[Congressional Record Volume 150, Number 89 (Thursday, June 24, 2004)]
[Senate]
[Pages S7360-S7366]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
EXECUTIVE SESSION
______
NOMINATION OF DIANE S. SYKES TO BE UNITED STATES CIRCUIT JUDGE FOR THE
SEVENTH CIRCUIT
Mr. HATCH. Mr. President, I ask that the Senate now proceed in
executive session to consider Executive Calendar Nos. 591 and 604 as
provided under the previous order.
The PRESIDING OFFICER. Without objection, it is so ordered. The clerk
will report the nomination.
The legislative clerk read the nomination of Diane S. Sykes, of
Wisconsin, to be United States Circuit Judge for the Seventh Circuit.
The PRESIDING OFFICER. There are 60 minutes evenly divided for debate
on this nomination.
Mr. HATCH. I do not intend to take all of our time, and I hope the
other side will not take all of its time.
I rise to support the nomination of Justice Diane S. Sykes to the
Seventh Circuit Court of Appeals, and to urge my colleagues to support
her. There is no doubt that she is well prepared to join the Federal
bench. A graduate of Marquette University School of Law, Justice Sykes
served as a law clerk to the Honorable Terrence T. Evans in the Eastern
District of Wisconsin. As a litigator in private practice, she
specialized in civil litigation in State and Federal court.
Justice Sykes will bring almost 12 years of judicial experience to
the Seventh Circuit. Since 1999, when she was appointed by Governor
Tommy Thompson to fill a mid-term vacancy, she has served on the
Wisconsin Supreme Court. She won election for a ten-year term on the
court in 2000 with 65 percent of the vote. Judge Sykes appealed to so
many of her State's voters because she is a careful, qualified jurist
and not an activist.
Before coming to the Wisconsin Supreme Court, Justice Sykes served as
a trial judge on the Milwaukee County Circuit Court, winning election
to a 6-year term in 1992. Prior to her service as a State judge,
Justice Sykes practiced commercial litigation for 7 years at one of
Wisconsin's most prestigious law firms. She also clerked for Judge
Evans, district judge for the Eastern District of Wisconsin after her
graduation from Marquette University Law School.
Not surprisingly, the ABA rated her well-qualified for appointment to
the Seventh Circuit. She has also received broad support, including
that of both Wisconsin Senators.
Despite her strong credentials and the level of support she enjoys,
there continues to be some misinformation and distortions regarding her
record. First, of course, is the suspicion by some that she might be
pro-life and thus presumptively unqualified for service on the Federal
bench. Opponents cite one 1993 case on which she ruled while she served
as a county judge in Milwaukee. She was then accused of declaring
admiration for pro-life protestors and issuing jury instructions
favorable to those protestors.
The Milwaukee newspaper that printed these accusations issued a
formal retraction and apology less than a month later. The apology
noted, among other things, that the language of Justice Sykes' jury
instruction was specifically recommended for use by the Wisconsin
Criminal Jury Instructions Committee, and was used by judges throughout
the State. The apology further noted that Justice Sykes sentenced the
protestors to \2/3\ of the maximum sentence permitted by law. The
record is clear that Justice Sykes, during sentencing, stated ``whether
you
[[Page S7361]]
like it or not, [an abortion clinic] is a legal, legitimate business,
and it has the same right to be free from interference of this sort as
any other business.''
Justice Sykes also clarified, in answers to written questions that
``my favorable comment about the goal [those] defendants sought to
achieve was a reference to their underlying goal of reducing the number
of abortions, as is clear from the following statement from my
sentencing remarks: `I think that people on both sides of the abortion
issue would probably agree with you that reducing the number of
abortions in this country is a desirable goal.' My sentencing remarks
also reflect extensive consideration of the seriousness of the offense
and criticism of the defendants' conduct and tactics. . . [A]nd the
60-day jail sentence I imposed, at two-thirds of the maximum, could not
be characterized as unduly lenient or a `validation' of the defendants'
beliefs.''
I hope it is not the argument of those who are concerned about Judge
Sykes that any judge who at any time suggests that fewer abortions is a
desirable goal is disqualified from the Federal judiciary.
I know also that some Senators are concerned about some of Justice
Sykes' other answers to post-hearing written questions. A careful
reading of her answers will show that Justice Sykes answered her
written questions as completely and accurately as the Wisconsin Code of
Judicial Conduct allows. Specifically, Wisconsin Supreme Court Rule
60.06(3) prohibits sitting judges from engaging in extra-judicial
commentary with respect to particular cases or legal issues that would
appear to commit the judge in advance or suggest a promise or
commitment of a certain course of conduct regarding particular cases or
legal issues. As her answers point out quite eloquently, ``there is a
range of opinion in the legal community regarding the scope of so-
called `commitments' clauses in judicial ethics codes. To the extent
that [others] disagree, I must keep my own counsel and abide by my
interpretation of the obligations of my oath, the duties of my office,
and the requirements of the Code, which are binding on me.''
In those same written questions Justice Sykes was asked whether she
believed that the Supreme Court's decisions in Roe and Griswold
constituted ``judicial activism'', whether they were ``unprincipled''
and whether they were consistent with ``strict constructionist''
philosophy.
Justice Sykes avoided criticizing these cases out of a good faith
belief that to do so would violate her ethical obligations under
Wisconsin law. Her answers followed the same path as at least four of
President Clinton's Circuit Court nominees who refused to give their
personal views or criticize Supreme Court precedent on various issues,
precisely because those issues might come before them as sitting
judges.
Justice Sykes did state as follows: ``I can unequivocally state,
however, that I believe that Roe and Miranda are the law of the land,
and if I am confirmed to the Seventh Circuit, I would be duty bound to
follow and would follow these and all other precedents of the United
States Supreme Court.'' She further stated that she believes ``that Roe
and Griswold constitute binding precedent,'' which she would follow
``without hesitation'' if confirmed to the Seventh Circuit.
