Judge Diane Sykes can be considered the ostensible frontrunner for the Supreme Court seat vacated by Justice Scalia.  Sykes has extensive judicial experience, having been a judge continuously since 1992.  Furthermore, she is strongly conservative, with a long affiliation with the Federalist Society and the Republican party.  Because of these credentials, Judge Sykes has been considered for a Supreme Court nomination by numerous Republican presidential candidates.  While President-elect Trump hasn’t indicated who he will nominate to the Supreme Court vacancy, it is inevitable that Judge Sykes will be seriously considered.

Background

Diane Sykes (nee Schwerm) is a Wisconsin native, born in Milwaukee on Dec. 23, 1957.  Sykes studied journalism at Northwestern University, marrying fellow journalist Charlie Sykes shortly after graduating.^[2]  Sykes went on to Marquette University Law School and a clerkship for Judge Terence Evans on the U.S. District Court for the Eastern District of Wisconsin.^[3]  Following her clerkship, Sykes worked as a civil litigator at Whyte Hirschboek for seven years before her 1992 election to a seat on the Milwaukee County Circuit Court.

As a trial court judge, Sykes developed a reputation as a conservative jurist and a strict sentencer.  During her tenure, a number of her decisions were overturned by the Wisconsin Court of Appeals.  In one case, Sykes ruled that a defense attorney who instructed his client to lie on the stand was not ineffective.  This ruling was overturned by the higher court, who noted that it violated “the overwhelming weight of legal authority.”^[4]  In another case, she was criticized for remarks from the bench that indicated a bias towards the prosecution.^[5]

In 1999, Sykes was chosen by Republican Governor Tommy Thompson to replace Justice Donald Steinmetz on the Wisconsin Supreme Court.^[6]  While the selection was generally praised, it also invited criticism from State Senator Gary George, who characterized Sykes as a jurist supported by “the right wing of the Republican party”.^[7]  In 2000, Sykes won election to the Supreme Court in her own right by campaigning as a strict constructionist with law enforcement support.^[8]  The campaign, while generally low-key, attracted some attention due to Sykes’ ex-husband Charlie’s aggressive advocacy on behalf of his wife.^[9]

As a Wisconsin Supreme Court Justice, Sykes built a record of conservative jurisprudence, voting frequently in support of law enforcement, prosecutors, and civil defendants.^[10]  For example, in one case, Sykes wrote in dissent that a defendant’s right to due process is not violated where one of his jurors indicates his inability to understand the English language, absent any showing of prejudice from the trial court.^[11]  In another case, Sykes dissented in support of preserving a lease with a term that was expressly prohibited by statutory language.^[12]  In her opinions, Sykes expressed support for conservative ideas of jurisprudence, including textualism.^[13]

On November 14, 2003, Sykes was nominated by President George W. Bush for a seat on the Seventh Circuit Court of Appeals.  Sykes’ nomination was supported by Wisconsin’s then-Senators Herb Kohl and Russ Feingold, both Democrats and members of the Senate Judiciary Committee.^[14]  Nevertheless, the majority of Senate Democrats opposed Sykes’ confirmation, citing her conservative record as a Wisconsin state judge.  Specifically, Sen. Durbin noted Sykes’ gratuitous comments while sentencing two anti-abortion protesters who blocked access to an abortion clinic.  While noting that blocking access to the clinic was illegal, Sykes went on to praise the defendants, calling them “exemplary citizens” and stating that she respected them for having “the courage of [their] convictions.”^[15]  Such statements were contrasted with Sykes’ tendency to berate other defendants as a sentencing judge.^[16]  Despite these concerns, Sykes was confirmed on June 24, 2004 by a vote of 70-27, with 21 Democrats supporting her confirmation.^[17]  She took her seat on the Seventh Circuit on July 1, 2004.

Jurisprudence

In her twelve years on the federal bench, Sykes has authored nearly 700 majority opinions (and many more concurrences and dissents).  A review of these opinions establishes certain patterns in her jurisprudence.

