[Congressional Record Volume 149, Number 61 (Monday, April 28, 2003)]
[Senate]
[Pages S5404-S5422]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

 NOMINATION OF JEFFREY S. SUTTON, OF OHIO, TO BE UNITED STATES CIRCUIT 
                      JUDGE FOR THE SIXTH CIRCUIT

  The PRESIDING OFFICER. Under the previous order, the Senate will now 
go to executive session to resume consideration of Executive Calendar 
No. 32, which the clerk will report.
  The legislative clerk read the nomination of Jeffrey S. Sutton, of 
Ohio, to be United States Circuit Judge for the Sixth Circuit.
  The PRESIDING OFFICER. The Senator from Ohio.
  Mr. DeWINE. Mr. President, I am pleased that today we are considering 
the nomination of Jeffrey Sutton to serve on the Sixth Circuit Court of 
Appeals. The Judiciary Committee had an opportunity to listen to Mr. 
Sutton answer questions a few months ago in what turned out to be a 
very lengthy hearing. Probably 60 to 70 percent of the questions asked 
during the 9\1/2\-hour hearing were directed at Mr. Sutton. Those of 
you who heard this testimony, my colleagues who had the opportunity to 
hear it or who maybe had the opportunity to review the transcript of 
that hearing, will no doubt attest to Mr. Sutton's keen intellect, his 
even temperament, and the depth of his legal knowledge. These 
attributes demonstrate why Jeffrey Sutton is one of the finest 
appellate lawyers in the United States today, and why he will be an 
excellent Federal judge.
  Mr. Sutton's legal and life experiences have been extensive. He spent 
the first part of his life living abroad. The Sutton family remained 
abroad until a couple of years before Mr. Sutton started high school. 
They returned to the States because his father took over a boarding 
school for children with severe cerebral palsy. For over 6 years, Jeff 
spent much of his time around the school doing odd jobs for his dad. He 
was deeply affected by this experience and by the interactions he had 
with these students. It reinforced what he had been taught by his 
parents, that serving others is an important calling and virtue.
  Mr. Sutton attended Williams College where he was a Lehman Scholar 
and varsity soccer player. He graduated with honors in history. After 
college, from 1985 to 1987, Mr. Sutton taught 7th grade geography and 
10th grade history while also serving as the coach of a high school 
varsity soccer team and a middle school baseball team.
  From there, he went on to law school and graduated first in his class 
from The Ohio State University College of Law, where he served as an 
editor of the Law Review. Mr. Sutton then clerked for Judge Thomas 
Meskill on the U.S. Court of Appeals for the Second Circuit. From this 
position, he went on to clerk for two U.S. Supreme Court justices--
retired Justice Lewis Powell and Justice Antonin Scalia.
  From 1995 to 1998, Mr. Sutton was the State Solicitor of Ohio, which 
is the State's top appellate lawyer.
  During his service, the National Association of Attorneys General 
presented him with the Best Brief Award for practicing in the U.S. 
Supreme Court--a recognition he received an unprecedented four years in 
a row.
  Jeff Sutton is currently a partner in the Columbus law firm of Jones, 
Day, Reavis & Pogue. He is a member of the Columbus Bar Association, 
the Ohio Bar Association, and the American Bar Association. He also has 
been an adjunct professor of law at The Ohio State University College 
of Law since 1994, where he teaches seminars on Federal and State 
constitutional law.
  Every lawyer who knows Jeff Sutton already knows he is one of the 
best lawyers in the country. Recently, The American Lawyer confirmed 
this by rating him one of its ``45 under 45''--that is, they named him 
as one of the top 45 lawyers in the country under the age of 45.
  He has appeared frequently in court, having argued 12 cases before 
the U.S. Supreme Court, where he has a 9 and 3 record. In the Supreme 
Court's 2000-2001 term, Mr. Sutton argued four cases--that's more cases 
than any other private practitioner in the country. Can you imagine 
preparing to argue one case before the Supreme Court, much less four? 
Mr. Sutton, by the way, won all four cases.
  Mr. Sutton also has argued twelve cases before the Ohio Supreme 
Court, six cases before various U.S. Courts of Appeals, and numerous 
cases before the State and Federal trial courts. And, over the years, 
Mr. Sutton has been the lawyer for a range of clients on a wide range 
of issues.
  Some of these cases were quite well known and at least one of them 
has already been raised in debate here on the Floor. For example, he 
represented the State of Ohio in City of Boerne v. Flores, the State of 
Florida in Kimel v. Florida Board of Regents, and the State of Alabama 
in University of Alabama v. Garrett.
  While many of the cases that he has argued are well known, I would 
like to take this opportunity to tell my colleagues about some of his 
lesser-known cases. Jeff Sutton represented Cheryl Fischer, a blind 
woman who was denied admission to a State-run medical school in Ohio 
because of her disability.
  He also represented the National Coalition of Students with 
Disabilities in a lawsuit alleging that Ohio universities were 
violating the Federal ``motor voter'' law by failing to provide their 
disabled students with voter-registration materials.
  Jeff Sutton also defended Ohio's minority set-aside statute against 
constitutional attack, and in another case he filed an amicus brief in 
the Ohio Supreme Court defending Ohio's hate-crimes statute on behalf 
of the NAACP, the Anti-Defamation League, and an assortment of other 
civil-rights groups. As this sampling of cases makes evident, Mr. 
Sutton has represented a variety of clients in the course of his career 
as an appellate lawyer. I think it is important for Senators to 
remember this fact as we consider Mr. Sutton's nomination.
  In addition to his professional work as a lawyer, Jeff Sutton has 
found an extraordinary amount of time to give back to his community. 
Between a demanding law practice and spending time with his wife Peggy 
and their three young children--Margaret, John, and Nathaniel--Mr. 
Sutton serves on the Board of Trustees of the Equal Justice Foundation, 
a non-profit provider of legal services to disadvantaged individuals 
and groups, including the disabled. He has spent considerable time 
doing free legal work, averaging between 100 and 200 hours per year. He 
is an elder and deacon in the Presbyterian Church, as well as a Sunday 
school teacher.
  He participates in numerous other community activities, including ``I 
Know I Can,'' which provides college scholarships to inner-city 
children, and ProMusica, a chamber music organization. He also coaches 
youth soccer and basketball teams.
  In conclusion, when considering Jeff Sutton's nomination, I encourage 
the Senate to consider his broad range of life experiences, as well as 
his stellar legal background. I also urge my colleagues to take into 
account his testimony and the very straightforward way that he answered 
the many questions posed to him during his confirmation hearing. He has 
been straightforward, and he has been frank with our committee. 
Finally, I encourage the Senate to consider Mr. Sutton's astute 
characterization of the role of a

[[Page S5405]]

Federal judge. As he said, a Court of Appeals judge must try at all 
times to ``see the world through other people's eyes.''
  I believe that is an excellent summary of one of the core 
responsibilities of an appellate court judge.
  Jeff Sutton understands well the skills and the temperament necessary 
to be a good federal judge. He has the intellect for the job, and I am 
confident that he will approach his duties on the bench in a pragmatic, 
tempered, and thoughtful way. I strongly support his nomination and 
encourage my colleagues to do the same.
  The PRESIDING OFFICER. The Senator from Iowa is recognized.
  Mr. HARKIN. Mr. President, just before we broke for the recess, I 
spoke here on the Senate floor for a short amount of time about the 
nomination of Jeffrey Sutton to be on the Sixth Circuit Court of 
Appeals and about the deep concerns I have about this nomination. I 
want to take more time today to explain my concerns that Mr. Sutton, I 
don't believe, will be able to put aside his own deeply felt and deeply 
held ideological views; that he will not be able to put aside his 
determination to be an activist judge and give people a fair and 
impartial hearing, especially when it comes to cases dealing with civil 
rights and, more specifically, when it comes to cases dealing with 
rights under the Americans with Disabilities Act.
  I had the opportunity to meet with Mr. Sutton for over an hour and a 
half in my office. We had a great conversation. I found him to be very 
personable. I listened to my friend from Ohio talking about how bright 
he was, that he is an accomplished attorney. I will grant all of that. 
He is a very bright, capable, and accomplished attorney. He has a great 
resume: Ohio State Law School, first in his class, and former Ohio 
Solicitor. He has argued cases before the U.S. Supreme Court, and he 
has won many of them. But qualifications are just one aspect of whether 
or not a person ought to have a life tenure--think about it: life 
tenure--as a Federal judge.

  Qualifications are certainly important, obviously. But that is only 
one part of the equation. The other part has to deal with this person's 
views. What is the historical analysis of what this person has both 
said and written in terms of how he would view his role as a Federal 
judge?
  So, again, I think we have a responsibility as Senators to take into 
account both the qualifications but also this other side of the agenda 
as to whether or not this person would be a Federal judge who could 
give a fair and impartial hearing to those who come before him.
  These are not occasions on which the Senate ought to just rubberstamp 
a nominee. This nominee was brought up on the evening before we went 
out for the break. No one was here. Now it is a Monday, and there are 
no votes today, so Senators are drifting back from their 2-week spring 
recess, and we are supposed to vote on Mr. Sutton tomorrow. I hope the 
majority leader will allow us a little bit more time to discuss this 
rather than asking Senators just to rubberstamp this nominee.
  I can tell you, after careful review of his advocacy, both inside and 
outside the courtroom, I am not convinced that Mr. Sutton would be able 
to put aside his personal agenda. I am not convinced that someone with 
a disability rights or civil rights claim would get a fair shake from 
Mr. Sutton. Especially, for me, I cannot support putting someone on a 
Federal bench who has worked to undermine the Americans with 
Disabilities Act.
  Again, many of my colleagues know that when I first came to the 
Senate in the mid-1980s, I began to work, as I had done in the House, 
with many disability groups around the country to finally address the 
glaring omission from the 1964 Civil Rights Act, that glaring omission 
being Americans with disabilities.
  So at that time I became chairman of the Disabilities Subcommittee on 
the then-Education, Labor, and Health Committee under the great 
leadership of Senator Kennedy. In fact, before I took over, it was 
Senator Lowell Weicker, a Republican, who had introduced the first 
version of the Americans with Disabilities Act, who became a great 
champion, and still is a great champion, for Americans with 
disabilities. So it was really a bipartisan effort in those days to get 
a civil rights bill through that closed that loophole of not having a 
Federal civil rights bill that covered people with disabilities.
  As many of my colleagues knew at that time--maybe some do today--I 
had a brother with whom I grew up who was deaf. I saw how he had been 
treated as a child, growing up, and as an adult, and how he was 
discriminated against simply because he had a disability.
  He was sent away at a young age halfway across the State of Iowa to 
attend the Iowa State School for the Deaf. In those days, they called 
it the ``School for the Deaf and the Dumb.'' As my brother once said: 
``I may be deaf, but I'm not dumb.'' But that is the way people were 
treated. In other words, if you had a disability, you were segregated, 
you were taken out of your home, out of your home community, without 
any consideration for the family or anything, and you were sent to an 
institution someplace; in this case, it was a school for the deaf.
  While he was there, my brother was told he could be one of three 
things: He could be a baker, a shoe cobbler, or a printer's assistant--
and nothing else. Well, he did not want to be any of those, so they 
said: OK, you're going to be a baker.

  Again, because he had a disability, because he could not hear, it 
was, I guess, accepted or thought that people had to be told what to 
do; they could not decide for themselves. Their horizons were limited. 
That was the real world in which I grew up, the real world of what 
happened to people with disabilities--travel, accommodations, jobs, 
employment, everything.
  So we in Congress began to look at this. What was it like in this 
country to be a person using a wheelchair? What was it like to be a 
person with cerebral palsy? What was it like to be a person with 
blindness? What was it like to be a person who was deaf, like my 
brother? What was it like? What were their lives like? How did they 
live? And how did our Constitution cover them? Were they equal to us? 
Were they equal to the nondisabled community in America? Or were they 
somehow discriminated against because of their disability?
  We in Congress did not just rush through a law, like Mr. Sutton says. 
We did not just have a bunch of staff with laptop computers and they 
just sort of turned it out. We laid the groundwork--years, years, years 
of accumulating data, of findings, of investigation, of hearings--a 
legislative record fully documenting the overwhelming evidence that 
discrimination in this country against people with disabilities was 
rampant--not a little bit here, not a little bit there, but rampant.
  At the time of the drafting of the ADA, we took care to make sure 
that this important civil rights law had the findings and the 
constitutional basis to pass muster with the U.S. Supreme Court.
  Here are some of the things we did: 25 years of studies by the 
Congress, going clear back to 1965 with the National Commission on 
Architectural Barriers; in 1974, the White House Conference on 
Handicapped Individuals; in 1983, the U.S. Civil Rights Commission 
published ``Accommodating the Spectrum of Individual Abilities,'' with 
a comprehensive report on discrimination against people with 
disabilities; in 1986, the National Council on Disabilities--I knew 
them well; they were the first group I started to work with when I came 
to the Senate--15 appointees by then-President Reagan, and their report 
documenting pervasive discrimination and the need for an omnibus civil 
rights statute.
  I am not going to go through them all, but, again: study after study, 
17 formal hearings by congressional committees and subcommittees, a 
markup by 5 separate committees, 63 public forums across the country, 
oral and written testimony by the Attorney General of the United 
States, Governors, State attorneys general, State legislators.
  We had in excess of 300 examples of discrimination by State 
governments in the legislative record--300 examples--and yet in the 
Garrett case--I will speak more about that; and I was there; I was 
sitting in the Supreme Court the day Mr. Sutton argued the case there--
Mr. Sutton said--and I could not believe my ears when I heard

[[Page S5406]]

it--he said there was really no evidence that this was needed, that 
basically States were doing a pretty good job, that the ADA was not 
needed. There were over 300 examples of discrimination by State 
governments.
  It took the tireless work of Democrats and Republicans, and when it 
passed the Senate, it passed 91 to 6. That is pretty overwhelming 
support. In the House, it passed 403 to 20. Attorney General 
Thornburgh, Republican Attorney General, the Chamber of Commerce, 
President Bush, the first one, stood with us. Why did we all stand 
together on the Americans with Disabilities Act? It was the right thing 
to do. Justice demanded it.
  At the time he signed the ADA into law, President Bush had many good 
things to say about it. I ask unanimous consent to print in the Record 
President Bush's statement.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

    Remarks by the President During Ceremony for the Signing of the 
                Americans With Disabilities Act of 1990