Justice Sykes has also been labeled as pro-prosecution and anti-
Miranda, implying that she would not be a fair judge. Contrary to the
misrepresentations of her opponents, she has often ruled in favor of
criminal defendants in Fourth Amendment and other cases involving
questions of constitutional criminal law, siding against government
actors many times. Justice Sykes' real record shows that she reaches
outcomes by applying the law to the facts, as she should.
For example, in the State v. Knapp case, Justice Sykes agreed with
the majority in a case involving a custodial interrogation that the
statements made by a suspect in custody were not in compliance with the
dictates of Miranda and could not be used by the prosecution against
him. In the State v. Church case, she overturned an increased sentence
of an individual convicted of criminal assault, concluding that the
increased sentence was presumptively vindictive, in violation of the
defendant's right to due process, and that the presumption was not
overcome by adequate, objective new factors in the record justifying
the increase.
Also, in the State v. Schwarz case Justice Sykes ruled in favor of a
probationer in a Fifth Amendment case because his probationary officer
during offender treatment compelled him as a condition of probation to
admit to the crime of which he was convicted. She specifically held
that a probationer cannot be compelled to admit to the crime of
conviction before the time for a direct appeal has expired or an appeal
has been denied because the Fifth Amendment privilege extends to those
already convicted, whether in prison or on probation.
There is another argument against Justice Sykes which I have heard,
regarding her dissent in State v. Carlson, which needs to be set
straight. She stands accused of improperly finding harmless error in a
trial court's seating of a non-English speaking juror in a criminal
case. At first blush this does seem like harmful, not harmless, error.
Again, a careful reading of her response to this issue illuminates the
truth of this matter. She clarified that there was significant evidence
in the trial court record that the juror in question did understand
English. He had lived in the country for 20 years and passed a
citizenship test. He held a driver's license and a fishing license. He
was employed as a factory worker, where presumably he had to comply
with various State and Federal safety procedures, and he had previously
testified, without an interpreter, at a post-conviction hearing.
Justice Sykes stated, properly, that ``when there is competing
evidence, it is the job of the trial court--not the appellate court--to
evaluate and weigh it, and make findings of fact. . . . Under well-
established rules of appellate review, factual findings of the trial
court are reviewed deferentially, and are not disturbed unless clearly
erroneous, that is, factually unsupported. . . . The majority in
Carlson disregarded this deferential standard of review and substituted
its own view of the facts for that of the trial court; it was this
failure to follow the applicable legal standard that I objected to in
my dissent.''
I thought we all wanted judges who understand their role and not
pursue an activist agenda. I think we should be pleased that a nominee
to a Federal appellate court properly understands her appellate role.
It is quite unfortunate that some would misrepresent Justice Sykes'
principled dissent in this case as evidence of activist tendencies. It
is precisely the opposite. It demonstrates restraint and respect for
her role as an appellate judge.
Justice Sykes' record represents the antithesis of the activism that
I have heard all of my colleagues say they do not want to see from
judges nominated to our Federal courts. The Senate should be in the
business of approving judges who have demonstrated that they respect
the judicial role and will not substitute their own policy preferences
for those expressed by the legislature. Judge Sykes' record in this
regard is impeccable, and I will be pleased to vote with Senators Kohl
and Feingold to confirm her to the Seventh Circuit. I urge my
colleagues to vote with us.
The PRESIDING OFFICER. The Senator from Wisconsin is recognized.
Mr. KOHL. Mr. President, it is my pleasure to rise today in support
of the nomination of Wisconsin Supreme Court Justice Diane Sykes to the
Federal judiciary. She has been nominated to fill one of the Wisconsin
seats on the Seventh Circuit Court of Appeals to replace retiring Judge
John Coffey.
Justice Sykes brings an impressive background to this important
position. She is a lifelong resident of Wisconsin. She was born in
Milwaukee, attended Marquette University Law school, clerked for
Federal Judge Terry Evans in Milwaukee, and practiced law for a top
Wisconsin law firm. Justice Sykes left private practice in 1992 to
serve as a Milwaukee County circuit judge, a position she held until
1999. She was then appointed to the Wisconsin Supreme Court in 1999,
and she won reelection to a 10-year term in the year 2000. She is to be
commended for her devotion to public service and praised for her
qualifications for the Seventh Circuit Court of Appeals.
We are not the only ones to recognize her abilities. A bipartisan
Wisconsin
[[Page S7362]]
Federal Nominating Commission, which has been screening judicial
candidates for Wisconsin Senators of both parties for 25 years,
selected Justice Sykes and three others from an impressive list of
applicants for this position. All four finalists were well qualified
and all deserved to have their names forwarded to the President for his
selection. Wisconsin's process should be a model because it finds
qualified applicants and takes much of the politics out of judicial
selection.
The American Bar Association agrees with our evaluations as well. A
substantial majority of the committee rated her ``well qualified.''
It is worth discussing, if only briefly, that some have expressed
opposition to Justice Sykes' nomination. We will likely hear some of
that dissent during that debate today. The primary argument against her
is she was not totally forthcoming in her answers to questions asked
during her hearing. We do not find that argument compelling. Rather,
she would not have received the support of our bipartisan nominating
commission without answering their questions. Further, she would not
have received my endorsement had she not answered in a forthright and
direct manner the questions we asked of her during our interview with
Justice Sykes.
Justice Sykes has earned a reputation as a fine lawyer and as a
distinguished jurist during her career in Wisconsin. Lawyers throughout
the State, regardless of their political persuasion, echo this
sentiment.
We expect Justice Sykes to not only be a credit to Wisconsin, but
also to administer fair justice for all who come before her. We look
forward to her confirmation today, and to her taking a seat on the
Seventh Circuit Court of Appeals.
