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.