                             july 26, 1990

       THE PRESIDENT: Evan, thank you so much. And welcome to 
     every one of you, out there in this splendid scene of hope, 
     spread across the South Lawn of the White House. I want to 
     salute the members of the United States Congress, the House 
     and the Senate who are with us today--active participants in 
     making this day come true. (Applause.)
       This is, indeed, an incredible day. Especially for the 
     thousands of people across the nation who have given so much 
     of their time, their vision, and their courage to see this 
     Act become a reality.
       You know, I started trying to put together a list of all 
     the people who should be mentioned today. But when the list 
     started looking a little longer than the Senate testimony for 
     the bill, I decided I better give up. or that we'd never get 
     out of here before sunset. So, even though so many deserve 
     credit, I will single out but a tiny handful. And I take 
     those who have guided me personally over the years.
       Of course, my friends, Evan Kemp and Justine Dart up here 
     on the platform with me. (Applause.) And of course, I hope 
     you'll forgive me for also saying a special word of thanks to 
     two who--from the White House. But again, this is personal, 
     so I don't want to offend those omitted. Two from the White 
     House--Boyden Gray and Bill Roper, who labored long and hard. 
     (Applause.)
       And I want to thank Sandy Parrino, of course, for her 
     leadership, and I again--(applause)--it is very risky with 
     all these members of Congress here who worked so hard. But I 
     can say on a very personal basis, Bob Dole inspired me. 
     (Applause.)
       This is an immensely important day--a day that belongs to 
     all of you. Everywhere I look, I see people who have 
     dedicated themselves to making sure that this day would come 
     to pass. My friends from Congress, as I say who worked so 
     diligently with the best interest of all at heart, Democrats 
     and Republicans. Members of this administration--and I'm 
     pleased to see so many top officials and members of my 
     Cabinet here today who brought their caring and expertise to 
     this fight.
       And then, the organizations. So many dedicated 
     organizations for people with disabilities who gave their 
     time and their strength and, perhaps most of all, everyone 
     out there and others across the breadth of this nation are 43 
     million Americans with disabilities. You have made this 
     happen. All of you have made this happen. (Applause.)
       To all of you, I just want to say your triumph is that your 
     bill will now be law, and that this day belongs to you. On 
     behalf of our nation, thank you very, very much. (Applause.)
       Three weeks ago we celebrated our nation's Independence 
     Day. Today, we're here to rejoice in and celebrate another 
     ``Independence Day,'' one that is long overdue. With today's 
     signing of the landmark Americans for Disabilities Act, every 
     man, woman and child with a disability can now pass through 
     once-closed doors into a bright new era of equality, 
     independence and freedom.
       As I look around at all these joyous faces, I remember 
     clearly how many years of dedicated commitment have gone into 
     making this historic civil rights Act a reality. It's been 
     the work of a true coalition. A strong and inspiring 
     coalition of people who have shared both a dream and a 
     passionate determination to make that dream come true. It's 
     been a coalition in the finest spirit. A joining of Democrats 
     and Republicans. Of the Legislative and the Executive 
     Branches. Of federal and state agencies. Of public officials 
     and private citizens. Of people with disabilities and 
     without.
       This historic Act is the world's first comprehensive 
     declaration of equality for people with disabilities. The 
     first. (Applause.) Its passage has made the United States the 
     international leader on this human rights issue. Already, 
     leaders of several other countries, including Sweden, Japan, 
     the Soviet Union and all 12 members of the EEC, have 
     announced that they hope to enact now similar legislation. 
     (Applause.)
       Our success with this Act proves that we are keeping faith 
     with the spirit of our courageous forefathers who wrote in 
     the Declaration of Independence: ``We hold these truths to be 
     self-evident, that all men are created equal, that they are 
     endowed by their Creator with certain unalienable rights.'' 
     These words have been our guide for more than two centuries 
     as we've labored to form our more perfect union. But 
     tragically, for too many Americans, the blessings of liberty 
     have been limited or even denied.
       The Civil Rights Act of '64 took a bold step towards 
     righting that wrong. But the stark fact remained that people 
     with disabilities were still victims 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. (Applause.)
       This Act is powerful in its simplicity. It will ensure that 
     people with disabilities are given the basic guarantees for 
     which they have worked so long and so hard. Independence, 
     freedom of choice, control of their lives, the opportunity to 
     blend fully and equally into the rich mosaic of the American 
     mainstream.
       Legally, it will provide our disabled community with a 
     powerful expansion of protections and then basic civil 
     rights. It will guarantee fair and just access to the fruits 
     of American life which we all must be able to enjoy. And 
     then, specifically, first the ADA ensures that employers 
     covered by the Act cannot discriminate against qualified 
     individuals with disabilities. (Applause.) Second, the ADA 
     ensures access to public accommodations such as restaurants, 
     hotels, shopping centers and offices. And third, the ADA 
     ensures expanded access to transportation services. 
     (Applause.)
       And fourth, the ADA ensures equivalent telephone services 
     for people with speech and hearing impediments. (Applause.) 
     These provisions mean so much to so many. To one brave girl 
     in particular, they will mean the world. Lisa Carl, a young 
     Washington State woman with cerebral palsy, who, I'm told is 
     with us today, now will always be admitted to here hometown 
     theater.
       Lisa, you might not have been welcome at your theater, but 
     I'll tell you--welcome to the White House. We're glad you're 
     here. (Applause.) The ADA is a dramatic renewal, not only for 
     those with disabilities, but for all of us. Because along 
     with the precious privilege of being an American comes a 
     sacred duty--to ensure that every other American's rights are 
     also guaranteed.
       Together, we must remove the physical barriers we have 
     created and the social barriers that we have accepted. For 
     ours will never be a truly prosperous nation until all within 
     it prosper. For inspiration, we need look no further than our 
     own neighbors. With us in that wonderful crowd out there are 
     people representing 18 of the daily points of light that I've 
     named for their extraordinary involvement with the disabled 
     community. We applaud you and your shining example. Thank you 
     for your leadership for all that are here today. (Applause.)
       Now, let me just tell you a wonderful story--a story about 
     children already working the spirit of the ADA. A story that 
     really touched me. Across the nation, some 10,000 youngsters 
     with disabilities are part of Little League's Challenger 
     Division. Their teams play just like other, but--and this is 
     the most remarkable part--as they play at their sides are 
     volunteer buddies from conventional Little League teams. All 
     of these players work together. They team up to wheel around 
     the bases and to field grounders together and most of all, 
     just to play and become friends. We must let these children 
     be our guides and inspiration.
       I also want to say a special word to our friends in the 
     business community. You have in your hands the key to the 
     success of this Act. For your can unlock a splendid resource 
     of untapped human potential that, when freed, will enrich us 
     all.
       I know there have been concerns that the ADA may be vague 
     or costly, or may lead endlessly to litigation. But I want to 
     reassure you right now that my administration and the United 
     States Congress have carefully crafted this Act. We've all 
     been determined to ensure that it gives flexibility, 
     particularly in terms of the timetable of implementation; and 
     we've been committed to containing the costs that may be 
     incurred.
       This Act does something important for American business 
     though, and remember this--you've called for new sources of 
     workers. Well, many of our fellow citizens with disabilities 
     are unemployed, they want to work and they can work. And this 
     is a tremendous pool of people. (Applause.) And remember this 
     is a tremendous pool of people who will bring to jobs 
     diversity, loyalty, proven low turnover rate, and only one 
     request, the chance to prove themselves.
       And when you add together federal, state, local and private 
     funds, it costs almost $200 billion annually to support 
     Americans with disabilities, in effect, to keep them 
     dependent. Well, when given the opportunity to be 
     independent, they will move proudly into the economic 
     mainstream of American life, and that's what this legislation 
     is all about. (Applause.)
       Our problems are large, but our unified heart is larger. 
     Our challenges are great, but our will is greater. And in our 
     America, the most generous, optimistic nation on the face of 
     the earth, we must not and will not rest until every man and 
     woman with a dream has the means to achieve it.
       And today, America welcomes into the mainstream of life all 
     of our fellow citizens

[[Page S5407]]

     with disabilities. We embrace you for your abilities and for 
     your disabilities, for our similarities and indeed for our 
     differences, for your past courage and your future dreams.
       Last year, we celebrated a victory of international 
     freedom. Even the strongest person couldn't scale the Berlin 
     Wall to gain the elusive promise of independence that lay 
     just beyond. And so together we rejoiced when that barrier 
     fell.
       And now I sign legislation which takes a sledgehammer to 
     another wall, one which has--(applause)--one which has, for 
     too many generations, separated Americans with disabilities 
     from the freedom they could glimpse, but not grasp. Once 
     again, we rejoice as this barrier falls for claiming together 
     we will not accept, we will not excuse, we will not tolerate 
     discrimination in America. (Applause.)

  Mr. HARKIN. A lot of the work we did is being termed irrelevant. 
Somehow, according to Mr. Sutton, we did not do enough. You may be 
wondering why I go into all of this. Mr. Sutton says we didn't have the 
findings, basically.
  When I look back on the Supreme Court decisions handed down in the 
last few years, I am troubled that a lot of the work we have done on 
civil rights over the last 30 years is in jeopardy. In particular, I 
see a chipping away of the Americans with Disabilities Act, the bill 
that symbolizes the inclusion of people in our society. Mr. Sutton has 
held the hammer and the chisel.
  That is why I am convinced Mr. Sutton does not possess all of the 
qualities needed to serve a life tenure on the Sixth Circuit. I am not 
convinced that someone with a civil rights claim could walk in the 
courtroom and be confident they will get a fair shake.
  It is not the person himself that troubles me. It is his ideology. It 
is where he is coming from. It is what he has said and written and 
advocated. He has advocated for the proposition that civil rights 
protections for persons with disabilities belongs in the hands of each 
of the 50 separate States. His arguments before the Supreme Court 
articulate that States can do a better job of it than Congress and that 
we did not find enough evidence.
  We found the evidence, and it is there in the record. I don't know 
how anyone in the real world could say: Disability discrimination in a 
constitutional sense is really difficult to show.
  That is what Jeffrey Sutton said on National Public Radio October 11, 
2000. You will hear a lot of talk, probably today and leading up to the 
vote tomorrow, that Jeffrey Sutton was representing his clients. He 
said this on National Public Radio. He was not representing a client. 
He said: It is really difficult to show disability discrimination in a 
constitutional sense.
  The unfortunate history of unequal treatment of persons with 
disabilities in our country has been locked away in institutions for 
years: People with mental disabilities are subjected to involuntary 
sterilization; persons with severe hearing loss labeled, as my brother, 
deaf and dumb; and for way too many years, those who were blind forced 
to sell pencils on the street corner for a living.
  Mr. Sutton seems to have an extremely limited view of our authority 
as Congress to legislate in this important civil rights area, as well 
as others. From his arguments before the Supreme Court, he seems to 
believe each State does its job to protect the constitutional rights of 
persons with disabilities as the State sees fit. After what I saw, what 
I heard after all these many years, all the hearings and the record, I 
can't fathom anyone would actually reach the conclusion that the States 
were doing a good job protecting people with disabilities. Some States, 
yes, had pretty decent laws on the books covering people with 
disabilities. Other States did not.
  But I ask, as an American citizen, as a citizen of the United States, 
should your civil rights depend on your address? Should your civil 
rights depend on the State in which you happen to live?
  I believe the Constitution and civil rights cover us all. And what we 
found during all these years, all the hearings, the record, was that 
there was a patchwork quilt of laws around the country so if you were 
in a State, maybe, that didn't have very good laws and protection of 
people with disabilities, the only way you could ensure your civil 
rights was to move to another State. I don't believe that is what the 
Constitution intends when it covers all Americans with civil rights.

  Again, people will say: Mr. Sutton was just defending his clients. He 
was duty bound to advocate on behalf of his clients.
  I am a lawyer. I know the professional code of conduct. But that 
doesn't tell the whole story. Mr. Sutton has written articles, 
participated in radio talk shows and panel discussions, where he has 
expressed his own personal views--not his clients', his views. That 
kind of publicity is not required by his role as a lawyer advocating on 
behalf of clients. It is clear to me this lifetime appointment would be 
detrimental to the civil rights that protect all Americans. He 
zealously advocates for States rights at the expense of individual 
rights. Persons with disabilities, senior workers, people of color, and 
underprivileged children deserve better.
  More than 400 disability rights and civil rights groups agree. This 
chart depicts that. More than 400 have come out in opposition to Mr. 
Sutton being on the Sixth Circuit.
  Jeffrey Sutton did not have to talk to the Legal Times about his 
pursuit of federalism cases. I want to speak about not the clients he 
has represented but what he said outside of the courtroom. In a 
November 2, 1998 article, the reporter writes that Mr. Sutton told him 
he and his staff were ``always on the lookout for cases coming before 
the court that raise issues of federalism or will affect local and 
State government interests.'' He is quoted as saying:

       It doesn't get me invited to cocktail parties, but I love 
     these issues. I believe in this federalism stuff.

  From the cases he has aggressively pursued, his view is that State 
power trumps the rights of U.S. citizens. I believe in States rights, 
too, to do certain things. One of the geniuses of our system is 50 
different States experimenting in doing things. But when it comes to 
basic human rights, civil rights, we are all U.S. citizens. As I said, 
we should not let a State decide what our civil rights are. That is 
decided by the Constitution. My freedom of speech should not depend on 
whether I am in Iowa or California or Georgia or wherever. It is the 
fact that I am a U.S. citizen, here in this country. The Bill of Rights 
covers us all regardless of the State in which we may happen to live.
  On National Public Radio he said:

       As with age discrimination, disability discrimination in a 
     constitutional sense is really very difficult to show.
  That was on National Public Radio, October 11, 2000. I guess, 
according to Mr. Sutton, all of the hearings we had, all of the 
markups, all of the public forums, all of the witnesses, all of the 
examples, do not mean a thing. What matters to him is his narrow view 
that it is up to the States to take care of this.
  Now, again, on that same NPR radio broadcast, Mr. Sutton said:

       I think it's a positive attribute of this system of divided 
     government that when 51 different sovereigns [including the 
     District of Columbia there], 51 different legislatures [we 
     don't have that here in the District of Columbia] 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.

  He wasn't representing a client here. These are his own personal 
views. What happens when a State wins in these competitions? Do they 
get a prize? What about the people who are in the ``losing'' States? 
Are they out of luck? As I said before, do they have to move to another 
State?
  After listening to all of the testimony on the ADA over a several 
years period of time, I find it hard to believe the 50 States were 
competing for the best solution on disability discrimination.
  In 1997, Mr. Sutton served as a moderator for a panel discussion 
sponsored by the Federalist Society. As the moderator, Mr. Sutton 
criticized States for sacrificing ``federalist principles in order to 
obtain near-term politically favored results.''
  I am not certain I know what that means, but I do know it is an 
opinion. He wasn't representing a client. It is his opinion. I think it 
is an opinion that State officials should challenge things like the ADA 
and civil rights laws that cover the elderly, and the Violence Against 
Women Act.

[[Page S5408]]

  According to Mr. Sutton, the reason they don't contest a lot of this 
is because they don't want to upset the respective constituency with 
what those constituents would probably consider bad policy. I can think 
of a lot of people in my State who would consider it bad policy to 
allow discrimination against people with disabilities. Mr. Sutton said 
he was ``frustrated that, in the pursuit of particular political goals, 
the States are not rising up together and defending their authority 
against the encroachments by Congress.'' Frustrated? To me, that is a 
personal opinion, a personal emotion. I think the majority of us 
experience frustration when someone is adamant about disagreeing with 
us. We get frustrated when someone doesn't agree with our point of 
view. So he is ``frustrated that States are not rising up together''--
these are his words--``and defending their authority against 
encroachments by Congress.''
  If he is frustrated, he must think that is what they should do. Maybe 
he is agitated because the States and Federal civil rights laws are 
different than what he would want. Maybe most States don't see them as 
encroachments on their State authority.
  A lot of States are not joining in his extreme views on congressional 
authority to pass civil rights laws. Some States see it differently 
than Mr. Sutton. Fourteen State attorneys general signed on in support 
of Patricia Garrett in Garrett v. Alabama. Arizona, Connecticut, 
Illinois, Iowa, Kentucky, Maryland, Massachusetts, Missouri, New 
Mexico, New York, North Dakota, Vermont, and Washington wrote saying 
that Congress had the authority to enact the ADA. The 14 States I just 
named opposed Alabama's position represented and argued by Mr. Sutton.
  Mr. Sutton seemed to favor a States rights philosophy in civil rights 
based on a personal opinion about what Congress is and what Congress 
does and how we do our work. Listen to this on the Violence Against 
Women Act, on which we had extensive findings that supported the 
passage of that law. He said in an article for the Federalist Society--
again not representing a client, but in his own writing:

       Unexamined deference to the VAWA [Violence Against Women 
     Act] factfindings . . . would give to any congressional 
     staffer with a laptop the ultimate Marbury power--to have the 
     final say over what amounts to interstate commerce. . . .

  Evidently, we Senators and Congressmen, with all these hearings, all 
of the investigations, all of the public forums, all of the testimony 
we have, all of the examples we have compiled--it doesn't mean 
anything. Evidently, we don't do that. We just have staffers with 
laptops and they churn out civil rights legislation.
  Finally, in another article for the Federalist Society in 2001, Mr. 
Sutton stated his belief that federalism is a ``zero-sum'' situation in 
which either a State or Federal lawmaking prerogative ``must fall.'' He 
wrote:

       The National Government in these types of cases invariably 
     becomes the State's loss and vice versa.