Mr. FEINGOLD. Mr. President, for 25 years, the bipartisan Wisconsin
Federal Nominating Commission has been recommending high-quality
candidates for Federal judgeships in our State. First created in 1979
by Senators William Proxmire and Gaylord Nelson, the Commission is an
independent panel selected by Wisconsin elected officials and the State
Bar of Wisconsin to review applications for Federal District Court and
Court of Appeals vacancies in Wisconsin, as well as U.S. attorney
vacancies. The composition of the Commission assures that selections
for these important positions will be made based on merit, not
politics. Senator Kohl and I have worked hard to maintain and
strengthen the Commission throughout our time in the Senate, and I am
very proud that it has survived for the past quarter century, under
Presidents and Wisconsin Senators from both political parties.
I am pleased to put the spotlight on the Commission today, on the
occasion of the floor vote on Justice Diane Sykes, who is the latest
product of this bipartisan process. I am pleased that Justice Sykes'
nomination has proceeded swiftly, thanks to the collaborative nature of
the Commission process. Despite some initial resistance, the Bush
administration agreed to have candidates for this Seventh Circuit
vacancy go through the Commission process. Under the joint leadership
of Dean Joseph Kearny of the Marquette University Law School and
Professor Frank Turkheimer of the University of Wisconsin Law School,
the Commission worked extremely hard under a very tight deadline. It
recommended four qualified candidates, including Justice Sykes. Senator
Kohl and I, working with Representative Sensenbrenner, the senior
Republican officeholder in the State, decided to forward all four names
to the White House, and the President selected Justice Sykes from the
four.
I met with Justice Sykes late last summer after the Commission had
recommended her along with the other three candidates. I had a chance
to question her about her background, her qualifications, and her
judicial philosophy. There are a number of topics on which we do not
see eye to eye, but I believe Justice Sykes is well qualified to fill
this seat on the Seventh Circuit. In particular, I have great respect
for her commitment to public service. Talented young lawyers have many
more remunerative options that they can pursue. She has been a judge in
our State since 1992.
I have always maintained that with cooperation and consultation
between the President and home State Senators, the judicial nomination
process can be far less contentious and, frankly, far less frustrating,
than it has been over the past several years. Recognizing that
ideological differences are inevitable in this process as control in
the Senate and in the White House change hands, it would serve those
who choose and confirm Federal judicial nominees well to follow the
example of the Wisconsin Federal Nominating Commission.
Mr. President, it is my hope that the work of the Wisconsin Federal
Nominating Commission, the nomination of Justice Sykes, and her smooth
confirmation will send a signal to the White House, to my colleagues on
both sides of the aisle, and to the country, that we can, in fact, work
together in a bipartisan way to fill judicial vacancies. I urge my
colleagues to support this nomination.
Mr. LEAHY. Mr. President, today we are turning to the nomination of
Justice Diane Sykes to a seat on the U.S. Court of Appeals for the
Seventh Circuit. She has been nominated to a seat which is actually not
even vacant yet. Justice Sykes is nominated to replace Judge John
Coffey, who has not yet retired. Her confirmation vote today shows how
fast the administration is moving to pack the courts, including future
vacancies, with its ideological nominees.
Justice Sykes comes before us with the support of my colleagues,
Senator Kohl and Senator Feingold--two Senators whose opinions I value
very much. She also comes before us with a 12-year judicial record--
both at the trial court level and with the Supreme Court of her home
State of Wisconsin. I have looked closely at her record and although I
greatly value the opinion of my colleagues from the State of Wisconsin,
I have made my own judgment regarding her fitness for this important
lifetime appointment.
After reviewing Justice Sykes' written record, I was disturbed by the
clear patterns that emerged. I worry that, if confirmed, Justice Sykes
will continue to be an activist judge for a lifetime on the Federal
bench. For this reason I voted against her nomination in committee and
will oppose her confirmation today.
I share Justice Sykes' own concerns, which she described to the
Federalist Society last year in a speech she delivered about the
``politicization of the judiciary.'' As Members of the Senate we must
ensure that we confirm nominees who will be impartial arbiters of
justice. With today's vote we have confirmed 192 of this President's
judicial nominations. These nominees have been from a variety of
backgrounds. A significant percentage of them had been very active in
the Republican Party and in ideological groups such as the Federalist
Society. I voted to confirm nominees when I am confident that as judges
they would be able to shed their historical advocacy and act
impartially once they take their oath of office.
Unfortunately, Justice Sykes' record on the State court bench
demonstrates that she has had difficulty separating her personal views
from her judicial decisions. In civil cases, she consistently rules
against workers and injured plaintiffs in favor of big business. In
criminal cases, she routinely rules against the rights of criminal
defendants in favor of broad rights for the Government.
Justice Sykes has repeatedly taken a very narrow approach to
interpreting the fourth amendment, upholding broad exceptions to allow
warrantless police searches. She continuously questions Miranda--a
bedrock precedent of constitutional law. For example, Justice Sykes was
the lone dissenter from the Wisconsin Supreme Court's decision to
exclude evidence gained as the result of an interrogation that clearly
violated a defendant's Miranda rights. Her rulings have jeopardized
other constitutional rights of criminal defendants, as well. In one
case, in a decision that was later reversed, Judge Sykes ruled that a
lawyer's advice to a defendant to lie on the witness stand was not
sufficient to conclude that the defendant was deprived of his right to
effective counsel. Justice Sykes was also the lone dissenter on the
Wisconsin Supreme Court arguing that a defendant had no right to a new
trial when one of the jurors did not speak or understand English.
Justice Sykes' pattern of
[[Page S7363]]
going to great lengths to reduce the protections for criminal
defendants enshrined in our Constitution is greatly disturbing.
In addition to what I was able to learn from her judicial record, I
was equally disappointed by her testimony before the Judiciary
Committee. Our distinguished colleague from Illinois, Senator Durbin,
submitted thoughtful questions to Justice Sykes following her hearing.
