October 24, 2005

The argument for Diane Sykes as the post-Miers nominee.

From Jessica McBride:
I don't profess to understand what's going on in Bush's mind nowadays because I still can't wrap my mind around WHAT he was thinking about Miers. But here is why a Diane Sykes candidacy would be a brilliant move for Bush. The more I think about it, the more I think that Diane Sykes has a female John Roberts feel about her.
Read the whole thing! A key point: Diane Sykes is from Wisconsin:
[A] Sykes' nomination puts Wisconsin Democratic Senators Herb Kohl and Russ Feingold in a box. Wisconsin is unique in that we have TWO Democratic senators on the Senate Judiciary Committee. Both voted for Sykes [for the 7th Circuit appointment]. But they did more than that; they actively pushed her for the federal appeals court. And they were liberally quoted lavishing praise on her, saying they couldn't think of a reason to oppose her and citing the fact that she was so highly qualified blah blah blah. The humorous part is that I didn't believe Kohl and Feingold one bit that they think the Conservative Diane Sykes is the best thing since sliced bread. They just wanted Wisconsin Gov. Jim Doyle to get an appointment to the state Supreme Court. He appointed Louis Butler, who has solidified a new liberal majority on the court that is responsible for the decision on medical malpractice, among others. But now Kohl and Feingold would be in a box of their own creation. Which is deliciously humorous. What goes around comes around. They deserve it. NO RESERVATIONS about Sykes, both senators said then, according to the Milwaukee Journal Sentinel.
Nice. Many more points are made at the link. You should go there!

21 comments:

Jacob said...

Feingold supported Roberts, even though he disagreed with him ideologically, because he was qualified. Is it really that crazy that he would support Sykes for the same reason? Do we really have to invent elaborate conspiracy theories about him acting in bad faith?

Matt Barr said...

I think the President will insist on sticking to the blueprint of a female non-judge. The administration will want to "fix" only as much as they want to be seen as having muffed, and they've been saying consistently -- one of the only things they've been saying consistently -- they want the perspective of a non-judge on the Court. This has also been among the only things that's been unobjectionable about Miers to her critics.

If so, you may see Maureen Mahoney. She also has everything Miers lacks, while also coming from "outside the monastery." Conservatives may trip up on her winning the Grutter case -- and how couldn't you be wary of a lawyer who wins a tough case for her client? -- but the next nominee will ideally have something for conservatives to complain about, the better to make it look as though the President hasn't knuckled under to the base.

Mark Kaplan said...

Dennis Prager was also promoting Sykes on his radio show this afternoon.

ziemer said...

ann,

you're forgetting that kohl and feingold committed in advance to support the nominee, if bush used the commission.

but no matter, obviously, it would be a great nomination.

Simon said...

I just blogged about this. I'm reading some of her opinions at the moment, and I can't tell you what a joy it is to be able to READ A DANG PAPER TRAIL! I am not yet convinced that she's our woman, but there are some encouraging signs. She will certainly, however, delight those who visit Article III Groupie's lair, Underneath Their Robes, insofar as, without doubt, The Federal Judiciary gained its new #1 superhotty on July 1st last year.

LarryK said...

Sounds like my kind of judge. If she doesn't have any skeletons in her closet, it does look like a genius pick.

Interesting blog, too, that I didn't know about - although "female John Roberts feel" is not the kind of phrase James Dobson would approve of.

Brad V said...

Letters in Bottles, assisted by The Appletonian, along with GOP3 scooped McBride on this weeks ago.

Gerry said...

Ann,

Sykes was who I was mostly hoping would be the nominee last time, as you can see at the link to my place's comments.

I had asked you about her a few days before that here, but unfortunately you did not nibble.

I still think she would make a wonderful choice for a host of political reasons, and from the little bit of information I have found about the type of judge she is, I am confident I would approve of her approach.

Crank said...

