>> fundinggfor overheard with evan smith is provided in part by hillco partners, texas government affairs health care consulting business unit, hillco health. and by the mattson mchail foundation in support of public television. and also by mfi foundation, improving the quality of life within our community. and also by the alice clayburg reynolds foundation and viewers like you. thank you. >> i'm evan smith. she's a federal judge appointed to the seventh circuit court of appeals by bill clinton sixteen years ago. respected across the political spectrum as an intellectual heavyyeight, she's twice been on barack obama's short list for theeu.s. supreme court. just maybe, the third time will be the charm. she's diane wood. this is overheard.

♪ >> judge wood, welcome. >> thank you very much. >> very. >> it's nice to be here. >> very nice to have you. thank you for coming. that's supreme court stuff is pretty much as we've heard it? ask you, the press doesn't't come to you and say are you on theeshort list. they just report that you're on the short list. >> it's correct. >> it is correct? >> yeah. [laughs] >> well, good and thank you for answering. >> if -- no, i think the white house released records saying that i. >> yeah. >> .in fact did meet with the president twice. >> yeah. you want to be on the supreme court? >> it would have been very nice. >> could still be very nice, actually. >> could be. >> yeah. what, what, what makes it so appealing?

you look at the folks assembled on that court sometimes and it looks like it's nnt a particularly fun job. >> i wouldn't say that. i mean, obviously people come from different backgrounds but they do in my court as well, whichhis. >> right. >> .two people more than the supreme court. but hat makes it fun and interesting is the court gets the chance to choose the 75 most interesting 10,000.ut of a pool of about >> right. >> .that it can hear every year. >> yeah. and o if you, if you care about this stuff as obviously as you do, having served for so long, this is the ultimate opportunity to, to. >> right. >> .weigh in and to affect everybody. we all get affected by what happens at the court. >> absolutely. >> yeah. what does it mean to be on the short list? they ask for you to submit materials so they can do a background check and then they contemplate you, you would fit perfectly with the current composition. they assess you politically. what, what exactly happens on your side of this? >> well, i'm not sure what they're doing but i can tell you. >> yeah. >> .what i did. >> sure. >> which was to put together perhaps the most detailed set of background information about myself that one could imagine and i

gave it to them and talked to thee and made sure that all the blanks were filled in. >> yeah. and then you just wait basically. >> well, then you know if things are moving along, they do say the president would like to talk to you and you talk to the president. you talk to other people. you talk to the vice-president. you talk to. >> mm-hmm. >> .white house counsel and, and then they make their decision based on whatever criteria they have. >> now you know justice &->> i do. >> knew her previously. >> quite well, yeah. >> and you think she's a good choice for the court. >> sure, yeah.ú >> yeah and, and justice sotomayor. >> as, as was justtce sotomayor, yeah. >> right, be nice to have you up there with them. >> well, they're very good people and i'm, you know, obviously doing a good job. >> all of us here will keep a thought for you actually. >> thank you, alright. [laughs] >> let -- let me ask you about your current job. when, when did federal judge become a pejorative in this country? what happened? >> ooh,,that's a tough question to answer because i think there's always been some tension between the judiciary. >> yeah. >> .and the other branches of government because judges get to say llws are unconstitutionaa. >> right. >> judges get to force injunctions. >> right.

but, but of course you're, you're talking about the tension between elected officials who regard the work you do as somehow over the line or you're, you know, an activist judge, which will come back to another pejorative in a second. i'm actually thinking about downstream ffom you. i'm thinking about the average person we saw over the last couple years, this tea party movement, more than a party, it's a movement develop. people running around the country talking about the constitution. we need to get back to the days of the constitution before judges screwed with the intentions of the. >> [laughs] >> .of the drafters. how, how dii people suddenly get interested in the constitution? >> this has been building for a long time. and presidents have run on these platforms. nixon did, reagan did, georgee both of the george bush's, george h.w. bush, george w. bush did. and they portrayed judges who were not in fact being faithful to the constitution. i'm not sure if that was true or not. >> well... rhetoric.at was the >> .of course that's the next quustion is, is that an exaggeration? the idea that sommhow rogue judges are running around the country just screwing everything up.