  Think about that. Passing the Americans with Disabilities Act becomes 
a State's loss. How can Mr. Sutton hold such a view, that we break down 
the barriers of discrimination long held in our society against people 
with disabilities; and he says the Federal Government wins, the State 
governments lose. Well, quite frankly, we all saw it differently--
Republicans and Democrats. We saw this as a win-win. Everyone wanted 
this. American citizens wanted it when we broke down these barriers. 
Statutes like the ADA set a minimum bar for the country. States can 
always do more, but we passed a minimum bar. To me, that is not a zero-
sum game. I don't see the Federal Government winning and States losing 
on that. I see all of us winning when we become a more inclusive 
society.
  So, again, it is not Mr. Sutton's clients who are driving these 
issues. It is not just the fact that Mr. Sutton advocated for his 
clients, as we will hear and have heard and will continue to hear. It 
is what Mr. Sutton himself believes. It is how he feels. It is his 
views on whether or not we here in the Congress have the authority to 
pass civil rights legislation. According to him, no, we don't. The 
record, Mr. President, was replete. We didn't just pass it overnight, 
as I said.
  We had case after case after case, and I can mention a few. There was 
the zookeeper who would not admit a child with mental retardation to 
the zoo because it would upset the chimpanzees. Another child with 
cerebral palsey was kept out of school because the teacher said his 
appearance ``nauseated'' his classmates.
  What does all this discrimination do to those children with 
disabilities as they grow up? We had a woman who said:

       We can just go on so long constantly reaching dead ends. I 
     am broke, degraded, angry, and have attempted suicide three 
     times. I know hundreds. Most of us try, but which way and 
     where can we go?

  Well, in Mr. Sutton's America, she cannot go to the U.S. Congress. 
Despite all of the evidence, Congress did not have the power to pass 
the Americans with Disabilities Act because of States rights. We 
appointed a task force, led by Justin Dart. We went all over the Nation 
and had 63 meetings, as I said. Justin Dart heard from over 8,000 
people in 50 States. He gathered stacks and stacks of letters into 
evidence. Just as an example from a health administrator who is blind. 
He wrote:

       When I walked into the office of one department head, he 
     looked at me and said, ``Ah--if I knew you were blind, I 
     wouldn't have bothered bringing you in for an interview.''

  Prior to the ADA, that was all right. A person could be denied a job 
because he was blind, even though he was fully qualified for it.
  We have to go back to July 26, 1990. Well, let's go back to July 25, 
1990. On July 25, 1990, if one was a person of color, say an African 
American, and they saw an ad in the paper for a job for which they were 
qualified, and they went down to interview for this job and their 
prospective employer took a look at them and said, get out of here, I 
am not hiring black people--probably would have used a word worse than 
that--on July 25 of 1990, he could have walked out of that door, gone 
right down the street to the courthouse and filed a lawsuit for a 
violation of his civil rights.
  The same day, July 25, 1990, a person using a wheelchair sees an ad 
in the paper for a job for which they are qualified. They roll their 
wheelchair down there, go in the door, and the prospective employer 
looks at them and says, get out of here; I am not hiring your kind; 
cripples, get out of here. I do not want anybody like you around here. 
The person rolled their wheelchair out of there and went down to the 
courthouse on July 25, 1990, but guess what, the courthouse door was 
locked. They could not get in because they had no cause of action.
  On July 25, 1990, as it had been for hundreds of years before, to 
discriminate against a person on the basis of their disability was not 
a violation of their civil rights. But on July 26, 1990, after 
President Bush signed it into law, if a person rolled their wheelchair 
down there and someone said, get out of here; I am not hiring people in 
wheelchairs, they could roll their wheelchair down to the courthouse 
door and, just like African Americans, or national origin, religion, or 
sex, they could then get in the courthouse door. Think about that. 
Before that, they could not do anything.
  I will be honest and say some States did have certain laws on the 
books that might have protected people with disabilities. A lot of 
States did not. That is why we found this patchwork quilt. So a 
person's civil rights depended upon what State they lived in. We said, 
that is not correct. We said, that should not be so.
  Well, Mr. Sutton's view that the Americans with Disabilities Act is 
not needed would turn us back to July 25, 1990, where one could be 
discriminated against.
  I suppose Mr. Sutton might say, well, that was then; this is now. 
States are more enlightened now. Surely they would not do anything like 
that now.
  A couple of years ago--I think 4 years ago, if I am not mistaken--
Patricia Garrett, from Alabama, had breast cancer. Patricia Garrett is 
right here in this picture. She went for medical attention, had 
surgery, chemotherapy, and then she returned to her work as a nursing 
supervisor.
  Her boss wanted to get rid of her, not because she could not do her 
job but because her boss did not like having people around who were 
sick and had cancer. So Mrs. Garrett lost her job. She had to take a 
lower-paying job, but she decided to fight back. This was in 1997.

[[Page S5409]]

  Six years later, she is still fighting in the courts about whether 
Congress had the ability to pass a law that applied to her because 
Alabama did not. She had to litigate whether Congress could pass the 
ADA.
  Just as an aside, now Alabama claims she cannot sue under the Rehab 
Act either.
  The Garrett case had to do with whether or not Congress had the power 
to pass Title I of the ADA so it applied to all the States. Mr. Sutton 
argued for Alabama and against Mrs. Garrett that all 50 States had laws 
about disability discrimination and therefore Federal laws were not 
needed. Mrs. Garrett's case today shows why that argument is so wrong 
and why it is so harmful to individuals whose civil rights are being 
violated.

  Mrs. Garrett could not have sued her employer, the University of 
Alabama, using State law. The State of Alabama had no enforceable law. 
They had some nice policy statements but no law. That is why we had to 
pass the ADA.
  As I said earlier, and I will keep saying it, one's civil rights 
should not depend on their address. It is the role of Congress to enact 
national legislation to protect people from discrimination wherever 
they might live.
  Mrs. Garrett did not want to rely on her State for her civil rights. 
She said:

       Mr. Sutton has described the relationship between Congress 
     and the States as a zero sum game where only one side can 
     win. It is distressing that someone with this view could be 
     nominated as a Federal appeals judge. In Mr. Sutton's eyes, 
     I, and others with disabilities, seem to be pawns in a game 
     of power between the Federal Government and the States.

  That was Mrs. Garrett at a press conference last month. Mrs. Garrett, 
and the millions of Americans with disabilities, do not want to be 
pawns in a power game. They want Federal civil rights laws to apply to 
them no matter where they live. They want Federal civil rights laws 
that protect them from a boss who does not like sick people or a 
potential boss who would not even consider them because of their 
disability.
  The 14th amendment of the Constitution gives Congress the power to 
provide that protection. The whole point of it is to give Congress the 
ability to do something when individuals are denied their rights and 
treated unequally as U.S. citizens. In my mind, that was the original 
intent of the amendment.
  So, again, when one listens to Mr. Sutton, what he said--and again, 
this is not a court case. This is Mr. Sutton outside the courtroom. He 
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.

  Mr. Sutton said that on the radio, not in a courtroom with a client, 
but of himself he said that. So what does this mean? Does this mean Mr. 
Sutton thinks it is a positive outcome--let's see, what did he say? He 
said, a positive attribute. Does he think it is a positive attribute 
that Mrs. Garrett is out of luck in Alabama, but she would be in luck 
if she lived in another State? Is that a positive attribute?
  Should Mrs. Garrett have to move to another State to have her civil 
rights enforced because some States enforce it more than others or have 
laws on the books, leave her home, leave her friends, leave her family 
in Alabama to go somewhere else?
  In our Senate report, Harold Russell, the chairman of the President's 
Committee on the Employment of People with Disabilities, said:

       The 50 State Governors' Committees with whom the 
     President's committee works report that existing State laws 
     do not adequately cover such acts of discrimination.

  The 50 States Governors' Committees with whom the President's 
committee works report that existing State laws do not adequately cover 
such acts of discrimination against people with disabilities.
  According to Mr. Sutton, Congress should not have the power to make 
that determination and people with disabilities have to just hope their 
State is going to take care of them.
  Perry Tillman, a Vietnam veteran, testified before a Senate 
subcommittee, and he said: ``I did my job when I was called on by my 
country. Now it is your job and the job of everyone in Congress to make 
sure that when I lost the use of my legs in battle, I did not lose my 
ability to achieve my dreams.''
  Under Mr. Sutton's theory of federalism, Mr. Tillman would still be 
waiting for the American with Disabilities Act to help him achieve his 
dreams.
  Mr. Sutton has a clear lack of understanding of Congress's role in 
civil rights laws. Should we put on the Federal bench for life a 
nominee who basically says staffers with laptops are deciding what the 
Constitution of the United States says by relying upon the 14th 
amendment to the Constitution?
  I may have my differences with Senators on one side of the aisle or 
the other. We have good healthy debates here. We may not view 
everything the same. I think that is healthy. I don't know of laws that 
are passed of this magnitude that cover civil rights that are not 
thoroughly investigated, aired, hearings, reports, findings, over a 
long period of time. It is not just some, as he said, ``staffer with a 
laptop.''
  We found time and time again that there were reasons to have this 
law. We found discrimination against individuals persisting in critical 
areas of employment in the private sector as well as the public sector, 
as well as State government. I cannot understand why Mr. Sutton feels 
that after all this we should have not only the right but the 
responsibility to do something. Mr. Sutton has a narrow view because he 
believes this ought to be only in the States and not the Federal 
Government. That would be a dangerous precedent to set.
  Let's look at the Olmstead case. Mr. Sutton did not argue this case 
but he wrote the brief for it. Let's think what would happen in the 
Olmstead case if Mr. Sutton's view prevailed.
  In the Olmstead case, in Georgia, two women brought suit, arguing 
that their needless confinement in a mental institution violated the 
Americans with Disabilities Act. Mr. Sutton wrote the brief for that 
case for the State of Georgia. Under his theory, the ADA did not 
specifically address needless confinement of people with disabilities. 
Imagine that. He wrote, ``The issue of deinstitutionalization simply 
was not before Congress, was not raised by Congress, was not debated by 
Congress during the adoption of the ADA.'' That is what Mr. Sutton said 
in his brief.
  Mr. Sutton may be a bright individual but he did not do his homework 
on this one. One does not have to look further than the findings of the 
ADA to see that Congress addressed this issue precisely when we passed 
the ADA. Our findings specifically state: ``Discrimination against 
individuals with disabilities persists in such critical areas as 
institutionalization.'' Mr. Sutton says it was not raised by Congress. 
It was. We said it. Either Mr. Sutton is ignoring this or he simply did 
not do his homework, and whoever did his research did not do good 
research.
  We in Congress also specifically found ``individuals with 
disabilities continually encounter various forms of discrimination 
including segregation.'' Institutionalization, segregation--that is 
what we found. Mr. Sutton says that is not enough. Once again, Mr. 
Sutton was ignoring our specific findings, arguing somehow that we had 
not done enough to show that we meant to end the practice of needlessly 
locking people in institutions.
  Listen to this argument of Mr. Sutton. He said the discrimination 
``necessarily requires uneven treatment of similarly situated 
individuals.'' In other words, you have to show that people without 
disabilities were treated better than people with disabilities. He 
writes, ``no class of similarly situated people were even identified.''

  But the Court said no. The Court said dissimilar treatment 
correspondingly exists in this key respect. In order to receive needed 
medical services, persons with mental disabilities must, because of 
those disabilities, relinquish participation in community life they 
could enjoy given reasonable accommodations, while persons without 
mental disabilities can receive the medical services they need without 
similar sacrifice.
  For Lois Curtis and Elaine Wilson, two women in this case, if Mr. 
Sutton's views had prevailed, they still would be locked up. Lois spent 
most of her life in an institution, since the age of 14. Elaine had 
been living in a locked ward of a psychiatric hospital for over a year. 
She told the district court judge in the case that when she lived in 
the institution she felt like she was sitting

[[Page S5410]]

in a little box with no way out. Day after day, the same routine, same 
four walls. No wonder Elaine felt like she was in a little box. The ADA 
was designed to break apart that box. So Elaine and Lois brought suit 
under the ADA, arguing that their segregation was discrimination.
  As I mentioned, our findings in the ADA clearly stated that people 
with disabilities continually encounter various forms of 
discrimination, including segregation, and that discrimination persists 
in critical areas such as institutionalization.
  Fortunately, the Supreme Court disagreed with the State of Georgia 
and with Mr. Sutton. The Court talked about the two reasons, to 
conclude that needless segregation is discrimination.
  First, needless segregation perpetuates unwarranted assumptions that 
persons so isolated are incapable or unworthy of participating in 
community life; second, that confinement in an institution diminishes 
the everyday activities of individuals. The Court was focusing on what 
matters and how it affects real people.
  I mentioned that Lois Curtis and Elaine Wilson were institutionalized 
for many, many years. How do they live today? Elaine now lives in a 
house with a caretaker and a friend. Elaine shops, chooses her own 
clothes, attends family events and celebrations. Lois has close friends 
in her group home. She visits them all, picks out her own clothes, has 
favorite meals, plans a menu. At a hearing in the case, Lois and Elaine 
spoke of the little things that have changed. They can make Kool-Aid 
when they want to make it. They can go outside and take walks anywhere 
they want to go. We all take it for granted that we are going to choose 
what we eat, what we drink, what clothes we are going to put on in the 
morning, and where we are going to go to take a walk. But those kinds 
of ordinary activities are not ordinary if you are in an institution 
and someone else dictates every aspect of your life.

  In Mr. Sutton's world, Elaine and Lois would still be living in the 
institution. You know what Mr. Sutton would say? I am sure he would 
say: Gee, that's just too bad, but that's the State law. That is the 
Georgia State law.
  What are Elaine and Lois supposed to do, move? They are locked up in 
a mental hospital. They are locked up in wards. They cannot even leave 
of their own volition. That is Mr. Sutton's world--tough, tough that 
they have to live in a State where they institutionalize people. That 
is why we passed the Americans with Disabilities Act, to get people out 
of institutions, to get them into the communities and give some dignity 
and value to their lives outside an institution. That is precisely why 
we passed the ADA. But Mr. Sutton says: Sorry, Congress did not have 
the authority to do that.
  We all know the law can be a straitjacket if that is the way you want 
to interpret the law or the law can give you freedom, the ability to 
develop and grow and expand your horizons, to have dreams and be able 
to live out your dreams. The law can do that or the law can shatter 
you. The law can put you in an institution. The law can send you to the 
State school for the deaf and dumb.
  Mr. Sutton's view is that narrow view of law that, if the State 
doesn't do it, you are out of luck. But as I said, after it is all 
over, we are all U.S. citizens, and our civil rights should not depend 
on where we live.
  That is why I have taken this time and will take some more time to 
talk about Mr. Sutton and why he should not be approved to sit on the 
Sixth Circuit Court of Appeals.
  Sometimes these are tough decisions. As I said, I met with Mr. 
Sutton. He seems like a fine individual. He would probably be a good 
neighbor. That is not the point. When he puts on that robe for life and 
he sits on that circuit court, Elaine Curtis or Lois Wilson or Pat 
Garrett--what are their chances if they have to appear before Mr. 
Sutton?
  Every time I read the things Mr. Sutton has said about inadequate 
findings, leaving it to the States, I am reminded what Justice Thurgood 
Marshall said in his concurring opinion in City of Cleburne:

       A regime of state-mandated segregation and degradation soon 
     emerged that in its virulence and bigotry rivaled, and indeed 
     paralleled the worst excesses of Jim Crow. Massive custodial 
     institutions were built to warehouse the retarded for life . 
     . . Many disabled children were categorically excluded from 
     public schools based on the false stereotypes that all were 
     uneducable, and on the purported need to protect nondisabled 
     children from them. State laws deemed the retarded ``unfit 
     for citizenship.''

  Justice Marshall further pointed out:

       The mentally retarded have been subject to a lengthy and 
     tragic history of segregation and discrimination that can 
     only be called grotesque.

  That is what we were facing when finally the Congress of the United 
States stepped up and passed the Americans with Disabilities Act. 
People were institutionalized, segregated, taken from their families, 
taken from their communities, excluded from going to school. I can't 
tell you how many people I have met in my sojourn through all these 
years of fighting for disability rights--I can't tell you how 
many people I have met with cerebral palsy whose bodies didn't work 
right and maybe they couldn't control their muscles, maybe their heads 
hung down, maybe they drooled, maybe they couldn't communicate 
verbally, but inside that body was a brilliant mind with the capability 
to contribute to our society. They had the ability to dream and to live 
out those dreams. Yet they were excluded from education simply because 
they had cerebral palsy.