I don't think it would be Sykes. Sadly, the Administration and its defenders have made such a big point of Miers being an evangelical Christian with support from Dobson et al. that having Miers go down in flames and be replaced by yet another Catholic on the Court (in addition to Scalia, Thomas, Roberts and Kennedy) would be viewed as a thumb in the eye to at least some non-trivial number of evangelicals. Short of breaking the paradigm by picking a Latino, Bush's use of identity politics may have painted himself into a corner of needing a nominee who is both female and an evangelical Christian, which narrows the pool dramatically.

Gerry said...

You know what I just found out?

That I have an error in my site template, which makes the permalink for comments not come out quite right.

The proper link to the comment I talked about above is here. Now I have to fix my template so that when I do "copy link location" it actually works.

Apologies to those who followed the link and got my front page :-(

G

JSU said...

Ann, do you know her?

Ann Althouse said...

JSU: I think I've met her briefly, but I'm not sure. I know people who know her.

Stiles said...

How can McBride live in Wisconsin, be an active political observer, and be so clueless about what makes Feingold tick? He's always been of a position that if the President makes a qualified nomination to a Cabinet position or the judiciary, the executive prerogative should receive some deference. In a box? Don't think so. Feingold's a meritocracy kind of guy. Funny how those Rhodes scholars think.

Ann Althouse said...

Stiles: I think Feingold is unusually principled for a politician, but you're overdoing it.

WordReader said...

This whole Miers situation is blossoming into something huge. There is an internal struggle in the Republican Party that political observers may have seen coming, but I'm sure they are surprised at how quickly and passionately it developed. The secular and evangelical segments of the party are vieing for control. This is more than just a skirmish.

BJK said...
This comment has been removed by a blog administrator.
BJK said...

The author raises a number of the points that lead to my putting Judge Sykes's name out there as a candidate for the first O'Connor replacement nomination back in July (on this very blog -- look it up!) Hopefully Congressman Sensenbrenner knows something...

AnnsFuseBox said...

I wonder what Charlie would have to say if Ms. Sykes were nominated? Does anyone in Milwaukee know if he's discussed the possibility on his radio show?

Osvaldo said...

"The secular and evangelical segments of the party are vieing for control. "

Sheer nonsense. If evangelicals in particular and social conservatives in general were rah-rah about Miers, things would look much better for her. But like other conservatives, they're split.

Andy said...

Yikes! Everyone needs to stop throwing partisanship around in regards to the likes of Sykes. Feingold and Kohl would back a good candidate. There's no need for everyone to start throwing up partisan walls. That's why the country is so divided. This isn't the World Series. I'm liberal and would support Sykes if she's nominated.

energizer said...

Diane Schwerm Sykes (born December 23, 1957 in Milwaukee, Wisconsin) is a federal judge on the United States Court of Appeals for the Seventh Circuit. She graduated from Brown Deer High School in 1976 and then received a B.S. degree at Northwestern University in 1980, and a J.D. at Marquette University Law School in 1984.

After law school, Sykes clerked for Judge Terence T. Evans at the U.S. District Court for the Eastern District of Wisconsin. She was in private practice from 1985 to 1992 in Milwaukee, working as a corporate lawyer for Whyte & Hirschboeck, a medium sized law firm. Sykes was apppointed by then Governor Tommy G. Thompson to be a trial judge on the Milwaukee County Circuit Court in 1992. Sykes was appointed for ideological reasons and had limited courtroom experience. She left the trial court in 1999 for the Wisconsin Supreme Court. She served until her appointment to the Seventh Circuit in 2004.

Sykes was nominated by President Bush on November 14, 2003 to a seat on the Seventh Circuit. The Senate Judiciary Committee had approved her nomination (14-5) on March 11, 2004. She was confirmed 70-27 by the U.S. Senate on June 24, 2004.

On joining the Seventh Circuit, Sykes began serving on the court with her former mentor, Terence T. Evans, who had been elevated to the Seventh Circuit by President Clinton in 1995. It is extremely rare for a judge and a former law clerk to serve together on the same court.

Sykes has been mentioned as a potential nominee to the Supreme Court during the George W. Bush presidency.

Sykes was previously married to conservative radio talk show host Charlie Sykes of WTMJ in Milwaukee. The couple has two children.

Sykes is a member of the Federalist Society, a group of conservatives and libertarians dedicated to combating "orthodox liberal ideology" and promoting "traditional values."

