Congressional Record, Volume 149 Issue 59 (Friday, April 11, 2003)

[Congressional Record Volume 149, Number 59 (Friday, April 11, 2003)]
[Senate]
[Pages S5319-S5323]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

NOMINATION OF JEFFREY SUTTON

Mr. HARKIN. Mr. President, we are wrapping up prior to going on a 2-
week break from the Congress. We have the supplemental appropriations
bill yet to do, so we are wrapping up this evening, late on Friday
night. Congress will be gone for 2 weeks.
Something happens when we come back. Something very important and
something very meaningful happens when we come back. I will talk about
that for a few moments.
Mr. President, what is going to happen when we come back, there will
be at some point soon after we get back from our break, a vote up or
down on the Senate floor on whether or not the Senate will advise and
consent to approving President Bush's nominee, Mr. Jeffrey Sutton, to
be a judge on the Sixth Circuit Court of Appeals.
I will speak for a while tonight about Jeffrey Sutton, but when we
come back I will have a lot more to say. I don't think too many people
have focused on this. There has been a lot of talk about Mr. Estrada
and now there is talk about Judge Owen from Texas but not too much has
been said about Mr. Sutton. I will lay out the case and lay out for my
fellow Senators and for the public at large what is at stake in this
nomination.
First, for the record, Mr. Sutton is a 42-year-old lawyer, currently
a partner at Jones, Day, Reavis and Pogue in the Columbus, OH, office.
He is an adjunct

[[Page S5320]]

professor of law at Ohio State University College of Law. He served as
State Solicitor of Ohio from 1995 to 1998. He is a former law clerk to
Justice Powell and Justice Scalia and Justice Thomas Meskill of the
Second Circuit Court of Appeals. He has been nominated by President
Bush to be a member of the Sixth Circuit Court of Appeals.
At the outset, Jeffrey Sutton has a great resume. He hails from Ohio
State Law School, is a former solicitor for the State of Ohio, and he
has argued cases before the U.S. Supreme Court. Quite frankly, he has
won many of them. So he has a great resume. Quite frankly, my arguments
will not be about whether he is qualified. That is not the point.
I will state at the outset in terms of legal qualifications and
background that Mr. Sutton is qualified to sit on a bench. However, I
don't believe that is all we have to look at.
I had the opportunity to meet with Mr. Sutton for about an hour and a
half in my office. He was kind enough to come to my office. We sat
there and discussed an issue of great importance to me and to him. We
had a great conversation. I found him to be personable. I found him to
be highly intelligent, very bright. He is definitely an accomplished
attorney. Frankly, I enjoyed my conversation with him for an hour and a
half.
However, I take very seriously our responsibility to advise and
consent on lifetime judicial nominees. These are not positions to
rubberstamp or just to lightly say that simply because someone is
qualified they should be on the court. I have done a careful review of
Mr. Sutton's advocacy inside and outside the courtroom.
What I come to, I am not convinced Jeffrey Sutton would be able to
put aside his own personal agenda and be a fair and balanced judge.
Especially for me, I cannot support putting someone on a Federal
circuit court who has worked, worked assiduously, worked intelligently,
to undermine the Americans with Disabilities Act.
As many here know, my brother, Frank, now deceased, was deaf. Through
his eyes and through his life, my family and I saw firsthand what
discrimination against persons with disabilities looks like. It was not
something abstract. It was real. It was personal. It was up close. I
often said if I could ever be in a position to do something about the
kind of discrimination that my brother and so many others had faced, I
would do it. Through the generosity of the voters of Iowa, I was in
that position. In both the House and later in the Senate, I spent my
time working to develop legislation to bring out of the shadows of
discrimination, of institutionalization, people with disabilities,
bring them out of the shadows and bring into the sunshine of civil
rights laws in this country.
The day before the Americans with Disabilities Act was signed by the
first President Bush, the day before it was signed, if you were a
person of color in this country, say, you were an African American, and
you went down the street and answered an ad for a job for which you
were qualified, and you walked in there and your prospective employer
looked at you and said, I'm not hiring Black people, get out of here.
You could have walked out that door, walked down the street, and walked
right into the courthouse because we passed a Civil Rights Act in 1964
that outlaws, bans that kind of discrimination, based upon race.
If, however, on that same day a person in a wheelchair, qualified for
that job, had rolled that wheelchair down there and the prospective
employer looked at you and said, Get out of here; I don't hire
cripples, and you rolled that wheelchair down to the courthouse door,
the doors were locked. They were open if you were a person of color and
you had been discriminated against. But, if you were a person with a
disability, the courthouse door was locked because there was no law
that banned discrimination based upon disability.

