Diane Sykes, who has often been mentioned as a possible nominee for the U.S. Supreme Court, has become the chief judge of the 7th Circuit Court of Appeals, assuming the leadership position July 5.
A 1984 graduate of Marquette University Law School, Sykes was confirmed to the federal appellate court in June 2004. She has been a conservative voice within the judiciary and a favorite of conservatives and libertarians whenever a vacancy opens on the country’s highest court.
Sykes succeeds Judge Diane Wood, who served as the 7th Circuit’s chief judge since Oct. 1, 2013. She will be leading the Chicago-based court which has no vacant seats and four judges appointed since 2017.
President George W. Bush nominated Sykes in 2003 to the 7th Circuit to fill the seat vacated when then-Judge John Coffey took senior status. The U.S. Senate confirmed Sykes on a 70-27 votes with both of Wisconsin’s then-Democratic senators, Russ Feingold and Herb Kohl, as well as current Democratic presidential nominee Joe Biden, voting for her.
Sykes was suggested as a potential Supreme Court Justice in 2005 when Justice Sandra Day O’Connor retired. Ultimately, then 3rd Circuit Judge Samuel Alito was nominated and confirmed to the high court.
Sykes was among potential Supreme Court nominees to fill the vacancy created by the death of Antonin Scalia. President Donald Trump unveiled the list in 2016 and ultimately appointed Justice Neil Gorsuch.
However, some conservatives worked to prevent Sykes from even being nominated. According to the Washington Examiner, Andy Schlafly, attorney and son of “conservative stalwart” Phyllis Schlafly, said Sykes’ record indicated she was not sufficiently opposed to abortion rights.
In particular, she was criticized for her ruling in Planned Parenthood of Indiana, Inc., et al v. Commissioner of Indiana State Department of Health, et al., 11-2464. She wrote for the majority that Indiana could not block Medicaid funds from going to abortion providers.
“(Indiana’s) defunding law excludes Planned Parenthood from Medicaid for a reason unrelated to its fitness to provide medical services, violating its patients’ statutory right to obtain medical care from the qualified provider of their choice,” Sykes wrote.
The Northwestern University Law Review posted a synopsis of some of Sykes’ notable opinions when Trump was considering her for the Supreme Court.
Sykes has described herself as an “originalist-textualist,” and has explained that when presented with a novel constitutional question for which there is no precedent, she will look at the analogous Supreme Court decisions and at the original meaning.
That approach was on display in her dissent to Kimberly Hively v. Ivy Tech Community College of Indiana, 853 F.3d 339 (2017), where after an en banc hearing the majority of the 7th Circuit found Title VII prohibitions against discrimination extend to sexual orientation.
Sykes asserted the appellate court was overstepping and legislating from the bench. She pointed to the language of Title VII and argued the words “because of sex” should be interpreted as they would have been in 1964 when the law was adopted.
“To the fluent speaker of the English language — then and now — the ordinary meaning of the word ‘sex’ does not fairly include the concept of ‘sexual orientation,’” Sykes wrote. “The two terms are never used interchangeably and the latter is not subsumed within the former; there is no overlap in meaning.”
In August 2018, Sykes raised some eyebrows at the Above the Law blog when she officiated at the same-sex wedding of her former law clerk, Josh Handell. He said Sykes had been a friend and supporter ever since he introduced her to his now-husband.
Sykes received her bachelor’s degree from Northwestern University then worked as a reporter for The Milwaukee Journal before enrolling in law school. Upon graduation, she clerk for Judge Terence Evans of the U.S. District Court for the Eastern District of Wisconsin.
After private practice from 1985 to 1992, she was elected as Judge of the Milwaukee Circuit Court and, in 1999, was tapped by former Wisconsin Gov. Tommy Thompson to fill a vacancy on the Wisconsin Supreme Court. She held that seat until she joined the 7th Circuit.