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The Forgotten Judge
The time to speculate on Supreme Court nominations is obviously upon us. Mindful of the diversity calculations in replacing Ruth Ginsburg, President Trump has indicated that he will appoint a woman to the Court. Amy Coney Barrett, two years on the Seventh Circuit Court of Appeals (48 years of age) and Barbara Logoa, with considerable experience in Florida but less than one year on the Eleventh Circuit Court of Appeals (53 years of age), are the acknowledged front-runners. While their intelligence is not in doubt, there is a clear lack of a meaningful track record in adjudicating federal cases in both instances. Unfortunately, there also are questions of whether relatively youthful, somewhat inexperienced judges will survive the Greenhouse Effect.
As conservatives, we are rightfully skeptical of supposedly informed comments about the ideology of Supreme Court nominees. There’s no shortage of examples, and there’s nothing to be gained in regurgitating tales of betrayal well known to this audience. Then there’s Judge Diane Sykes.
Judge Sykes is the Chief Judge of the Seventh Circuit Court of Appeals (that’s a big deal), encompassing a good bit of the heartland—Wisconsin, Illinois, and Indiana. If one would like to check one’s “not an Ivy Leaguer” box, let’s note that Sykes—born in Milwaukee— majored in journalism at Northwestern and received her law degree from Marquette. Judge Sykes, a Bush nominee, was confirmed for the Seventh Circuit by a vote of 70-27 in 2004.
In other words, Judge Sykes has been deciding federal cases of consequence for 16 years on one of our most distinguished federal courts. She is not a blank slate, and is extremely well respected in conservative legal circles. Judge Sykes was widely mentioned as a preferred choice for the “Gorsuch seat,” but the President decided to go in a different direction. Paul Mirengoff, a skilled attorney and one of the founders of the excellent Powerline blog, calls her “a terrific, solidly conservative judge.”
Space, and perhaps a need to avoid legalisms, does not really favor a close examination of Judge Sykes’ jurisprudence here. Should anyone be interested, however, I’d recommend taking a look at her decision in Ezell v. City of Chicago, a Second Amendment case in which Chicago’s zoning restrictions on shooting ranges were struck down. In terms of a judicial philosophy, her own words are the best measure:
Judicial statutory updating, whether overt or covert, cannot be reconciled with the constitutional design. The Constitution establishes a procedure for enacting and amending statutes: bicameralism and presentment. … Needless to say, statutory amendments brought to you by the judiciary do not pass through this process. That is why a textualist decision method matters: When we assume the power to alter the original public meaning of a statute through the process of interpretation, we assume a power that is not ours. The Constitution assigns the power to make and amend statutory law to the elected representatives of the people.
You might then ask, what’s not to like? My answer is quite obviously “nothing.” To others, though, Judge Sykes has one unfortunate defect—she is (gasp) 62 years old, and the vogue in judicial selections–admittedly within the President’s prerogative–is that “younger is better” for a term of life. Speculating about the perceived longevity of a Justice is a ghoulish business, but the fact is that Amy Coney Barrett is +14 when it comes to Judge Sykes. Were this a hiring process in the private sector, where qualifications were to be weighed against a simple management declaration that “we need someone younger,” we might well call this what it is—age discrimination. So let’s do that.
Published in Law
I am dismayed by the obvious sentiment among Democrats and Republicans that Ginsberg should be replaced by a woman. I understand it in the current political climate, but I regret it all the same.
Sykes? Let’s see, 63, so definitely gives a shorter probable lifetime on the court. Ex-husband is with the Bulwark? Well, he is an ex-.
She’s 62 at present. And “probable lifetime” as a qualification is certainly what I was getting at.
I chose to leave personal details about a 20-year old divorce out of the post, but one can certainly argue that it showed good judgment.
I agree. Is she in the list of five? And while we are on the subject of age, this argues well for voting for Trump and a Republican Senate since there are possibly a couple of Court vacancies in the next term.
