The 7th Circuit panel seemed quite skeptical of the federal court's place interfering with the John Doe investigation.

I've listened to the oral argument, here, and here's Patrick Marley's report in the Milwaukee Journal Sentinel.

"I don't understand why the federal courts at the micro-level would be brought in," said Diane Wood, chief judge of the U.S. 7th Circuit Court of Appeals. Later, she expressed uncertainty about taking "an invitation to butt into a state criminal proceeding."

I predict the prosecutors will win in this case, but mainly because the John Doe investigation can and should be shut down by the state court judge.

I shush Jim Pinkerton.

He's trying to disclose my Supreme Court plot!

Tom Goldstein predicts that Obama will nominate Elena Kagan for the Supreme Court.

He'd already predicted it, and he still thinks so:

It seems clear to me that none of the three nominees—including even Diane Wood—will generate a knock-down, drag-out fight in the Senate. In effect, the White House preempted the prospect of an all-out war by not including the leading liberal prospects in its published short list of finalists. The Bush White House took a similar approach when it nominated the conservative Samuel Alito, but passed on then-Fourth Circuit Judge Michael Luttig, to whom Democrats had signaled their very strong objections....

More surprising, institutional Republicans have not been particularly vocal in their objections to the potential nomination of Diane Wood. Judge Wood’s abortion-related opinions would mean that she would receive only in the range of 55 to 60 votes. But confirmation would still be all but assured....

It is ... true that Judge Wood is the nominee whom progressives would prefer to see nominated, by an order of magnitude. While criticism from the left of General Kagan (who as the perceived front runner has received the most attention) and Judge Garland has been limited to a few, very vocal liberal commentators, it nonetheless exists.... So to the extent that Wood presents the potential downsides of some fight in the Senate and mobilizing conservatives in the election, she has the upside of appealing to and mobilizing core constituencies of the president....

On the ability of the three to persuade a conservative member of the Court such as Justice Kennedy, all have significant strengths as well.... Diane Wood is not only personally charming but has gone toe to toe with Judges Easterbrook and Posner and persuaded them on significant issues. Elena Kagan has significant demonstrated success in working with conservatives at Harvard Law School, which is an exceptionally challenging environment, and has parallels to the relationships at the Court. But she has never been a judge, and would as a consequence presumably take longer than the others to adapt to the new role.

I don't quite get it. Why won't Obama give liberals what they want? The strongest argument for Kagan over Wood seems to be age. Kagan's 49. Wood is 59.

"A big debate on the Constitution, a serious debate, actually, in the Senate this year would be good for Republicans..."

And therefore Republicans will and should oppose any Supreme Court nominee Obama comes up with — even "a very respectable choice" like Elena Kagan — says Bill Kristol.

Watch/read the diavlog. It's very funny, because Juan Williams tries to push Kristol back: How is it that a conservative President gets to "nominate very conservative people to the court like the chief justice," and the conservatives expect Democratic Senators to vote for him because he's very highly qualified, and "then when a liberal president" gets his turn they get to put up opposition and won't vote for the nominee simply based merely on her very high qualifications? That sounds like a great argument, but the parry is pathetically easy:

Who voted against Justice Roberts and Justice Alito? A senator from Illinois named Barack Obama. Also a Senator from Delaware named Joe Biden. I don't think Barack Obama and Joe Biden can very well say about these two extremely well qualified nominees they voted against that Republicans in the Senate and conservatives in the country aren't entitled to say, "We respect Elena Kagan," or, "We respect Diane Wood..." [but...]

You can't say let's stop noticing how political it is now, when I've got the political power.

And, of course, conservatives are always up — or should always be up — for a debate about how their approach to constitutional interpretation is properly and neutrally judicial and it's only the the liberal's approach that is political. That's not quite true, but the general public is immensely receptive, and the liberals know it. That's why, when their nominee comes before the Senate Judiciary Committee, regardless of the reason why she was picked — e.g., her empathy with the poor and the unfortunate — she is not going to open up and defend liberal constitutional jurisprudence. She is going to do her best imitation of John Roberts.

And that's why Bill Kristol is crushingly right: "A big debate on the Constitution, a serious debate" will benefit Republicans.

I'm slightly frazzled... but I'm doing this thing anyway.

