JANUARY 21, 2016
THE JUDGES OF THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT [UPDATED]
T
wo of the 11 seats on the Seventh Circuit Court of Appeals are vacant, including the single
oldest circuit court vacancy in the country. The Wisconsin seat previously held by Judge
Terence T. Evans has been vacant for over six years. Another seat in Indiana has been empty since
Judge John Daniel Tinder took senior status more than ten months ago. The result is a court that
must resolve the major constitutional issues of our day—guns, abortion, voting rights, healthcare—
while working shorthanded.
To address this critical need, and after lengthy consultation with the senators from each state,
President Obama nominated Donald K. Schott in Wisconsin and Myra C. Selby in Indiana. Schott, a
litigator with more than 30 years‟ experience, was approved last spring by the bipartisan selection
commission that Wisconsin Senators Ron Johnson and Tammy Baldwin established. That
commission was created after Johnson blocked the nomination of Victoria Nourse, who the
president nominated to the Judge Evans vacancy in 2010 before Johnson took office in January
2011. Johnson argued that as a newly-elected senator he should be consulted on nominations for
Wisconsin‟s federal judgeships. Johnson also delayed the consideration of Seventh Circuit applicants
by the commission until July 2014, two years after Nourse‟s nomination was withdrawn.
Selby, now in private practice, was both the first woman and the first African American ever to serve
on the Indiana Supreme Court. Nominations made, it now falls on the Republican-controlled Senate
to fairly consider the nominees, restore the Seventh Circuit‟s full complement of judges, and uphold
the promise of access to justice for all Americans.
T
he Seventh Circuit has appellate jurisdiction over the federal district courts in Illinois, Indiana,
and Wisconsin. Because the U.S. Supreme Court hears so few cases, the Seventh Circuit, like all
federal courts of appeals, often has the last word on important questions of federal law. Working
short-staffed over the last two years, the Circuit issued major constitutional rulings in favor of the
Affordable Care Act,1 an assault-weapons ban,2 and a woman‟s right to choose.3 At the same time,
though, the court also recognized the religious rights of secular, for-profit corporations,4 upheld a
right-to-work statute that inhibits the ability of labor unions to collectively bargain,5 and reinstated a
voter ID law that had been enjoined to prevent the disenfranchisement of minority voters.6
Univ. of Notre Dame v. Burwell, 786 F.3d 606 (7th Cir. 2015); Wheaton College v. Burwell, 791 F.3d 792 (7th Cir.
2015).
2 Friedman v. City of Highland Park, Ill., 784 F.3d 406 (7th Cir. 2015),
3 Planned Parenthood of Wisconsin, Inc. v. Schimel, 806 F.3d 908(7th Cir. 2015).
4 Korte v. Sebelius, 735 F.3d 654, 683 (7th Cir. 2013).
5 Sweeney v. Pence, 767 F.3d 654 (7th Cir. 2014).
6 Frank v. Walker,766 F.3d 755 (7th Cir. 2014); see also768 F.3d 744.
1
1
Rulings that limit minority voting rights and threaten access to federally-guaranteed contraception
reflect the court‟s lack of racial and gender diversity, as well as a lack of professional diversity in
judges‟ careers prior to joining the bench. Judge Ann Claire Williams is the only African American
ever to serve on the court, and the court has never had a Hispanic, Asian American, or openly
LGBT judge. Judges from Wisconsin and Indiana have been exclusively white, and there have been
no female judges from Indiana. In fact, only four out of 55 total judges to serve on the Seventh
Circuit have been women. If confirmed, therefore, Selby would be the first African American and
the first woman from Indiana to serve on the court. The Seventh Circuit‟s judges are also the oldest
of any circuit court in the nation; their average age is five years older than that of the second-oldest
court. All but two of the nine judges are eligible to leave active duty for senior status or retirement,
and four of the nine are above the age of 75. Finally, none of the court‟s judges have substantial
experience representing individual plaintiffs, indigent criminal defendants, or public interest
organizations.
