[Congressional Record (Bound Edition), Volume 150 (2004), Part 10]
[Senate]
[Pages 13773-13780]
[From the U.S. 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.

[[Page 13774]]

  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 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

[[Page 13775]]

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 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

[[Page 13776]]

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 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

[[Page 13777]]

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.

  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?

[[Page 13778]]

       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.
  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.

[[Page 13779]]

     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 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

[[Page 13780]]

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.'')

                          ____________________