Narrow View of Criminal Procedural Protections

The Fourth, Fifth, and Sixth Amendments provide important structural protections to individuals charged with crimes, and threatened with imprisonment.  Sykes has interpreted these protections narrowly, rarely applying sanctions such as the exclusionary rule against overreaching police and prosecutors.

For example, Sykes has generally rejected Fourth Amendment challenges to warrantless searches,^[18] and seizures.^[19]  In United States v. Freeman, Sykes found that the police were justified in conducting a warrantless arrest of a suspect, and in strip searching him prior to booking.^[20] 

In comparison, Sykes has only applied the exclusionary rule to suppress evidence in a handful of cases.^[21]  In U.S. v. Stotler, for example, Sykes dissented from a panel decision holding that police officers had probable cause to search an arrestee’s truck.^[22]

In cases involving the Fifth Amendment’s protection against self-incrimination, Sykes has rejected challenges to allegedly coercive police interrogations.^[23]  Sykes has been equally skeptical of claims under the Sixth Amendment right to counsel.^[24]

Broad Interpretation of Some First Amendment Rights and Protections

In contrast to her relatively narrow interpretation of the Fourth, Fifth, and Sixth Amendments, Sykes has interpreted the First Amendment broadly to protect political activity from government scrutiny and regulation.  In 2011, Sykes struck down Wisconsin’s cap on contributions to political action committees.^[25]  Sykes also struck down Illinois’ ballot access requirements for independent candidates, ruling that they violated the First and Fourteenth Amendments.^[26]  In addition, Sykes noted that the use of mandatory bar dues to pay for a public image campaign likely violates the First Amendment rights of Wisconsin attorneys.^[27]

On the religion clauses, Sykes notably authored the opinion ruling that for-profit corporations had religious rights, and that requiring them to provide contraception coverage for their employees violated these rights,^[28] an opinion that drew a fierce dissent from Judge Ilana Rovner.^[29]  Sykes’ reasoning was narrowly upheld by the Supreme Court in a 5-4 decision.^[30]  Sykes also dissented in support of the religious rights of a church that was denied a permit to move its location.^[31]  In contrast, Sykes has taken a relatively narrow interpretation of Establishment Clause rights.  While she did join six of her colleagues in ruling that holding high school graduation ceremonies in an evangelical church violates the First Amendment,^[32] she rejected a First Amendment challenge to the display of the Ten Commandments at a public building.^[33]  Similarly, she dissented from an opinion authored by Judge Posner, arguing that taxpayers could not sue for monetary relief when the federal government violates the Establishment Clause.^[34]

Willingness to Allow Plaintiffs to Overcome Pleading Barriers

On the civil side, Sykes has occasionally reversed district court judges for dismissing suits at the pleading stage, indicating a willingness to allow plaintiffs to present civil cases.  Notably, she has reversed judges both on judgments on the pleadings,^[35] and on grants of summary judgment.^[36]  She has similarly been skeptical of dismissing cases based on statute of limitations defenses.^[37]   

Two exceptions to this pattern are Sykes’ willingness to dismiss cases based on lack of standing,^[38] and claim preclusion.^[39]  For example, Sykes was the only judge in an en banc evaluation of a class action claim to find that the case should be dismissed for lack of standing.^[40]

Skepticism to Civil Rights and Title VII claims

Sykes’ record also shows a tendency to rule against civil rights, labor, and discrimination plaintiffs.  For example, Sykes has repeatedly rejected constitutional claims for police misconduct,^[41] and violation of rights in prison.^[42]  In one case, Sykes dismissed a suit against a police officer who withheld key pieces of information from a warrant application, holding that, while the officer should have known that withholding material information was against the law, it was unclear if the information withheld in this case was material.^[43]  In another case, Sykes dissented from an opinion by Judge Kenneth Ripple, who held that a prisoner could sue a warden who failed to protect him from attacks by other inmates.^[44]

Similarly, Sykes has been skeptical of sex discrimination claims,^[45] racial discrimination claims,^[46] and claims under the Americans with Disabilities Act (ADA).^[47]  Sykes notably dissented from an order permitting a pro se litigant to proceed with her ADA claim, arguing that her brief was inadequate under Rule 28 of the Federal Rules of Appellate Procedure.^[48]

Prominent Reversals

Consistent with the record of most court of appeals judges, a very small number of Sykes’ opinions have been reversed or criticized by subsequent panels, the en banc Seventh Circuit, or the Supreme Court.  Not all of these reversals indicate criticism of Sykes’ reasoning.  In some of the cases, the law had evolved after her initial ruling.

