In the coming weeks, president-elect Trump is expected to decide whom he’ll pick to replace Justice Antonin Scalia on the Supreme Court. During the campaign he famously put out a list of eleven names representing the kind of people he’d look for when selecting a justice. He then added another ten names to the list and announced that those were the only names he’d consider.
One of the names on that list stands out: Judge Diane Sykes.
Judge Sykes currently sits on the Chicago-based Seventh Circuit, to which she was appointed by President Bush in 2004. Before that she served as a justice on the Wisconsin Supreme Court, to which Gov. Tommy Thompson had appointed her from the trial court in Milwaukee. She has thus been a judge for 25 years, at both the trial and appellate levels, as well as state and federal.
Her record over that time has been exemplary. Most notable in our circles was her 2013 majority decision in Korte v. Sebelius, holding that the HHS Mandate violated the religious exercise of a private company. In a decision that set the stage for Hobby Lobby, Judge Sykes laid out a detailed understanding of the Religious Freedom Restoration Act that will prove essential in protecting the rights of religious believers in the future. This case was the high point in what is possibly the fullest religion-clause jurisprudence of a sitting appeals judge.
For example, Judge Sykes also dissented and then (after the Supreme Court intervened) commanded the majority in the Alliance for Catholic Education cases out of Notre Dame (Laskowski v. Spellings), in which she said that taxpayers couldn’t claw back Department of Education grant money from Notre Dame. She wrote the opinion in Books v. Elkhart County where a municipal court was allowed to display the Ten Commandments alongside other historical documents. She authored a solo dissent against her entire court in River of Life Kingdom Ministries v. Hazel Crest, defending the statutory rights of a small church against hostile zoning. And she wrote a very scholarly opinion in a 2010 dispute about the First Amendment rights of heterodox Baha’i, in which she gave as robust an exposition of the Church Autonomy doctrine as one can find anywhere.
This record extends beyond religious liberty issues to other aspects of the law. She ruled repeatedly in favor of Wisconsin Right to Life against the Wisconsin campaign finance regulators in the wake of Citizens United. Her treatment of the Second Amendment in Ezell v. City of Chicago has been accepted in numerous other circuits as the best way to analyze the limitations of the individual right to bear arms.
Judge Sykes has described herself as an originalist and a textualist. She has decried “results-oriented” jurisprudence, as well as the twin vices of judicial activism and judicial minimalism. As she said in a speech to the Cato Institute, “The [Supreme] Court’s legitimacy arises from the source of its authority — which is, of course, the Constitution — and is best preserved by adhering to decision methods that neither expand, nor contract, but legitimize the power of judicial review. The Court’s primary duty, in short, is not to minimize its role or avoid friction with the political branches, but to try as best it can to get the Constitution right.”
I think it’s fair to say that Judge Sykes, as a matter of judicial philosophy, is very much in the mold of the late Justice Scalia. But what really sets her apart is how she presents this philosophy. She’s likable and gracious; she builds majorities. During her time on the Wisconsin Supreme Court, she was undeniably conservative. Yet she was well liked and respected by all her colleagues.
On that court she authored an opinion, Kalal v. Dane County Circuit Court, that established textualism as the interpretive method for Wisconsin courts and forbade the use of legislative history. It was 5-2, which means she attracted moderates to her side. She still does on the Seventh Circuit because she knows her cases cold and is both personable and persuasive on the bench. The result is a judge who brings others to her position.
And when she doesn’t, she stands her ground. As in River of Life Kingdom Ministries, she’s willing to stand alone against her colleagues when she knows she’s in the right. This is no small task on the Seventh Circuit. While the D.C. Circuit is generally regarded as the second most important court in the country, going by staffing the Seventh Circuit is a kind of JV Supreme Court. Judge Sykes has been on it for almost 13 years and she’s the second most junior judge on it; her colleagues are just that experienced. And on it are some of the (arguably the) heaviest hitters on the bench: Richard Posner, Frank Easterbrook, Diane Wood, and David Hamilton. Which means that, having thrived in the Seventh Circuit, Judge Sykes is uniquely battle-tested for the rigors of the Supreme Court.
I think this record speaks for itself. That she also happens to be a woman is an additional bonus. I think having a high-profile woman justice presenting judicial conservatism to the country in a winsome way would be a tremendous asset to that cause going forward. Indeed it’s an asset we should cultivate soon and shouldn’t let go to waste.
The idea—floated recently in Politico—that we should save the female picks for when Justice Ginsburg is no more is exactly wrong: there are no woman seats on the Court any more than there are Italian seats or California seats. There are only seats for principled and effective judicial conservatives. Judge Sykes’s record meets that test, and so I think she would make a fantastic justice.