Pubdate: Thu, 18 Dec 2003 Source: Shepherd Express (WI) Copyright: 2003 Alternative Publications Inc. Contact: http://www.shepherd-express.com/ Details: http://www.mapinc.org/media/414 Author: Doug Hissom Bookmark: http://www.mapinc.org/people/diane+sykes Bookmark: http://www.mapinc.org/bush.htm (Bush, George) JUDGING JUSTICE SYKES Bush's Federal Bench Nominee Sports Serious Ideological Bent There shouldn't be much opposition holding up state Supreme Court Justice Diane Sykes' effort to be the newest judge on the Federal Court of Appeals in Chicago given that both Sens. Herb Kohl and Russ Feingold approved President Bush's selection of Sykes last month. But what kind of judge will the federal court and the country be getting? "She fits that Bush administration profile for someone who's going to be on the federal bench for awhile," offers up one Milwaukee defense attorney. "She has all the traits of a Bush appointee," says National Lawyers Guild member and Milwaukee attorney Art Heitzer. "She has a reputation for being smart, very conservative and relatively young." "Ideological and bright" is the consensus of attorneys and law professors interviewed for this story. While Sykes' intellect is highly regarded by most legal minds we contacted, her decisions show a strong tendency toward siding with the government over any concern about individual rights once guaranteed by the Constitution. Bush selected Sykes, 45, after a selection committee winnowed down the applicants to her and three others: State Appeals Court Judge David Deininger, U.S. District Court Judge Thomas Stadtmuller and Milwaukee attorney Thomas Shriner. If she gains likely approval from the U.S. Senate to the bench sometime early next year, her legal career will have been nothing short of meteoric. In less than 20 years she'll have gone from law school to the state Supreme Court to a lifetime appointment to the federal bench. She was appointed to the state Supreme Court in 1999 by then-Gov. Tommy Thompson and elected to a 10-year term in 2000. Before that she spent 1992-'99 as a Milwaukee County judge and was a reporter for The Milwaukee Journal. When she was appointed by Thompson, Madison's Capital Times newspaper opined, "the Wisconsin where ethics, honor and qualifications counted for more than connections, ideological biases and racial preferences--had been swept away in the rush to fix things for Diane Sykes." While some would suggest that her 2000 campaign for the Supreme Court was the most civil compared to recent races, others looked at her silence on the issues as more of a tactic to avoid bringing her political views into the race. Her opponent, Milwaukee County Judge Louis Butler, tried to engage debate, but Sykes was steadfast. "She doesn't speak to the issues because she doesn't want people to hear them," says one local attorney. She won with 65% of the vote. Fitting for a judge with a conservative slant, Sykes took in-kind contributions from the Republican Party for her campaign. One indicator of her philosophy is her membership in The Federalist Society (see sidebar, page 8). Dissenting Streak Sykes is regularly one of the majority votes in a 4-3 bloc that can be found voting in line with bedrock conservative values. But she has even issued dissents that observers say show her to be even more conservative than those of her colleagues. On one lone dissent, Sykes asserted that a verdict shouldn't be thrown out just because a juror couldn't understand English. Her reputation on the Supreme Court of late has been as the justice who dissents most often. In the 2002-2003 term, Sykes joined the majority in only 68 out of 89 cases (77% of the time), the least of any justice. However, the numbers also paint a portrait of a bedrock conservative: Sykes was the justice most likely to disagree with the court's recognized liberal leader, Chief Justice Shirley Abrahamson. "She brought a note of civility to the court that's much-needed," observes conservative retired law professor Gordon Baldwin, who was part of the search committee for the federal post. When it comes to drug cases and evidence used for convictions, she is particularly lenient with law enforcement, however. Sykes has written opinions stating that a driver's consent to police allowing them to search the car also allows them to search passengers' bags, coats and other belongings. She wrote there is "a reduced expectation of privacy that attends property in an automobile," which was sharply criticized by the liberal minority on the court as "expansive" and "constitutionally unsupportable." In other 4-3 decisions concerning drug cases, Sykes agreed with the majority that: - -Evidence obtained in violation of the Fourth Amendment can still be used to convict a person of a crime; - -Police can search homes of suspected drug dealers without any evidence linking the home to drug dealing; - -Police can search large wooded lots on private property without a warrant; - -Police can stop and search a vehicle based solely on an anonymous tip; - -Police can search every piece of luggage in a vehicle after stopping the driver for a minor traffic violation; and - -Police can break into a house without a warrant if they think they smell marijuana. "Had the officers stayed outside and called for a warrant, the evidence would have been lost," Sykes wrote for the majority. - -In addition, in a drug case where a judge gave improper instructions to a jury, Sykes wrote that even though the instructions were wrong, it wouldn't have affected the outcome of the trial, so the verdict was not overturned in favor of another trial. In other cases she has voted against expanded interpretations of the Americans With Disabilities Act, in favor of more private takeover of public waters, and sided with landlords--even if they are trying to apply improperly worded leases to their tenants. She has also agreed that a confession can be used in court, even if it was made by an alcoholic delusional from alcohol withdrawal. Heavy-Handed Sentencing For information on her demeanor as a trial judge, we checked with several attorneys who had practiced in her court during the seven years she was a Milwaukee