She refused to answer many of his questions, including whether she
believed that Roe and Griswold were ``unprincipled decisions'' or were
``consistent with strict constructionism,'' whether the existence of
the right to privacy was a ``feat of judicial activism,'' and whether
the Warren court went too far in creating individual rights. Her reason
for not answering those questions was that she was precluded by
Wisconsin's code of judicial conduct. However, that code only prohibits
a judge from commenting on ``particular cases or legal issues that
would appear to commit the judge in advance or suggest a promise or
commitment of a certain course of conduct in office regarding
particular cases or legal issues.'' Her blanket refusals to respond to
questions by members of the Judiciary Committee are unacceptable.
I am seriously concerned about the type of Federal judge Justice
Sykes would be if confirmed and I vote against her nomination to the
Seventh Circuit Court of Appeals.
The PRESIDING OFFICER. The Senator from Utah is recognized.
Mr. HATCH. We are prepared to yield the remainder of our time and I
believe the remainder of the time for the other side of the aisle,
except for 20 minutes which should be reserved for Senator Durbin on
both nominees.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. HATCH. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. DURBIN. Mr. President, I ask unanimous consent that the order for
the quorum call be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. DURBIN. Mr. President, in a short period of time, we are going to
consider the nomination of Diane S. Sykes to be U.S. Circuit Judge for
the Seventh Circuit.
I take this opportunity on the floor of the Senate to express
specifically why I will vote against this nomination.
This is my home circuit, the Seventh Circuit, which includes
Illinois, Wisconsin, and Indiana, so I believe I have a special
responsibility to bring extra scrutiny to this nomination. I
acknowledge that Judge Sykes has the support of her home State
Senators, and I do not take that support lightly. Senators Feingold and
Kohl have worked hard to establish a bipartisan nominating commission
in Wisconsin, both for district and circuit court nominations, and I
know they have a special obligation to support the nominee who is the
product of that process.
I was initially inclined to defer to my Wisconsin colleagues and
support the nomination, but after taking a close look at Justice Sykes'
background and many of her answers to my questions, I now regret to say
I have serious doubts about her fitness for a lifetime appointment to
the bench.
Let me be specific. First, let me address Justice Sykes track record
regarding the criminally accused. As a member of the Wisconsin Supreme
Court, Justice Sykes has not always treated criminal defendants fairly.
We expect those who are guilty of crimes to be treated fairly and
firmly. We understand the presumption of innocence and we understand
that those who have committed terrible crimes must pay a price.
Listen to what Justice Sykes has said about her own judicial
temperament. When she ran for reelection to the supreme court in
Wisconsin in the year 2000, the Milwaukee Journal Sentinel said the
following about Justice Sykes:
In her five years on the felony bench, Sykes developed a
reputation as one of the heaviest sentencing judges in
Milwaukee County in recent memory.
Then the Wisconsin State Journal, Justice Sykes admitted:
I have a reputation as a hanging judge, that's true.
I ask my colleagues, do these statements sound like the judicious
statements of a person seeking a lifetime appointment to a position
where she will be asked repeatedly by those who are presumed innocent
to be treated fairly?
During her 2000 campaign for the Wisconsin Supreme Court, Justice
Sykes ran radio ads stating that she was such a tough sentencer that
defense lawyers tried to avoid her court. She also told a reporter that
in light of her tough sentences, a wing of the Wisconsin maximum
security prison was informally named after her.
Do these sound like temperate statements by a person who will be
asked to honor the presumption of innocence and treat all persons in
her court fairly?
Let me mention a specific case which troubles me greatly in which
Justice Sykes anticriminal defendant bias reared its ugly head. In the
case of State v. Carlson, the Wisconsin Supreme Court ruled 6 to 1 to
overturn a conviction and permit a new trial--not to exonerate a
defendant but to permanent a new trial--because one of the jurors in
this criminal case did not speak or understand English. Justice Sykes
was the lone dissenting vote. The juror in this case, whose native
language was Lao, received a questionnaire which asked if he could
understand the English language well enough to serve on the jury. The
juror checked the box ``no.'' He did not understand English well enough
to serve on a jury. Under Wisconsin law, the clerk was required at that
point to strike the juror from the jury pool. The trial judge,
nevertheless, allowed that juror who did not understand the English
language to remain on the jury and the defendant was convicted.
Justice Sykes, seeking a lifetime appointment to the second highest
Federal court in the land, was the only member of the Wisconsin Supreme
Court to vote to uphold the conviction, and concluded this was a
harmless error, that a juror could sit in judgment in a criminal trial
incapable of understanding the language being spoken in the courtroom.
She was the only Wisconsin Supreme Court justice to conclude that such
a juror was no obstacle to justice.
Would any one of us in the Senate or any of us following this debate
want our fate decided by a juror who could not even understand the
words spoken in our defense?
In another case in which she was the trial judge, State v. Fritz,
Judge Sykes denied the defendant's ineffective assistance of counsel
claim when the defendant's own attorney advised him to lie on the
witness stand. Judge Sykes was unanimously reversed. The court of
appeals wrote the overwhelming weight of authority is to the contrary;
indeed, the sixth amendment of the Constitution is one such authority.
Let me speak to another concern about Justice Sykes. I have great
concern about her candor. I believe she made misleading statements to
the Senate about a 1993 case in which she was the trial court judge.
The case involved the prosecution of two abortion clinic protesters who
shut down a Milwaukee clinic by welding their legs to the front of a
car parked at the clinic entrance. It took blowtorches and firefighters
to remove them.
These defendants had a long history of anti-abortion activity. One
had been arrested 80 times in abortion protests; another, 20 times. The
defendants had injunctions against them for their protests. As the
Milwaukee Journal Sentinel reported just this week, they had companion
cases in front of Judge Sykes for other anti-abortion crimes they had
committed. One of the defendants had appeared before her six times in
one of those cases. They were leaders, well known in Milwaukee's anti-
abortion community, at a time when that city was one of the Nation's
hubs for that activity.