  If you haven't seen the movie ``My Left Foot,'' which came out almost 
20 years ago now, I think you ought to see it. That was exactly the 
case there. The person could only use his left foot to write, but what 
a brilliant writer he became. And he was excluded simply because he had 
a disability.
  As I said earlier, how many blind people were confined to selling 
pencils? How many people using a wheelchair were discriminated against 
because they wouldn't make a minor modification at a workplace so that 
person could do the job?
  We take curb cuts for granted. We take ramping for granted. We take 
wide doors for granted. It was not too many years ago there were not 
any curb cuts and there were not ramps and there were not wide doors 
and there were not accessible bathrooms.
  My nephew Kelly was injured in the line of duty in the military. He 
became a quadriplegic. While I have seen how society had discriminated 
against my brother who was deaf, I guess I had not realized the 
discrimination in our society against someone using a wheelchair until 
I saw what Kelly had to go through just to get an education. They 
didn't have ramps. If the class was on the third floor and they didn't 
have an elevator--tough luck; he couldn't take the class. If it was in 
a building where there were steps and there was not a ramp--tough luck; 
he would have to go someplace else--going into a restaurant; going to a 
movie theater just to watch a movie, be turned away; we don't allow 
wheelchairs in here; out of here. Get out of here; you can't watch a 
movie. Later on, they would have a place up in the back to put a few 
wheelchairs, if they came. But you couldn't sit with your friends and 
your family. I saw what they had to go through. That is why we passed 
the Americans with Disabilities Act. Some States had better laws than 
others. One would have to kind of look and see which States are best 
for this law and that law, and move there away from their family, 
friends, and community. Things are a lot better. But we didn't get that 
way because we relied upon 50 different States in passing 50 different 
laws dealing with disabilities. We got there because the U.S. Congress 
saw its responsibility to break down the barriers of discrimination and 
to for once and for all say people with disabilities are every bit as 
much of an American as you, me, or anybody else; that there shouldn't 
be artificial barriers and real barriers; and that there should be 
accommodations made.

  Mr. Sutton says we didn't have enough findings. He said the ADA was 
not needed. Tell Pat Garrett that. Tell Lois Curtis and Elaine Wilson 
that the ADA wasn't needed to get them out of the institutions they 
were in and to give them their freedom as human beings and as American 
citizens to live outside of an institution. Tell them that the ADA was 
not needed. Tell my nephew Kelly that the Americans with Disabilities 
Act wasn't needed.
  Mr. Sutton can say all he wants and people here can argue, Well, he 
was

[[Page S5411]]

just representing his clients. But as I have said and will continue to 
point out, it wasn't just his clients. It was what he said and what he 
wrote outside of the courtroom.
  I believe also his opinions and his views are that Congress doesn't 
have this power--this right--to pass civil rights legislation.
  In The Legal Times, as I said, on November 2, 1998, Mr. Sutton was 
quoted as saying, ``It doesn't get me invited to cocktail parties. But 
I love these issues. I believe in federalism stuff.''
  He said on National Public Radio--not in a court case but on National 
Public Radio--``As with age discrimination, disability discrimination 
in a constitutional sense is really very difficult to show.''
  Seventeen hearings, 5 committee markups, 63 public forums across the 
country, 8,000 pages of transcripts, oral and written testimony from 
the Attorney General of the United States, Governors, State Attorneys 
General, legislators--on and on--and he said it is difficult to show.
  As I said, it is either clear that he doesn't understand how Congress 
works or he understands but disdains what we do here in the area of 
civil rights and civil liberties.
  These comments and others seem to suggest Mr. Sutton was doing much 
more than merely advocating a response, and, in fact, reveal an extreme 
view of federalism that promotes State power over the rights--the civil 
rights--of a U.S. citizen.
  I know it is said, Well, Mr. Sutton has represented the other side, 
but we have looked and we have not found any case Mr. Sutton has taken 
that would be on the opposite side of States rights--not one. My friend 
from Utah said Mr. Sutton represented people with disabilities and sits 
on a board that looks out for the interests of people with 
disabilities. I took a look at that. Mr. Sutton, for the Record, did 
represent the National Coalition for Students with Disabilities in a 
case brought in Federal district court, alleging that the Ohio 
Secretary of State violated the National Voter Registration Act 
regarding voter registration sites for persons with disabilities. The 
case was filed on November 6, 2000. Mr. Sutton was nominated for the 
Sixth Circuit vacancy on May 9, 2001, and it appears Mr. Sutton did not 
become the attorney of record until April 26, 2002.
  It was said earlier by my friend from Ohio that Mr. Sutton 
represented Cheryl Fischer in her attempt to gain admission to Case 
Western University Medical School. Ms. Fischer, who is blind, dreamed 
of becoming a psychiatrist. The university wouldn't admit her to 
medical school because of her disability. Yes. Mr. Sutton worked on 
this case. But he did not represent Cheryl Fischer. As Ohio's 
solicitor, Mr. Sutton represented the Ohio Civil Rights Commission 
because it was his job. Cheryl Fischer's attorney was Thomas Andrew 
Downing.
  Again, I know others are on the floor to speak and I don't want to 
hold up the floor any longer. But I think it is clear that all Mr. 
Sutton has said, all that he has written, and views espoused by him, 
give us nothing other than a portrait of an individual with extreme 
views on States rights--a person who will be an activist judge, a 
person who is an ideologue.
  I quote from the New York Times editorial of this morning entitled 
``Another Ideologue for the Courts.''

       Mr. Sutton argued a landmark disability rights case in the 
     Supreme Court. Patricia Garrett, a nurse at an Alabama state 
     hospital, asserted that her employer fired her because she 
     had breast cancer, violating the Americans With Disabilities 
     Act. Mr. Sutton argued that the act did not protect state 
     employees like Ms. Garrett. His states'-rights argument 
     narrowly won over the court, and deprived millions of state 
     workers of legal protection. He also invoked federalism to 
     urge the court to strike down the Violence Against Women Act. 
     It did so, 5 to 4, dismantling federal protection for sexual 
     assault victims. Mr. Sutton has said that he was only doing 
     his job, and that his concern was building a law practice, 
     not choosing sides. But throughout his career, he has taken 
     on major cases that advance the conservative agenda. He has 
     left little doubt in his public statements that he supports 
     these rulings.

  I ask unanimous consent that the New York Times editorial be printed 
in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                [From the New York Times, Apr. 28, 2003]

                    Another Ideologue for the Courts

       It seems likely that Jeffrey Sutton, a nominee to the 
     United States Court of Appeals for the Sixth Circuit in 
     Cincinnati, will be confirmed by the Senate this week. But it 
     is important to recognize why he was selected, and how he 
     fits the Bush administration's plan for an ideological 
     takeover of the courts. Whichever way the Senate votes on 
     him, it must insist that the administration start selecting 
     judges who do not come with a far-right agenda.
       There is no shortage of worthy judicial nominees. Federal 
     courts are filled with district court judges, Republicans and 
     Democrats, who have shown evenhandedness and professionalism, 
     and many would make fine appeals court judges. State courts 
     are overflowing with judges and lawyers known for their 
     excellence, not their politics.
       The Bush administration, however, has sought nominees whose 
     main qualification is a commitment to far-right ideology, Mr. 
     Sutton is the latest example. He is an activist for 
     ``federalism,'' a euphemism for a rigid states'-rights legal 
     philosophy. Although federalism commands a narrow majority on 
     the Supreme Court, advocates like Mr. Sutton are taking the 
     law in a disturbing direction, depriving minorities, women 
     and the disabled of important rights.
       Mr. Sutton argued a landmark disability rights case in the 
     Supreme Court. Patricia Garrett, a nurse at an Alabama state 
     hospital, asserted that her employer fired her because she 
     had breast cancer, violating the Americans With Disabilities 
     Act. Mr. Sutton argued that the act did not protect state 
     employees like Ms. Garrett. His states'-rights argument 
     narrowly won over the court, and deprived millions of state 
     workers of legal protection. He also invoked federalism to 
     urge the court to strike down the Violence Against Women Act. 
     It did so, 5 to 4, dismantling federal protection for sexual 
     assault victims. Mr. Sutton has said that he was only doing 
     his job, and that his concern was building a law practice, 
     not choosing sides. But throughout his career, he has taken 
     on major cases that advance the conservative agenda. He has 
     left little doubt in his public statements that he supports 
     these rulings.
       At his confirmation hearing, Mr. Sutton faced protesters 
     with guide dogs and wheelchairs, who were upset about his 
     role in rolling back disability law. Naturally, they urged 
     the Senate to reject him. But the senators' duty to advise 
     and consent goes beyond their vote on any particular nominee. 
     They must make it clear that in a nation brimming with legal 
     talent, it is unacceptable to focus the search for federal 
     judges on a narrow group of idealogues.

  Mr. HARKIN. Mr. President, no doubt Mr. Sutton is a very bright 
individual. He is very capable. He has argued cases before the Supreme 
Court. I don't argue his qualifications--not a bit. But I do argue his 
views--his views which, if he is permitted to take a seat on the Sixth 
Circuit Court of Appeals, I believe would mean that when Mrs. Garrett 
or my nephew Kelly or other people with disabilities walked into that 
courtroom, or wheeled their chairs into that courtroom--that Mr. Sutton 
wouldn't see a person. He would not see the years and years of 
discrimination against people with disabilities. He would not see what 
that individual person has to put up with day after day.

  He would only see one thing: What is the State law? If the State law 
did not cover it, then we in Congress have no power to act.
  That, Mr. President, is an extreme view--an extreme activist view--of 
the role of our Federal judges, and one which this Senate should not 
accept.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Burns). The Senator from Ohio.
  Mr. VOINOVICH. Mr. President, thank you for allowing me to speak on 
behalf of Jeff Sutton, a star in the Ohio bar. I am here to express my 
strongest recommendation for Jeff, whom the President nominated to 
serve on the U.S. Court of Appeals for the Sixth Circuit on May 9, 
2001. Can you believe that? On May 9, I was at the White House when 
President Bush nominated Jeff, and here we are, almost 2 years later, 
finally voting on his nomination.
  I am extremely disappointed at the length of time it has taken for 
this most qualified nominee to reach the floor of the Senate. Much of 
my disappointment stems from the fact that anyone who knows Jeff knows 
him to be a man of unquestioned integrity, intelligence, and 
qualifications, with vast experience in commercial, constitutional, and 
appellate litigation. Jeff will bring a special quality to the bench.
  His first career was as a teacher. He was a 7th grade geography and 
10th grade history teacher, as well as a soccer and baseball coach 
before heading off to law school.
  Jeff graduated first in his law school class from the Ohio State 
University

[[Page S5412]]

College of Law, followed by a clerkship with the Honorable Thomas 
Meskill of the U.S. Court of Appeals for the Second Circuit and a 
clerkship for Justices Powell and Scalia on the U.S. Supreme Court.
  From 1995 to 1998, Jeff left his Jones, Day law firm behind and 
answered the call to public service as the State solicitor general of 
Ohio. It was during this time that the National Association of 
Attorneys General awarded Jeff a Best Brief Award for practice before 
the U.S. Supreme Court 4 years in a row. After his tenure as State 
solicitor, Jeff returned to Jones, Day to practice law, where he works 
today. Because he was the State solicitor of Ohio when I was Governor, 
I worked with him extensively when he represented the Governor's 
office, and, in my judgment, he never exhibited any predisposition with 
regard to any issue and had great interpersonal skills.

  Jeffrey Sutton has exactly what the Federal bench needs: a fresh, 
objective perspective. In spite of being a brilliant lawyer, he has 
never exhibited anything but humility. In fact, Professor John Jeffries 
of the University of Virginia agrees with me on this point, calling 
Jeff ``compassionate, humane and modest.'' He goes on to say that Jeff 
``does not rush to judgment, nor is he burdened by the kind of 
unwarranted confidence in his own opinion that closes the mind to 
concerns of others.'' Let me repeat that: He is not ``burdened by the 
kind of unwarranted confidence in his own opinion that closes the mind 
to concerns of others.''
  Jeff Sutton's qualifications for this judgeship are best evidenced 
through his experience. He has argued 12 cases and filed over 50 merits 
and amicus curiae briefs before the U.S. Supreme Court, both as a 
private attorney and as Solicitor for the State of Ohio. In addition to 
the U.S. Supreme Court, Jeff has also argued 13 cases in State supreme 
courts, 8 cases before the Federal Court of Appeals, and dozens more 
cases in State and Federal trial courts.
  I want to share a story with you that reflects how good a lawyer Jeff 
really is. I visited the Supreme Court last year to move the admission 
of some of my fellow Ohio State Law School alumni. We were having our 
40th class reunion here in Washington. While giving us a tour of the 
Supreme Court, Bill Suter, the Clerk of the Court, upon realizing that 
we were Ohioans, went way out of his way to commend Jeff's abilities as 
an appellate lawyer. I cannot think of higher praise than the Clerk of 
the Supreme Court, who witnesses so many arguments and sees so many 
lawyers every year, remembering Jeff and having nothing but praise for 
him.
  In fact, Jeff has earned such a vaulted reputation among the Supreme 
Court Judges that they regularly seek him out to participate in 
proceedings before the High Court. These cases include that of Becker 
v. Montgomery, where the Supreme Court appointed Sutton to represent an 
inmate in a prisoner's rights lawsuit against his jailors. The Court 
unanimously agreed with his position, and Justice Ginsburg even went so 
far as to remark in the opinion that ``[Jeff's] able representation . . 
. permit[s] us to decide this case, satisfied that the relevant issues 
have been fully aired.''
  It is also worthy to note that the lawyer for the State of Ohio in 
this case, Stewart Baker, said of Jeff:

       [T]he Becker case illustrates the fallacy of claims that 
     Mr. Sutton's judicial philosophy can be gleaned from the 
     positions he has advocated in court. . . .While the Becker 
     case may or may not tell us something about his personal 
     views, Mr. Sutton's willingness to take the case without 
     compensation does tell us a lot about his compassion and 
     commitment to justice.

  In Westside Mothers v. Haveman, the Supreme Court again invited 
Jeff's participation in a Medicaid case as amicus curiae after it found 
the parties' briefing to be ``less than satisfactory.'' And again, the 
Court responded with thanks and praise, stating:

       Particularly noteworthy for its quality and helpfulness is 
     the amicus participation at the court's request of the 
     [Michigan Municipal] League and its pro bono counsel, Mr. 
     Jeffrey Sutton.

  In addition to his appellate practice and family responsibilities, 
Jeff has exhibited an appreciation that one has a responsibility to 
contribute to the legal profession. He has been an adjunct professor of 
law at Ohio State, teaching seminars in constitutional law. He also 
teaches continuing legal education seminars on the U.S. Supreme Court 
and Ohio Supreme Court to Ohio State court judges and develops 
curricula for appellate judges on behalf of the Ohio State Judicial 
College.
  While his unwillingness to shy away from challenging or controversial 
cases has, in some instances, led critics to allege he has a 
predisposition toward certain cases, I believe such comments are not 
accurate--for instance, the allegation that Jeff is biased against 
people with disabilities.
  I disagree strongly with my colleague, the Senator from Iowa, on this 
point. Anyone who really knows this man knows these allegations are 
just untrue and that Jeff should not be judged on a handful of cases 
where he did his job by vigorously advocating on behalf of his clients.
  I believe it is patently unfair for groups to take the position that, 
based upon his advocacy in this handful of cases, this man wants to 
curtail the civil rights of persons with disabilities. Nothing--
nothing--could be further from the truth.
  First, I would like to point out that it is a well-established 
principle in the legal profession that lawyers should not be held 
responsible for the positions of their clients. By serving as a lawyer 
to certain groups or individuals, Jeff does not necessarily adopt their 
viewpoints as his own; he just does his job, as he is supposed to, by 
subordinating his own interests to those of the client and doing 
everything possible within the bounds of the law to win.
  In fact, the American Bar Association 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.