>> of course, i think it's a tremendous exaggeration. >> right. >> because in fact there are lots of safeguards in this system. number one, if i do something that doesn't suit the supreme court, they can reverse me. and. ú& there's a backstop. >> sure, there's a backstop. and. >> right. >> .judges on, it depends what you mean by getting it right. if you think judges should overturn legislation a lot, actually some of the so-called conservative justices do that more than the so-called liberal justices. >> yeah. why do you say so-called? >> because it depends what you mean by liberal or conservative. >> yeah. >> you know, some people think ttey can divine that, the meaning of words that were written down in 1789 or 1791 and they call themselves conservative for that reason. other people think that we should defer to the elected government. >> right. the, you know, i thought about introducing you on &-intellectual heavyweight. >> [laughs]]3 >> and i consciously decline because liberal can be something to one person and something else to another person. and you might in fact as, as

a judge who is allegedly free of politics. you might recoil at being pigeon-holed one way or the other, in fact. >> i wouldn't want to be pigeon-holed one way or the other. >> yeah. >> and one of the beauties of being a federal judge is that the constitutional drafters gave us life tenure and gave us salary protection. so you're free to decide exactly as you see fit. >> yeah. >> so i'm sure some of my decisions have displeased so-called liberals and others, conservatives but, you know, you call it as you see it. alongside on the court, richard posner, who is a famous conservative jurist or is said to be again with that caution that we don't want to attach labels. and you actually haveedooe some things together on the court. you've agreed at times and disagreed at times. >> that's correct. >> yeah. >> he's one of my very good friends in the court. >> yeah. >> we enjoy working with each other. >> and there's no, so there's no consistent way that, you know, a so-called liberal or a so-called conservative is expected to, to go. and in fact if you lookkat my court, again, we have 11 active judges, although we have a vacancy right now.

you could look at which results looked like they were categorized politically. but you would find people appointed by republican presidents on both sides. >> right. >> you would find people appointed by democratic presidents on both sides. >> and the fact is a republican or a democrat someone he or she believes, well, this is going to be, this person is going to hold uu my end, often juss finds.i mean, look at george h. w. bush appointing david souter. >> mm-hmm. >> david souter was always the example held up. not the only example. but david souter didn't turn out the way the president who appointed him thought he would. >> probably not >> one of the fallacies of that way of thinking is that unless you really think you've got a perfect crystal ball into what the key issues are going to be. >> right. >> .10 years or 20 years out, you can't kkow. >> yeah. >> who thought the, who thought 9/11 was going to happen? that the supreme court was all of a sudden going to have all these cases about what to do with international terrorism. >> who thought the 2000 presidential election would happen. -> no one. >> .and end up at the supreme court? >> no one did. >> yeah. >> and so whateeer you 1990 or 1985 really was beside the pointt >> yeah.

do you believe that judgesú should not be political actors? we of course in texas have ú&ected judiciary members. there are some people on the, the court and the past members of the court of both parties who believe we should scrap that system and move away from elected judges. what do you think about that? >> i think that's a good idea aatually. and one person who's been working very hard in that direction is retired justice sandra day o'connor who has been going all over the country trying to urge people, if not to eliminate elections, at least to reign them in so that maybe people selected by a merit group would be put up for a yes or no vote and then just voted for retention every 10 years. >> right. >> something more modest than what texas or for that matter illinois, lots of other states do. >> you home state of illinois. same. >> yes. >> .same thing, elect the judges. >> exactly like texas. >> wwat exactly is wrong with, i understand that people say well, it's better to have appoinned.what's wrong with elected judges? >> the first thing is that you have to run an election. so you have to raise money for your election. and who is going to contribute the money? it's going to be the same