In a statement submitted to Judge Sykes just days before the
sentencing, one of the defendants equated abortion with the Holocaust
and slavery. He called abortion clinics ``death camps.'' He called
doctors ``hired killers.'' At the sentencing hearing, Judge Sykes
praised these defendants. She told them:
I do respect you a great deal for having the courage of
your convictions and for the ultimate goals that you sought
to achieve by this conduct.
[[Page S7364]]
She also said:
As far as your character and history and background,
obviously, you possess fine characters. I agree with
everything that's been said on that basis. It's a unique case
in that respect, that you have otherwise been exemplary
citizens. Your motivations were pure.
I asked Justice Sykes in writing why she heaped this praise on the
defendants, given the fact they had been arrested 100 times for anti-
abortion protests. She responded that she was unaware of their arrest
records and that, in any event, there was no evidence in the record of
a history of arrests in connection with their protest activity.
I ask unanimous consent to have printed in the Record a copy of my
written questions to Justice Sykes and her written answers.
There being no objection, the material was ordered to be printed in
the Record as follows:
9. You were the trial judge in a 1993 case involving two
anti-abortion activists, Michael Scott and Jack Lightner, who
were convicted of blocking a door to a Milwaukee abortion
clinic. The protesters blocked the doorway by binding their
legs with welded pipes to the front of a car; they were
removed by firefighters with blowtorches. You sentenced the
protesters to 60 days in prison with work-release privileges
but not before praising their motives. You told the
defendants: ``I do respect you a great deal for having the
courage of your convictions and for the ultimate goals that
you sought to achieve by this conduct.'' You also stated:
``As far as your character and history and background,
obviously you possess fine characters'' and are ``exemplary
citizens.'' And you told the defendants, ``Your motivations
were pure.''
A. There are 3 factors that you considered in sentencing:
(1) the nature of the offense, (2) the character, history,
and background of the defendants, and (3) the interests of
the community. With respect to the second factor, you stated
that the defendants had ``fine characters'' and were
``exemplary citizens.'' According to press reports, one of
the defendants in this case had been arrested 80 times in
abortion protests, and the other had been arrested 20 times.
Why did you believe that they possessed ``fine characters''
and were ``exemplary citizens''?
Answer: It is axiomatic under Wisconsin law that defendants
have a right to be sentenced upon facts that are of record.
McCleary v. State, 49 Wis. 2d 263, 277, 182 N.W.2d 512
(1971). The press reports referenced in your question, and
the arrests which the question attributes to the press
reports, were not facts of record in the case; I was, to the
best of my recollection, unaware of these reports. Even if I
had been aware of the press reports, it would have been
legally improper for me to consider them as they were outside
the record in the case.
The case in question was a 1993 misdemeanor disorderly
conduct prosecution of two individuals arising out of an
abortion clinic protest. Most disorderly conduct prosecutions
in Milwaukee County involve acts of domestic violence, bar
fights, and the like, and defendants in misdemeanor court are
often recidivists with recent criminal records for offenses
such as battery, theft, prostitution, drunk driving, and so
forth. At sentencing in this case, the prosecutor took the
unusual step of standing silent, choosing not to make a
sentence recommendation. The defense attorneys and the
defendants urged a sentence of community service.
Judges are required under Wisconsin sentencing law to take
into account mitigating and aggravating factors regarding the
gravity of the offense, the character and background of the
offender, and the interests of the community. McCleary, 49
Wis. 2d at 276. At the sentencing in this case, the facts of
record about the defendants' backgrounds demonstrated that
they were atypical misdemeanor defendants: they were
generally law-abiding, educated, employed individuals with
stable families, no drug or alcohol problems, and no
rehabilitative needs. Although one defendant had a couple of
extremely old, minor convictions from the mid-1970s and a
more recent disorderly conduct fine, this conduct was so
remote and/or inconsequential as to not be relevant to that
defendant's current status before the court. While both
defendants admitted to active, continued involvement in anti-
abortion protests, this was the first criminal conviction of
this type for both defendants, and there was no evidence in
the record of a history of arrests in connection with their
protest activity. As I noted in my sentencing remarks, the
offense was not committed out of any sort of self-interest,
the defendants were not violent, assaultive or threatening,
and they did not resist arrest in the case. Accordingly, none
of the usual criminal motivations or sentence aggravating
factors was present.
As a result, both defendants stood before the court, based
upon the facts of record, as exemplary citizens with fine
characters, which I was required to note as a mitigating
factor separate and apart from the seriously disruptive and
disorderly conduct they engaged in at the abortion clinic. I
took substantial note of the seriousness of the offense
during my sentencing remarks, including the following: ``the
community has a right to expect that the public order and
that legitimate businesses will not be disrupted and
interfered with in a way that rises to criminal dimensions,
and this would be true even where the people who are engaging
in this kind of conduct are exercising their free speech
rights and free assembly rights and are in pursuit of goals
that are not in and of themselves illegal.'' And further:
``The community obviously . . . has a strong interest in
deterring this type of conduct both by you and by others.''
And further: ``What especially concerns me about this case is
. . . your willingness and expressed intention to go beyond
mere peaceful picketing to clinic blockades and other types
of more dramatic methods to stop abortions from taking place,
and these methods over time have the potential to cause the
community even more serious harm, and to the extent that it
can, my sentence has to protect the community at least for an
interim period from these kind of tactics.''
The options for sentencing in the case included community
service, a fine, probation--or up to 90 days in jail. Based
upon a balance of the mitigating and aggravating factors, I
sentenced the defendants to 60 days in jail, which
represented two-thirds of the potential maximum jail sentence
for this crime.
B. Please explain what you mean when you told the
defendants that you had a great deal of respect for ``the
ultimate goals you sought to achieve by this conduct.''