  Second, instead of focusing on a handful of cases, Jeff's detractors 
should review his history of representing a very diverse group of 
clients who advocate every conceivable point on the political spectrum. 
This includes Cheryl Fischer, a blind woman refused entry to an Ohio 
medical school, whom Jeff represented when he was the Ohio State 
solicitor. Ms. Fischer wrote a letter of support on Jeff's behalf 
stating:

       I recall with much pride just how committed Jeff was to my 
     cause. He believed in my position. He cared and listened and 
     he wanted . . . to win for me.
  Jeff represented the National Coalition of Students with Disabilities 
where he successfully argued that Ohio State-run universities were 
violating the motor voter law by failing to provide their disabled 
students with voter registration materials. This is very important. In 
that particular case, Benson Wolman, a former law school classmate of 
mine, who would smile with great pleasure if described as a liberal 
civil rights advocate, and a former director of the ACLU in Ohio, asked 
Sutton to help out in this motor voter case. He supports his 
nomination, stating:

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

  This is the former head of the Ohio Civil Liberties Union saying 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.
  Wolman's endorsement of Jeff is very important. It should give 
comfort and alleviate the fears of my colleagues who believe Jeff may 
be too conservative and not sensitive to liberal causes and civil 
rights.
  Third, Jeff's service on the board of the Equal Justice Foundation, a 
public interest organization that provides pro bono legal services on 
behalf of disadvantaged individuals, including people with 
disabilities, is evidence of his interest to advance the interests of 
the disabled. During his tenure, the foundation tackled a variety of 
cases which advanced these interests: One, for example, suing three 
Ohio cities to force them to build curb cuts to make their sidewalks 
wheelchair accessible; two, suing an amusement park company that had a 
blanket policy banning the

[[Page S5413]]

disabled from their rides; and, three, representing a girl with tubular 
sclerosis in a case alleging that her school was not providing her with 
an adequate education plan--to name a few.
  Last, anyone who knows of Jeff's work when he was younger at his 
father's school for children with cerebral palsy knows this is not a 
man who wants to curtail the rights of the disabled. Think about that. 
His father ran a school for children with cerebral palsy. Can you think 
that someone who had that experience in his family would want to 
curtail the rights of the disabled? In fact, you only need to read the 
letters of support from those who work in the disabled community to see 
the number of people who support Jeff.
  These include Francis Beytagh, legal director of the National Center 
for Law and the Handicapped, who 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.

  And James Leonard, codirector of the University of Alabama's 
Disability Law Institute, who wrote:

       In my opinion, Jeffrey Sutton is well-qualified to sit on 
     the Sixth Circuit Court and should be confirmed. . . . I see 
     no ``agenda'' on Mr. Sutton's part to target disabled 
     citizens--

  That is something that is going to be advocated on the floor of the 
Senate for the next day and a half.
  He says:
       In my opinion, Jeffrey Sutton is well-qualified to sit on 
     the Sixth Circuit Court and should be confirmed. . . . I see 
     no ``agenda'' on Mr. Sutton's part to target disabled 
     citizens. . . .

  Seth Waxman, President Clinton's Solicitor General and Jeff's 
opposing counsel in University of Alabama v. Garrett, stated:

       I know that some have questioned whether the position Mr. 
     Sutton advocated last Term . . . 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 consistent with the finest 
     traditions of the adversarial system.

  Jeff Sutton should not be criticized on assumptions that past legal 
positions reflect his personal views. Instead, he should be lauded for 
always zealously advocating his client's interest, no matter the issue.
  While I could continue praising Jeff as a lawyer, what I am most 
impressed by is that I could spend equally as much time praising Jeff, 
the man. There is no question that Jeffrey Sutton is one of this 
Nation's premier appellate lawyers and could remain at his law firm and 
literally make millions of dollars. He has chosen, however, to turn his 
back on that opportunity because he is deeply committed to public and 
community service and believes he can do more for his fellow men and 
their quality of life and the legal system by serving on the appellate 
bench. His motives, in my opinion, are fundamental to one who seeks a 
lifetime appointment to a Federal circuit court of appeals.
  Jeffrey Sutton wants his job for the right reasons. He does not need 
it for his ego or the financial well-being of having a permanent job. 
He has a wonderful wife and three children, whom I have met and talked 
to, who are willing to make the financial sacrifice so that Jeff can 
serve.
  Jeff is an elder and deacon in the Presbyterian Church, as well as a 
Sunday school teacher. He also participates in the I Know I Can 
program, which provides college scholarships to inner-city children; 
ProMusica, a chamber music organization; and coaches youth soccer and 
basketball teams.
  I have met some exceptional people during my 35 years in government, 
and Jeff is one of the most exceptional. I have worked closely with 
Jeff and know that he will make an exemplary addition to the Sixth 
Circuit, which is in crisis because of the vacancies now on it. I 
respectfully urge the Senate to confirm Jeff Sutton's nomination as 
quickly as possible.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, I urge my colleagues to vote against the 
nomination of Jeffrey Sutton to the Sixth Circuit. I am not convinced 
that Jeffrey Sutton will be fair and openminded in the range of issues 
that would come before him; in particular, those on the balance between 
Federal and State power and the ability of individuals to enforce their 
civil rights in court.
  Mr. Sutton has been the most visible advocate in the rightwing 
movement to weaken the basic civil rights laws that have brought our 
country closer to equal opportunity for all of our citizens. Because of 
the civil rights laws enacted over the last 40 years, we have increased 
opportunities for minority citizens in all aspects of our Nation. Women 
and girls have many more educational and sports opportunities. People 
with disabilities have new opportunities to fully participate in our 
society. Without the Civil Rights Act of 1964, the Voting Rights Act of 
1965, the Housing Act of 1968, the enactment of title IX in 1972, and 
the Americans with Disabilities Act in 1991, these extraordinary 
advances could never have been achieved. All of these laws had strong 
bipartisan support from Democrats and Republicans.
  Mr. Sutton has been at the forefront of a campaign to weaken many of 
these civil rights laws by claiming that Congress has no power to make 
these laws enforceable against the States or by claiming that 
individuals cannot enforce these rights in court.
  Unfortunately, Mr. Sutton has often found willing support in recent 
years by five justices of the Supreme Court. Over the last decade, a 
narrow majority of the Supreme Court has ushered in what some are 
trying to call the ``new federalism.'' Five justices have rewritten 
many of the rules on the power of the Federal Government, in some 
instances overturning their own precedent and ignoring long-standing 
constitutional language to do so. More Congressional statutes have been 
struck down or severely limited by this Supreme Court than at any point 
since the now-widely discredited Supreme Court of the 1930s which 
attempted to block the progressive legislation of the New Deal.
  The agenda in Mr. Sutton's advocacy is all too clear. It's to reduce 
the power of the Federal Government to protect civil rights. Our 
constitutional system was founded on respect for the States. But the 
Civil War Amendments gave broad power to the Federal Government to 
enact civil rights statutes and make them enforceable against States. 
Mr. Sutton's advocacy clearly undermines these profound changes made 
over a century ago in our Constitution.
  The human impact of Mr. Sutton's victories at the Supreme Court is 
also clear. Mr. Sutton's advocacy has meant that: Individuals like 
Patricia Garrett, a breast cancer survivor who was demoted after 
working for seventeen years for the University of Alabama, cannot seek 
damages under the ADA; workers over 40 who are fired or demoted from 
their state jobs because they are considered too old have no effective 
federal remedy for age discrimination. In a recent case, a supervisor 
in a state agency fired a plaintiff because of his age and told the 
jury that ``In a forest, you have to cut down the old, big trees so the 
little trees can grow.''
  The plaintiff in this case was fired at the age of 48.
  Sutton's advocacy has also meant that: Individuals can no longer 
bring suit under regulations implementing the 1964 Civil Rights Act. 
This makes it difficult for Bonnie Sanders and Rose Townsend to remedy 
racial discrimination in their low-income minority community in New 
Jersey which suffers high rates of asthma and respiratory illnesses 
from the large number of contaminated waste sites and superfund sites 
unfairly placed in their small community; persons who complain about 
gender discrimination in school sports or education programs can be 
fired or demoted without being able to bring a challenge under Title 
IX's provisions.
  Mr. Sutton's response to many of the concerns raised about his record 
is that he was making arguments on behalf of his client. All of us 
understand that the arguments lawyers make in their briefs or in oral 
arguments do not necessarily represent their own views. But Mr. 
Sutton's claim that he is not seeking to advance a broad States rights 
agenda is absurd.
  He admits that he has not been involved before the Supreme Court in 
any cases on the other side of the issue--he has not sought to defend 
Federal power to enact civil rights laws.

[[Page S5414]]

He consistently represents only those States--and there are many States 
on the other side--who want to limit the scope of Federal civil rights 
laws. Indeed, Mr. Sutton has stated that he is ``on the lookout'' for 
States' rights cases.
  He is a top officer of the Federalist Society, and he has repeatedly 
expressed his views on the question of Federal and State power. He has 
expressed his ``love''--he actually used that word for making State 
sovereignty claims, even when his arguments are unpopular. He has 
characterized questions of federalism as a ``zero-sum'' game, an 
endless battle between the Federal and State governments.
  Mr. Sutton called our attention to a few cases in which he has 
defended the rights of people with disabilities. I commend him for 
those cases. But I find it curious that we are meant to believe that 
those few cases reflect his real views on civil rights, while his 
advocacy in major States rights cases in the Supreme Court reflects 
only the views of his client. For every plaintiff like Cheryl Fischer--
the blind woman whom Sutton represented in his Government capacity 
after she was denied admission to medical school--thousands more were 
harmed by his advocacy to deny civil rights protections.
  The case that casts the most doubt on Mr. Sutton's claim that he was 
merely representing his clients and that demonstrates his activism in 
support of States' rights is Westside Mothers. Poor children and their 
mothers had challenged Michigan's failure to provide adequate dental 
services, as required under Medicaid. They were not claiming money 
damages. They only wanted the State of Michigan to provide the health 
care required by Federal law. They brought suit under section 1983, 
which the Supreme Court has long held allows persons to bring claims 
for violations of Federal statutes. Mr. Sutton argued in a friend-of-
the-court brief that these children could not enforce their Medicaid 
rights using section 1983. The district court accepted his arguments, 
but the Sixth Circuit reversed--unanimously.
  If Mr. Sutton's arguments had prevailed, it would have limited the 
enforcement of a wide range of spending power statutes, contrary to 
more than a quarter-century of Supreme Court precedent. He would have 
effectively closed the court house doors to: Working parents in North 
Carolina who drove up to 3\1/2\ hours each way to obtain dental care 
for their children, because they could not find a dentist closer to 
home who would accept Medicaid--even though the Medicaid law requires 
States to ensure an adequate supply of providers; children with mental 
retardation and developmental disabilities in West Virginia who faced 
institutionalization because they could not get Medicaid to pay for the 
home-based services they needed, even though the Medicaid law requires 
States to cover the services; families in Arizona who were not 
receiving notices or hearings when their Medicaid HMOs denied or 
delayed needed treatments, even though the Medicaid law requires States 
to provide those rights.
  Mr. Sutton's advocacy, if he had prevailed, would have closed the 
doors to relief for all these individuals.
  Mr. Sutton even sought to achieve this result by encouraging the 
district court to ignore Supreme Court precedent. He failed to cite in 
his opening brief the leading Supreme Court cases that allowed 
plaintiffs to bring the challenges. In his reply brief, he told the 
district court that it need ``not be overly concerned'' with this 
precedent. It is very disturbing that a judicial nominee would be so 
cavalier in his dismissal of Supreme Court rulings, and would even 
invite the lower court to disregard it.
  In response to questions about the Westside Mothers case, Mr. Sutton 
did not back away from the positions he took in the case. He continued 
to maintain that the far-reaching arguments he made were supported by 
the law. The Department of Justice and over 75 law professors, liberal 
and conservative, filed their own friend-of-the-court briefs to 
emphasize that Mr. Sutton's view, if it had been accepted, would 
radically change the law.
  One of the professors who wrote to us about Mr. Sutton's views in 
this case was Professor Douglas Laycock. He said that while Mr. Sutton 
persuaded the district judge that none of the Supreme Court's 
precedents was binding, his arguments were actually in defiance of 
settled law. As Professor Laycock wrote, ``The truth is that the power 
to enforce Federal law by suits against State officers was settled and 
fundamental.'' Professor Laycock concluded by saying: ``What Westside 
shows is Sutton aggressively creating new doctrine to restrict or 
overturn settled law, leading the way at the frontier of the campaign 
to roll back Federal power and leave citizens without effective 
protection for their Federal rights.''
  Mr. Sutton's advocacy in this case, far beyond what the Supreme Court 
has ever held, raises major concerns that he will continue to follow 
his own extreme views on what the law should be if he is confirmed as a 
judge.
  The issue is not whether Mr. Sutton dislikes disabled people. It is 
not about whether he is a good man. He is very personable, highly 
credentialed, very intelligent. The question is whether he is committed 
to the principles of the Constitution, including genuine enforcement of 
Federal civil rights laws. His record fails to show that he will be 
able to set aside his own extreme agenda in rolling back Federal power.
  Many of the White House nominees to lifetime appointments to our 
Federal courts of appeals raise such a question. Those courts are 
charged with making decisions vital to the everyday lives of American 
people, but far too many of them have records that are extreme. Their 
goal is to use the Federal courts to limit the rights of workers, 
dismantle environmental protection, roll back civil rights, undermine 
the rights of women, and to reject the right of privacy.
  When the White House submits nominees who show that they will be fair 
and open minded in the cases that come before them, we should all 
support them. Judge Edward Prado, for example, a nominee to the Fifth 
Circuit, is one such nominee. He is a Republican. He likely holds views 
with which some of us disagree. He has shown, however, in his time on 
the bench that he is committed to the rule of law and to honoring the 
Constitution and the Federal laws, not reshaping the law to fit a 
right-wing ideological agenda. He was approved by the Judiciary 
Committee unanimously. There was not a single letter of opposition 
against him. He is ready to be voted on by the full Senate.
  Nominees such as Judge Prado should get our full support; nominees 
such as Jeffrey Sutton should not.
  The basic values of our society, whether we will continue to be 
committed to equality, freedom of expression, and the right to privacy, 
are at issue in each of these controversial nominations. If the 
administration continues to nominate judges who would weaken the core 
values of our country, roll back the laws that have made our country a 
more inclusive democracy, the Senate should reject them. No President 
has the unilateral right to remake the judiciary in his own image. The 
Constitution requires the Senate's advice and consent on judicial 
nominations. It is clear that our duty is to be more than a 
rubberstamp, and I urge my colleagues to vote against Jeffrey Sutton.
  I see my colleague and friend from Iowa in the Chamber. He is a 
member of our Human Resources Committee. In looking over several of 
these items, he can remember very well, as I am sure I can, the time 
and deliberation we took on a number of these legislative matters, such 
as the Americans with Disabilities Act. That legislation in one form or 
another was before the Congress probably 8 to 10 years before we were 
eventually able to work that matter through to acceptance. We had broad 
bipartisan support that said we were going to be an inclusive Nation, 
we were going to include those individuals who were facing the 
challenges through some form of disability, and we were going to be a 
better country because of that.
  The overwhelming celebration we had at the White House--I can 
remember the Senator from Iowa being there when President Bush 1 signed 
that bill and stated that he believed this was probably the most 
important single legislative achievement and accomplishment he had 
during the time of his Presidency. Guarantees were put into place in 
order to protect those who had some disability so that they would be 
able to have their rights protected.

[[Page S5415]]

  That is not what Mr. Sutton says. That is not what the holding is in 
his case in the Garrett decision. It points out in those cases he has 
outlined that the State employees will not be covered under the ADA and 
they will not have those protections. We on the Labor and Human 
Resources Committee had hearing after hearing and listened to the 
challenges the disabled people were facing in this country. We took 
time and listened to suggestions and recommendations from Republicans 
and Democrats alike so we could pass a meaningful bill to protect those 
individuals. We thought we did that and the President of the United 
States believed we had and the Justice Department thought we had at 
that time, but not Jeffrey Sutton. No, no protections for State 
employees. I never heard Jeffrey Sutton bring these ideas up before our 
committee or over in the House of Representatives.

