For many conservatives, including myself, the decision to vote for Trump was not an easy one.
But after a long, nightmarish primary, the calculation came down to a simple binary choice: vote for Trump to stop Hillary and save the courts or vote for Hillary (or a third-party candidate or write-in) and watch the erosion of our courts continue.
In a matter of hours, conservatives went from fretting over whether Senate Republicans should have relented and confirmed Judge Merrick Garland to dusting off Trump’s list of potential Supreme Court nominees. It’s important to note the commitment made by candidate Trump.
Part of the deal for many conservatives was that, in exchange for their vote, there was an expectation of strict adherence to relevant commitments. For those of us who see the future of the courts as crucial the preservation of liberty, Trump’s list must be followed in the spirit of Justice Scalia — read within the four corners of the document.
In September, Trump finalized his list, noting:
We have a very clear choice in this election. The freedoms we cherish and the constitutional values and principles our country was founded on are in jeopardy. The responsibility is greater than ever to protect and uphold these freedoms, and I will appoint justices who, like Justice Scalia, will protect our liberty with the highest regard for the Constitution. This list is definitive and I will choose only from it in picking future Justices of the United States Supreme Court. I would like to thank the Federalist Society, The Heritage Foundation and the many other individuals who helped in composing this list of twenty-one highly respected people who are the kind of scholars that we need to preserve the very core of our country, and make it greater than ever before. [Emphasis added]
There is no ambiguity in the above statement — the list is “definitive,” Trump committed to “choose only from it.”
Assuming that President-elect Trump stays true to his word, conservatives have great reason to be optimistic. Especially Wisconsin conservatives, in fact: White House chief of staff Reince Priebus, House speaker Paul Ryan, and reelected senator Ron Johnson aren’t the only Wisconsinites who may have an immediate impact on the new political landscape.
Among the list of potential nominees is Seventh Circuit Judge Diane Sykes, well known to the Wisconsin legal community and currently ranked within the three likeliest Trump appointees on at least one betting site.
Judge Sykes has served on the Seventh Circuit since 2004, authoring a number of significant decisions, but her service stretches back before that, with four years on the Wisconsin Supreme Court, time as a state trial judge in Milwaukee, and a clerkship for Eastern District of Wisconsin judge Terence Evans. Indeed, the most important decision of Judge Sykes’s career may have been a state-supreme-court case, 2004’s State ex rel. Kalal v. Dane County Circuit Court.
As one leading Wisconsin conservative attorney put it, Sykes’s decision “set a method by which the court would interpret statutes” that originalists can be proud of, focusing “first on the text of the statute, and circumscrib[ing] the use of legislative history and other secondary sources.”
Justice Sykes set out the following framework, an eloquent and straightforward outline of originalist judicial thinking:
Judicial deference to the policy choices enacted into law by the legislature requires that statutory interpretation focus primarily on the language of the statute. We assume that the legislature’s intent is expressed in the statutory language. Extrinsic evidence of legislative intent may become relevant to statutory interpretation in some circumstances, but is not the primary focus of inquiry. It is the enacted law, not the unenacted intent, that is binding on the public. Therefore, the purpose of statutory interpretation is to determine what the statute means so that it may be given its full, proper, and intended effect.
Justice Sykes’s framework has now become the benchmark of judicial statutory interpretation in Wisconsin.
That same year, Sykes delivered a speech at Marquette University Law School that helped ignite a constitutional reawakening in Wisconsin jurisprudence.
Sykes essentially called out the Wisconsin supreme court for a series of expansive decisions, noting that the five cases she highlighted marked:
a dramatic shift in the court’s jurisprudence, departing from some familiar and long-accepted principles that normally operate as constraints on the court’s use of its power: the presumption that statutes are constitutional, judicial deference to legislative policy choices, respect for precedent and authoritative sources of legal interpretation, and the prudential institutional caution that counsels against imposing broad-brush judicial solutions to difficult social problems.
What followed Sykes’s remarks has been a complete remake of the court, up to its current composition of five out of seven judicial conservatives.
To be sure, there are other highly qualified names on Trump’s September list that have a good shot: Judge William Pryor Jr., a Bush appointee to the Eleventh Circuit and former Alabama attorney general, is about tied with Judge Sykes on Predictit. Justice Joan Larsen, a former Scalia clerk who graduated first in her class at Northwestern and spent many years on the Michigan Law faculty, currently serves on the Michigan Supreme Court. Justice Thomas Lee, the brother of United States Senator Mike Lee and a former Thomas clerk and BYU law professor, serves on the Utah Supreme Court. Finally, Judge Thomas Hardiman currently serves on the Third Circuit Court of Appeals, appointed to the bench by President Bush in 2006. All of those listed above should contribute to a sense of optimism among liberty-loving legal conservatives.
But Wisconsinites are rightly hoping that the conservative Cheesehead Revolution could extend to the courts, too, with the nomination of Judge Sykes to the Supreme Court of the United States.