The next day President Bush signed it into law and you, Mr.
President, or anybody else who might have a disability, took their
place alongside those who had been brought into our civil rights laws
in America.
We did not pass that bill overnight. We didn't just all of a sudden
decide we were going to pass a civil rights bill for people with
disabilities, and pass it. We spent years. I am going to have more to
say about this when we come back after the break, but we spent years on
this, holding hearings and hearings, in forums all over the United
States; a Presidential task force appointed by a Republican President,
having hearings all over the United States. There were years of
drafting, debating, trying to hone it down to make sure we had it
right. With bipartisan support it passed overwhelmingly in the Senate.
It passed overwhelmingly in the House of Representatives with
bipartisan support.
I will never forget that grand day when President Bush signed that
into law on the White House lawn. At that time it was the biggest
gathering ever in White House history for the signing of legislation.
Justin Dart was there. Justin Dart was right there on the platform.
Justin Dart, the hero of the disability rights movement in America, now
also sadly deceased. Justin Dart sitting up there, and President Bush
talking about Justin Dart leading this great movement to bring people
with disabilities under our civil rights laws.
Here is what President Bush said that morning:

The Civil Rights Act of '64 took a bold step towards
righting that wrong--the wrong of discrimination against
people of color--but the stark fact remained that people with
disabilities were still victim of segregation and
discrimination, and this was intolerable. Today's legislation
brings us closer to that day when no Americans will ever
again be deprived of their basic guarantee of life, liberty,
and the pursuit of happiness.

Justin Dart was there that day. Before he died, Justin Dart wrote
this letter:

I feel certain that the great majority of 54 million
Americans with disabilities, and millions more of their
family members, join me in urging President Bush to
reconsider his nomination of Jeffrey Sutton as a Federal
judge.

I won't read the whole letter. I ask unanimous consent Justin Dart's
letter be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

Remarks by Justin Dart, ADA Watch Press Conference, May 19, 2001,
Washington, DC

I feel certain that the great majority of fifty four
million Americans with disabilities, and millions more their
family members, join me in urging President Bush to
reconsider his nomination of Jeffrey Sutton as federal judge.
The Americans with Disabilities Act is the world's first
comprehensive civil rights law for people with disabilities.
Barbara Bush has described it as the finest accomplishment of
her husband's administration.
Abraham Lincoln led this nation to war and died to
establish the authority of our federal government to protect
the rights of our citizens no matter what the state of their
residence.
It is very difficult to understand how President George W.
Bush could send to the Federal Court a man who challenges the
``across the board'' constitutionality of a great civil
rights law written in the tradition of Abraham Lincoln and
signed by his father, George Bush Sr.
I am deeply concerned for the future of American democracy.
I am deeply concerned for the civil rights not only of
Americans with disabilities, but of all Americans. I am
deeply concerned not only for the principle of federal civil
rights, but also for the economic prosperity of our nation.
As more and more Americans triumph over death to live with
disabilities, it becomes absolutely imperative that they be
empowered to get off of the welfare rolls and onto the tax
rolls.
At the last count more than seventy percent of employable
Americans with disabilities were unemployed. Millions more
were underemployed. In 1990 President Bush Sr. estimated the
resulting burden to the nation to be 200 billion dollars
annually, and growing.
Finally I love the American Dream. I am passionately
serious about the pledge: ``one nation, under God,
indivisible with liberty and justice for all.''
Mr. President, you have pledged to support the ADA. You
have pledged to support one nation with liberty and justice
for all. You must send people to the court who support those
pledges.