  Maybe later on the Senator from Iowa can tell me whether he ever 
remembered that being brought up or whether or not we were attentive to 
our duty and our responsibility, or that it was the failure of our 
committee and the responsibility of the Senator from Iowa and the 
Senator from Massachusetts that we failed to provide those protections, 
because we believed that we had. We did not hear any opposition to it.
  The Senator from Iowa remembers the various lengthy hearings we had 
about age discrimination which was taking place in this country, about 
workers who were being singled out solely on the issue of their age. 
The Senator can remember the days and the weeks of hearings we had on 
that issue, and that the legislation we passed was supported by 
Republican and Democrat alike, but not from Mr. Sutton; one can go 
right ahead and discriminate freely on the basis of age according to 
his decision. We had not heard that--we never heard it from the Justice 
Department during that period of time.
  Many of these things occurred during the time when we had a 
Republican Justice Department which had supported this legislation.
  The Senator has talked about the Violence Against Women Act 
legislation, to which Jeffrey Sutton filed an amicus brief to say there 
is no civil remedy under the Violence Against Women Act. The Senator 
can remember the time we spent on that legislation.
  Then there was the Religious Restoration Act on which my friend from 
Utah and I worked long and strenuously, inviting constitutional 
authorities from all over this country to help us shape legislation to 
make sure we really were going to move ahead in the protection of 
rights to be able to practice one's own religion, but we were not able 
to do it under the holding of Mr. Sutton.
  Then, finally the striking down of title VI of the Civil Rights Act, 
which is basically an opportunity for individuals, primarily poor, 
primarily men and women of color, when there are going to be actions 
that are going to be taken which are so blatant and flagrantly 
discriminatory that puts their lives and their health at risk--no, no, 
that particular title VI of the 1964 act was going to be struck down as 
well.
  The common factor is--and the Senator from Iowa would agree--the 
kinds of protections we are talking about in such legislation as this 
is for the most vulnerable, in many instances the weakest people, in 
our society. We have heard from those who are going to defend Mr. 
Sutton that that is not really Jeffrey Sutton; that he was just taking 
a case at a time. Well, he has taken all of these cases, and he has 
looked for more, and he has never been a spokesperson for the opposing 
view in terms of defending these individuals.
  We have a difficult time in terms of providing these protections for 
individuals who are being left out and being left behind. We are always 
reminded every single day in this city and in this country how those 
with power and those with wealth are able to take care of themselves 
very well. But we are talking here about those individuals who had 
protections under these various statutes who by and large came through 
our committee after weeks and months of hearings, where there was a 
bipartisan effort to try to ensure that legislation was carefully 
drafted and focused and attended to, but they do not meet the test of 
Jeffrey Sutton.

  I say that Jeffrey Sutton does not meet my test either.
  The PRESIDING OFFICER (Mr. Sununu). The Senator from Iowa.
  Mr. HARKIN. I thank the Senator for the dialog. I thank the Senator 
for his statement, but I thank the Senator for his great leadership in 
the 1980s.
  When I first came here in 1985 and became a member of the Labor 
Committee under the leadership of Mr. Kennedy, the Senator from 
Massachusetts, we were beginning to develop, as the Senator knows, at 
that time, the underlying legislation for ADA. It was the Senator from 
Massachusetts who provided the great leadership that brought us 
together--Republicans and Democrats, Republican Attorney General, 
Republican President, States attorneys general, Governors--all over the 
country, coming together saying, finally, we have to do something about 
this.
  That is why Mr. Sutton's view is so disturbing in how he approaches 
this matter. As the Senator from Massachusetts so correctly stated, a 
lot of people are saying he was representing his client. However, he 
was on an NPR radio interview--not representing a client there, he was 
representing himself--in which he said disability discrimination in a 
constitutional test is hard to show, difficult to show.
  The Senator from Massachusetts alluded to how much work we had done 
to show that, 25 years of study. The first study done by Congress 
showing discrimination against people with disabilities was in 1965, 
the National Commission on Architectural Behaviors. Finally, in 1989 we 
passed the Americans with Disabilities Act. Mr. Sutton says that is not 
enough.
  As the Senator from Massachusetts pointed out, we had 17 formal 
hearings by the committee of the Senator from Massachusetts and the 
subcommittee which I chaired. Five separate committees marked up this 
bill. We had 63 public forums across the country, led by Justin Dart, 
head of the President's national committee--8,000 pages of testimony--
as the Senator mentioned, the Attorney General of the United States, 
Thornburg, Governors, State attorneys general, State legislators. But 
especially as it pertains to the Garrett case, Mr. Sutton basically 
said that Congress had not made a showing, that States were not living 
up to their responsibility to protect people with disabilities. There 
were 300 examples that came into our committee regarding discrimination 
by State governments. Mr. Sutton says that is not enough.
  I wonder aloud to my friend from Massachusetts, how many do we need, 
325? Is it 350? What is the magic number to show that State governments 
were violating constitutional rights of their citizens? With 300 
examples, Mr. Sutton says that is not good enough.
  I thank the Senator from Massachusetts for his statement, for his 
lifelong advocacy and support, especially of people with disabilities. 
I have geared my remarks on that--and for his advocacy and support for 
the Americans with Disabilities Act.
  People say Mr. Sutton is a nice guy and all that kind of stuff. I 
suppose he is. I spent an hour and a half with him. I found him to be a 
very pleasurable individual. The Senator from Ohio said that he does 
not have any bias against people with disabilities. I don't contend 
that. I know the Senator from Massachusetts does not contend that Mr. 
Sutton has any personal bias against people with disabilities. However, 
his rigid ideology in that we in the Congress cannot pass national laws 
protecting the civil rights of people with disabilities sets the clock 
back 25 years or more. So that is the problem with Mr. Sutton. He has 
this rigid ideology that says people may be hurting, people may be 
discriminated against because they use a wheelchair or they have 
cerebral palsy or they are deaf or they are blind, and isn't that just 
too bad, our hearts go out to them, but we can't do anything about it 
unless the State does something about it.
  I find that to be the primary reason why Mr. Sutton should not be on 
the circuit court of appeals. If he wants to be on the State bench some 
place, at a State court he can espouse that, but not as a member of the 
circuit court of the United States.
  I thank the Senator from Massachusetts.
  Mr. KENNEDY. I thank my friend from Iowa for giving life to the 
points

[[Page S5416]]

I tried to make about the kind of due deliberation we had on the 
different pieces of legislation which came through our committee and 
for which we have a good deal of awareness and knowledge.
  I remember when we considered the Americans with Disabilities Act. We 
would have such questions: How does it apply to a ski lift if someone 
comes up and is disabled? How many chairs will have to be on a ski 
lift? We were asked every conceivable policy question, wondering what 
would happen if it was a little bookstore with one person in it and a 
blind person walks on in: is the person at the cash register going to 
have to go back and help the blind person find the books or will they 
continue to be able to look after the cash register? These are the 
kinds of questions we had coming out of our ears; so many people were 
skeptical of taking that kind of action to give protections to our 
fellow citizens, over 40 million in this country. We faced every 
possible challenge on these issues. The Senator was there.
  But suddenly now we find a new way of rolling all that back. Who is 
the author? Mr. Sutton. We heard from the Justice Department during 
that period of time. There was never any kind of question from the 
Justice Department. I ask the Senator from Iowa, does the Senator 
remember that the Justice Department commented--I hope you understand 
you are getting into a real hornet's nest, from a constitutional 
question. Did you hear that with regard to age or protections of people 
under the 1964 Civil Rights Act or the Violence Against Women Act? Were 
we ever told by any Justice Department, Democrat or Republican: 
Absolutely no.
  Here we have a nominee who was able to get a viewpoint and a position 
that has been effectively undermining those kinds of protections. He 
has been doing it step by step by step.
  I, for one, am not prepared to vote because the next one who is going 
to come will come right out there on the issues of protection on the 
basis of race, the last major kind of civil rights issue. That is the 
large enchilada this is building up to. As we know, slavery was written 
into the Constitution and this country has paid an extraordinary price 
to free us from forms of discrimination. We fought a civil war and 
experienced all the pain, suffering, tears and blood by Dr. King and 
others.
  It was from that strength with the passage of the legislation we 
moved ahead to try to eliminate discrimination in other forms, 
discrimination against the disabled, discrimination against the 
elderly, discrimination against women. And here we have the architect 
to undermine those commitments. I, for one, am not prepared to vote to 
take advantage and say maybe he will just stop here and not see a 
continued rollback.
  I agree with the Senator. He is a very fine person and we have a high 
regard for him but there are many other people that are fine and for 
whom we have a high regard. We have a responsibility, I believe, that 
Supreme Court nominees ought do have a commitment to the fundamentals 
of the Constitution. I am not prepared to take a chance on where he is 
going to go in the future.

  I thank the Senator for his excellent presentation this afternoon. I 
think it has been very helpful.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, I have been listening with a great degree 
of interest at the comments of my colleagues. I, for one, as one of the 
prime authors of the Americans with Disabilities Act, contend that Mr. 
Sutton does agree with the bill and that he is an advocate for those 
who are suffering from disability, in spite of what has been said.
  I rise today in support of the nomination of Jeffery Sutton to be a 
Judge on the Sixth Circuit Court of Appeals. Mr. Sutton is one of the 
top appellate lawyers in this country today. He has argued over 45 
appeals for a diversity of clients in Federal and State courts across 
the country, including an impressive number--12--before the U.S. 
Supreme Court. We have not had nominees like this for years, who have 
the ability, experience, capacity, knowledge and the decency that some 
of these nominees of President Bush have. In 2001, he had the best 
record of any advocate before the Court, arguing 4 cases and winning 
all of them. On January 2, 2003, the American Lawyer named him one of 
the best 45 lawyers in the country under the age of 45. He is an 
outstanding nominee, and I urge all of my colleagues to support him.
  Mr. Sutton served as a law clerk for United States Supreme Court 
Justices Lewis Powell and Antonin Scalia. Like his mentor Justice 
Powell, Sutton is a moderate who favors judicial pragmatism: According 
to Sutton, Justice Powell ``believed in people more than in ideas, in 
experience more than ideology and in the end, embraced a judicial 
pragmatism that served the country well.'' Mr. Sutton served as State 
Solicitor for the State of Ohio and currently is a partner in the 
prestigious law firm of Jones, Day, Reavis and Pogue. He also serves as 
an Adjunct Professor at Ohio State University School of Law.
  During his legal career, he has not only demonstrated keen intellect, 
strong advocacy skills and a commitment to the rule of law, but has 
dedicated a substantial amount of his time to providing pro bono legal 
services to a variety of individuals and groups. He enjoys strong 
support from lawyers in Ohio and across the country, who have written 
to praise not only his first-rate legal abilities, but also his 
fairness, open-mindedness, and personal integrity. There can be no 
serious question as to Mr. Sutton's qualifications for this position. 
He represents the best of the legal profession and it is shameful to 
indicate otherwise.
  Unfortunately, some of my colleagues seem to be looking past his 
unassailable credentials in search of issues that could be used to 
disparage him. I would like to address those points and explain why my 
colleagues need not be concerned--maybe that is a nice word to use 
here.
  There have been suggestions that Mr. Sutton's record somehow 
demonstrates a bias against Americans with disabilities. However, there 
is no evidence in his record to suggest that he has a personal bias 
against those with disabilities or any other group of individuals. In 
fact, even the People for the American Way has conceded that ``No one 
has seriously contended that Sutton is personally biased against people 
with disabilities.'' I think that is a very important point.
  When he was young, Mr. Sutton regularly assisted at his father's 
school for children with cerebral palsy, and a closer look at his legal 
record demonstrates that Mr. Sutton has taken up the causes of disabled 
Americans several times. He represented a talented young woman named 
Cheryl Fisher, who sought to get into medical school, but was turned 
down because she was blind. In a letter of support of Mr. Sutton, Ms. 
Fisher wrote:

       I recall with much pride just how committed Jeff was to my 
     case. He believed in my position. He cared and listened and 
     wanted badly to win for me . . . I realized just how 
     fortunate I was to have a lawyer of Jeff's caliber so devoted 
     to working for me and the countless others with both similar 
     disabilities and interests.

  In National Coalition of Students with Disabilities v. Taft, he 
successfully argued that Ohio Universities were violating the federal 
motor-voter law by failing to provide disabled students with voter 
registration materials. Again he received high praise from someone 
involved in the case. 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 served 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 
tubular sclerosis in a case alleging that the school was not properly 
handling her individual education plan.
  There are also many in the disabled community who, though not 
directly

[[Page S5417]]

involved with Mr. Sutton's cases, understand that he is committed to 
the law and support his nomination. 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.

  We should pay attention to this person.
  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 interest.

  Gee, that is what he is, a good lawyer who represents clients and 
wins.
  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.

  I assume, after listening to my colleagues on the other side, what 
they are trying to do is beat up Mr. Sutton now so that he will bend 
over backwards in every way for persons with disabilities.
  I don't think they have to worry about that. But I think it is 
unfortunate that they are beating up on a man who basically understands 
the disability community and who has long fought for it, but who has 
represented some clients with interests that my friends on the other 
side don't like.
  I agree with Ms. Long, and I have no doubt Mr. Sutton would rule 
fairly in all cases, including those cases involving disabled 
Americans. Mr. Sutton's critics hold up the Garrett case as evidence to 
his insensitivity to the disabled community. I want to take just a few 
moments to discuss why that criticism is misguided.
  Mr. Sutton did not seek to represent the State of Alabama in that 
case out of any desire to curb the Americans with Disabilities Act. 
Instead, he was approached by Alabama's attorney general to represent 
Alabama at the appellate stages of the litigation.
  He was approached because he is an excellent lawyer and one of the 
best appellate lawyers in the country.
  As an attorney looking to build a practice before the Supreme Court, 
Mr. Sutton accepted that representation. I do not see anything wrong 
with a young lawyer accepting cases in order to gain more experience 
before our Nation's highest tribunal. I concur with my distinguished 
colleague, the senior Senator from the State of California who pointed 
out that she hears from lawyers all the time that they were trying to 
build Supreme Court practices and picked up cases to do so.
  It is a common practice for those who are fortunate enough to try 
cases before the Supreme Court. I give Mr. Sutton marks for candor for 
explaining that reason at his hearing.
  Mr. Sutton did nothing wrong in accepting that representation--State 
governments are certainly entitled to representation under our legal 
system. Yet, I can understand the frustration that some of my 
colleagues may feel to see the protections of the Americans with 
Disabilities Act limited by the Supreme Court. I worked many long hours 
to see that piece of legislation enacted. However, I do not blame Mr. 
Sutton for the Supreme Court's decision--he is guilty of nothing more 
than being a very good lawyer for his client. The principle of judicial 
review is very well-established in American jurisprudence. If anything, 
we should be thankful that there are lawyers as able as Mr. Sutton to 
ensure the effective working of our system of checks and balances. It 
was the Supreme Court that made the decision; Mr. Sutton was simply 
representing his client.
  And, by the way, that is what attorneys do. He had a right to do it. 
It was legitimate to do it. He did a very good job.
  There is no evidence that Mr. Sutton was motivated by a personal 
agenda when he represented those State governments. In fact, former 
Clinton Solicitor General Seth P. Waxman, and Sutton's opposing Counsel 
in the Garrett case, wrote, ``I argued the 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 consistent with the finest traditions of 
the adversarial system.''
  It is important to note that the ABA Model Rules of Professional 
Conduct state that no inference about a lawyer's personal views should 
be gleaned from the positions of his client. The rule states, ``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.'' My 
distinguished colleague, the junior Senator from New York, seems to 
agree. Back in February, on the Senate floor she noted, ``A long time 
ago, I used to practice law. I represented a lot of clients of 
different kinds, all sorts of folks. Their views and positions were not 
necessarily mine. I won some and I lost some in the trial court, in the 
appellate court, and in the administrative hearing room, but I do not 
believe that any of my clients spoke for me. My advocacy on behalf of 
clients was not the same as my positions about the law, about 
constitutional issues, and about many other matters.''
  I personally think that was very well said by the distinguished 
junior Senator from New York.
  Obviously, I do not think anybody in this body would seriously 
consider voting against a nominee because of a dislike of the nominee's 
clients. All of those of us who practice law and try cases represent 
clients with whom some in the Senate might disagree.
  We had an important discussion about clients in connection with the 
nomination of Marsha Berzon, now a judge on the Ninth Circuit, and the 
Senate decided not to hold her responsible for her clients' views and 
confirmed her. I advocated for her even though I probably disagree with 
her philosophy in many respects. Judge Berzon is well qualified.
  Judge Berzon had been a long-time member of the ACLU, serving on the 
Board of Directors and as the Vice President of the Northern California 
Branch. She testified that:

       ``[I]f I am confirmed as a judge, not only will the ACLU's 
     positions be irrelevant, but the positions of my former 
     clients, indeed, my own positions on any policy matters will 
     be quite irrelevant and I will be required to and I commit to 
     look at the statute, the constitutional provisions, and the 
     precedents only in deciding the case.''