Summary Reversals by the Supreme Court

U.S. v. Fish – In one of her first published opinions as a Seventh Circuit judge, Sykes held that in cases where trial judges choose not to depart downward on a sentence, those decisions are not reviewable on appeal.^[49]  The Supreme Court summarily reversed Sykes’ decision, and remanded it to be re-evaluated in light of United States v. Booker.^[50]

Frederick v. Holder – In this opinion, Sykes dismissed claims for statutory and constitutional relief from the petitioner in a removal proceeding.^[51]  Specifically, Sykes rejected claims that the petitioner was eligible to remain in this country as a lawful permanent resident, and that the removal proceedings violated his equal protection and due process rights.^[52]  The Supreme Court summarily reversed Sykes’ opinion,^[53] remanding it with instructions to review in light of Judulang v. Holder.

Reversals by the en banc Seventh Circuit

U.S. v. Skoien – In 2006, Skoien was convicted of domestic battery in Wisconsin, and placed on probation, a condition of which was that he would not own a firearm.  In 2007, Skoein was arrested for using a deer hunting shotgun that belonged to his father.  Skoein argued that prohibiting him from lawfully using a firearm violated the Second Amendment’s right to bear arms.  While the trial judge rejected his argument by arguing that criminals essentially forfeit their Second Amendment rights, a 3-judge panel of the Seventh Circuit, in an opinion written by Sykes, reversed.^[54]  In her opinion, Sykes ruled that there could be no blanket forfeiture of Second Amendment rights, and as such, the constitutionality of the restriction must be evaluated under intermediate scrutiny.^[55]  The full Circuit, meeting en banc, reversed Sykes, holding that categorical prohibitions on firearm ownership were consistent with the Second Amendment.^[56]  Sykes was the only dissenter from this decision.

Empress Casino Joliet Corp. v. Blagojevich – The plaintiffs in this case were operators of riverboat casinos.  They brought suit against the former Governor of Illinois, his campaign finance committee, and Illinois racetracks, alleging violations of the Racketeer Influenced and Corrupt Organizations Act (RICO) and state-law constructive trust claims.  The plaintiffs sought to halt all distribution of state subsidies to Illinois racetracks.  The district court held that the Tax Injunction Act barred a judge’s ability to halt the subsidies and place the money in escrow.  In a 2-1 decision, Sykes reversed the court, holding that the Tax Injunction Act did not bar his jurisdiction to impose a constructive trust for the subsidies.^[57]  The full en banc court overruled the panel in an opinion by Judge Richard Posner.^[58]  Posner, who had dissented from the panel decision, ruled that the district court correctly found the Tax Injunction Act to be a barrier to a judge’s ability to enjoin the Illinois state subsidy program.  Sykes dissented from the ruling, joined by Judges Bauer and Kanne.

Minn-Chem, Inc. v. Agrium, Inc. – The plaintiffs and defendants in this case were potash producers.  The plaintiffs alleged price fixing and other anti-competitive behaviors by the defendants, and filed suit under the Sherman Act.  After the district court denied a motion to dismiss for failure to state a claim, the Seventh Circuit, in an opinion written by Sykes, reversed,^[59] relying on a prior Seventh Circuit en banc case, United Phosporus, Ltd. v. Angus Chem. Co.^[60]  The full Seventh Circuit unanimously reversed the panel and overruled United Phosporus.^[61]

U.S. v. Spears – Spears was convicted of five felonies based on his business producing counterfeit identity documents.  He appealed three of his convictions: aggravated identity theft, producing a false identification document, and unlawful possession of five or more false identification documents.  The panel, led by Sykes, affirmed two of his convictions, but reversed the one for unlawful possession.^[62]  The full court granted en banc reconsideration, and affirmed Sykes’ rulings on two of the convictions.^[63]  However, it overturned Spears’ conviction for aggravated identity theft, holding that Spears’ provision of false identification papers to others only constituted identity fraud and not identity theft.