Mr. HARKIN. We in Congress met, these many years, overwhelming
evidence that discrimination in this country against people with
disabilities was rampant, unchecked, building up year after year. It
was not just in the private sector but in the public sector. State
governments and the Federal Government discriminated against people
with disabilities. It was pervasive in our society. We took care, when
we passed that bill, to make sure we had the findings and the
constitutional

[[Page S5321]]

basis to pass muster in the United States Supreme Court.
The signing sealed the work of a monumental bipartisan effort that
sought to right decades of wrong. It took the tireless work of
Democrats and Republicans alike. As I said, it passed the Senate 91 to
6. The House passed it 402 to 20. Then-Attorney General Thornburgh was
a strong supporter. The Chamber of Commerce was on our side, the
business community, the States, President Bush, all stood together. Why
did we all stand together on the ADA? Because it was the right thing to
do. Justice demanded it.
July 26, 1990--President Bush said a lot of good things that day as
he signed this bill. As I said, I will never forget it.
I was proud of this because it represented the hard work of a lot of
people and it broke down these old barriers of exclusion and
intolerance and injustice toward people with disabilities. Now after
all the work we did, all the findings, all the hearings, all the
documentation we compiled, all that President Bush said, Mr. Sutton--
guess what he said. He said it wasn't needed. He said the ADA was not
needed.
Why did he say it was not needed? Why, because the States were doing
the job. This was a State responsibility and Congress did not have the
findings that States had been discriminating. As I told Jeffrey Sutton
when he sat in my office that day, I said, ``How could you say that?''
I said, ``Did you read all the documentation? Did you read all the
findings that we had? Twenty-five years of studies going clear back to
1965 and beyond; 1974. There were 17 formal hearings by congressional
committees, markup by 5 separate committees. There were 63 public
forums across the country by congressionally established task forces.
There was oral and written testimony by the Attorney General of the
United States, Governors, States' attorneys general and State
legislators. There were over 300 examples of discrimination by State
governments in that record.
Yet before the Supreme Court of the United States, Mr. Sutton said it
wasn't needed. That is Garrett v. Alabama. I'll have more to say about
Pat Garrett, too. But he said it just wasn't needed.
Regarding the Americans With Disabilities Act, I see them chipping
away at a law that symbolizes the inclusion of all Americans in our
society. For the past few years, Jeffrey Sutton has held the hammer and
the chisel.
In my mind it is not about whether he is qualified to be a Federal
judge, or whether he is a nice guy. As I said, I happen to have enjoyed
my conversation with him. Frankly, I know who the six Senators were who
voted against the ADA in the Senate. I hope to enjoy my conversations
with them, too. I just disagreed with them and so did 91 other Senators
disagree with them. But that doesn't mean the six who voted against it
are bad people. I, frankly, enjoy the friendship of those six people.
That is not the point. The point is whether or not someone should be
on the circuit court who holds that same kind of opinion. His
qualifications--to me, a judge's qualifications are half of the
equation. In other words, I think they have to meet the test of are
they qualified. I think the other half of our responsibility is to
determine whether or not that person can be a fair and balanced judge
who understands the role of Congress in correcting ancient wrongs and
helping to make our society more fair and more just. Frankly, in his
writings and in his statements, and even in my conversation with him in
my office, Mr. Sutton seems to have a unique view of our role here that
somehow when it comes to civil rights laws, especially the Americans
with Disabilities Act, that we have a very narrow area in which we can
operate; the rest must be left to the States.

