approaches even to something as fundamental as to whom should the courts be open to.
What do you think of standing? What do you think of justiciability? What do you think of private rights of action and statutes? And I guess you can call that your judicial philosophy and people do follow their judicial philosophy. But, if you like, I love Venn diagrams. If you think of the Venn diagram of judicial philosophy and politics, I think there’s some overlap.
I think that we’re kidding ourselves if there isn’t. I think it’s a great aspiration to have, and I think judges need to be very careful about how they explain themselves and the tone because when it gets a little too rough and ready, then it does invite the public to think, “Oh, it’s just some committee. It’s just some group of partisans.” I hope that we do better than that, though.
Levi: Another topic that I know you’re quite interested in is this question of specialty courts. Federal judges by and large are generalists, but we have the patent, we have the Federal Circuit, and we have a few other courts that are specialized, and special courts in the state system are quite common. You’ve written on this. What are your views on this?
Wood: In my writings, I have defended the general rule that federal judges are not specialized, and in fact, I wrote an article that was widely perceived as critical of the Federal Circuit. The Federal Circuit’s a little different from, say, a specialized family law court at the state level or specialized trusts in states court. They’re a hodgepodge court. They have, certainly, the patent jurisdiction. They have international trade law. They have government employee appeals, and there’s no link among those things. They’re just topics that Congress decided we want one court to be doing this.
So there’s the Federal Circuit, and it turned out to be the one court, I find, myself, that being a generalist allows me to draw connections across fields. Certainly most of procedure is that way. It’s interesting to see some of the cases the Supreme Court has taken from the Federal Circuit about ‘does clear error review apply here’? Or is it an abusive discretion? Or is it de novo? These are things we’re so familiar with in the general courts.
I don’t deny at all that life is complicated. And I actually, by accident, happened to have a really core patent case that somehow escaped the limits of the Federal Circuit’s jurisdiction about sex determination of the offspring of cattle, and how you could sort and stuff, and it was fascinating. I loved it, but I would certainly say it took a lot of work to feel that I was getting up to speed on it.
Levi: Well, what about collegiality? Do you have any concern that we have what feels like a divided society and rhetoric sometimes runs high, particularly on the internet? Do you sense on a multi-member court that some of this is seeping into your interactions and, if so, is that of concern?
Wood: Well, it was one of my top priorities as chief judge to do everything I could think of to foster collegiality on the court. And that was a time when our court, which had shrunk down to seven judges — we’re supposed to have 11 — in very short order got four new judges, all of whom were appointed by President Trump. Now, then we lost one and gained one because Amy Barrett went to the Supreme Court, but the other three… Amy came in November of 2017, three came in May of 2018.
And then when Amy went to the [Supreme] Court, we had her replacement in about two weeks, in November of 2020. So it was critical to welcome them to the court, to encourage them to see the court the same way the rest of us had, you know, that we are in this common enterprise.
I did an article years ago looking at the rates of dissents at the Court of Appeals and separate opinion writing. And it’s actually quite low. It’s only about three or four percent, and the Seventh Circuit is the same. The Supreme Court is 10 times that, but of course, they’re choosing the hardest cases. So it’s different if you have mandatory jurisdiction, but I clung to that figure saying, “Look, there are so many opportunities to work together. Fine, there’s going to be the cases where we’re not going to be together.”
You’d like to have people agree with you, but I’m pretty happy with where we manage to land in the Seventh Circuit. My hope is that people are taking this as one of the core values of the circuit. There have been instances around the country where feelings have run high and courts have lost that for period of time, but it’s really worth working on hard.
Levi: Well, we didn’t get to civic education and access to justice, which I know are both important topics and close to your heart. We’ll have to get you back for another Judgment Calls because you have so much to contribute and you’re so insightful. What a joy to have you with us today. You’re a national treasure. You’re one of the great judges of our time, and the bridge that you have to the academy, the work that you did in the department, it seems like it all came together to prepare you for your 25+ years in the judiciary.
And that’s been to our national benefit so much. We only scratched the service on your many contributions because you’ve been on many boards, and you’ve contributed widely.
Thank you so much for all that you’ve done and for all that you will do. Thanks to everyone for joining us today for this edition of Judgment Calls. I’m David Levi. Thank you. Thank you, Diane.
Wood: Thank you very much. You’re too kind.