One of President-elect Trump’s conservative allies has placed a target on Judge Diane Sykes’ back, seeking to prevent her from being nominated to the Supreme Court.
The judge for the 7th Circuit Court of Appeals has won praise from conservatives and libertarians alike since Trump named her to his short list of 21 candidates, but Andy Schlafly, an Eagle Forum lawyer and son of the late conservative stalwart Phyllis Schlafly, is working to preemptively thwart Sykes’ nomination.
Schlafly is circulating a list of unacceptable Supreme Court candidates on Trump’s lists whom he has deemed not sufficiently pro-life, and he told the Washington Examiner that he has built a coalition of support from 70 like-minded organizations. Sykes is at the top of the list, which also includes Steven Colloton, Joan Larsen, Neil Gorsuch, Raymond Kethledge and Allison Eid.
“Diane Sykes has a pro-choice record,” Schlafly said on a strategy call with his coalition Tuesday. “I don’t know why she’s even on the list.”
Schlafly’s opposition to Sykes centers on two rulings she made: sentencing pro-life protesters to jail, and striking down a law that defunded Planned Parenthood in Indiana. Schlafly told the Examiner that Sykes’ 60-day jail sentence for the protesters was “harsh” and argued that she should have allowed the defunding of Planned Parenthood.
As a trial judge in 1993, Sykes sentenced two protesters to 60 days in jail for their actions in a protest that shut down an abortion clinic, not for the content of their message. At Sykes’ nomination proceedings to the 7th Circuit Court, Illinois Sen. Dick Durbin objected to Sykes’ handling of the case from a position opposite Schlafly. Durbin claimed that Sykes told the protesters, “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.”
In Planned Parenthood of Indiana v. Commissioner of Indiana State Department of Health, Sykes ruled for the 7th Circuit Court that a federal Medicaid law trumped an Indiana law that blocked state or federal funds to any organization that performed abortions, even if the funds were marked for services other than abortions. Sykes wrote in the 2012 opinion that the “free choice of provider” provision of the Medicaid law allows patients to choose their own medical provider, which was in conflict with the Indiana law.
Ethics and Public Policy Center President Ed Whelan has criticized Schlafly’s assessment of Sykes’ Planned Parenthood of Indiana ruling as leaving out a lot of information.
“His criticism of her for her ruling thus invites suspicion that he wants judges to indulge pro-life values to misread the law in order to reach pro-life results,” Whelan wrote.
Schlafly told the Examiner his opposition to Sykes and five other candidates on Trump’s lists relied on both the legal reasoning used by the candidates and the outcomes of their rulings.
Schlafly and other like-minded groups may have reservations about Sykes’ potential nomination, but she has won high praise from other leading conservative and libertarian groups. The conservative publication National Review published a column about Sykes with the headline, “This woman should be Trump’s first Supreme Court pick.” And the libertarian publication Reason argued “one reason to cheer a Sykes nomination” is because of how her actions have benefited the cause of free speech, civil liberties and criminal justice reform.
While her nomination likely would provoke a partisan confirmation fight, Sykes’ confirmation to the 7th Circuit came with the support of 21 Democratic senators, including New York Sen. Chuck Schumer and then-Delaware Sen. Joe Biden.
Trump says he has narrowed his list of Supreme Court candidates to “probably three or four” individuals, but has not identified anyone who has made or missed the cut. Before releasing lists of 21 potential candidates for the high court, Trump named Sykes and 11th Circuit Court of Appeals Judge William Pryor during a February GOP primary debate as “fantastic people” who could fill the vacancy created by Justice Antonin Scalia’s death in February.
