Possible SupCo nominee shows no extra caution
CHICAGO — Supreme Court prospect Diane P. Wood asked the most questions and showed no extra measure of caution Wednesday as judges on Chicago’s federal appeals court plunged into a dispute over alleged housing discrimination.
Wood, 58, is among more than six people President Barack Obama is considering to replace retiring Supreme Court Justice David Souter, according to sources familiar with Obama’s deliberations who spoke to The Associated Press on condition of anonymity because no candidates have been revealed by the White House.
But Wood showed no inclination to make herself a smaller target for critics by avoiding combat Wednesday, asking more than 30 questions at the 70-minute hearing, more than any of the seven other judges at the full-court session.
In the case before the court, the Shoreline Towers Condominium Association was accused of discriminating against condo owner Lynne Bloch by repeatedly removing a mezuzah — a traditional scroll attached to the front door.
Wood repeatedly cited what she said was evidence of discrimination in the case. She dismissed the association’s claim that it had not discriminated and merely enforced a rule barring extraneous objects from halls.
She pointed out that the association put up a clothing rack outside the Bloch 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, Wood said, it appeared the mezuzah was taken down “because of the religious significance and not because somebody had a fetish for clean doors.”
Wood scoffed at the notion that the federal fair housing law applies only in the sale of residences — not to building rules that govern how condos are run.
“If the condo association tried to pass a rule saying there will be no African American visitors that would surely violate” the Fair Housing Act, she said.
The association said the mezuzah violated a rule against placing any objects, religious or otherwise, on doors or in common halls.
Bloch, who helped write the rule, said she was a victim of religious discrimination. U.S. District Judge George W. Lindberg threw out her case and an appeals court panel affirmed his decision 2-1.
In her dissent, Wood said the policy 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 definition of religious discrimination could reflect something Obama said he hoped to find in his judicial nominees: empathy, said professor Mark Tushnet of Harvard University Law School.
“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,” 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 professor Robert W. Bennett of Northwestern University Law School said there is nothing extreme about her views. “She’s obviously in the broad center of American constitutional law,” he said.
“I would classify Diane myself as a kind of moderate liberal and not much different from David Souter or John Paul Stevens or Stephen Breyer,” said professor Geoffrey R. Stone of the University of Chicago Law School.