County judge. Attorneys who have practiced in Sykes' trial court while she was on the Milwaukee County bench from 1992-'99 have a broad spectrum of opinions, ranging from questioning her tough sentences to praising her for running a competent courtroom. She's also been noted for bringing her ideology out on the bench. When sentencing two anti-abortion activists for blocking the entrance to clinics she told them, "Your motivations were pure." One public defender says Sykes had a habit of letting her personal and ideological agenda get in the way of dispensing justice. He points to one case in which she was overridden by noted conservative jurist Ralph Adam Fine of the State Appeals Court. "She was raising her career on the backs of poor people. She would berate people, giving them longer sentences than other judges," says the attorney. A look at some of Sykes' cases that ended up in appeals court affirms that opinion. - -In one case, Sykes told a defendant that if he didn't plead guilty to a misdemeanor hit and run, the state would reissue felony charges against the defendant, forgetting that--in this legal system at least--a judge is not allowed to act as prosecutor as well. "Simply put, the trial court should keep its thumbs off of the scales of justice," wrote appeals court Judge Ralph Adam Fine in overturning the plea. - -In another, overturned by the state Supreme Court, Sykes let a guilty plea stand even when prosecutors couldn't prove the case. The defendant had pled guilty to armed robbery of a car, but he never moved the car, so he couldn't be charged with stealing it. Nonetheless, Sykes let the plea stand. - -In a case overturned by the appeals court, Sykes let stand a guilty verdict after knowing that the defendant was told by his lawyer to lie on the stand. After the verdict, the defendant asked the court for another trial because of ineffective counsel. Sykes refused. The defendant argued that he would have accepted a plea bargain if his lawyer hadn't told him to lie. Fine essentially wrote that Sykes didn't have much to stand on with that opinion. "The overwhelming weight of legal authority is unfortunately, as the state recognizes, to the contrary," he wrote. - -The state Appeals Court also overturned a Sykes trial court decision in which she ruled that a defendant's offer to take a DNA test in a sexual assault case should not be permitted as evidence. "She was certainly a heavy-handed sentencer," recalls public defender Jeff Carpenter, who practiced in Sykes' Milwaukee County trial court for nearly two years straight. "She's pleasant enough, but it was difficult for anyone to convince her to bring sentences down to a more reasonable range. There didn't seem to be any graduated scale." Another rap on Sykes as a trial judge is that she lacks empathy toward defendants and would benefit from a deeper understanding of why they might have ended up in the criminal justice system. "No matter the offense, she would find that particular offense 'serious.' She would use that term a lot," recalls Carpenter. "It became cliche. She would just bang that word over and over again. She was out of step with the norm of the day." In contrast, criminal defense attorney Jonathan Smith says he thought Sykes was fair and "gave great trials. She gave as good a trial as you could get in that building." Saying Sykes was a tough sentencer has to be taken into context, he says. "There's just more hype about that than actually happens." At the public defenders' officer, however, Sykes had that distinction. "Off the bench she was pleasant and charming. But she had a reputation of being fairly punitive," says public defender Neil McGinn. "She wasn't as scary as some of the others," offers another defense attorney. The Washington, D.C.-based Alliance for Justice, which has been quite vocal on some of the more controversial Bush judicial appointees, has not yet taken a position on Sykes. The National Lawyers Guild, which has also strongly opposed Bush's most conservative picks, says Bush shouldn't be allowed to nominate anyone this late in his term. "To put someone like [Sykes] on the court for 20 years is troublesome," says Guild member and Milwaukee attorney Art Heitzer. Studious Habits The 7th Circuit Court of Appeals is considered a relatively conservative court, "but by no means the most conservative," assesses Marquette University Law professor Michael O'Hear. Its 12 judges have been led by Reagan appointees Richard Posner and Frank Easterbrook, "which have been known to have intellectual firepower," says O'Hear. "They are respected by academics, although very conservative." "More like arrogant sons of bitches," offers a UW-Madison law professor. The court's been making its name in employment discrimination cases of late, tending to fall on the side of employers "letting people hire and fire who they want," says O'Hear. "I think she can intellectually stand up to Posner and Easterbrook," says the UW-Madison prof. "She will have to learn to be a little sharper in her writing." Federal judges, though, tend to become more independent after they reach the bench, given that they're appointed for life and no longer have to face voters. "It's that freedom from politics," says O'Hear. That opportunity, say some local lawyers, might allow Sykes to shine. "She's very studious and she really applies herself. Very knowledgeable," says a Milwaukee attorney. "I truly think she is a student of the law." And there are some members of the legal community who will be happy to see Sykes move up. "The only upside is that Gov. Doyle will get to pick a Supreme Court justice," says one attorney. Low Profile When it comes to her personal life, Sykes has kept out of the press. It's hard to find media profiles and interviews she's granted, and her biography has always been quite concise. Even her 1999 divorce from high-profile conservative radio talker Charlie Sykes will be remembered more for Charlie Sykes' run-in with police on a North Shore beach while shooting off fireworks with a female companion who was not his wife. Diane Sykes, however, has become the victim of a woman scorned, Morgan Pillsbury, the ex-girlfriend of