As I said, you read his writings. I was in the Supreme Court. I sat
there in the front row the day he argued the Garrett case, sat right
next to Bob Dole. And when I heard him stand up and say the ADA was not
needed, I said: Wait a minute. When I heard him talk about how we had
not really established the record, that we had not really had the
findings of State discrimination, I said: How could he possibly say
that? Only someone who did not know what we did could ever say that.
And that is what I talked to him about in my office. How could he say
such a thing, when we had all this? Well, he said, yes, OK, he
appreciated that, but I never got to the bottom of it with him.
Anyway, his arguments before the Supreme Court articulated that
States can do a better job of it than we can, and Congress did not find
enough evidence. We found the evidence. It is there. It is in the
record. It is compiled.
Mr. Sutton has said a lot of times: Well, I was only representing my
client, and I am duty bound as a lawyer to do the best I can for my
client. And he was representing the State of Alabama. Well, OK, I can
accept that. But here is what Mr. Sutton said on National Public Radio
on October 11, 2000. Now, a lawyer's responsibility to fully represent
his or her client does not spill over into talking on National Public
Radio. That is his personal opinion. And here is what he said:

Disability discrimination, in a constitutional sense, is
really difficult to show.

That is what Mr. Sutton said on National Public Radio.
I am going to talk more about this when we come back after the break,
about the extensive record that we found of constitutionally based
discrimination against people with disabilities--discrimination that
was pervasive in our society, the institutionalization of people, the
blatant discrimination in jobs, in transportation, in public places
against people with disabilities. And yet he said it is difficult to
show.
Well, we showed it. But evidently that was not enough for Mr. Sutton
because he has his own narrow view, his own personal view of what the
limits of Congress are in addressing these wrongs.
People with disabilities, as I said, locked away in institutions for
years; people with mental disabilities subjected to involuntary
sterilization because, in the words of the late Justice Holmes: ``Three
generations of imbeciles are enough.'' Persons with severe hearing
loss, like my brother Frank, labeled deaf and dumb. They sent my
brother away to a school, segregated him away from his friends, from
his family, from his community, to go to the Iowa State School, as they
said in those days, for the deaf and dumb. What does that do to people,
simply because they are deaf, being called dumb? For too many years,
those who were blind were forced to sell pencils on a street corner to
earn a living.
When the day is done, and we all go home, Jeffrey Sutton--no matter
how likable he is, no matter how good his qualifications are--has an
extreme, limited view of our congressional role to legislate in this
important area. From his arguments before the Supreme Court, he seems
to believe that each State does its job to protect the constitutional
rights of persons with disabilities as the State sees fit.
After what I saw and heard with my own ears, and during the crafting
of the ADA over all those years and all those hearings, I cannot fathom
anyone reaching that conclusion.

Pat Garrett--I will have more to say about the Garrett case--Pat
Garrett, from Alabama, working in a job for the State, came down with
breast cancer. She had to go have an operation. She had chemotherapy.
She recovered. She went back to work. She was told by one of her fellow
coworkers that her boss didn't like sick people. Her boss fired her.
So she brought a case under the Americans with Disabilities Act. She
won. She won her case in the lower court. Then the State of Alabama
hired Jeffrey Sutton to argue its case before the Supreme Court, and
the Supreme Court found for Alabama by a 5-to-4 decision.
It seems to me that according to Jeffrey Sutton, that if Pat Garrett
does not like the fact that the State of Alabama did not have a law
that protected her rights as a disabled person, why, she can move to
Nevada, maybe move to Minnesota, maybe move to Iowa. That is her right,
that she can just move out of the State, maybe find some other place to
live, where a State does have laws against discrimination against
people with disabilities in their State institutions.
But is that what we have become in our country, a patchwork quilt?
That is what we found in all these hearings

