Five Things to Know About SCOTUS Short-Lister Sykes

Bloomberg Law’s combination of innovative analytics, research tools and practical guidance provides you with everything you need to be a successful litigator.

By Patrick Gregory

Dec. 13 — Seventh Circuit Judge Diane S. Sykes was one of the first judges mentioned by President-elect Donald Trump as a potential U.S. Supreme Court nominee.

Trump has said he’ll choose someone from his short list of 21 potential high court nominees, which includes Sykes, to replace Justice Antonin Scalia, who died unexpectedly Feb. 13.

The self-described “judicial conservative” would likely face easier confirmation hearings than her fellow rumored front-runner, Eleventh Circuit Judge William H. Pryor.

But, if nominated, she could face scrutiny over her handling of anti-gay discrimination and abortion clinic disputes, including a pending anti-gay work bias controversy at the U.S. Court of Appeals for the Seventh Circuit.

Sykes said in 2004 that her approach to judging incorporated “judicial restraint; respect for precedent; deference to the legislative branch and its public policy choices; sensitivity to separation of powers; and an approach to legal interpretation that focuses on the plain language of the law, interpreted reasonably and in the context in which it is used.”

She publicly criticized her former colleagues on the Wisconsin Supreme Court in 2006 for not displaying those values.

1) Called ‘Safer Bet’

Trump said that “we could have a Diane Sykes, or you could have a Bill Pryor” as a nominee, at a Republican presidential debate in February.

Those two are seen as front-runners among conservative legal experts, but Sykes is viewed as a “safer bet for breezy Senate confirmation,” according to a Nov. 18 National Review story.

Pryor endured a tough confirmation hearing in 2003 and once called the landmark abortion-rights decision in Roe v. Wade, 410 U.S. 113 (1973), “the worst abomination of constitutional law in our history.” This would likely energize Democrats and abortion advocates against him.

In contrast, Sykes’s allies “say it would prove especially difficult for Democrats to oppose her” because she’s “a 58-year-old single mother who hails from the heartland,” the story said.

Sykes’s first congressional vetting process—following her 2003 nomination by President George W. Bush—lacked the pageantry and grandstanding many have come to expect from judicial nominations.

She presented no opening statement and was questioned only briefly in person.

2) Gay Rights Case to Watch

A potential confirmation hearing for Sykes might be easier than it would be for Pryor, but that doesn’t mean it would be easy.

Sykes could face questioning about her handling of an ongoing gay rights dispute recently argued on rehearing at the Seventh Circuit, Hively v. Ivy Tech Cmty. Coll., No. 15-1720 (7th Cir. en banc, argued 11/30/16).

The dispute centers on whether the ban on sex discrimination in Title VII of the 1964 Civil Rights Act prohibits discrimination based on sexual orientation.

A Seventh Circuit panel found that Title VII doesn’t prohibit employment discrimination based on sexual orientation in Hively, 830 F.3d 698 (7th Cir. 2016).

But several judges at the Nov. 30 rehearing argument seemed to agree with plaintiff Kimberly Hively, a lesbian college instructor, that such discrimination is illegal.

However, Sykes questioned Hively’s attorney’s suggestion that the treatment of a lesbian employee can be compared with that of a heterosexual male employee.

“In sex discrimination claims we’re looking for evidence that will tell us or tell a reasonable factfinder that sexism is the motivating reason for the employment action, not homophobia as the allegation is in this case,” Sykes said.

Sykes suggested that the relevant comparison group would be qualified gay males rather than just qualified males.

The plaintiff’s attorney responded that you can’t define “gay” and “lesbian” without thinking about their sex in relation to whom they are attracted.

3) Campus Speech Row

If Sykes votes against the lesbian plaintiff in Hively, it might be compared to a decision she wrote for the Seventh Circuit involving a law school’s policies against anti-gay discrimination, in Christian Legal Society v. Walker, 453 F.3d 853 (7th Cir. 2006).

In Walker, the Christian Legal Society at Southern Illinois University law school refused to allow those who engaged in or approved of homosexual conduct to become members.

The school’s dean therefore revoked CLS’s status as an official student organization, concluding that it violated school nondiscrimination policies.

That revocation likely violated CLS’s First Amendment rights, the decision written by Sykes found.

“It would be difficult for CLS to sincerely and effectively convey a message of disapproval of certain types of conduct if, at the same time, it must accept members who engage in that conduct,” the court said, reversing the district court’s decision denying CLS’s motion for a preliminary injunction.

The school and CLS eventually settled the dispute.

4) Abortion Clinic Ruling

Though Sykes’s 2004 confirmation was relatively smooth, it wasn’t devoid of controversy.

Sen. Richard J. Durbin (D-Ill.) submitted written questions to Sykes, which asked about a 1993 case that Sykes presided over as a trial judge in Wisconsin.

The case involved two anti-abortion activists who were convicted of misdemeanor disorderly conduct for blocking the door to a Milwaukee abortion clinic.

According to Durbin, the defendants received 60-day sentences, and press reports at the time characterized Sykes as having given them “unusual leeway to argue that the social value of their protest outweighed their violation of the law.”

Durbin himself quoted Sykes as having told the defendants, “I do respect you a great deal for having the courage of your convictions and for the ultimate goals that you sought to achieve by this conduct,” as well as calling them “exemplary citizens” with “pure” motivations.

The same case led directly to at least two national advocacy groups opposing her nomination, the National Abortion Federation and the National Council of Jewish Women.

In response, Sykes noted that Wisconsin law required her to take into account mitigating and aggravating factors when sentencing the defendants.

In the end, Sykes added, “I sentenced the defendants to 60 days in jail, which represented two-thirds of the potential maximum jail sentence for this crime.”

As for the defendants’ “ultimate goals,” Sykes explained that the evidence in the case “established that the goal the defendants sought to achieve by their protest was a reduction of the number of abortions in our community.”

She said, “It was that ultimate goal that I respected.”

5) Called Out Colleagues

As a sitting Seventh Circuit judge in 2006, Sykes called out her former colleagues on the Wisconsin Supreme Court for what she saw as significant departures from her core values of judicial restraint and deference to the legislative branch.

She accused the court of “vigorously asserting itself against the other branches of state government” and “impos[ing] its own solutions to what it perceives to be important public policy problems.”

She cited decisions including Ferdon ex rel. Petrucelli v. Wisconsin Patients Compensation Fund, 701 N.W.2d 440 (Wis. 2005), which “invalidated the statutory limitation on noneconomic damages in medical malpractice cases” on state constitutional grounds.

Sykes said the court “recites the standard presumption that statutes are constitutional, but does not apply it.”

Specifically, she said that the state court used the equal protection challenge as an opportunity to rewrite the rational basis standard of review into what it called “rational basis ‘with teeth,’ rational basis ‘with bite,’ and ‘meaningful rational basis.’”

“Apparently, the point of the redefined standard is to authorize the court to make a policy-laden value judgment about the tendency of a statute to effectively achieve its objectives, and invalidate the statute if the court believes that tendency to be insufficient to justify the statutory classification,” Sykes said.

In sum, the “terms ‘modesty’ and ‘restraint'—the watchwords of today’s judicial mainstream—seem to be missing from the Wisconsin Supreme Court’s current vocabulary,” Sykes concluded.

Tom Taylor contributed to this report.

To contact the reporter on this story: Patrick L. Gregory in Washington at pgregory@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.

Request Litigation on Bloomberg Law