L
ongstanding vacancies often result in delays that mean justice is denied entirely. Vacancies can
also determine whether fundamental constitutional rights are protected or not. Consider the
2014 voter ID case that went before the Seventh Circuit. The district court had enjoined
Wisconsin‟s voter identification requirement after finding that it “results in the denial or abridgment
of the right to vote on account of race or color,” and that defenders of the law “could not point to a
single instance of known voter impersonation occurring in Wisconsin at any time in the recent
past.”7 But on September 12, 2014, a panel of three Republican-appointed judges lifted the district
court‟s injunction. Then on September 26, the full Seventh Circuit divided evenly, five to five (Judge
Tinder was still on the court) and denied the plaintiffs‟ request to review the panel decision en banc.
Had the Supreme Court not intervened and reinstated the injunction, hundreds of thousands eligible
Wisconsin voters would have been disenfranchised during the November 2014 elections.8 Were
Judge Evans still on the Court, he could have cast the deciding vote to review the case, and likely
would have. “Let‟s not beat around the bush,” Judge Evans wrote when confronted with a similar
Indiana law in 2007, the “voter photo ID law is a not-too-thinly-veiled attempt to discourage
election-day turnout by folks believed to skew Democratic.”9
The Supreme Court enjoined Wisconsin‟s voter ID law pending review, but it ultimately declined to
decide the case,10 and now one of the nation‟s most restrictive voting laws might determine who
Wisconsin elects for president and U.S. Senator. In May 2015, voting rights organizations challenged
a host of recently-enacted Wisconsin election laws including the voter ID law, asserting that the laws
are intended to suppress the votes of African Americans, Latinos, the young, and the poor. The
district court, while granting a motion to dismiss the voter ID claim under the Seventh Circuit‟s
prior decision, “express[ed] skepticism at the notion that voter ID laws promote confidence in
elections” as the Seventh Circuit accepted.11 The case is set for trial in May 2016 and could be before
the Seventh Circuit later this year.
Frank v. Walker, 2014 U.S. Dist. LEXIS 59344 (E.D. Wis. Apr. 29, 2014).
On October 9, 2014, the Supreme Court reinstated the district court‟s injunction pending final disposition
of a petition for a writ of certiorari. Frank v. Walker, 135 S. Ct. 7 (2014). The Supreme Court denied certiorari
on March 23, 2015. Frank v. Walker, 135 S. Ct. 1551 (2015).
9 Crawford v. Marion Cnty Election Bd., 472 F.3d 949, 954 (7th Cir. 2007) (Evans, J., dissenting).
10
Frank v. Walker, 135 S. Ct. 1551 (2015).
11
One Wisconsin Institute, Inc. v Nichol, 2015 U.S. Dist. LEXIS 168643 (W.D. Wis. December 17, 2015).
7
8
2
B
elow, the Seventh Circuit‟s nine active judges and their recent judicial records are profiled in
order of seniority. The pending nominees are also profiled.
A. Chief Judge Diane Wood
Chief Judge Wood joined the Court in 1995 as President Clinton‟s first appointee
to the Seventh Circuit. She previously served as Deputy Assistant Attorney
General in the Department of Justice Antitrust Division, and as law clerk for
Justice Harry Blackmun of the Supreme Court. In 2010, Judge Wood was on the
White House short list of potential Supreme Court nominees to replace Justice
John Paul Stevens, a nomination that later went to Elena Kagan.12 In several
cases, Judge Wood has ensured that plaintiffs who allege housing discrimination are afforded a full
and fair opportunity to present their case at trial. In Bloch v. Frischholz,13 a divided panel affirmed
summary judgment for a Chicago condominium that forbade the traditional Jewish practice of
placing a mezuzah, a small item inscribed with a Jewish prayer, on hallway door frames. Judge Wood
dissented, arguing that the plaintiffs had raised a “straightforward claim of intentional discrimination
based on their Jewish religion and ethnicity, and they are entitled to reach a trier of fact.”14 Judge
Wood‟s dissent led to a re-hearing en banc, and the Court unanimously decided to let the case
proceed to trial (the two judges who previously voted in favor of the defendant condo, Judge
Easterbrook and Judge William Bauer, switched their votes).15 In Tyus v. Urban Search Management,16
Judge Wood, joined by Judges Posner and Easterbrook, reversed a trial verdict in favor of an upscale
apartment building that allegedly discriminated against African Americans in violation of the Fair
Housing Act.17 Among other things, Judge Wood observed that the trial judge improperly asked an
African-American juror whether he lived in public housing, whether his housing was “AfroAmerican housing or mixed,” and whether there had “been any racial problems in that project.”18
B. Judge Richard Posner
Judge Posner, who has written nearly 40 books, hundreds of articles, and
thousands of judicial opinions, is the country‟s most-cited legal scholar.19 He
was appointed to the Seventh Circuit by President Ronald Reagan in 1981 and is
currently the longest-serving member on the Court. While often considered a
conservative, particularly on economic issues, Judge Posner said that he has
“become less conservative since the Republican Party started becoming
Will Guzzardi, Ann Claire Williams, Chicago Judge, On Supreme Court Short List, Says White House, HUFFINGTON
POST (June 22, 2010), available at http://www.huffingtonpost.com/2010/04/22/ann-claire-williamschica_n_548062.html.