  Mr. Sutton made similar assurances at his hearing that he will follow 
the law as an appellate court judge. He stated, ``. . . there's no 
doubt that when a Federal statute is passed, as the U.S. Supreme Court 
has made clear, there's a heavy presumption of constitutionality. And 
there's no doubt that a Court of Appeals judge has every obligation to 
follow that presumption.'' We accepted Judge Berzon's answer and we 
should do the same for Mr. Sutton instead of trying to destroy his 
reputation.
  If there are members of this body who nevertheless try to hold Mr. 
Sutton responsible for the views of the states that he represented, I 
ask that they at least judge Mr. Sutton on his entire record and not 
just on a select handful of cases--or here a case, there a case, once 
in awhile another isolated case, and not just a select handful of 
cases.
  Mr. Sutton has represented a wide range of clients in his legal 
practice. Most of the clients in the cases that displease his critics 
paid him to represent them, but he has represented a significant number 
of clients with very diverse interests on a pro bono basis. These 
clients include death row defendants, prisoner rights plaintiffs, the 
National Coalition for Students with Disabilities, the NAACP and the 
Center for Handgun Violence--to name a few.
  In 2001, he was appointed by the U.S. Supreme Court to represent--pro 
se--Dale Becker in a prisoner rights complaint. Opposing counsel, and 
former

[[Page S5418]]

General Counsel of the National Security Agency during the Bush and 
Clinton Administrations, Stewart A. Baker, wrote in support of Mr. 
Sutton stating, ``If Mr. Sutton is to be judged by the positions he 
takes on behalf of his clients, the Becker case suggests that he favors 
increased inmate litigation in federal courts as well as a broad and 
flexible reading of the courts' rules, at least when a literal reading 
does harm to pro se litigants. In fact, the Becker case illustrates the 
fallacy of claims that Mr. Sutton's judicial philosophy can be gleamed 
from the positions he has advocated in court. Although he has 
apparently taken conservative positions on behalf of some clients, Mr. 
Sutton has also championed left-liberal positions when his client's 
welfare called for such arguments.''

  Take for example, Mr. Sutton's defense of Ohio's minority set-aside 
statute when he was Solicitor General. Fred Pressley, Ohio attorney and 
Democrat who worked with Sutton on the case wrote, ``As Solicitor 
General, Mr. Sutton was a tenacious defender of all Ohioans, regardless 
of their race, gender, disability or nationality.''
  In addition, I recently received a supportive letter from Mr. Riyaz 
Kanji, a former law clerk to Supreme Court Justice David Souter and 
Judge Betty Fletcher of the Ninth Circuit. He said that he contacted 
Mr. Sutton in August to ask for assistance on an amicus brief for the 
National Congress of American Indians in an Indian Law case pending 
before the United States Supreme Court. Mr. Kanji wrote, ``Mr. Sutton 
took the time to call me back from vacation the very next morning to 
express a strong interest in working on the case. In our ensuing 
conversations, it became apparent to me that Mr. Sutton did not simply 
want to work on the matter for the small amount of compensation it 
would bring him--he readily agreed to charge far below his usual rates 
for the brief--but that he instead had a genuine interest in 
understanding why Native American tribes have fared as poorly as they 
have in front of the Supreme Court in recent years . . . I think it is 
fair to say that most individuals who are committed to furthering the 
cause of State's rights without regard to any other values or interests 
in our society do not evidence that type of concern for tribal 
interests.''
  I could go on and on in discussing the numerous letters of support 
that I have received on Mr. Sutton's behalf, but I think the best 
spokesperson for Mr. Sutton is Mr. Sutton himself. In a 12-hour 
hearing, Mr. Sutton answered all questions put to him candidly and 
honestly. He was extremely considerate and deferential, displaying a 
respect for the process as well as his very impressive legal ability.
  Jeffrey Sutton is the best the legal profession has to offer. I urge 
my colleagues to examine his full and accurate record. I am confident 
if they do, my colleagues will vote overwhelmingly to confirm Mr. 
Sutton.
  Mr. President, let me just take a moment to address some of my 
colleagues' concern about the Americans with Disabilities Act and the 
Supreme Court's decision in Garrett. I was a prime cosponsor of the 
Americans with Disabilities Act, and I am very proud of it. But this 
debate is not about whether this body did the right thing in passing 
that legislation. I personally think we did the right thing, and I 
could talk for hours on how important that legislation is. However, in 
our system of checks and balances, the Supreme Court has a role here. 
And all parties before the Court deserve to have competent, in fact, 
zealous legal representation--States as well as individuals.
  In the Garrett case, the State of Alabama sought the representation 
of Jeffrey Sutton. Mr. Sutton argued zealously on behalf of the State. 
However, nowhere--nowhere--does Alabama's brief suggest that Congress 
does not have the power to protect Americans with disabilities.
  Mr. Sutton did not, as some have contended, argue the Americans with 
Disabilities Act as a whole was not needed or should be repealed. 
Statements to this effect are a mischaracterization of both the nature 
of the question before the Court in the Garrett case and the arguments 
Mr. Sutton advanced on behalf of the State of Alabama.
  In fact, Alabama's brief stated:

       The ADA advances a commendable objective--mandatory 
     accommodation of the disabled. . . .

  Further, the brief stated specifically that:

       Alabama . . . has not challenged Congress' authority under 
     the Commerce Clause to regulate State employees through the 
     ADA, [or] an individual's authority to bring an injunction 
     action against State officials in Federal court, or the 
     Federal government's authority to bring a claim for 
     injunctive or monetary relief against States in Federal 
     court.

  Alabama's brief also specifically credited the Federal Government for 
prohibiting Government-based discrimination against the disabled, and 
affirmatively requiring all manner of employment and public-access 
accommodations designed to provide the disabled with the kind of equal 
opportunity and dignity all individuals deserve.
  Finally, at oral argument before the Court, Mr. Sutton clarified that 
his client was ``happy that the ADA was enacted.'' Even if his client's 
statements or sentiments are deemed his own--which they should not be--
Mr. Sutton's written and oral statements in the Garrett case dispel any 
credible notion that he believes the ADA is not needed.
  Mr. President, I have no doubt that every litigant appearing in 
Jeffrey Sutton's courtroom will get a fair shake. Now, some of my 
colleagues have tried to distort his record, have tried to imply he is 
not the man that he is, have tried to indicate he is against the 
Americans with Disabilities Act because he represented clients with 
which some of my colleagues disagree, and that he is not worthy to be 
on this court. The total record suggests and demands otherwise.
  We should be lucky if we can get other nominees, whichever party is 
in charge of the White House, who have the kind of abilities and 
capacities that Jeffrey Sutton has. I have no doubt every litigant 
appearing before Mr. Sutton will be treated fairly, with dignity, and 
that the laws will be interpreted appropriately. This is an honest man. 
This is a great lawyer, although young, and he is a person who will, I 
think, bring a great deal of balance, integrity, capacity, and ability 
to the Federal courts of this country and, in particular, the Sixth 
Circuit Court of Appeals.
  So I hope our colleagues in the Senate will ignore some of the, I 
think, disparaging remarks that have been made and look at the real 
record. And if they do, they will vote for Jeffrey Sutton.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. LEAHY. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. Mr. President, I might note before I begin, seeing the 
distinguished occupant of the Chair, who is my neighbor across the 
Connecticut River--and both he and I, as natives of our States, know 
you never want to jump to hasty conclusions--it appears that spring is 
actually coming to New Hampshire and Vermont. It does not mean the bud 
season is over, but crocuses have been spotted. And, as one of my 
neighbors used to tell me: The croci have appeared.
  Our official reporter, Patrick Renzi, is going to figure out how to 
spell ``croci,'' and I will be no help to him at all. I am sure, with 
how good all the reporters are, those who take down our debates here in 
the Senate, how superb they all are, they will find the correct 
spelling.
  Mr. President, on a more serious matter, Senator Hatch, Senator 
Kennedy, Senator DeWine, Senator Voinovich, and Senator Harkin have 
spoken about the Sutton nomination, and I want to speak to it, too.
  Today, the Senate is considering the nomination of Jeffrey Sutton of 
Ohio to the U.S. Court of Appeals for the Sixth Circuit.
  The responsibility to advise and consent on the President's life-
tenured judicial nominees is one that I take seriously and is not an 
occasion to rubber stamp. And I have taken that position whether we 
have had a Republican or Democrat in the White House. The

[[Page S5419]]

nomination of Jeffrey Sutton presents a number of areas of concern to 
me. For these reasons, I, along with seven other members of the 
Judiciary Committee, voted against Mr. Sutton in Committee and I will 
vote against him being confirmed to a lifetime position on the U.S. 
Court of Appeals for the Sixth Circuit.
  The number of individual citizens who came to the hearing to oppose 
Mr. Sutton, along with the number of Senators who came to question Mr. 
Sutton, several times in some cases, is some indication of the 
controversial nature of this nomination. The hearing had to be moved to 
a bigger room, a room that had been reserved in advance of the hearing, 
in order to accommodate the public interest in the nomination. I 
thanked the Chairman to acceding to my suggestion and the suggestions 
of others to move the hearing into the larger hearing room in order to 
provide access to the public and, in particular, those members of the 
public who are disabled.
  In the days preceding his hearing, the Committee received thousands 
of letters from individuals and organizations, both in and out of Ohio, 
expressing concerns about appointing Mr. Sutton to the Sixth Circuit, 
and those letters raise serious issues. Mr. Sutton did not clear up 
these concerns at his hearing. In fact, his answers to many Senators' 
concerns, along with his answers to follow-up written questions, seem 
to raise even more concerns about his impartiality and judgment.

  In the few weeks before Mr. Sutton was voted on by the Committee, we 
received hundreds of calls from individuals and organizations opposed 
to his nomination. Since he was voted on in Committee, opposition has 
continued to mount, and I and other Senators have received numerous 
additional letters of opposition and calls from citizens across the 
country opposing Mr. Sutton. In fact, these are among the letters I 
have received, from Members of Congress to individuals, in opposition 
to Mr. Sutton. It weighs about 25 pounds just lifting the letters.
  From my own State of Vermont, I have received letters of opposition, 
such as a letter from the Vermont Council on Independent Living, and I 
continue to receive phone calls opposing Mr. Sutton. What I heard and 
what I continue to hear about this nominee, from people in Ohio and 
around the country, is troubling.
  Mr. Sutton is clearly a bright, legally capable, and accomplished 
attorney. Yet, as a lawyer, in his own personal writings, and on his 
own time, he has sought out opportunities to attack federal laws and 
programs designed to guarantee civil rights protections. Let me be 
clear, unlike what those on the other side of the aisle may say, I am 
not opposing Mr. Sutton because he ``happened'' to represent clients 
whose positions I may disagree with. I have voted on thousands of 
Federal judges since I have been here, many of them representing 
clients I totally disagreed with on positions diametrically opposite to 
my own. As my record shows, I have voted for more than 100 of President 
Bush's judicial nominees, many of whom took positions or represented 
clients with which I disagreed, including President Bush's two prior 
nominees to the Sixth Circuit, who were confirmed while I was Chairman 
of the Judiciary Committee. While I disagreed with a number of the 
positions they took, I made sure they had hearings, and I made sure 
they were confirmed.
  Those on the other side of the aisle continue to wrongly characterize 
Senators' opposition to Mr. Sutton. They claim that those who are 
opposed to his lifetime confirmation object only to the clients he 
represented or the court decisions in the cases he argued. Nothing 
could be further from the truth. For example, I served in private 
practice. I defended clients charged with crimes. Then I was a 
prosecutor, and I prosecuted people charged with crimes. I did a 
lawyer's job in making sure there was adequate representation on both 
sides.
  My opposition to Mr. Sutton is not based on his clients. It is based 
on the fact that Mr. Sutton has aggressively pursued a national role as 
the leading advocate of states' rights and has pushed extreme positions 
in order to limit the ability of Congress to protect civil rights. 
Moreover, he displayed at his hearing and in his written questions, 
that he is not able to put aside these strong personal views in order 
to be fair and impartial.
  It was Republicans who most recently held up or voted against a 
number of President Clinton's circuit court nominees because they were 
concerned about the clients the nominee represented or disagreed with 
the nominee's ideology.
  For example, President Clinton nominated Timothy Dyk to be a judge on 
the U.S. Court of Appeals for the Federal Circuit. Judge Dyk was 
originally nominated in April 1998 but was not confirmed by the 
Republican-controlled Senate until more than two years later, in May 
2000. Judge Dyk received 25 votes against him on the Senate floor, many 
of them from Republicans who objected to the clients he represented. 
For example, former Senator Smith, voting against Judge Dyk, explicitly 
stated that he did not approve of the clients Mr. Dyk represented on a 
pro bono basis, such as the well-known and well-respected organization 
People for the American Way. Other Senators who voted against Judge 
Dyk, expressed concern over Judge Dyk's involvement in a case in which 
he represented the Action for Children's Television in a challenge to 
FCC regulations.

  As I have said, I have voted to confirm hundreds of individuals who 
have represented unpopular clients or positions with which I disagreed. 
I would like to note, that some of the most respected judges in our 
history are judges who have stood up to unpopular sentiment to protect 
the rights of minorities or people whose views made them outcasts. Mr. 
Sutton is not one of these people. In fact, he has done the opposite. 
He has stood up for states' rights and against civil rights, and for an 
arcane constitutional theory over the rights of injured individuals. 
Any simplification of the opposition against Mr. Sutton as based solely 
on who he represented is false and misleading.
  I have taken a careful look at Mr. Sutton's advocacy record along 
with his personal writings and speeches. Mr. Sutton has acted as more 
than just counsel, he has aggressively pursued a national role as the 
leading advocate of a certain view of federalism and he has succeeded 
in pushing extreme positions in order to limit the ability of Congress 
to act to prevent discrimination and protect civil rights. Mr. Sutton 
himself has stated that his advocacy on the principles of federalism 
are not just arguments he makes for his clients, but something in which 
he strongly believes. In a Legal Times article, he was quoted as 
saying, ``It doesn't get me invited to cocktail parties. But I love 
these issues. I believe in this federalism stuff.''
  Let me just note that, when asked about this comment at his hearing, 
Mr. Sutton provided conflicting answers. First, he told me that this 
comment was in response to his pursuit of Supreme Court cases after he 
left the State Solicitor's office and returned to private practice at 
Jones Day. However, when later asked about the same comment by Senator 
DeWine, Mr. Sutton stated that, at the time of the article, he was 
State Solicitor and that he was on the lookout for cases because the 
Ohio Attorney General asked him to look for cases that affected the 
State. In follow-up written questions, while Mr. Sutton admits that he 
was on the lookout for Supreme Court cases at Jones Day, he disavows 
that he was similarly on the lookout as State Solicitor. Rather, he 
states that he was only a ``subordinate'' and that ``everything [he 
was] described as doing in the article was done to further'' the 
interests of the Ohio Attorney General. In contrast, the Legal Times 
article had several other sources who corroborated that it was Mr. 
Sutton's own efforts and passion that led to Ohio taking so many cases 
before the U.S. Supreme Court to assert state sovereign immunity. For 
example, the Supreme Court Counsel for the National Association of 
Attorneys General (who applauds Mr. Sutton's work), said that Mr. 
Sutton was a ``court-watcher'' with a ``first-out-of-the-gate 
aggressiveness'' who had ``taken a very active role'' in taking on 
federalism cases.
  Based on Mr. Sutton's passionate advocacy and personal efforts to 
challenge and weaken federal laws and individual rights, and his 
extreme activism against federal protection for state workers, a large 
number of disability

[[Page S5420]]

rights groups, civil rights groups, environmental protection groups, 
and women's rights groups are opposed to his confirmation. It is 
unprecedented for the disability community to speak out so loudly in 
opposition to a judicial nominee. Overall, his nomination to the Sixth 
Circuit is opposed by hundreds of national, state and local disability 
groups, and thousands of individuals.