Answer: The evidence in the case established that the goal
the defendants sought to achieve by their protest was
reduction of the number of abortions in our community. As I
noted in my sentencing remarks: ``I think that people on both
sides of the abortion issue would probably agree with you
that reducing the number of abortions in this country is a
desirable goal.'' It was that ultimate goal that I respected.
C. The Milwaukee Journal Sentinel wrote that you gave the
defendants in this case ``unusual leeway to argue that the
social value of their protest outweighed their violation of
the law.'' However, during your campaign for the Wisconsin
Supreme Court, you stated that you were ``a firm believer in
personal responsibility and individual accountability, and
I'm well known that that.'' Why, in the case involving
abortion protestors, did you give ``unusual leeway'' to the
defendants?
Answer: There was nothing ``unusual'' about my handling of
the case, as later admitted by The Milwaukee Journal. The
newspaper properly corrected the record in a retraction dated
April 8, 1993, in which the editors noted that applicable law
and a well-accepted jury instruction allowed the jury to take
into consideration any social value or contribution to the
public interest of the defendants' conduct in determining
whether it constituted disorderly conduct. I have attached a
copy of that retraction. The jury instruction is based upon
Wisconsin case law involving disorderly conduct prosecutions
in the context of political protests. See WI Jury
Instructions--Criminal, 1900, n.4. The abortion protester
case, therefore, was unusual only in the sense that there are
not very many disorderly conduct prosecutions arising out of
political protests. My handling of the case did not,
therefore, represent ``unusual leeway'' to the defendants in
this context.
Mr. DURBIN. Mr. President, while it is true that there was no mention
of the 100 arrests in the record of the case, this fact was well known
because the Milwaukee Journal ran a story about this the day the
defendants were convicted.
As to her claim there was no evidence in the record of the
defendant's arrest history, that is just wrong. I reviewed the record
of the case and it tells a totally different story than what Justice
Sykes told the Senate. There are at least four different references in
the record to the defendant's arrest history.
For example, the defendant's sentencing statement said:
I have been in jail before for similar activities to the
one in question before you today.
Another example, a statement by the assistant district attorney at
the sentencing hearing. The prosecutor said:
Here there is no evidence that these defendants have made
any effort to conform their conduct to the requirements of
law. Instead, both have been charged since this case has been
pending with additional criminal violations.
The prosecutor noted that:
[defendant Michael] Skott has also engaged in conduct which
has precipitated his arrest and subsequent criminal hearing.
Now, when I asked Justice Sykes in her follow-up written questions to
explain the discrepancies between her earlier statements and the actual
record in court, she dissembled. She said her definition of ``history
of arrests'' did not include arrests that stem from civil violations
nor arrests that occurred during the pendency of the case.
These distinctions by Justice Sykes are completely artificial. An
arrest is an arrest. But rather than admit she made a mistake in her
initial answer, she persisted in her contradictory and confusing
portrayal of the case.
[[Page S7365]]
I ask unanimous consent to have printed in the Record a copy of my
follow-up written questions to Justice Sykes and her written answers.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Additional Questions of Senator Richard J. Durbin to Justice Diane
Sykes, Nominee for the Seventh Circuit Court of Appeals--April 5, 2004
1. You were the presiding judge in a 1993 abortion case
involving the conviction of two anti-abortion activists,
Michael Skott and Jack Lightner, who were convicted of
disorderly conduct for cementing their legs to a car in order
to block the door to a Milwaukee abortion clinic.
In a previous question I posed to you, I asked why you
called the defendants convicted in this case ``fine
characters'' and ``exemplary citizens'' at their February 9,
1993 sentencing in light of the fact that one defendant had
been arrested 80 times in abortion protests and the other 20
times. Although a January 22, 1993 Milwaukee Journal article
about the defendants' conviction reported that Mr. Skott had
been arrested 80 times in abortion protests and his co-
defendant Jack Lightner had been arrested 20 times, you have
stated that you were unaware of the press reports. You also
stated that, in any event, ``there was no evidence in the
record of a history of arrests in connection with their
protest activity.''
However, a sentencing statement filed with the Court on
February 4, 1993 by one of the defendants, Michael Skott,
indicates otherwise. Mr. Skott wrote: ``Now it is your job as
en elected representative of this county to sentence me,
Judge Skyes. I have been in jail before for similar
activities to the one in question before you today.'' At the
sentencing hearing, held on February 9, 1993, you stated: ``I
have reviewed carefully the sentencing statement by Mr.
Skott.''
Additionally, the Assistant District Attorney stated at the
sentencing hearing: ``Here there is no evidence that these
defendants have made any effort to conform their conduct to
the requirements of law. Instead, both have been charged
since this case has been pending with additional criminal
violations.'' The prosecutor also stated that ``Mr. Skott has
also engaged in conduct which has precipitated his arrest and
subsequent criminal charging under the same--purview of the
same issue,'' and ``I understand and I know that he [Skott]
has been many times found guilty in municipal court and has
on occasion served time in the House of Correction for his
failure to pay fines on commitments.''
A. How do you reconcile your statement that ``there was no
evidence in the record of a history of arrests in connection
with their protest activity'' with Mr. Skott's statement that
``I have been in jail before for similar activities to the
one in question before you today''?
See below.
B. How do you reconcile your statement that ``there was no
evidence in the record of a history of arrests in connection
with their protest activity'' with the Assistant District
Attorney's statement that ``Here there is no evidence that
these defendants have made any effort to conform their
conduct to the requirements of law. Instead, both have been
charged since this case has been pending with additional
criminal violations''?
See below.
C. How do you reconcile your statement that ``there was no
evidence in the record of a history of arrests in connection
with their protest activity'' with the Assistant District
Attorney's statement that ``Mr. Skott has also engaged in
conduct which has precipitated his arrest and subsequent
criminal charging under the same--purview of the same
issue''?
See below.