13 Bloch v. Frischholz, 533 F.3d 562 (7th Cir. 2008), vacated and overruled by Bloch v. Frischholz, 587 F.3d 771 (7th
Cir. 2009) (en banc).
14 Id. at 566 (Wood, J., dissenting).
15 Bloch v. Frischholz, 587 F.3d 771 (7th Cir. 2009) (en banc).
16Tyus v. Urban Search Mgmt., 102 F.3d 256 (7th Cir. 1996).
17 Id. at 259.
18 Id. at 261.
19 Fred R. Shapiro, The Most-Cited Legal Scholars, 29 THE JOURNAL OF LEGAL STUDIES 409, 424 (Jan. 2000);
Brian Leiter, Ten most cited law faculty in the U.S. 2009 through 2013, BRIAN LEITER‟S LAW SCHOOL REPORTS,
(June 11, 2014), available at http://leiterlawschool.typepad.com/leiter/2014/06/ten-most-cited-law-faculty-inthe-us-from-2009-through-2013.html.
12
3
goofy,”20 and has issued rulings favoring abortion rights and marriage equality. For example, Judge
Posner wrote the opinions enjoining and later holding unconstitutional a Wisconsin statute that
required doctors who perform abortions to acquire admitting privileges at a hospital within 30
miles.21 At oral argument for the preliminary injunction, Judge Posner wondered why Wisconsin did
not apply such regulations to doctors that perform other, higher-risk procedures, and asked
“whether there was something medically special about abortion that required admitting privileges, or
[was] it because it begins with the letter „A‟?”22 In his opinion holding the statute unconstitutional,
Judge Posner wrote “What makes no sense is to abridge the constitutional right to an abortion on
the basis of spurious contentions regarding women‟s health,” adding later that “the requirement of
admitting privileges cannot be taken seriously as a measure to improve women‟s health.”23 In Baskin
v. Bogan,24 Judge Posner wrote a unanimous opinion that struck down same-sex marriage bans in
Wisconsin and Indiana.25 In finding an equal protection right to same-sex marriage, Judge Posner
criticized the states‟ defense of their bans as “totally implausible” and “so full of holes that it cannot
be taken seriously.”26 Judge Posner has also been critical of the Supreme Court‟s 5-4 decision in
Shelby County v. Holder,27 which struck down a key provision of the Voting Rights Act based on the
need for “equal sovereignty” between the states. Judge Posner later said that “there is no doctrine of
equal sovereignty” and accused the Shelby majority of ruling for “particular policies that a majority of
justices strongly favors.”28 Judge Posner‟s Shelby critique stands in contrast to his 2007 decision that
upheld Indiana‟s photo ID voting requirement. 29 In 2013 he wrote that “I may well have been
wrong [to uphold the law], because laws similar . . . to Indiana‟s represent a type of law now widely
regarded as a means of voter suppression rather than of fraud prevention.”30 Judge Posner authored
opinions in two cases this year upholding the Department of Health and Human Services‟
contraceptive mandate accommodation for religious-affiliated institutions.31 In 2013, Judge Posner
co-authored a study that analyzed the Supreme Court‟s business docket from 1946 to 2011, and
found that the Roberts court ruled for business interests more often than any other court during that
Nina Totenberg, Federal Judge Richard Posner: The GOP Has Made Me Less Conservative, NPR (July 5, 2012),
available at http://www.npr.org/blogs/itsallpolitics/2012/07/05/156319272/federal-judge-richard-posnerthe-gop-has-made-me-less-conservative.