I felt that way when Thurgood Marshall resigned and people said he had to be replaced by a Black man. Now I must admit, I sure am glad that Justice Thomas is on the Supreme Court . . . and not because of his skin color.
I think that with the compressed time frame to get a justice confirmed before the election, Trump is going to select someone who has recently been confirmed. This limits the amount of “vetting” the Judiciary Committee would have to do.
This assumes that Cocaine Mitch doesn’t find a way to avoid holding hearings.
Agreed. This is no better than Biden’s announcement that he’d select a black woman as his running mate for no other reason than she is a black woman. A bad decision by the President of the United States can gat a lot of people hurt or even killed. With so much at stake, experience and proven performance in a leadership role (e.g., governor) should weigh far more than either skin color or sex.
Just one more reason to leave as many decisions as possible to individuals and states rather than pushing them all up to the federal level.
Good post. But when you are in a war your tactics are dictated by the environment you face at the time. Both Barrett and Lugua are better teed up for an expedited process in the current environment. Yes best candidate regardless of anything other than judicial competence and intellect is ideal. But we’re waaay past ideal.
I’m not sure that it’s possible to make that calculation. It strikes me that Barrett, in particular, is not likely to get expedited treatment. Those going after Sykes in a similar environment will certainly be aware that they are taking on someone widely recognized as an established, distinguished jurist.
The speed of consideration is within the control of the Republicans. If they don’t wimp out they adopt the rules and enforce them. Dems get their say within the allotted time and then a vote is taken. That’s what the Dems would do. Why would the Repubs do it any differently?
BTW–if anyone could tell me how to wrap the text next to the Judge’s picture, I’d appreciate it. I think it’s one of those things that I used to know.
Edit post. Click on picture. A menu will come up:
Click on one of the buttons like the first or third, depending which side you want her picture on. Resave, and hope WordPress doesn’t get creative.
Thank you! Looks like it only works in the “long” view.
By objective measures, Judge Sykes seems like a conservative front runner. By political measures, youth and recent battles favor Judges Lagoa and Barrett. I would also like to know more about Judge Margaret Ryan (I think that was her name off the top of my head) given her time in the military.
If she is chosen, and she is fluent, Lagoa should answer all leftist questions in Spanish at the hearing.
The best choice is of course Epstein. He has a clear cogent academic record and is an open book squarely on the right side of the shelf. He is fair to Trump, agrees and disagrees as informed by his principles. Opposed to Roe because he thinks it’s bad law. Give him the seat lifetime. However in 3 years where he writes all his own opinions either with the majority or in dissent would be a lifetime of value to the judicial record. Once confirmed, always a justice no matter how long you serve.
In the interest of space, I neglected to point out that the quote from Judge Sykes included above came from Hively v. Ivey Tech Community College of Indiana, something of a precursor to this year’s SCOTUS decision in Bostock. In Ivey, the Seventh Circuit found that the Civil Rights Act prohibited discrimination on the basis of “sexual orientation.” Judge Sykes wrote in dissent about legislating from the bench, and the obvious irony is that Justice Gorsuch–author of the majority opinion in Bostock–was chosen over her in 2016.
Wait until the swing vote is a transexual judge who votes either way and who can only be replaced by…
Everything has to be done by women nowadays. Our society is now matriarchal.
If she married Charlie Sykes AND kept his name her judgment is already suspect.
I guess some people know judges like I know minor league prospects in baseball. I have no idea about the minor league Judge prospects (LOL) but I have heard and read about Amy Coney Barrett. I would be thrilled if it were her. But I can be thrilled by any real conservative prospect.
Fill that Seat!
Charlie’s probably already digging through his divorce records for any salacious information he can leak to Democratic Judiciary Committee members and the media, even if it’s not salacious at all.
There’s no doubt that her failure to foresee that Sykes would be involved with The Bulwark when she married him at age 23 in 1980 is a blot on her record. And keeping the name of her children? Unforgivable.
The problem is she’s 62, not 6’2.