D. How do you reconcile your statement that ``there was no
evidence in the record of a history of arrests in connection
with their protest activity'' with the Assistant District
Attorney's statement that ``I understand and I know that he
[Skott] has been many times found guilty in municipal court
and has on occasion served time in the House of Correction
for his failure to pay fines on commitments''?
answer
In misdemeanor sentencing hearings in Milwaukee County
Circuit Court during this time period, the prosecutor would
typically advise the court of a defendant's prior criminal
history as a part of the State's sentencing argument and
recommendation. Unlike today, there were no computers on the
bench and judges relied upon the prosecutor to present
evidence of a defendant's prior criminal record at
sentencing. Newspaper articles are outside the record and
therefore not a proper source of sentencing information. A
prior criminal record is an aggravating factor for sentencing
purposes, and the lack of a prior criminal record is
generally considered to be a mitigating factor. As I
indicated in my earlier responses, the prosecutor in this
case took the unusual step of standing silent at sentencing,
making no record of the defendants' history in this regard
and making no sentencing recommendation on behalf of the
State.
After the defense attorneys made their sentencing
arguments, the prosecutor belatedly requested an opportunity
to address the court, which was granted. She stated, ``I can
inform the court I have no knowledge of Mr. Skott having any
prior criminal conviction. I may be incorrect. I understand
and know that he has been many times found guilty in
municipal court and has on occasion served time in the House
of Correction for his failure to pay fines on commitments.
However, I am not aware of any criminal convictions. I see
he's shaking his head no, so that's a correct statement.''
The prosecutor then noted that the other defendant, Mr.
Lightner, had been convicted of two offenses nearly twenty
years before (which, as I indicated in my earlier
responses, was too remote and insignificant to the conduct
before the court to have much bearing upon sentencing),
and had more recently been fined for disorderly conduct
(circumstances unspecified.) The prosecutor did not
mention any history of municipal citations for protest
activity on the part of Mr. Lightner. In his written
sentencing statement Mr. Skott indicated only very
generally that he had been in jail for his protest
activities; as indicated above, he confirmed that the case
before the court constituted his first criminal
conviction.
I concluded from this very generalized record information
that Mr. Skott's prior protest activity had generated only
municipal citations rather than criminal arrests and charges.
Municipal court in Milwaukee handles only local ordinance
matters--traffic tickets and citations for ordinance
violations punishable by civil forfeiture--not state crimes.
Municipal violations are non-criminal and do not ordinarily
involve arrests. Rather, they usually involve the issuance of
a ticket or citation, which requires the defendant's
appearance in municipal court or payment of a forfeiture in
lieu of appearing in court. Occasionally, when a municipal
forfeiture is imposed and remains unpaid, the defaulting
defendant may be ordered to serve a few days in jail on a
``commitment'' for nonpayment of the forfeiture. The matter
remains civil in nature. Accordingly, having been found
guilty in municipal court and having served time in jail on
municipal ``commitments'' does not equate in our system to
having a history of arrests or criminal convictions. As I
have previously noted, the arrest histories mentioned in the
newspaper article were not part of the sentencing record
before the court.
The prosecutor in this case also made a generalized
statement about a new charge that apparently had been issued
against the defendants for protest-related conduct that
occurred after the case then before the court had been
charged. I did not construe this as a constituting a history
of arrests, although the record reflects that I certainly
took it into consideration for sentencing purposes, together
with the information about the municipal court matters and
the other relevant facts in the record. In my sentencing
remarks I noted that the defendants ``obviously have a
history of this kind of behavior . . . and I need to take
that into consideration.'' I also stated that
``rehabilitation in the conventional sense in this case is
unlikely to occur. I suppose it is possible that you would
learn a lesson from this case and not continue in these
activities if you view the trial as I do, and that is as
a rejection by the community of these kinds of tactics.''
I concluded that ``[b]ased on the record, however, and
based on what I've heard of your intentions, I don't have
a great deal of confidence that you will take that message
to heart, and my sentence has to reflect that fact.'' As I
indicated in my earlier responses, I imposed a sentence of
60 days in jail, two-thirds of the available maximum. In
light of the record evidence regarding the seriousness of
the offense, the defendants' character and backgrounds,
and the interests of the community, this sentence was
neither too harsh nor unduly lenient.
The trial and sentencing hearing in this case took place
more than 11 years ago. My responses to these and your
earlier questions are based primarily on my review of the
pertinent parts of the case file, most notably the transcript
of the sentencing hearing, a copy of which is enclosed. I
have a generalized independent recollection of this case, but
have relied on the enclosed transcript for the details, and
have attempted to place those details in the context of the
law and general sentencing practices in Wisconsin.
2. In his sentencing statement, Mr. Skott equated abortion
with the Holocaust and slavery, and he called abortion
clinics ``death camps'' where ``a hired killer contracts out
to end what has been labeled a problem.'' At the sentencing
hearing, you told Mr. Skott and his co-defendant that
``obviously you possess fine characters,'' ``you have
otherwise been exemplary citizens,'' ``your motivations were
pure,'' and ``I do respect you a great deal for having the
courage of your convictions and for the ultimate goals that
you sought to achieve by this conduct.'' Can you understand
why some people would view your favorable comments about the
defendants as a validation of their beliefs?
answer
I do not believe that my sentencing remarks, when read in
their entirety and not out of context, could be considered a
``validation'' of the defendants' beliefs or rhetoric. My
more favorable remarks about the defendants' ``motivations,''
``courage of conviction'' and ``character'' were not directed
at the validity of their beliefs, but, rather, represented
the legally-required evaluation of the defendants' character
and motivations to determine whether any of the usual
aggravating criminal motivations or background
[[Page S7366]]
factors were present in the case. Also, my favorable comment
about the goal the defendants sought to achieve was a
reference to their underlying goal of reducing the number of
abortions, as is clear from the following statement from my
sentencing remarks: ``I think that people on both sides of
the abortion issue would probably agree with you that
reducing the number of abortions in this country is a
desirable goal.'' My sentencing remarks also reflect
extensive consideration of the seriousness of the offense and
criticism of the defendants' conduct and tactics, as I have
previously discussed. My sentencing remarks were fair and
even-handed, and the 60-day jail sentence I imposed, at two-
thirds of the maximum, could not be characterized as unduly
lenient or a ``validation'' of the defendants' beliefs.