21 Planned Parenthood of Wisc., Inc. v. Van Hollen, 738 F.3d 786 (7th Cir. 2013); Planned Parenthood of Wisconsin, Inc.
v. Schimel, 806 F.3d 908 (7th Cir. 2015).
22 Oral Argument at 5:33, Planned Parenthood of Wisc., Inc. v. Van Hollen, 738 F.3d 786 (No. 13-2726).
23 Planned Parenthood of Wisconsin, Inc. v. Schimel, 806 F.3d 908 (7th Cir. 2015).
24 Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014).
25 For a comprehensive analysis of federal cases challenging state same-sex marriage bans, see Alliance for
Justice, Love and the Law: Federal Cases Challenging State Bans on Same-Sex Marriage (July 21, 2014), available at
http://www.afj.org/reports/same-sex-marriage-report.
26 Baskin, 766 F.3d at 656.
27 Shelby County v. Holder, 133 S. Ct. 2612 (2013).
28 Richard Posner, The Voting Rights Act ruling is about the conservative imagination, SLATE (2013), available at
http://www.slate.com/articles/news_and_politics/the_breakfast_table/features/2013/supreme_court_2013
/the_supreme_court_and_the_voting_rights_act_striking_down_the_law_is_all.html.
29 Crawford v. Marion County Election Board, 472 F.3d 949 (7th Cir. 2007), affirmed by 553 U.S. 181 (2008).
30 Richard Posner, I Did Not ‘Recant’ on Voter ID Laws: Richard A. Posner on judges, data, and consequences, NEW
REPUBLIC (Oct. 27, 2013) (internal quotation marks and emphasis omitted), available at
http://www.newrepublic.com/article/115363/richard-posner-i-did-not-recant-my-opinion-voter-id; see also
Frank v. Walker, Nos. 14-2058 & 14-2059 (7th Cir. Oct. 10, 2014) (Posner, J., dissenting from denial of
rehearing en banc).
31 Univ. of Notre Dame v. Burwell, 786 F.3d 606 (7th Cir. 2015); Wheaton College v. Burwell, 791 F.3d 792 (7th Cir.
2015).
20
4
time period.32 The study also found that, among all justices who have served since 1946, the current
Court‟s five Republican appointees all rank in the top 10 of most business friendly. At the very top
of that list are Chief Justice John Roberts and Justice Samuel Alito.
C. Judge Joel Martin Flaum
Judge Flaum joined the Seventh Circuit in 1983 when President Reagan elevated
him from the Northern District of Illinois. In two decisions, Judge Flaum voted
to protect statutory religious rights over the Affordable Care Act‟s contraception
mandate—a provision that ensures women can obtain contraception covered by
health insurance at no additional cost. Judge Flaum dissented in University of Notre
Dame v. Sebelius,33 and argued that Notre Dame should receive a preliminary
injunction to block enforcement of the mandate. Religious organizations like
Notre Dame already enjoy an exception to the contraception mandate; they are required only to sign
a form indicating their objection to providing contraceptive coverage as part of health insurance for
students and employees. Notre Dame argued—and Judge Flaum agreed—that this requirement
“substantially burdened” its right to freely exercise religion under the Religious Freedom Restoration
Act (RFRA).34 In Korte v. Sebelius,35 Judge Flaum joined Judge Sykes in a divided opinion that broadly
recognized the religious rights of secular, for-profit corporations at the expense of their employees‟
health insurance coverage. First holding that for-profit corporations are “persons” with free exercise
rights under RFRA, Judges Flaum and Sykes then enjoined the mandate as applied to closely-held,
for-profit corporations whose owners have a religious objection to certain contraception. The
decision allowed business owners to sidestep the Affordable Care Act, and to deny federallyguaranteed contraception coverage as part of group health plans for employees. Both holdings in
Korte were later endorsed by the Supreme Court in Burwell v. Hobby Lobby Stores, Inc.36
D. Judge Frank H. Easterbrook
President Reagan appointed Judge Easterbrook to the Seventh Circuit in 1985.