As a Wisconsin Supreme Court Justice, Sykes rarely ruled in favor of the rights of criminal defendants. She refused to overturn a conviction in a case where one of the jurors could not speak English. State v. Carlson, 249 Wis. 2d 264, 638 N.W.2d 646. She was the only justice to vote to uphold the conviction. In another case, she was the sole dissenter when the Wisconsin Supreme Court ruled that evidence gathered as a result of interrogating a person in custody who had not been issued a Miranda warning had to be excluded from trial. State v. Knapp, 265 Wis. 2d 278, 666 NW2d 881.

In areas of consumer law, landlord tenant law, medical malpractice law, and employment law, Sykes normally aligns herself with the corporate defendants.

In civil matters, Sykes was in the minority when she voted that the Wisconsin had no responsibility to provide an adequate public school education. Vincent v. Voight, 223 Wis.2d 799, 589 N.W.2d 455.

One of the more unusual employment cases involving Justice Sykes was Bammert v. Don's Super Valu, Inc., 246 Wis. 2d 989, 632 N.W.2d 124. The plaintiff worked at the defendant's store in Menomonie for over 26 years and was a manager. Her husband was a Menomonie policeman. He stopped a woman for drunk driving and cited her when she failed a field breathalyzer test. The drunk driver was the wife of the storeowner where the Plaintiff worked. The storeowner fired the Plaintiff in retaliation for her husband's actions. Bammert sued the store, claiming that her dismissal was illegal because it violated Wisconsin public policies against drunk driving and in favor of strong marriage. Justice Sykes cast the deciding vote in the 4-3 decision against Bammert and wrote the opinion allowing the employer to fire her in retaliation for the arrest.

As a justice, Sykes often ruled in favor of corporate defendants and special interest groups. In one case, Sykes voted in favor of a cable television company, finding that the "voluntary payment doctine" prevented consumers from challenging wrongful charges on their cable television bills. Putnam v. Time Warner, 247 Wis. 2d 41, 633 N.W.2d 254. The analysis in the case is flawed because a consumer dealiing with a regulated monopoly has no choice but to pay invoiced charges, or else the service is cut off. The opinion fails to discuss or comprehend the involuntariness in dealing with, and disputing with, a regulated monopoly.

In another case, Sykes voted in favor of local motorcycle maker Harley Davidson, finding that the manufacturer's quality claims involving a defective engine it manufactured were mere "puffery" and not actionable as false advertising under the Wisconsin Deceptive Trade Practices Act. Tietsworth v. Harley- Davidson, 261 Wis. 2d 755, 661 N.W.2d 450. This is an example of Justice Sykes' willingness to overturn a legislatively created remedy for false advertising, by using the common law "economic loss doctrine."

In a landlord tenant case, Justice Sykes sided with the minority dissent, suggesting that landlords who put illegal provisions in their leases should be able to sue their former tenants to recover lost rents. Baierl v. McTaggart, 238 Wis. 2d 555, 618 N.W.2d 754. This was another example of a situation wherein Justice Sykes attempted to use common law precepts to overturn a legislative remedy, rescission, that is provided under the Wisconsin landlord tenant law.

Sykes was nominated by President Bush on November 14, 2003 to a seat on the Seventh Circuit. The Senate Judiciary Committee had approved her nomination (14-5) on March 11, 2004. She was confirmed 70-27 by the U.S. Senate on June 24, 2004, by a vote of 70-27 (3 senators not voting). When asked about her judicial views at her confirmation hearing, including those on the right to privacy and Roe v. Wade, she declined to answer, although she has shared those views as a public speaker.

On joining the Seventh Circuit, Sykes began serving on the court with her former mentor, Terence T. Evans, who had been elevated to the Seventh Circuit by President Clinton in 1995. It is extremely rare for a judge and a former law clerk to serve together on the same court.

Sykes has been mentioned as a potential nominee to the Supreme Court during the George W. Bush presidency.

Sykes was previously married to conservative radio talk show host Charlie Sykes of WTMJ in Milwaukee. The couple has two children.