Judges Diane Sykes and David Hamilton of the U.S. Court of Appeals 7th Circuit discuss methods of appellate judging at the 2014 State Bar of Wisconsin Annual Meeting & Conference in Lake Geneva.

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June 27, 2014 – Two judges on the Seventh Circuit Court of Appeals – the Hon. David Hamilton and the Hon. Diane Sykes ­– recently provided an in-depth glimpse into the minds of federal appellate judges and the way they approach constitutional and statutory interpretation.

Both judges kicked off the State Bar of Wisconsin’s Annual Meeting and Conference (AMC) yesterday with a talk on textualism, originalism, pragmatism, and other methods of appellate judging. About 450 are attending at the AMC at the Grand Geneva Resort in Lake Geneva.

Sykes, appointed to the federal bench by President George W. Bush, has served on the Seventh Circuit Appeals Court since 2004. She was also a justice for the Wisconsin Supreme Court from 1999 to 2004 and a circuit court judge for Milwaukee County for seven years.

Hamilton took the federal appeals court bench in 2009 after his appointment by President Barack Obama. Prior to that, Hamilton was a judge and chief judge for the U.S. District Court for the Southern District of Indiana (1994-2009). Both judges offered unique perspectives.

Their thought-provoking topic traced the interpretational methods employed by various judges and courts since the New Deal, and outlined the theories driving justification for judicial power to review constitutional provisions and actions by the legislative and executive branches.

In particular, the two paid close attention to comparisons between originalism and pragmatism as approaches to constitutional interpretation. In general, originalism grounds constitutional interpretation in the public meaning of the text as understood by the Framers. Currently, U.S. Supreme Court Justice Antonin Scalia is most commonly associated with the originalism.

Pragmatism, most prominently practiced by Seventh Circuit Appeals Court Judge Richard Posner, considers the broader economic, social, and political systems affected. U.S. Supreme Court Justice Stephen Breyer is sometimes aligned with this pragmatist approach as well.

In addition, attendees gained some insight on the judicial philosophies of both judges, who noted that understanding the methods employed by certain judges at the appeals court level can be most useful in hard cases with no guiding precedent from the U.S. Supreme Court.

“There are some cases that come to us without established precedent,” Judge Sykes said. In those cases, she said, judges must decide on the framework of decision for resolving it. That’s where theories of interpretation come into play, and theories sometimes differ among judges.

“When I’m confronted with a novel question of constitutional law for which there is no precedent, I will try to reason through analogous Supreme Court precedent and look to original meaning as well,” said Sykes, who described herself loosely as an originalist-textualist.

While Judge Sykes leans towards an originalist approach, Judge Hamilton disclosed his skepticism for any theory of interpretation at all. “I would describe myself in the end as being more of an anti-theorist with these theories of interpretation,” Judge Hamilton said.

Attendees at Thursday’s opening plenary session listen to judges Diane S. Sykes and David F Hamilton speak about methods of appellate judging.

Government lawyers pose with Packers Coach Mike Mc Carthy, who served as master of ceremonies at the swearing in of Bob Gagan as 59th State Bar President. From left: Deborah Price, Ann Molitor, McCarthy, Kathleen Chung, Gagan, and Joseph Cardamone.

More than 50 attended the Senior Lawyer/Young Lawyer luncheon. YLD Past President Lee Turonie (left), State Bar President-elect-elect Ralph Cagle, and YLD President-elect-elect Ryan Blay.

“I would suggest to you that over time, you will see evidence of all these different theories of interpretation from virtually all judges as you deal with the wide range and complexity of problems that come before us,” he explained.

Both judges agreed that whatever method of interpretation that judges employ to resolve a particular case, the final product must be transparent.

“The most important theory is not really a theory at all, but the practice … of making opinions as transparent as possible,” Hamilton said. “In my mind, the obligation we have to provide a transparent, public explanation of the reasons for our decision is by far the most important constraint, far more important than a commitment to textualism or originalism or any other ‘ism’ that you like in reaching a decision that the public can understand and accept.”

“Judge Hamilton made a very important point in that as judges, we are not just deciding cases, we are writing precedent. So it’s really important when we are writing opinions to be transparent about our decision-making process,” Judge Sykes said.

Other Day One Programs

The AMC returns after several years in hiatus to attract attorneys across all practice areas, with networking and other social events to give lawyers a break from the daily grind. Today will feature a point-counterpoint between political titans Karl Rove and Robert Gibbs.

Members are also obtaining CLE credits in a variety of topic areas. From Indian and construction law to trial advocacy and client communications, from solo and small firm business considerations to technology and ethics, there’s something for everyone.

For instance, the “law firm boot camp” served as a guide to going solo. Panelist Johanna Kirk noted the all-important business plan as the first step towards starting your own firm.

“The business plan going to help you set up your ideas, outline the areas you are going to practice in, and who your clients will be. Importantly, it forces you to go through a reality check process,” said Kirk, who said the business plan is just one step among many.

She noted that the State Bar’s upcoming “Business School for Lawyers” will help lawyers create a business plan, in addition to other aspects of starting and running a law firm.

Check WisBar for continuing coverage of events, and visit the State Bar’s social media pages for photos and other updates about the AMC, which is back in Lake Geneva next year.