Before taking the bench, he served as both Assistant to the U.S. Solicitor
General and Deputy U.S. Solicitor General. In 2004, Judge Easterbrook
dissented from United States v. Booker,37 which held that the mandatory U.S.
sentencing guidelines violated the Sixth Amendment rights of criminal
defendants. Applying the Supreme Court‟s decision in Blakely v. Washington,38
which struck down a nearly identical guidelines scheme in Washington State, the
panel majority reasoned that mandatory guidelines impermissibly required longer prison sentences
based on facts found only by the trial judge, and not by a jury beyond a reasonable doubt. Judge
Easterbrook argued that applying Blakely to the federal guidelines would “discombobulate the whole
criminal-law docket.”39 The Supreme Court later disagreed with Judge Easterbrook and affirmed the
Seventh Circuit‟s panel decision.40 In 2009, Judge Easterbrook wrote the opinion in National Rifle
Lee Epstein, William M. Landes, Richard A. Posner, How Business Fares in the Supreme Court, 97 MINN. L.
REV. 1431 (2013).
33 743 F.3d 547, 562 (7th Cir. 2014).
34 Id. at 565.
35 735 F.3d 654, 683 (7th Cir. 2013).
36 134 S. Ct. 2751 (2014).
37 375 F.3d 508 (7th Cir. 2004).
38 542 U.S. 296 (2005).
39 Booker, 375 F.3d at 521 (Easterbrook, J., dissenting).
40 United States v. Booker, 543 U.S. 220 (2005).
32
5
Association v. City of Chicago,41 which applied Supreme Court precedent to hold that the Second
Amendment applies only to the federal government, and does not limit the states‟ authority to
regulate firearms. The Supreme Court reversed this decision in McDonald v. City of Chicago.42 In April
2015, Jude Easterbrook authored the opinion in another Second Amendment case, ruling that
Highland Park‟s ordinance banning assault weapons and high-capacity magazines was
constitutional.43 The Supreme Court recently declined to hear the case.44 Judge Easterbrook has also
ruled in two cases that influencing political races in Wisconsin. In one, he ordered the release of
filings related to Wisconsin‟s “John Doe” investigation into whether Republican Governor Scott
Walker illegally coordinated campaign and fundraising activities among conservative groups.45 The
investigation focused on Wisconsin‟s recall contests in 2011 and 2012. On September 12, 2014,
Judges Easterbrook, Sykes, and Tinder issued a one-page order reinstating Wisconsin‟s voter ID
law.46 U.S. District Judge Lynn Adelman had enjoined the law after finding that it “results in the
denial or abridgment of the right to vote on account of race or color,” and that defenders of the law
“could not point to a single instance of known voter impersonation occurring in Wisconsin at any
time in the recent past.”47
E. Judge Michael Stephen Kanne
President Reagan elevated Judge Kanne from the Northern District of Indiana
to the Seventh Circuit in 1987. In 2009, Judge Kanne sat on the three-judge
panel in Zbaraz v. Madigan,48 a unanimous decision that lifted an injunction
against an Illinois abortion notice statute. The statute, which had been
permanently enjoined since 1996, requires physicians to notify parents of girls
under 18 before performing an abortion. In Levin v. Madigan,49 Judge Kanne
wrote the majority opinion holding that the Age Discrimination in Employment
Act (ADEA) did not preclude a state employee‟s § 1983 claim for age
discrimination under the Equal Protection Clause. The Court allowed the equal protection claim
even though “all other circuit courts to consider the issue have held that the ADEA is the exclusive
remedy for age discrimination claims.”50 The Court also concluded that it was clearly established
that age discrimination in state employment violated the Equal Protection Clause, thus permitting
the plaintiff‟s claim to move forward. The Supreme Court granted certiorari in Levin but then
dismissed the case as “improvidently granted.”51
567 F.3d 856, 857 (7th Cir. 2009) (recognizing that “[t]he Supreme Court has rebuffed requests to apply the
second amendment to the states”).
42 561 U.S. 742 (2010).
43 Friedman v. City of Highland Park, Ill., 784 F.3d 406 (7th Cir. 2015).
44 Friedman v. City of Highland Park, Ill., cert denied, 136 S.Ct. 447(U.S. 2015).
45 Mary Spicuzza and Matthew DeFour, John Doe prosecutors accuse Scott Walker of running ‘criminal scheme’ during
recalls, WISCONSIN STATE JOURNAL (June 20, 2014).
46 Frank v. Walker, 766 F.3d 755 (7th Cir. 2014).
47 Frank v. Walker, 2014 U.S. Dist. LEXIS 59344 (E.D. Wis. Apr. 29, 2014).
48 572 F.3d 370, 373-74 (7th Cir. 2009).