Reversals by Subsequent Panels

U.S. v. Baldwin – In another early opinion, Sykes ruled that a defendant cannot challenge a concurrent sentence under an indictment that was one day late.^[64]  Specifically, Sykes noted that the concurrent conviction would not have added any time to the defendant’s sentence, and as such, the only penalty he faces for the error is a de minimis $100 ‘special assessment.’^[65]  Two years later, Judge Sykes herself wrote an opinion overruling Baldwin and the precedent it relied on, holding that such multiplicitous punishment constituted error.^[66]

U.S. v. Newbern – Sykes wrote for the panel, holding that the Illinois crime of “reckless discharge of a firearm” constitutes a crime of violence under the sentencing guidelines.^[67]  The next year, Newbern was overturned by another panel of the Seventh Circuit based on the Supreme Court’s decision in Begay v. United States, which had held the contrary.^[68]

Andrews v. CBOCS W., Inc. – Andrews, a white server at a Cracker Barrel restaurant, brought suit under Title VII and the Age Discrimination in Employment Act (ADEA), alleging that her black manager fired her based on her race and age.  In her opinion affirming the dismissal of the case, Sykes laid out the evidentiary burden on the plaintiff in discrimination cases, noting that the burden is different based on whether the evidence offered is direct or indirect.^[69]  Two years later, another panel of the Seventh Circuit overruled Andrews and its progeny, holding that direct and indirect evidence cannot be subjected to different legal standards, and that rather, all evidence should be evaluated holistically.^[70]

Speeches and Panel Discussions

As noted above, Sykes has maintained a longstanding affiliation with the Federalist Society, an organization of conservative legal professionals seeking to mold the law in accordance with principles of textualism and originalism.  Thus, Sykes has spoken at several Federalist Society events about theories of legal interpretation.

On Dec. 12, 2012, Sykes participated in a discussion on Judge J. Harvie Wilkinson’s book, Cosmic Constitutional Theory, in Indianapolis.^[71]  During the discussion, moderated by Indiana Solicitor General Thomas Fisher, Sykes voiced her general agreement with the central thesis of the book: that courts need to take a restrained approach to evaluating law.  However, Sykes went on to note that deference to the legislature on all points defeats the Constitution’s guarantees of liberty, and that judges must rely on an originalist understanding of the Constitution in evaluating its provisions.

Sykes also criticized Congress’ extensive use of its spending power to regulate interstate commerce, noting that, in her opinion, such actions go beyond the constraints of the Commerce Clause.

Overall Assessment

On paper, Judge Diane Sykes has the qualifications to serve on the U.S. Supreme Court.  She has spent over 12 years on one of the most prestigious court of appeals, and has authored hundreds of opinions during her time there.  Her opinions, which cover the entire gamut of federal law, are generally well-reasoned and concise.  Furthermore, she is well-liked by her colleagues on the Seventh Circuit.  She has also been praised by colleagues on the Wisconsin Supreme Court, including ideological opponents such as Justice Shirley Abrahamson.  Liberal Democrats, including former Senator Russ Feingold, have spoken highly of her ability and her character.

Nevertheless, if nominated, Judge Sykes is unlikely to face a smooth ride to confirmation.  Her opinions and writings betray a strong conservative leaning, and a tendency to originalist and textualist interpretations of the Constitution.  Sykes’ narrow view of constitutional protections awarded to criminal defendants, combined with her expansive views of other protections, such as those of the First Amendment, could be interpreted as a results-oriented approach intended to produce conservative outcomes.  Her opinions have drawn dissents and opposition even from other conservative judges, including Reagan appointees Richard Posner, and Frank Easterbrook.  If Sykes is nominated, her opinions in Korte and Skoein are likely to come under particular scrutiny (although regarding the former, Sykes can take comfort in the Supreme Court’s adoption of her view in Hobby Lobby).  

Overall, if confirmed, Sykes would likely make the Supreme Court a friendlier forum for prosecutors and civil defendants.  Her supporters would likely get what they expect: a judicial conservative.

---