For conservatives to win at the Seventh Circuit, given recent changes to its membership, they must run the ball up the middle.
Chief Judge Diane Sykes stepping down from the U.S. Court of Appeals for the Seventh Circuit, this leaves a hole on the court’s right flank. This is a court that has whipsawed ideologically. During Obama it leaned a little left with Richard Posner and John Tinder — later just Posner — occupying the middle of the en banc court. Trump reinforced it, though, adding Michael Brennan and Amy Barrett (later Thomas Kirsch) on the right while replacing the erratic Posner and liberal Ann Claire Williams with Michael Scudder and Amy St. Eve.
Unfortunately, on the right, Joel Flaum and Michael Kanne couldn’t bring themselves to leave under Trump — Kanne because he was feuding over a replacement, and Flaum, it seems, because he liked being a senior-statesman judge. They were replaced with leftist Candace Jackson-Akiwumi and the Indiana magistrate judge Joshua Kolar. At the same time the liberal Diane Wood was replaced with the liberal John Lee, the liberal Ilana Rovner with the leftist Nancy Maldonado, and the liberal David Hamilton with the moderate Doris Pryor.
The result is a court that — post Sykes — will be all Biden and Trump judges spare Frank Easterbrook, the larger-than-life Reagan appointee. It’s a court that went from super-majority Republican with a movement-conservative majority to a court with a slim Republican majority and a movement-conservative bare minority.
What does this mean practically? It means that for conservatives to win at the Seventh Circuit, they must run the ball up the middle. There is simply not a cohesive conservative bloc on the court. Brennan is a movement conservative; Kirsch is a hard-nosed prosecutor conservative; Easterbrook is Easterbrook; St. Eve is an establishment conservative; Scudder is a moderate conservative; Kolar seems to be a conservative moderate; and Pryor seems to be a liberal moderate. Maldonado and Jackson-Akiwumi always hold down the left flank, usually joined by Lee.
To succeed en banc, then, conservatives will need to persuade three of Easterbrook, St. Eve, Scudder, and Kolar. The best way to do that is to replace Sykes with a judge who is smart, personable, and credible enough to help persuade those very smart, very experienced, and relatively non-doctrinaire members of the court to agree with him or her. The left flank is utterly unpersuasive on the Seventh, so there is an opportunity to turn the middle toward the right — but not if the right is perceived by the center as doctrinaire or otherwise non-credible. Replacing Sykes with an arch-conservative will yield some great dissents.
This matters for a number of reasons. The Supreme Court simply doesn’t grant cert anymore. Well, it does, but exceedingly rarely and never when you want it. So one must assume that politically salient cases will die in the circuit. This is important because Indiana is a conservative innovator state and Wisconsin is a political battleground. With those cases terminating in Chicago 99 percent of the time, it’s more important to secure judgments than to own the libs with a stirring dissent.
Lastly, if you read the output from the Seventh, it’s very clear that Jackson-Akiwumi and Maldonado really have no juice with the center bloc. Take, for example, the recent en banc U.S. v. Royel Page. There the Wisconsin U.S. Attorney’s Office convinced all the non-liberals on the court to join a Kirsch opinion — but reading Jackson-Akiwumi’s dissent, you can see that it was really a team effort. That’s what we need going forward. The fact is that were Biden to have appointed, say, Judge Gary Feinerman of the Chicago district court to one of the Chicago circuit seats, the liberals would be in a much stronger position because he is intelligent, personable, and credible. He didn’t though, and so Biden’s leftism gives us an opportunity to save the Seventh Circuit, but only if we do what he couldn’t: find and appoint a conservative Feinerman.