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on the ADA, a patchwork. Yes, some States were good; some States had
none--a patchwork quilt.
I do not believe that your civil rights ought to depend on your
address. Your civil rights, under the Constitution of the United
States, ought to depend on whether you are in this country and you are
a citizen of the United States, not whether you live in Minnesota,
Iowa, Nevada, or Alabama.
States rights--I don't know which seat the occupant of the chair from
Minnesota holds, but it was that great Senator from Minnesota who, back
in 1948, took on his own party--my party--the Democratic Party, in that
great speech he gave at the convention and said: It is time to come out
of the shadow of States rights and into the sunshine of civil rights.
And that is when the Dixiecrat, Senator Strom Thurmond, left the party,
because of what Hubert Humphrey said.
But Hubert Humphrey was right, it was time to come out of that shadow
of States rights and recognize that civil rights inures to all of us as
citizens of the United States and not just because I happen to live in
one State or another.
But Jeffrey Sutton does not believe that; down deep inside he does
not. And I say that only because of what he has said and what he has
written, not just because of his representation of a client, but what
he has said outside the courtroom.
All the lawyer code and duty talk does not tell the whole story. He
has written articles, participated in radio talk shows, panel
discussions, expressing his personal views, not his clients', but his
own personal views. That kind of publicity is not required by his role
as a lawyer advocating on behalf of his clients.
So based on his advocacy, based upon his own words, I am not
convinced that a person with a disability, walking into Jeffrey
Sutton's courtroom, can expect a fair shake from Mr. Sutton.
Again, as I said, I find him a likable individual, obviously very
intelligent. But he means to undo with his position all we have done
here to make sure that people with disabilities have their civil
rights.

There are over 400 disability rights and civil rights groups in the
United States opposing this nomination to the Sixth Circuit. I am hard
pressed to know of any disability group that supports Mr. Sutton.
Again, this is nothing personal. People with disabilities understand
how tenuous their hold on their civil rights is today. The Supreme
Court has chipped away a little bit here, a little bit there on the
Americans with Disabilities Act. There are still those in our country
who believe we should not have had that law. Mr. Sutton, obviously, is
one of those. He says it wasn't needed.
People with disabilities live every day wondering whether or not they
will be treated fairly based not upon their disability but on their
abilities: Will I be able to get a good education? Will I be able to be
treated fairly and equitably in terms of employment? Will I be able to
find some reasonable accommodation so I can do a job? Will I go into a
place of business and be ignored because I look different, maybe I act
differently?
That is what people with disabilities live with every day. They know
their hold on this is tenuous. I can understand very deeply the concern
that people with disabilities all over America have about this
individual, the deep concern they have, because they see in Mr. Sutton
the personification of all of the people in their lives who made life
harder for them, people who had a view that was narrow, who said that
somehow our National Government cannot do anything to secure their
civil rights, they only have to look to the State.
I will have more to say about Mr. Sutton. I will close with this. On
that National Public Radio broadcast I talked about, he also said:

I think it is a positive attribute of this system of
divided government that when 51 different sovereigns, 51
different legislatures tackle a difficult social problem,
they all arrive at different approaches. And the ultimate
idea and really transcendent purpose of federalism is to have
them compete for the best solution.

That is his personal view. He was not representing anyone. This is
Jeffrey Sutton talking:

What happens when a State wins in these competitions? Do they get a
prize? What happens to the people who are in the losing States? Are
they just unlucky? What about Pat Garrett? Obviously, Alabama was not
competing to have the best antidisability discrimination laws in the
country.
I would be the first to say that one of the great things about our
system of government is, it does allow for experimentation in different
States. It allows different States to approach problems differently.
Out of that we do get not a top-down, one-size-fits-all type of
government. That is one of the beauties of our system. But when it
comes to fundamental issues of fairness and justice and equity, when it
comes to the basic, fundamental issues of civil rights, I say again,
your civil rights as an American citizen should not depend on your
address. It should not depend upon the shadow of States rights. It
should depend upon the sunshine of being a U.S. citizen and having the
Federal Government make sure that our civil rights are protected no
matter where we are.
Again, if we want to have competition among States on education and
transportation and all kinds of different things, that is fine. But on
fundamental, basic civil rights, one law, one Constitution, one Bill of
Rights that covers us all.
Mr. Sutton is going to be before us. He is not now, but I understand
he will be as soon as we come back. I wanted to start the debate. Quite
frankly, I don't think Mr. Sutton has received the kind of attention
and the kind of discourse and debate in this body that a circuit judge
of his stature deserves, at least one who has this background and one
who by his statements invites this kind of controversy.
We have approved circuit court judges around here almost on voice
vote, 98 to nothing, 96 to nothing. I have joined in that. The people
were not only qualified, but they didn't raise these kinds of troubling
questions about how they will deal with fundamental civil rights laws.
But Jeffrey Sutton does. He raises those issues. He has done it on his
own.
I will have more to say about his statements when we come back. I am
hopeful--not in a vindictive sense or anything like that--that this
Senate will disapprove of putting Mr. Sutton on the court, thereby
sending a very loud and strong message to people with disabilities all
over this country that we passed the Americans with Disabilities Act
with our eyes wide open; that we knew what we were doing; that we
assembled the data. We had all of the evidence we needed. We compiled
the record, and we want to keep it as the law of the land--as the civil
rights law of the United States.