lawyers who are appearing before you. >> right. >> and it's very difficult for judges to go say give me $10,000 for my campaign and then have you show up and not have some awkwardness at least about how you're going to vote. >> and yet we elect eople to congress and to legislatures who do virtually the same thing. they go to peoole who have legislative business before them. consciously go to those people and say come on, pony up. i mean, isn't the system of elections across categories, not just judicial but also legislative broken in that respect? >> well, there's a lot that one might like to see about the money that funds political campaigns. but i think the judicial role as you yourself is supposed to be a neutral one. >> yeah. >> is supposed to be above that. ú&d it's, it's not impossible. i know some wonderful state court judges. but it's more difficult. >> yeah. >> and the supreme court years ago said that if the money has become so clearly tied into a particular case, then it actually violates

due process to let that judge hear that casee >> so it may, it may be in fact illegal. >> yeah. >> yeah. what's your day like? i - i don't pretend to know what judges do. and i especially don't pretend to know how federal judges spend their time. so help us understand what life is like as a federal judge. >> okay. soi'm going to tell you that there are two ddfferent kinds of days that i might have. >> okay. >> one is when i'm actually hearing cases. hearing cases. so if i'm hearing cases i meet with my law clerks early in the morning and we'll go down to the courtroom and hear usually six cases starting with the most difficult, moving down to things ttat are fairly straightforward. so my, i and tww colleagues sit on the bench. we listen to the arguments. -w retire. we decide what we want to do with the case. the presiding judge assiggs the opinion writing responsibility to one person and off we go to, to resolve the case the rest of the way. now obviously it takes a lot of time to prepare for that. so i estimate for any day of

six cases, i probably read 2,000 to 2,500 pages of background material just to get ready for the cases. so that's what i'm doing some of the non-sitting days. when i'm doing the other non-sitting days is i'm writing opinions. >> now are, are you just hyper-prepared or do all the justices or judges on your court do the exact same amount of preparation? >> people prepare in different ways. but i probably do a lot more upfront preparation than some people. >> why? >> since i have.because that's when you vote. >> mmmhmm. >> and your moment off3 greatest ability to influence what the other people are thinking, your greatest ability to ask intelligent questions of the lawyers. >> mm-hmm. >> .and to think about the case is at the oral argument. so i would rather not do back end preparation. i like to know what i'm doing up front. >> what do you think about television in the courtroom? >> well, this is an issue that certainly has split the judiciary. i, i don't know whether it's age but i don't think it would be such a bad thing

personally. and i suspect it will come at some point. >> righh. >> i can tell you in our court it's only one step away from what we do anyway. because we record all arguments. and let's say we finish at 12:30 in the day. by 1:30 you can go on our website and actually listen to the entire. >> audio. >> .oral argument audio. >> right. >> you can hear all of us talking. >> right. >> it, it's close to real time. >> why, why do you think that there's an age split or a generational split here? are there.i would think the reverse, that in fact the3 younger judgee are used to transparency everyplace. everywhere you go there're cameras, so. >> yeah, but you're - you're assuming that in the contextt3 of the federal judiciary the word younger. >> well. >> .[chuckles] has any application. >> i can imagine the old, the older ju.the older judges aying yes you can hd. you know i don't want to actually see how i really look. do, do you think it will happen? >> i'm actually still one of the younger judges on my court. >> you are. >> that's what i'm trying to say. >> yeah. >> you know, there are.and i don't consider myself all

that young anymore but, but theefact is people who, let's say, are below the age of 70, you know, are, are not unaccustomed to television. >> yeah, so the definition of young then is, it's. >> that's what i'm saying. >> .it's a sliding, a sliding scale. >> yes. [audience laughter] >> okay, granted. i get that, okay. do you believe that there's such a thing as settled law? we hear that a lot now as, as abortion has popped back up oo the radar screen as an issue with the change and state legislatures and the republican takeover of the house and washington. all of a sudden all of these bills to restrict what is a right as defined by the courts all those years ago. those restrictions have not come back on, on screen. and you hear people talk about well, that's settled law. but apparently it's not settled law. what do you, what do you think about that? >> well, i'm not going to say anything about abortion in particular because those kindd of cases can and do come before my court. >> and the policy of judges is traditionally don't talk. >> never. >> .those issues. >> .you never know exactly what wrinkle is going to be. >> right. >> .in any case. >> i'm asking pure of heart. not, not to trick you into.