49 692 F.3d 607, 616 (7th Cir. 2013).
50 Id.
51 Madigan v. Levin, 134 S. Ct. 2 (2013).
41
6
F. Judge Ilana Rovner
Judge Rovner is the first woman ever to serve on the Seventh Circuit. She was
appointed to the U.S. District Court for the Northern District of Illinois by
President Reagan in 1984, and then elevated to the Circuit by President George
H.W. Bush in 1993. In 2013, Judge Rovner dissented in Korte v. Sebelius, where the
court held that the Affordable Care Act‟s contraception mandate “substantially
burdens” the statutory religious rights of certain for-profit corporations.52 Korte
cleared the way for business owners to claim religious objections and deny
contraception coverage as part of group health insurance plans. In her dissent, Judge Rovner
explained that the court‟s reasoning extends beyond contraception, and invites employers to seek
religious exemptions from other federally-mandated employee benefits.53 She concluded that “the
court‟s . . . rationale represent[s] an unprecedented and unwarranted re-conception of both what the
free exercise of religion entails and what constitutes a substantial burden on that exercise. The court
extends a highly personal right to a secular corporation, a man-made legal fiction that has no
conscience enabling belief or worship.”54
G. Judge Ann Claire Williams
Judge Williams is the first and only African-American judge to sit on the Seventh
Circuit, and the third African-American woman to serve on any U.S. Court of
Appeals. Nominated by President Reagan to the U.S. District Court for the
Northern District of Illinois, Judge Williams served as a federal trial judge for 13
years before President Clinton elevated her to the Seventh Circuit in 1999. Judge
Williams is the only judge on the Seventh Circuit to be appointed by both a
Republican and Democratic president. In 2010, Judge Williams joined her
colleague Judge Wood on the White House short list of candidates to replace Justice John Paul
Stevens on the Supreme Court.55 Judge Williams has emphasized that “she won‟t forget her roots or
let her judicial robe get in the way of [her] humanity.”56 In 2012, she wrote a dissent from the
Circuit‟s decision that invalidated Illinois‟ concealed handgun ban as unconstitutional.57 She argued
that the Second Amendment right to possess a firearm for self-defense within the home—
recognized for the first time by the Supreme Court in 200858—does not broadly encompass the right
to carry ready-to-use firearms in public.59 In June 2014, Judge Williams dissented from a denial of
rehearing en banc after a divided panel held that a chicken processing plant was not required to
compensate its employees for time spent putting on and removing mandatory protective clothing.60
The plaintiff-employees had alleged that donning and doffing the protective gear required them to
work extra time before and after their shifts and during meal breaks, time that resulted in a work
Korte, 735 F.3d at 659.
Id. at 689 (Rovner, J., dissenting).
54 Id. at 688 (Rovner, J., dissenting).
55 Will Guzzardi, Ann Claire Williams, Chicago Judge, On Supreme Court Short List, Says White House, HUFF POST
(June 22, 2010), available at http://www.huffingtonpost.com/2010/04/22/ann-claire-williamschica_n_548062.html.
56 Matt O‟ Connor, True to Herself, CHICAGO TRIBUNE (Dec 11, 1999), available at
http://articles.chicagotribune.com/1999-12-11/news/9912110131_1_7th-circuit-district-court-circuit-court.