It would be a powerful message because I can tell you this. If
Jeffrey Sutton ascends to the Sixth Circuit Court of Appeals, Americans
with disabilities all over this country will see the hands of the clock
turning backward--back, back to the days of discrimination, back to
those days when they were afraid to enter that door, or to demand their
rights as an American citizen, as a human being. I believe it is going
to cause people with disabilities to wonder whose side we are on.
Whose side are we really on? I hope we are on the side of civil
rights.
Mr. HATCH. Mr. President, I would like to respond to the comments
made by my good friend from Iowa, Senator Harkin.
I was also a cosponsor of the Americans with Disabilities Act, and I
believe very much in that legislation and its goals. It is one of the
most important pieces of legislation that I have worked on during my
tenure in the Senate. I can certainly understand my distinguished
colleague's concerns about the limitations that the Supreme Court
placed on the Act in their decision in Garrett. However, I do not
believe for one minute that Mr. Sutton's representation of the State of
Alabama is in any way indicative of an agenda, personal or otherwise,
against Americans with disabilities.

[[Page S5323]]

Even the People for the American Way has conceded, ``No one has
seriously contended that Sutton is personally biased against people
with disabilities.'' Furthermore, Mr. Sutton's opposing counsel in the
Garrett case, former Clinton administration Solicitor Seth P. Waxman,
has written to me in support of Mr. Sutton. He stated:

I know that some have questioned whether the position Mr.
Sutton advocated . . . in the Garrett case reflected
antipathy on his part toward the Americans with Disabilities
Act. I argued that case against Mr. Sutton, and I discerned
no such personal antipathy. Mr. Sutton vigorously advanced
the constitutional position of his client in the case, the
State of Alabama; doing so was entirely within the finest
traditions of the adversary system.

When Mr. Sutton was young, he regularly helped out at his father's
school for children with cerebral palsy. As Ohio State Solicitor, he
represented Cheryl Fisher, a blind woman who was refused admission to
medical school. Ms. Fisher wrote of Mr. Sutton, ``I recall with much
pride just how committed Jeff was to my cause. He cared and listened
and wanted badly to win for me. It was then I realized just how
fortunate I was to have a lawyer of Mr. Sutton's caliber so devoted to
working for me and the countless of others with both similar
disabilities and dreams.''
In National Coalition of Students with Disabilities v. Taft, Mr.
Sutton successfully argued that Ohio universities were violating the
federal motor-voter law by failing to provide disabled students with
voter registration materials. Benson A. Wolman, former Director of the
ACLU for Ohio and currently a member of its National Advisory Council,
who recruited Mr. Sutton to work on the case, wrote:

[Mr. Sutton's] commitment to individual rights, his
civility as an opposing counsel, his sense of fairness, his
devotion to civic responsibilities, and his keen and
demonstrated intellect all reflect the best that is to be
found in the legal profession.