Bloggingheads, with Emily Bazelon, talking about a Supreme Court without a Protestant, why Obama should pick an out-and-proud liberal, the causal connection between bullies and suicide, and those terrible Tea Partiers.

"The White House is now faced with a heady political calculation."

"It could invest its efforts, energy and capital in a potentially draining fight this summer over a Supreme Court nominee like Wood, who has made controversial rulings on abortion and would almost certainly face a raging firefight over her confirmation. Or it could move toward a less-controversial selection, such as Garland, in a bid to bolster its domestic agenda before this year's congressional elections. Garland has been spoken of favorably by some conservatives, and Kagan is also seen as less combustible than Wood."

Within this small pool of extremely well-qualified candidates, Obama should pick the person he thinks will do the best work for us on the Court. There will be a big fight no matter what, because there is too much to be gained from using the confirmation as a political battlefield. It's a shameful business to exclude candidates because they have had to decide abortion cases. We are impoverished if the more experienced jurists are passed over precisely because of their experience, because they have written opinions that we can read and argue about. Obama and the Democrats should have the nerve to defend the judicial decisions we call liberal.

"When President Ford was faced with a Supreme Court vacancy shortly after the nation was still recovering from the Watergate scandal, he wanted a nominee who was brilliant" and committed to the law, Obama said, hailing Stevens as a justice who "has stood as an impartial guardian of the law . . . with fidelity and restraint. . . . He will turn 90 this month, but he leaves this position at the top of his game."

On paper, it would seem that this would be Obama's last chance to appoint an assertively liberal choice to replace Stevens, who emerged as the loudest voice of the court's left wing. Democrats hold a large majority in the Senate. Next year, their grip on the chamber could be much more tenuous.

I find those 2 paragraphs, taken together, pretty amusing. Was Justice Stevens a brilliant, impartial, restrained, faithful guardian of the rule of law or the loudest voice of the left wing?

ADDED: Tobin Harshaw does a great job of collecting a lot of opinion about the various frontrunners. Excerpt:

Judicial experience may not be the only intangible working against Kagan. Another may be that she’s Jewish. “Almost nobody has noticed that when Justice Stevens retires, it is entirely possible that there will be no Protestant justices on the court for the first time ever,” writes NPR’s Nina Totenberg. “Let’s face it: This is a radioactive subject. As Jeff Shesol, author of the critically acclaimed new book Supreme Power, puts it, ‘religion is the third rail of Supreme Court politics. It’s not something that’s talked about in polite company.’ And although Shesol notes that privately a lot of people remark about the surprising fact that there are so many Catholics on the Supreme Court, this is not a subject that people openly discuss. … Only seven Jews have ever served, and two of them are there now. Depending on the Stevens replacement, there may be no Protestants left on the court at all in a majority Protestant nation where, for decades and generations, all of the justices were Protestant.”

This is why my money is on Wood.

Do we know what Sotomayor thinks about abortion rights?

Some people assume Obama wouldn't have picked her if she doesn't support abortion rights, but is that really the case? White House spokesman, Robert Gibbs, has said that Obama “did not ask... specifically” about her position. It may be politically useful that her opinion isn't known, and yet that may mean that she'll turn out to be a surprise (as Souter, the man she's replacing was in his time).

None of the cases in Judge Sotomayor’s record dealt directly with the legal theory underlying Roe v. Wade — that the Constitution contains an unwritten right to privacy in reproductive decisions as a matter of so-called substantive due process.

Of course, a Court of Appeals judge is bound to Supreme Court precedent, which includes that theory, but a case applying it might reveal how enthusiastic a judge is about it.

In a 2002 case, she wrote an opinion upholding the Bush administration policy of withholding aid from international groups that provide or promote abortion services overseas.

“The Supreme Court has made clear that the government is free to favor the anti-abortion position over the pro-choice position,” she wrote, “and can do so with public funds.”

That says nothing beyond the simple fact that she was bound by precedent and powerless to overrule it.

In a 2007 case, she strongly criticized colleagues on the court who said that only women, and not their husbands, could seek asylum based on China’s abortion policy. “The termination of a wanted pregnancy under a coercive population control program can only be devastating to any couple, akin, no doubt, to the killing of a child,” she wrote, also taking note of “the unique biological nature of pregnancy and special reverence every civilization has accorded to child-rearing and parenthood in marriage.”