noted conservative Wall Street Journal columnist John Fund. Fund was charged last year for assaulting Pillsbury and she has since taken her revenge out on him in the form of a Web site, Ruthlesspeople.com (http://66.40.219.154/). Pillsbury asserts on the Web site that Sykes was involved with Fund in 2000 and prints purported phone records of calls he made to Sykes. Pillsbury also includes an e-mail of affection, reportedly from Sykes to Fund. The site says Fund insisted Sykes was merely a political contact of his. Federal judges rarely talk to the media, and for this story, Sykes' office says the White House asked that she not do interviews before she is confirmed. Rolling Back the New Deal? Sykes, Federalist Society map out a right-wing future While her opinions certainly lend credence toward her conservative credentials, state Supreme Court Justice Diane Sykes' membership in the controversial conservative judicial group, The Federalist Society, puts her in an elite group of prominent right-wing legal thinkers in the country. The Society lists as leaders Robert Bork, whose extremely conservative views--including opposition to the 1964 Civil Rights Act--derailed his 1987 Supreme Court nominations, and Sen. Orrin Hatch, the right-wing senator from Utah. The board also includes Edwin Meese III, attorney general under President Reagan, noted for his efforts attacking Fourth Amendment rights. It was founded by three law students in 1982 with help from Bork. Attorney General John Ashcroft spoke to a friendly Federalist Society National Convention last month. According to the People for the American Way, the Society torpedoed President Bush's first choice for attorney general, Marc Racicot, because he wasn't conservative enough. Another prominent member is Ken Starr, who is attributed with using his Federalist Society connections to keep the impeachment case against Bill Clinton going, and Supreme Court Justice Clarence Thomas. Another member is Frank Easterbrook, a judge on the 7th Court of Appeals, where Sykes has been nominated to serve. Sykes sits on the local chapter's advisory board with Milwaukee Circuit Court Judge Michael B. Brennan, Federal Appeals Court Judge John L. Coffey; Marquette Law School department chair Joseph D. Kearney, who once clerked for Supreme Court Justice and Federalist Society founder Antonin Scalia; Federal Court Judge Rudolph T. Randa and attorney Thomas L. Shriner, Jr. Sykes is also a regular on the Federalist speakers' tour. The Bradley Foundation gives the group at least $100,000 a year, joining several leading conservative foundations and corporations in helping fund the society. According to its Web site, the Federalists' raison d'etre is because "[l]aw schools and the legal profession are currently strongly dominated by a form of orthodox liberal ideology which advocates a centralized and uniform society. While some members of the academic community have dissented from these views, by and large they are taught simultaneously with (and indeed as if they were) the law. "The Federalist Society for Law and Public Policy Studies is a group of conservatives and libertarians interested in the current state of the legal order. It is founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be." Sykes was quoted once about the politics of judicial campaigns, sounding decidedly Federalist. "If this trend continues we will end up with a bench with a legislative mindset." While coated in the loftiness of philosophical proclamations, an ominous reality is that the Federalist Society is "on the verge of hijacking the judicial system," warn George Curry and Trevor Coleman in a 1999 article in Emerge Magazine. People for the American Way suggests that the ideas of the Society "would be disastrous for Americans' fundamental rights." The conservative Washington Times calls the group "the single most influential organization in the conservative legal world." Besides wanting to roll back civil rights mandates, Society members, most prominently Ed Meese, also want to toss out Miranda warnings, the Roe v. Wade decision legalizing abortion, religious protections, environmental protections, health and safety standards and privacy rights. A 2001 People for the American Way report suggests the Society is reminiscent in thought of conservative judges who tried to hold back New Deal programs of the Roosevelt administration. A recent society conference even carried the title "Rolling Back the New Deal." It also notes that leaders in the society want to limit federal authority. An example of direct Society influence on the federal judiciary is President Bush's announcement ending the role of the nonpartisan American Bar Association in reviewing the qualifications of potential judicial nominees. Members of the Society pushed the president to end the Bar's involvement. Indeed, People for the American Way notes that most Bush judicial appointments have been either law clerks for conservative judges or members of the Federalist Society. Six of Bush's first 11 nominees to the federal appeals court have been members of the Society. While the Federalists claim they want a stricter interpretation of the Constitution--the founders' view as they say--and disdain judicial activism, reality says something else. As Curry and Coleman write in Emerge, "The most damning fact about today's Federalists is that they advocate a limited role for the federal government, while the early founders were interested in establishing a strong central government." Marquette University law professor Michael O'Hear says even the Supreme Court is leaning Federalist these days. An example of that was when the panel overturned a federal law banning guns in school zones. "Some see the conservative Federalists as not being principled. Sort of using the Society as a cover for rolling back the Great Society," he says. The Society has been "conveniently used by Republicans" in order to actually expand federal criminal law. "You tend to see the tension within the Republican Party play out." O'Hear says an "honest Federalist" would advocate a small role for government across the board on all issues. - --- MAP posted-by: Larry Seguin