>> so, so at a more general level there's a lot of settled law and a lot of cases we hear are not terribly hard. we know what o do with them. at the supreme court level there's always a littleeless settled law for constitutional cases. i mean, the court and the citizens united case about campaign funding that you mentioned changed what had been the understanding about what kinds of restrictions could be placed on political contributions. hand. >> right. >> .than, than anybody else. >> do you, do you hear the legislatures at the state level or the -- the congress as having a free hand with regard to some of that? because what you see is this game, right, think of it as a game where the courts decide something.3 and then the legislatures or the congress decide that they don't like that decision. so they're going to chip away and chip away and chip away to the point that the right as determined by the court is almost irrelevant. >> well, let me give you an example of a statute. the americans with disabilities act.

>> yeah. >> something like that may have been happening with that statute. that's, you know, passed in '92 and it, you know, congress really was very serious about stopping disability discrimination. and the courts said well, you know but what you do at work may not matter. and assistive devices like your glasses, you know, ú&n't make you disabled, even though if you were me, without your glasses, you know, you certainly wouldn't want me behind the wheel of a car, i guarantee you. and eventually actually ú&ngress came back and passed another statute amending the disabilities act saying you, the courts, have chipped away way beyond what we ever meant to happen. so there's an interactive process. >> right. >> but in our system people do test limits. >> yeah. and then those limits can in turn beethe subject of litigation. >> sure. >> .that returns to the court that may have originally decided this thing that. >> yeah. >> .we assume was. >> and the court will either say sorry you went over the line or. >> right. >> .or we didn't really mean >> yeah. i-is-is being udge, a federal judge today or being

in the, in the world of the law today appreciably different than it was.well, say bill clinton appointed you in '95. you in fact had one many things prior to being aapointed to a federal judge. you had tauggt in law school. you had been a clerk, as you said, at the supreme court. and at a level below that you'd been a practicing attorney. but you've watched the evolution of, of law as a profession or as a business. >> mm-hmm. >> how has it changed? >> from the lawyer poiit of view t really has become much more of a business. you know, i can see this with my younger colleagues, you know, or even my son who's a new lawyer. it's, it's very hard to do pro bono work without having that you didn't bill enough so, so the law profession &-the judicial profession has changed, too. partly just because of numbers. you know our case loads are more than double what they were when i was a law clerk. and it's pretty much the same number of people. so eveeyone's just doing much more work.

so there are ll sorts of provisions to make us faster. to get rid of things quickly. >> i want to ask you how you, how you got tt be this person, how you made the decision to go into the law and how you got in your own mind to a point whereeyou were comfortable with the idea of being a judge. i know that, that you were a pioneer of sorts, maybe you &-can.say it or won't but i you were among the first women to clerk at the supreme court. you were among the first women to -- to teach at the3 university of chicago law school. there was an honor society law school, the friar society. you are among the first women to be inducted into that. but you know this had to come from somewhere. and i'm wondering if you can tell us hat the, for you the intellectual, the gottyou from who you were. >> yeah. >> .to, to this. >> well, the short version of that story is that i never thought i would go to law school. i was planning on doing graduate work in comparative3 literature. and. >> made a good choice, by the way. >> well, i think so actually. and then i went to.and so i graduated and i was all accepted. >> yeah. >> and i was going to go to grad school. but i spent the summer doing what i should have done before, i had a job at rice.