Mr. DURBIN. In light of Justice Sykes' statements in the case, I have
serious concerns about whether she recognizes the fundamental right of
privacy and about her ability to rule fairly in cases involving
constitutionally protected rights to privacy.
But let me be clear. My opposition to this nominee is not because I
am pro-choice on the abortion record and Justice Sykes may be pro-life.
I and my Democratic colleagues have voted for over 95 percent of
President Bush's nominees--191 judges as of today. It is likely that
the vast majority of them were pro-life on the abortion issue.
Deborah Cook, now a judge on the U.S. Court of Appeals for the Sixth
Circuit, was endorsed by the Ohio Right to Life organization. Lavenski
Smith, a judge on the Eighth Circuit, sought to make all abortions in
Arkansas illegal except to save the life of the mother. Michael Fisher,
now on the Third Circuit, advocated that abortion is wrong and should
be illegal even in cases of rape and incest. I voted for all three of
these pro-life nominees.
I voted for James Browning, a judge we recently confirmed to the
district court in New Mexico. Judge Browning had spoken at pro-life
rallies and called the pro-choice position ``the tyranny of the
majority over the minority.'' He called on people who are pro-choice to
``make the choice of life, not holocaust.'' Despite his passionate
feelings, I voted to confirm him.
Why? Because unlike Justice Sykes, these judicial nominees--all of
them I have mentioned, who do not share my views on this important
issue--were honest and candid and open in their dealings with the
committee. I think that is the bottom line. Even if I disagree with the
nominee's point of view, I expect them to be honest and candid.
I have appointed in the district courts of Illinois men and women who
do not share my views on critical issues. But I do not ask that of
them. I do not come to any nominee with a litmus test, nor do I come to
Justice Sykes with such a test.
I am also disappointed that Justice Sykes chose not to answer some
basic questions I asked about some fundamental constitutional rights.
Instead, she tried to hide behind the Wisconsin Code of Judicial
Conduct.
Justice Sykes' refusal to answer my questions is in stark contrast to
an Ohio Supreme Court justice whom the Senate confirmed with my vote
last year: Sixth Circuit nominee Deborah Cook.
I asked both nominees the exact same questions: whether they thought
Roe v. Wade and Miranda v. Arizona--two landmark Supreme Court cases--
were consistent with strict constructionism. I have asked this question
over and over. Justice Cook answered my question with painful but
direct honesty. This is what Justice Cook said:
If strict constructionism means that rights do not exist
unless explicitly mentioned in the Constitution, then the
cases you mention likely would not be consistent with that
label.
That is a candid answer. I am certain it is an answer Justice Cook
knew I did not agree with personally, but she was honest, and I
respected her for it.
When Senator DeWine of Ohio came to me and said, ``I believe she is a
good and fair person,'' I said: ``I will give her the benefit of the
doubt. I will support her nomination because of her candor and
honesty.''
Now, contrast that with the answer I received from Justice Sykes to
the exact same question. She said:
This question requests a critique of certain United States
Supreme Court cases that I am or will be required to
interpret and apply as a judge in individual cases before the
court. The Wisconsin Code of Judicial Conduct prohibits
judges from engaging in extra-judicial commentary with
respect to particular cases or legal issues that would appear
to commit the judge in advance or suggest a promise or
commitment of a certain course of conduct in office regarding
particular cases or legal issues.
This is a major-league evasion. If judicial nominees could each hide
behind the local code of ethics in their State and say they could not
even tell us where they stand on landmark Supreme Court decisions, such
as Miranda and Roe v. Wade, and whether these decisions are consistent
with a certain judicial philosophy, then the Senate Judiciary Committee
should turn out its lights and the Senate should walk away from any
role in advising and consenting to judicial nominees. But that is not
what I swore to uphold when I took the oath of office to serve in the
Senate.
What Justice Sykes sent to me in response to that question was
evasion with a capital ``E,'' and I do not believe the Senate should
accept such responses.
Justice Sykes' refusal to answer my questions was not only evasive
but erroneous. I contacted Steven Lubet, an expert on judicial ethics
and a law professor at Northwestern University Law School in Chicago. I
showed him Justice Sykes' responses to my questions, and he wrote a
letter stating that the Wisconsin Code of Judicial Conduct does not
prevent Justice Sykes from answering my questions.
So this is my conclusion, having considered these three elements:
first, that Justice Sykes has taken pride in the fact that she is known
as a hanging judge and is extreme in her sentencing procedures; second,
that she was not open and honest with me in the sentencing of a case
which involved people who were well known to be serial, at least,
arrestees, if not criminals, because of their conduct; and, third, that
she would not answer the most basic questions about her judicial
philosophy, which I think goes to the core of our responsibility in the
Senate Judiciary Committee.
Time and again, Justice Sykes has demonstrated she does not possess
the qualities necessary to inspire the confidence we should expect from
a Federal judge. She has been nominated to serve for the rest of her
natural life on the second highest court in America. I do not believe
she can provide the good judgment, candor, or fairmindedness that we
must demand of each person seeking such an important appointment. I
will vote ``no'' on this nomination.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Tennessee is recognized.
Mr. ALEXANDER. Mr. President, I ask unanimous consent to speak for up
to 5 minutes as in morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.
(The remarks of Mr. Alexander and Ms. Landrieu pertaining to the
introduction of the legislation are printed in today's Record under
``Statements on Introduced Bills and Joint Resolutions.'')
____________________