Mr. Sutton also serves on the Board of the Equal Justice Foundation,
a public interest organization that provides pro bono legal services to
the disadvantaged. During his tenure on the board, the Foundation has
sued three Ohio cities to force them to build curb cuts to make their
sidewalks wheelchair accessible, sued an amusement park company that
banned disabled individuals from their rides, represented a mentally
disabled woman in an eviction proceeding against her landlord who tried
to evict her based on her disability, and represented a girl with
tubercular sclerosis in a case alleging that the school was not
properly handling her individual education plan.
I have received other letters from those who work in the disabled
community who support Mr. Sutton. Francis Beytagh, Legal Director of
the National Center for Law and the Handicapped, wrote:

I believe Jeff Sutton would make an excellent federal
appellate judge. He is a very bright, articulate and
personable individual who values fairness highly . . . I do
not regard him as a predictable ideologue . . . I recommend
and support his confirmation without reservation.

James Leonard, co-director of the University of Alabama's Disability
Law Institute, writes:

In my opinion, Jeffery Sutton is well-qualified to sit on
the Sixth Circuit Court and should be confirmed . . . I also
see no ``agenda'' on Mr. Sutton's part to target disabled
citizens . . . Just as I would not infer an anti-disabled
agenda from Mr. Sutton's participation in Garrett, neither
would I assume from his role in the Fisher case that he had
the opposite inclination. Rather, he seemed to be a good
lawyer acting in his client's interests.

Beverly Long, Immediate Past President of the World Federation of
Mental Health and former Commissioner of President Carter's Commission
on Mental Health writes:
I have followed news reports of the intense lobbying
against Mr. Sutton by various people who advocate on behalf
of the disabled. This effort is unfortunate and, I am
convinced, misguided. I have no doubt that Mr. Sutton would
be an outstanding circuit court judge and would rule fairly
in all cases, including those involving persons with
disabilities.

In addition, my good friend from Iowa mentioned that he sat next to
Senator Robert Dole at the Garrett arguments. Senator Dole, who has
always been a great champion of disability rights, has of course joined
the chorus of those who have written in support of Mr. Sutton.
There is simply no evidence to suggest that Mr. Sutton took the
Garrett case due to any personal agenda. It is a well-established
principle in the legal profession that lawyers should not be held
responsible for the positions of their clients. The ABA Model Rules of
Professional Conduct state, ``A lawyer's representation of a client,
including representation by appointment, does not constitute an
endorsement of the client's political, economic, social or moral views
or activities.'' Lawyers from across the country have written
suggesting that it is not appropriate to attribute a client's views to
the attorney, and it is certainly not appropriate in Mr. Sutton's case
specifically.
My distinguished colleagues' own constituent and good friend Bonnie
Campbell is included in those lawyers. She wrote, ``I strongly urge the
Senate to reject any unfair inference that Mr. Sutton's personal views
must coincide with positions he has advocated on behalf of clients. It
is, of course, the role of the advocate to raise the strongest
available arguments on behalf of a client's litigation position
regardless of the lawyer's personal convictions on the proper legal,
let alone policy, outcome of the case. I am confident that Mr. Sutton
has the ability, temperament, and objectivity to be an excellent
judge.''
In the Garrett case, Mr. Sutton was advocating for his client, the
State of Alabama. Just as accused murderers are entitled to
representation under the laws of this country, so are state
governments. Mr. Sutton has represented them both. We cannot attribute
the position of the State of Alabama to Mr. Sutton, and we should not
disparage him for fulfilling his ethical duty of zealous advocacy to
his client. If the Supreme Court chose to accept the arguments he put
forth on behalf of his client, we must respect its decision. While some
of us who worked so hard on that legislation understandably may be
disappointed, that disappointment should not be directed at Mr. Sutton.
The principle of judicial review is well-established; Mr. Sutton
ethically and honorably was fulfilling his role as an advocate. He has
no personal agenda against Americans with disabilities. I have no doubt
that if confirmed, Mr. Sutton will give any disabled American that
comes before him a trial that is fair, impartial, and consistent with
all our notions of justice.
I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER (Ms. Murkowski). The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.

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