Friday, March 18, 2005

Alternatives to Filibusters and Nuclear Options

With the “nuclear option,” [removal of the Democrats’ ability to filibuster judicial nominees, resulting in a full Senate vote on federal judges voted out of the Senate Judiciary Committee] likely to be exercised by the Republicans in the U. S. Senate this spring, it is perhaps timely to reflect a bit on how federal judicial nominees are selected in the “progressive” state to our north.

Take for example, self described rookie, 7th Circuit Federal Court of Appeals Judge Diane Sykes. Judge Sykes was confirmed by the Senate on July 1, 2004 in what she referred to as a very non-controversial Senate confirmation hearing, even though her vote was 70-27 and opposed vigorously by Illinois’ Senior Senator, Dick Durbin. Judge Sykes, speaking at an Appellate Lawyers Association lunch meeting in the Loop on Tuesday, said her confirmation hearing was so non-controversial that most of the members of the Senate Judiciary Committee did not attend.

Non-Controversial? Well, not completely. Judge Sykes did not go into the details during her remarks, but she did make reference to a “dust-up,” regarding some procedural issues relating to written questions she had received. Senator Durbin, now the minority Whip in the Senate, sent written questions to Judge Sykes during her confirmation process, including questions about the praise she gave [in a ruling she made as a Milwaukee County Circuit court judge; Sykes subsequently was appointed to the Wisconsin State Supreme Court by then Governor Tommy Thompson in 1999] two anti-abortion protestors at their sentencing in 1993 for obstructing access to a Milwaukee clinic.

Although it was reported that Sykes told the protestors that she had “great respect for their ultimate goals,” Sykes, in her written response to Senator Durbin noted the severity of the 60 day jail term she handed down and she claimed not to have had knowledge, at the time of the sentencing, of any evidence about the multiple prior arrests of the two protestors. See the Milwaukee Journal Sentinel, March 8, 2004.

Judge Sykes, speaking on Tuesday to the Appellate Lawyers Association about her route to the 7th Circuit Federal Court of Appeals said:

“The selection process for this particular position occurred in a little different fashion than it does elsewhere around the country. The White House decided to use the bi-partisan Selection Commission which has long been established in Wisconsin for screening candidates for the Federal Bench for U. S. Marshall positions and for U. S. Attorney positions. There was some open question about whether it would be used for Court of Appeals vacancies, but the decision was made that it would be and so the Selection Commission was fired up and accepted applications and screened the candidates and forwarded a list of four finalists to Senator Kohl and Senator Feingold [the two Democratic U. S. Senators from Wisconsin]. They then vetted the four finalists and interviewed each of us and by September, 2003…indicated their approval of all four finalists and then the process proceeded from there. My nomination went to the Senate in November of 2003…”

What was intriguing about Judge Sykes’ remarks was her mention of a bi-partisan commission to recommend federal judicial candidates. So, in a question and answer session that followed her remarks, I asked her:

“For the last three or four decades and probably longer, judicial philosophy and political affiliation for appellate court nominations have been something that most presidents and their advisors have looked at, and the current Presidency certainly does that as well. It sounds like in your case they [the Bush Administration] chose to defer to the [bi-partisan commission] system they have set up in Wisconsin. Is that correct? Did they defer completely or was there some interest as to what your [judicial] philosophy was and where you were on the spectrum between, say, liberal and conservative-- and so forth?”

7th Circuit Federal Court of Appeals Judge Diane Sykes responded:

“I don’t know what went on behind the scenes, but the decision was made to use the bi-partisan Selection Commission. There is a certain amount of self selection that goes on among the candidates for these positions. I don’t think anybody who is on the liberal end of the spectrum applied because that would have been a futile effort. I mean, even with the bi-partisan Commission, obviously the White House was going to choose the conservative, so, you know, the candidates for the position, those of us who ultimately applied and went through the bi-partisan Commission process understood what the White House’s requirements were and what the White House has been looking for in judicial nominations. Does that answer your question?”

Jeff Berkowitz followed up: This Commission has been set up for a while?

Judge Diane Sykes: It has been.

Berkowitz: So, if [we were talking about the time period when] Clinton were President, they [the Commission] would similarly nominate individuals who would tend to be liberal, based on the understanding you just stated?

Judge Sykes: That’s right.
So, there you have it. A recognition, apparently, in the State of Wisconsin and by its two Democratic Senators, that nominations to the federal court should be qualified in terms of background, experience, integrity, etc., but under a Democratic Administration, we can expect that the President will want nominees who tend to be more on the “liberal” side and under a Republican Administration, we can expect that the President will want nominees who tend to be more on the “conservative,” side, and the bi-partisan Selection Commission in Wisconsin apparently accommodates the preferences of Presidents from both parties.

Indeed, following Sykes' Senate confirmation, Wisconsin Democratic Senator Feingold, said, "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." Senator Feingold also praised the federal nomination process used for Wisconsin judicial candidates during the last 25 years. Wisconsin Law Journal, June 30, 2004.

Wisconsin's Democratic Senior Senator, Herb Kohl, echoed Wisconsin's junior senator in support of Sykes nomination, stating, "Justice Sykes has earned a reputation as a fine lawyer and a distinguished jurist during her career in Wisconsin." Id.

A lesson for how to deal with Democratic judicial filibusters and Republican nuclear options in light of the power of the President under Article II of the U. S. Constitution to nominate judges subject to the Article II advice and consent powers of the Senate?
Jeff Berkowitz, Host and Producer of Public Affairs and an Executive Recruiter doing Legal Search, can be reached at