and i would spend extra time in the library looking at the comparative literature journals. and after a while i thought, oh my gosh, someone has justt3 spent three years of their life producing this. >> yeah. >> and. >> i better go to law school. >> you know it just, you know, i thought i and two other people are going to read it. and so i really realized. >> maybe. >> maybe. >> if you're lucky, right. >> maybe one. yeah. so i thought, you know, it was a moment of self-knowledge. i thoughtti need something that's much more connecttd, you know, toothe world around me, to society. and friends of mine chatted and said well, actually what you're describing is law school. so i thouuht okay i'll give it a try. >> yeah. -> and as soon as i started law school i knew they areú right. >> you knew that it was great. >> i knew. >> so you have.you've been a practicing attorney. >> mm-hmm. >> you were a clerk for harry blackmun. >> right. &->> right.reme court. >> you also clerked i think at a level below, in >> for judge goodberg in dallas. >> judge goldberg in dallas. you taught at the university of chicago law chool for how long? >> well, i still teach there. >> ight. >> i started on the faculty

in 1981 and with the exceetion of two years in3 the '90s i've taught theree >> you consistently taught. your load. >> yeah. >> .i'm sure your load's a little smaller? >> i teach only one class a year now. >> right. but you allo mentioned to me that you served in the administration as a dean? >> yes, i did. >> you did. >> i was an associate dean. >> so did you enjoy all those different things? were there some of those you thought, yes, i like this better than that, or? >> i liie.oh, actually i did enjoy everything. >> yeah. >> but the thing i've liked the best is being a judge. and i enjoyed my time in the faculty and i also did some consulting. so i was doing some appellate work. >> yeah. >> .in the courts. >> yeah. >> .all those years. i liked the mixture. >> yeah. clerk? you were a clerk in '76 for blackmun, is that right? >> uh-huh. >> so you were just a couple years out of law school. >> right. >> .at that point? >> yeah. >> so you're young. you show up at the court. blackmun is this legend. even then blackmun was a legend. what was it like? >> it's very intimidating the first day because you walk in this marbled palace and kind of wind your way through ann you sit down and there's a stack of paper about this high, which are the, what we called the cert

ú&titions, the petitions for review. and you're supposed to go through them and tell the jussice which ones look worth pursuing and which ones don't. you hink, he's asking me for an opinion? but -- but you know, you get used to it. you begin to understand what he's lookkng ffr and it's amazing..3 it's the most incredibll education anybody could gett >> it was. >> .for you, yeah. and are you a better judge with regard to your clerks because you had been a clerk for a judge like blackmun or &->> oh i think so, i think so. >> right. >> i mean, it certainly, they, they haveeremained models for me, each in theirú own way my entire career. >> yeahh tell me about that. explain what you learned from blackmun and explained what you learned from goldberg. >> well, maybe onn of thh most important things i learned ffom justice blackmun is that despite what i said earlier, you know, the supreme court is out there, they're looking for the most important, the most momentous cases. justice blackmun never forgot that in the end every case is about the people who

were involved in thattcase. you know,,the issue could be fancy. the issue could be whatever but at the end of the day it's for those people. and he was very insistent about that, and of course it's true. i mean, you don't want to sit there and say that you're engaged in some academii exercise if in fact you rule one way and somebody dies. or you rule one day and, and somebody loses their job or they can't gettemployment based on some characteristic. >> but, but it's difficult, isn't it, at that level to, to see back sort of the bread crumb trail back to the original complaint or the original defendant. >> he didn't think it was difficult. >> but, but, but, but you could understand though how, when it gets to the point of being a supreme court case, it's his big thing, the human part of it is almost off to the side, or am i just perceiving that differently. >> oh i don't think so. i-i really don't think so. i mean, one, one example of a case that was very controversial that justice blackmun dissented in had to do with whether local social