That is pretty consistent with both the pro-life and the abortion rights position. (In fact, it's a good illustration of why we shouldn't say that those who favor abortion rights are "pro-abortion.") Someone supporting abortion rights might object to valuing the father's interests equally with the mother's, and someone who is pro-life might object to seeing abortion from the perspective of the parents and not the unborn child. Still, she's mostly using pro-choice language: she calls the unborn child a "pregnancy," and she equates it with "a child" (i.e., a born child) when it is "wanted." But then again, this is the language of the law embodied in the Supreme Court decisions that bind her.

[I]n a 2008 case, she wrote an opinion vacating a deportation order for a woman who had worked in an abortion clinic in China. Although Judge Sotomayor’s decision turned on a technicality, her opinion described in detail the woman’s account of how she would be persecuted in China because she had once permitted the escape of a woman who was seven months pregnant and scheduled for a forced abortion. In China, to allow such an escape was a crime, the woman said.

All you "empathy" opponents — think about that.

Then there's the fact that Sotomayor was raised as a Roman Catholic. (Indeed, she will be the 6th Catholic on the Court.)

... Hispanics include a higher percentage of abortion opponents than many other parts of the Democratic Party’s coalition. Judge Sotomayor’s parents moved from Puerto Rico.

“At the very least, she grew up in a culture that didn’t hold the pro-life position in contempt,” [said teven Waldman, the editor in chief of BeliefNet.com].

David Savage and Peter Nicholas note:

Sotomayor... has listed herself as a member of Childbirth Connection, a group that helps young mothers prepare for caring for a baby.

Two years ago -- in a case of concern to women's groups -- she joined an appeals court ruling that upheld a school district's policy requiring teachers to notify a parent if they saw that a girl was pregnant. The court said that the teachers had no legal basis for objecting to the policy....

If Obama was seeking to avoid an abortion battle during the confirmation process, Sotomayor would seem a logical choice because of her lack of record on the issue. Another finalist to replace Souter, Judge Diane P. Wood from Chicago, had a strong public record of supporting abortion rights. Wood dissented a decade ago when the U.S. 7th Circuit Court of Appeals upheld Wisconsin's and Illinois' bans on what opponents call "partial birth abortion."

Jeffrey Rosen loves Diane Wood.

After what he said about Sotomayer, this is ardent admiration:

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. "She is very careful, she is respectful of precedent, she is a craftsperson, and she is fairly incremental in her approach," says Geoffrey Stone of the University of Chicago and the author of a book on the suppression of speech during war. "I think she does believe that the role of judges, in part, is to ensure that the oppressed and the disenfranchised and dissenters get a fair shake in the political system, which would be a significant part of the moderate liberal element of Diane. But she's certainly not in any way result-oriented."

Don't worry, conservatives!

Diane Wood?

That's what Intrade says.

"Deciphering Obama’s Supreme Court 'empathy' remark..."

"... Does the next justice have to be a woman?... The sex offender case that may trip up a frontrunner ... Ann to Obama: Appoint a strong liberal!... Is Obama trying to wriggle out of closing Gitmo?... Emily announces Double X, a women’s site that’s for men, too."

It's the new Bloggingheads, with me and Slate's Emily Bazelon.

After Ginsburg? "A woman? It seems certain. It’s inconceivable that the Court could be all-male...."

Jeffrey Toobin thinks Obama might pick a non-judge — maybe Janet Napolitano or Jennifer Granholm. Of the judges, Toobin flags: Sonia Sotomayor, Diane Wood, and Elena Kagan.

Think it's in bad taste to launch into talk about replacing Ginsburg as soon as we hear of her cancer treatment?

What's in worse taste?
	Talk of replacing a Justice the instant we hear of her cancer treatment.
	An elderly Justice remaining on the Court when seriously ill.
pollcode.com free polls

While we're at it:

If the Ginsburg seat is vacated is it necessary to replace her with a woman?
	Absolutely. We cannot have an all-male Court.
	The President should use a sex-blind selection process.
	The President should give some consideration to the sex of the Justice, but not too much.
pollcode.com free polls