57 Moore v. Madigan, 702 F.3d 933, 934 (7th Cir. 2012).
58 District of Columbia v. Heller, 554 U.S. 570 (2008).
59 Moore, 702 F.3d at 946 (Williams, J., dissenting).
60 Mitchell v. JCG Indus., 745 F.3d 837 (7th Cir. 2014).
52
53
7
week exceeding 40 hours and unpaid overtime. Judge Williams wrote that rehearing was warranted
because “[t]his is an important case with far-reaching implications for, among others, workers who
are being paid minimum wage or close to it.”61 In 2014, Judge Williams (along with Judge Hamilton)
joined Judge Posner‟s opinion striking down Indiana‟s and Wisconsin‟s respective same-sex marriage
bans.62 Judge Williams also joined Judge Easterbrook‟s opinion ruling in April 2015 that a local
ordinance banning assault weapons and high capacity magazines does not violate the Second
Amendment.63
H. Judge Diane S. Sykes
Judge Sykes was appointed by President George W. Bush in 2004. She
previously served for five years as a justice on the Supreme Court of Wisconsin,
and clerked for her future colleague Judge Terence T. Evans on the U.S. District
Court for the Eastern District of Wisconsin. In several cases, Judge Sykes has
recognized robust free exercise rights under both federal statute and the First
Amendment. In 2013, she wrote the opinion in Korte v. Sebelius, which held that
both for-profit corporations and their individual owners may challenge the
Affordable Care Act‟s contraception mandate, and that the mandate “substantially burdens” the
religious practice of closely-held corporations whose owners have religious objections to
contraception.64 At the time, SCOTUSblog described Korte as “the broadest ruling so far by a federal
appeals court barring enforcement of the birth-control mandate in the new federal health care
law.”65 In 2006, Judge Sykes wrote the divided panel opinion that compelled Southern Illinois
University to officially recognize the Christian Legal Society as a student organization.66 SIU had
stripped the group of its “official” status because it prohibited gay students from joining as voting
members or serving in leadership positions, in violation of SIU‟s antidiscrimination policy. Judge
Wood dissented, arguing that the majority failed to adequately weigh “the harm to SIU from being
forced to accept into its expressive association a group that undermines its message of
nondiscrimination and diversity.”67 Judge Sykes has also endorsed a broad conception of the Second
Amendment: In Ezell v. City of Chicago,68 she wrote the panel opinion that overturned the district
court, and enjoined a Chicago ordinance that banned firing ranges within city limits. Sykes described
“the right to maintain proficiency in firearm use” in “the controlled environment of a firing range”
as “an important corollary to the meaningful exercise of the core [Second Amendment] right to
possess firearms for self-defense.”69 In a decision that favored women‟s reproductive rights, Judge
Sykes wrote the opinion enjoining the state of Indiana from cutting its Medicaid funding to Planned
Parenthood because it provides abortions. In Planned Parenthood v. Commissioner of the Indiana State
Department of Health, Judge Sykes concluded that “the state [did] not have plenary authority to
exclude a class of providers for any reason—more particularly for a reason unrelated to provider
Mitchell v. JCG Indus., 753 F.3d 695 (7th Cir. 2014) (Williams, J., dissenting).
Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014).
63 Friedman v. City of Highland Park, Ill., 784 F.3d 406 (7th Cir. 2015).
64 735 F.3d 654, 655 (7th Cir. 2013).
65 Lyle Denniston, Broad bar to birth control mandate, SCOTUSBLOG (Nov. 9, 2013), available at
http://www.scotusblog.com/2013/11/broad-bar-to-birth-control-mandate/.
66 Christian Legal Society v. Walker, 454 F.3d 853 (2006).
67 Id. at 876 (Wood, J., dissenting).
68 651 F.3d 684 (7th Cir. 2011).
69 Id. at 708.
61
62
8
qualifications.”70 On September 12, 2014, Judges Sykes, Easterbrook, and Tinder issued a one-page
order reinstating Wisconsin‟s voter ID law after it had been enjoined by the district court.71
I. Judge David F. Hamilton
President Obama elevated Judge Hamilton to the Seventh Circuit in 2009 after
he had served for 15 years on the U.S. District Court for the Southern District of
Indiana. He was President Obama‟s first nominee to a Court of Appeals but not
the first confirmed because Republican senators objected to his views on
abortion and religion.72 As a district judge in 2002, Judge Hamilton struck down
Indiana‟s state law requiring women to undergo in-person counseling before
receiving an abortion.73 Judge Hamilton‟s decision was later reversed by the
Seventh Circuit in an opinion written by Judge Easterbrook.74 In 2011, Judge
Hamilton wrote a majority opinion permitting a lawsuit that alleged torture against former Secretary
of Defense Donald Rumsfeld.75 The plaintiffs were American citizens who alleged they were
detained and tortured by U.S. military personnel in Iraq and then released without ever being
charged with a crime. In denying Rumsfeld‟s motion to dismiss, Judge Hamilton wrote that
“plaintiffs have alleged in sufficient detail facts supporting Secretary Rumsfeld‟s personal
responsibility for the alleged torture. . . . [and] that Secretary Rumsfeld is not entitled to qualified
immunity on the pleadings. The law was clearly established in 2006 that the treatment plaintiffs have
alleged was unconstitutional.”76 The Seventh Circuit later reversed and granted Rumsfeld‟s motion in
an en banc decision from which Judges Hamilton, Rovner, and Williams dissented.77 In 2014, Judge
Hamilton and Judge Williams joined Judge Posner‟s opinion striking down Indiana and Wisconsin‟s
respective same-sex marriage bans.78 Judge Hamilton also joined Judge Posner‟s opinion last year
holding unconstitutional a statute requiring doctors performing abortions to acquire admitting
privileges at a hospital within 30 miles.79
J. Donald K. Schott
President Obama nominated Donald K. Schott on January 12, 2016. Schott has
over 30 years of litigation experience representing both plaintiffs and defendants,
and is a partner at the law firm of Quarles & Brady, LLP in Madison, Wisconsin.