service workers who knew that a father was abusing his son, and in fact eventually beat the son to the point where the son is, you know, pretty much a vegetable for life at this point, were not liable. that's what the majorrty ú&id. they were not liable for failing to alert ppople that thisswas, to the fact that this was going on. and justtce blackmun thought that hat was wrong.ú hh thought that the knowledge that they had lus their esponsibility as people who worked for that particular department. >> right. >> .suggested that theyy3 should be responsible. and he writes in his dissent, very famous words, he says 'poor joshua, you know, no one was looking out for him and, you know, he has no life'. >> so from his perspectivvú in fact it was at the end of the day. >> it was about joshua. >> .it was, it was about that kid. do you, do you view the law the same way? is that.? >> oh i do. >> yeaa. >> i-i pay close attention to what happens. >> tt the individual. >> mm-hmm. >> .people in the cases. you mentioned blackmun, what did you learn from goldberg? >> judge goldberg was an

amazing person himself. and was deeply involved in also just the, the social justice of what was going on. he was on the 5th circuit, which is the court of appeals for this area. toward the end of the, what3 you'd think of the civil rights movement era when desegregation was happening ú& the entire south and actually around the country when judges were sometimes personally threatened for positions they were taking. >> yeah. >> schools were being -esegregated and he and his colleagues displayed huge courage but also never lost sight of what was happening. you talk about the violence, threats of violence against judges.3 maybe that's a good place, we have just a few minutes left to close. -iffords was shot in arizona a federal udge. >> judge rolls. >> .judge rools was killed. and there was actually a moment there when people wondered whether the gunman was in fact targeting the judge. not that his death was

incidental but that was the deliberate decision he made. and in fact federal judges have been targeted before. judges of all levels have been targeted. >> absolutely. >> i-i wonder from your verr particular perspective, if you can talk about that. it, it seems incredible to -e that people would consider the work of judges to be soocontroversial that they would take.violent acts would be their way of expressing it. what, what do you think about that? >> well, i mean, it does happen and we have security measures that we've put in3 place. actually one of the worst tragedies recently happened in my own courthouse where one of my colleagues on the district court went home one day to discover her mother and her husband murdered. >> yes. >> .innthe basement of her house. >> yes. >> and his was a deranged litigant who, she had dismissed his case some weekssbefore. and explained that, you know, she really couldn't do anything for him but he became very angry about this and, and did this awful thing. so we've all tried to beef

up security, both at home and also at the court. and we do the best we can. but it's, ii's a little bit hard to protect oneself against people who are not rational. >> does it affect youu work at all? >> no. >> does it affect the ability that you have to see the law as the law needs to be seen and to pronounce one side or another? >> i don't think so. ú& yeah. >> not at all. >> it's -- the law's bigger than all that. >> it is. i had three colleagues who,,3 were actually targeted by an online journalist who published their names, called that their blood should run in the streets. and he was prosecuted and they, you know, they said doesn't matter to what we're doing. but. >> yeah. >> .you know, it's a little unsettling to see that kind of thing. >> well, i guess i'm glad to hear that it doesn't matter. >> no, it doesn't matter. >> it's hard to imagine that it doesn't affect you, but i'm glad to know that. >> no. >> well, judge wood, it's an honor to know you and thank you very much for coming. >> thank you. >> appreciate it. judge wood, thank you very much. [ applause ]

>> funding for overheard with evan smith is provided in part by hillco partners, texas government affairs consuutancy and itt global health care consslting business unit, hillco health. and by the mattson mchail foundation in support of public television. and also by mfi foundation, improving the quality of life within our community.3 and also by the alice clayburg reynolds foundation and viewers like you. thank you.

>> robert frost was a farmer in shaftsbury, vermont when he wrote this poem, maybe the most famous of the 20th century. on a summer morning in 1922, after staying up all night, he saw the sun rise and wrote a poem about a snowy evening as if, he said, he'd had a hallucination. >> stopping by woods on a snowy evening.

whose woods these are i think i know. his house is in the village though; he will not see me stopping here to watch his woods fill up with snow. my little horse must think it queer to stop without a farmhouse near between the woods and frozen lake the darkest evening of the year. he gives his harness bells a shake to ask if there is some mistake. the only other sound's the sweep of easy wind and downy flake. the woods are lovely, dark and deep. but i have promises to keep, and miles to go before i sleep, and miles to go before i sleep. 0