He serves as a member of the firm‟s Executive Committee and as the chair of
the Madison-office Litigation & Dispute Resolution Group. Schott has argued
cases before the Seventh and Ninth Circuit Courts of Appeals as well as the
Wisconsin Supreme Court. He previously served on the Board of Directors for
the State Bar of Wisconsin, Young Lawyers Division, as Chair of the Western
District Bar Association‟s Committee on Alternative Dispute Resolution, and as an American
699 F.3d 962, 968 (7th Cir. 2012).
Frank v. Walker, 766 F.3d 755 (7th Cir. 2014).
72 Kate Phillips, Conservatives Oppose Judicial Nominee, N.Y. TIMES (Nov 12, 2009), available at
http://thecaucus.blogs.nytimes.com/2009/11/12/conservatives-oppose-judicialnominee/?_php=true&_type=blogs&_r=0.
73 A Woman’s Choice—East Side Women’s Clinic v. Newman, 132 F. Supp. 2d 1150 (S.D. Ind. 2001).
74 A Woman’s Choice—East Side Women’s Clinic v. Newman, 305 F.3d 684 (7th Cir. 2002).
75 Vance v. Rumsfeld, 653 F.3d 591 (7th Cir. 2011).
76 Id. at 594.
77 Vance v. Rumsfeld, 701 F.3d 193 (7th Cir. 2012) (en banc).
78 Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014).
79 Planned Parenthood of Wisconsin, Inc. v. Schimel, 806 F.3d 908(7th Cir. 2015).
70
71
9
College of Trial Lawyers Fellow. His pro bono experience includes representing prisoners in suits
alleging inadequate medical care, and representing women seeking domestic abuse protection orders.
Schott was nominated after receiving approval of the Baldwin-Johnson bipartisan judicial selection
commission.
K. Myra C. Selby
President Obama nominated Myra C. Selby on January 12, 2016. Selby is
currently a partner at Ice Miller, LLP in Indianapolis, Indiana. Selby was
appointed to the Indiana Supreme Court by then-Governor Evan Bayh and
served as an associate justice from 1995 to 1999. She was the first African
American and first woman on the court. As an associate justice, Selby authored
two opinions holding the statute of limitations for medical malpractice claims
invalid when the “plaintiff was unable to determine her tort claim before the
expiration of the limitations period.”80 She also joined opinions protecting the
Fourth Amendment rights of criminal defendants81 and worker rights.82 She is a current member and
former chair of the Indiana Supreme Court‟s Commission on Race and Gender Fairness. She has
served the legal profession as an elected member of the American Law Institute, a member of the
American Bar Association‟s Presidential Advisory Council on Diversity in the Profession, Chair of
the Indiana State Bar Association‟s Committee on Diversity in the Profession, and a former member
of the American bar Association‟s Standing Committee on Judicial Independence.
80
Halbe v. Weinberg, 717 N.E.2d 876, 877 (Ind. 1999); Martin v. Richey, 711 N.E.2d 1273 (Ind. 1999).
Brown v State, 653 N.E.2d 77 (Ind. 1995); Figert v, State, 686 N.E.2d 827 (Ind. 1997); State v. Foreman, 662
N.E.2d 929 (Ind. 1996); Middleton v. State, 714 N.E.2d 1099 (Ind. 1999).
82 McQuade v. Draw Tite, 659 N.E.2d 1016 (Ind. 1995); Indiana Civil Rights Comm’n v. Delaware County Circuit
Court, 668 N.E.2d 1219 (Ind. 1996).
81
10