  Mr. Sutton has advocated for states' rights over civil rights and has 
sought to limit individuals' ability to be compensated when their 
rights are violated.
  Mr. Sutton's record reveals a strong desire to limit Congress' power 
to pass civil rights laws and to limit the ability of individuals to 
seek redress for existing civil rights violations. In the last six 
years, as both a State Solicitor and in private practice, Mr. Sutton 
has been the leading advocate urging the Supreme Court to develop a new 
jurisprudence that uses states' rights as grounds to limit the reach of 
federal laws on behalf of the disabled, the aged, women, and 
environmental protection. He has argued major cases on civil rights, 
religion, health care, and education, and, in all of these cases, his 
arcane constitutional theory of the Eleventh Amendment--not based on 
text, legislative history, or decades of precedent--has undermined the 
rights of millions of people.
  He has argued, among other things, that Congress exceeded its 
authority in passing the Religious Freedom Restoration Act, enacted in 
1993 with broad bipartisan support under the leadership of Senator 
Kennedy and Senator Hatch, and parts of the Americans with Disabilities 
Act of 1990, a bipartisan bill championed by former Senator Bob Dole 
and Senator Harkin, the Age Discrimination in Employment Act, and the 
Violence Against Women Act of 1994, a bipartisan act cosponsored by 
Senator Hatch and Senator Biden.
  In addition to weakening Congress' ability to protect the rights of 
individuals, Mr. Sutton has sought to limit the ability of individuals 
to seek redress in federal court for civil rights violations. For 
example, he has argued to limit the remedies available to victims of 
sexual abuse and to limit the ability of Medicaid recipients to enforce 
their rights under the law. In essence, he has argued for the Supreme 
Court to repudiate more than 25 years of legal precedents that 
permitted individuals to sue states to prevent violations of federal 
civil rights regulations.
  One of Mr. Sutton's most recent and significant cases in which he 
attempted to erode legal rights passed by Congress was Board of 
Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001), 
a case in which he argued that Congress exceeded its authority in 
enacting certain provisions of the Americans with Disabilities Act. In 
this case, in which a nursing director was demoted after undergoing 
treatment for breast cancer, Mr. Sutton argued against the ability of 
state employees to sue under Title I of the ADA for money damages if 
their employer discriminated against them. Mr. Sutton argued that 
alleged discrimination against the disabled should only receive 
``rational basis'' review and that Congress unconstitutionally elevated 
the standard for disability discrimination in the ADA, an argument that 
would severely limit Congress' authority to protect individual rights. 
Moreover, he argued that Congress had not identified a pattern of 
abuse, despite extensive hearings and findings of discriminatory 
actions by states, including unnecessary institutionalization and 
denials of education. During oral argument, Mr. Sutton even said that 
the ADA was not needed and that the case was a ``challenge to the ADA 
across the board.''
  Mr. Sutton was questioned heavily about his involvement in the 
Garrett case both at his hearing and in follow-up written questions, 
but his answers were incomplete and deeply disturbing. Most of his 
answers flatly contradicted statements that he made in either his legal 
briefs or articles, or danced around the important substantive issues 
raised. Moreover, he consistently tried to redirect any questions about 
his involvement in Garrett to be a discussion about the only case prior 
to his nomination in which he represented a disabled individual. He is 
a skilled oral advocate and his skills were on display at his hearing. 
That is not the question. The question before us is whether he should 
be confirmed to be a circuit judge, not whether we would like him to 
argue an appellate case.
  At his hearing, Mr. Sutton repeatedly brought up his involvement in 
Ohio Civil Rights Comm'n v. Case Western Reserve University, 666 N.E. 
2d 1376 (Ohio 1996), a case involving a blind student denied admission 
to medical school, as an example of the idea that he is sympathetic to 
persons with disabilities. While no one that I know of has alleged that 
Mr. Sutton has any personal antipathy to people with disabilities, it 
troubles me that he has used his representation in this case as a 
response to questions I and other Senators asked about his involvement 
in the Garrett case. He testified that he was involved in the Garrett 
case, without examining the issue of whether his representation would 
help or hurt people, or was legally right or wrong, because he was 
eager to develop a Supreme Court practice.
  The situation in the Case Western case is, perhaps, more revealing 
than Mr. Sutton thought when he placed so much reliance on it. In that 
case, Mr. Sutton was the Ohio Solicitor General in charge of all of the 
State of Ohio's appeals and, in such a capacity, he would normally have 
represented a state agency, like the Ohio Civil Rights Commission. Mr. 
Sutton's statements regarding how he came to take this case are widely 
divergent and irreconcilable: In his Senate Questionnaire, he states 
that the case ``fell'' to him as Ohio State Solicitor, since it 
``fell'' to the Ohio Attorney General to defend the Commission's 
decision through the state courts. At his hearing, he testified that he 
had a choice of which side to take and that it was his job to make a 
recommendation to the Attorney General. And, in answer to my follow-up 
questions, he states that he chose to represent the Commission and, 
thereafter, ``did not have discretion to recommend'' to the Attorney 
General that she not weigh in on the state medical schools' side of the 
case. I still do not understand why the Attorney General had to agree 
to represent the state universities as an amicus party on the other 
side of the Civil Rights Commission in this case, and would guess that 
in almost all cases the Attorney General's office did not represent an 
amicus on the opposite side of a case from a state agency. Regardless, 
I am troubled by Mr. Sutton's reliance on this case.
  Not only does Mr. Sutton's descriptions of his involvement in this 
case create irreconcilable differences, but his answers display an 
advocate's skills rather than a judicious consideration of the 
situation. It troubles me that Mr. Sutton's answers indicate that he 
believes that the representation of a blind student in one case--and a 
case in which he acted in his official capacity--balances out the 
significant detrimental impact that his extreme arguments in Garrett 
had on millions of disabled individuals. There is nothing that can undo 
the elimination of rights by Garrett. Mr. Sutton's argument indicates a 
commitment to ideology over people and convinces me that he is not able 
to put aside his advocacy even to present his involvement in a case 
objectively.

  Mr. Sutton has also tried to claim that he has represented many 
clients pro bono. However, in answer to my written questions, he 
indicates that he did not argue any other case involving disability 
rights prior to his nomination in May 2001. Since he submitted his 
original Senate Questionnaire in 2001, he notified us--in January 
2003--that he has taken on two death penalty cases and other criminal 
appeals. He also argued one disability rights case, involving whether 
the Ohio Secretary of State violated the National Voter Registration 
Act in failing to designate the disability services offices at state 
universities as registration sites. This seems like the classic case of 
``nomination conversion,'' a nominee who has had his whole career to 
work on different sides of issues, but, only after he is nominated, 
does he take cases to ``balance'' out his record. It must certainly be 
more than a coincidence that every time he chose as a lawyer in private 
practice to argue a disability rights case before his nomination, he 
was always on the same side of this issue against the rights of 
disabled individuals.

[[Page S5421]]

  Among Mr. Sutton's many other attempts to erode essential legal 
rights passed by Congress are:
  Olmstead v. LC, 527 U.S. 581 (1999), a case involving Title II of the 
ADA, where Mr. Sutton argued on behalf of the petitioners that it 
should not be a violation of the ADA to force people with mental 
disabilities to remain in an institutionalized setting rather than a 
community-based program despite clear Congressional findings to the 
contrary. Mr. Sutton's arguments in this case were accepted by Justices 
Scalia and Thomas, but rejected by the majority of the Court.
  Pennsylvania Dept of Corrections v. Yeskey, 524 U.S. 206 (1998), 
where Mr. Sutton filed an amicus brief arguing that the ADA does not 
apply to state prison systems, a position which would have furthered 
weakened the ADA and severely limited its applicability, had it been 
accepted.
  Kimel v. Florida Board of Regents, 528 U.S. 62 (2000), where Mr. 
Sutton argued for severe limits on the ability of state employees to 
sue under the Age Discrimination in Employment Act, stating that older 
workers are adequately protected by local anti-discrimination laws, and 
that Congress had no record of a pattern and practice of prior 
constitutional violations by the States and that Congress exceeded its 
authority since the legislation was concerned with age and not with 
``suspect'' classifications like race and national origin. The four 
Supreme Court Justices dissenting in this case stated that the decision 
will have a serious impact on Congress' authority and ability to 
protect civil rights and represented a ``radical departure'' from the 
proper role of the Supreme Court.
  United States v. Morrison, 529 U.S. 598 (2000), where he filed an 
amicus curiae brief on behalf of one state, the state of Alabama, 
challenging the constitutionality of the federal civil remedy for women 
who are the victims of sexual assault and domestic violence in the 
Violence Against Women Act. Of note, VAWA was passed by a broad and 
bipartisan coalition, and 36 states submitted briefs in support of the 
constitutionality of the Act. Mr. Sutton argued, and the 5-4 majority 
of the Court accepted, that gender-based violence does not 
substantially affect interstate commerce because it is not an 
``economic'' activity and the impact of such crimes has only an 
attenuated connection to interstate commerce. He also argued that the 
civil remedy provision for private acts of gender-motivated violence 
was not permissible under Section 5 of the Fourteenth Amendment.

  Alexander v. Sandoval, 532 U.S. 275 (2001), where he argued that 
individuals could not privately enforce disparate impact regulations 
promulgated under Title VI of the Civil Rights Act of 1964. The 
Sandoval decision reversed an understanding of the law that had been in 
place for more than 27 years, and makes it nearly impossible to enforce 
a range of practices with an unjustified disparate impact, such as 
disproportionate toxic dumping in minority neighborhoods, the use of 
educationally unjustified testing or tracking practices that harm 
minority students, or the failure to provide appropriate language 
services in health facilities. Mr. Sutton argued not only that the 
disparate impact regulations could not be privately enforced, but that 
these regulations were an invalid exercise of agency power. If this 
argument had been accepted by the Court, it would have made it 
impossible for even the federal government to enforce actions with an 
unjustified disparate impact. In addition, Mr. Sutton argued in his 
brief and in oral argument that implied rights of actions are never 
permissible under the spending power, an argument that the Court also 
did not accept.
  Westside Mothers v. Haveman, 1313 F.Supp.2d 549 (E.D. Mich. 2001), 
where he argued that Medicaid recipients have no legal rights to sue 
states in order to enforce their rights under Medicaid. Mr. Sutton's 
primary argument, which formed the core of the district court's ruling, 
was that Spending Clause statutes were not ``federal law,'' but simply 
a contract. He then argued that because Spending Clause statutes were 
simply contracts, the individuals who sought to enforce the contract 
were mere third-party beneficiaries to such contracts and were not 
enforcing any federal laws and thus suit could not be brought under 
Section 1983. Such far-reaching arguments go well-beyond the Supreme 
Court's jurisprudence, and were ultimately rejected by the Sixth 
Circuit Court of Appeals, in a case with significant implications for 
economically disadvantaged individuals.
  City of Boerne v. Flores, 521 U.S. 507 (1997), where he argued in an 
amici curiae brief on behalf of 16 states that the Religious Freedom 
Restoration Act (RFRA) exceeded Congress' power under Section 5 of the 
Fourteenth Amendment and violated state sovereignty, stating that 
Congress could not enact a sweeping law without any evidence that 
religious freedoms were being interfered with and urging that the 
states ``be the principal bulwark when it comes to protecting civil 
liberties.'' Mr. Sutton applauded the court's ruling as ``a watershed 
case . . . 
respecting states' ability to govern themselves and to look after 
religious liberties themselves,'' according to a Washington Post 
article, and, in an essay written for the Federalist Society, he 
praised the decision as a ``victory for federalism.''
  Mr. Sutton's record shows his tendency to present arguments with 
broad implications that go well-beyond where even the activist, 
conservative majority on the Supreme Court has been willing to go. For 
example, in Garrett and Kimel, he advocated a very narrow view of 
Section 5 of the Fourteenth Amendment (the clause which allows for 
legislation to enforce that Amendment) so that little remedial 
legislation in the civil rights area could pass muster unless the 
plaintiffs can prove longstanding and well documented abuses by the 
states.
  Mr. Sutton's arguments in the case involving the Violence Against 
Women Act also went beyond what the Court accepted. For example, he 
stated that ``the record is utterly devoid of support for the notion 
that the States . . . have violated the rights of their citizens.'' 
Amicus Curiae Brief in Support of Respondents, 1999 WL 1191432 at 19. 
Mr. Sutton took a more jaundiced view than the Supreme Court of 
evidence of discrimination; which could certainly translate into 
harsher rulings against women and minority interests. Moreover, in an 
article after the VAWA decision, Mr. Sutton demonstrates his support 
for the court's outcome and his view of Congress. He wrote:

       Once accepted, only the most unimaginative lawmaker would 
     lack the resources to contend that all manner of in-State 
     activities will have rippling effects that ultimately affect 
     commerce. Such an approach would have a disfiguring effect on 
     the constitutional balance between the States and the 
     National Government . . . and would ultimately make 
     irrelevant virtually every other delegation of power to 
     Congress under Article I.

  Unexamined deference to the VAWA fact findings would have created 
another problem as well. It would give any congressional staffer with a 
laptop the ultimate Marbury power to have a final say over what amounts 
to interstate commerce and thus to what represents the limits on 
Congress's Commerce Clause powers.
  These condescending comments towards Congress are troubling. In 
general, Congress is uniquely situated to gather facts from across the 
nation, obtain information from constituents who have first-hand 
experience with the issues, and assess the magnitude of the problem. 
Moreover, VAWA was passed after numerous hearings, extensive inquiry, 
and fact-finding and with the bipartisan support of the Senate and 
House, the President and most states.
  Mr. Sutton stated at his hearing that he has not attacked disability 
or other civil rights but has, instead, merely acted as an advocate for 
his clients, advancing a theory of limited government.
  Yet the record reveals that he has not simply taken an unpopular 
position in the name of zealously representing the interests of his 
clients. As I have described, Mr. Sutton has often taken extreme 
positions and his record is one of activism in order to limit the 
ability of Congress to act to prevent discrimination and protect civil 
rights. It seems to me to be no coincidence that Mr. Sutton has been 
the chief lawyer in case after case arguing that individuals have no 
right to enforce the civil rights protections that Congress has given 
them.
  As I noted, Mr. Sutton has said that he has been ``on the lookout'' 
for cases

[[Page S5422]]

where he can raise issues of federalism or that will affect local and 
state government interests. And his federalism practice boomed as he 
actively pursued cases attractive to his ideology and through his 
contacts among the members of the Federalist Society. In answer to my 
follow-up questions, Mr. Sutton admitted that he had taken no case in 
which he argued against a state claiming immunity from suit under the 
Eleventh Amendment. Despite his protestation that he might argue either 
side of any case, it must certainly be more than a coincidence that 
every time he has argued before the Supreme Court he has always been on 
the same side of this issue. Despite numerous questions, Mr. Sutton did 
not adequately address these concerns at his hearing nor show that he 
has the ability to put aside his years of passionate advocacy and treat 
all parties fairly. On the contrary, when you talk to Mr. Sutton and 
you look at his testimony, he demonstrates he has not considered the 
impact that his arguments have on the lives of millions of women, 
seniors, the disabled, low-income children, and state employees, and 
that he favors ideas over people, states' rights over civil rights, and 
a patchwork of local rules over national standards.

  He has every right to these views, but when it becomes clear that 
those are the views that would be expressed by an extremist, then we 
have to ask ourselves: Are we rubberstamping or are we advising and 
consenting? Frankly, I believe in this case we would be rubberstamping, 
not advising and consenting.
  Mr. Sutton has stated in several articles that states should be the 
principal bulwark in protecting civil liberties, a claim that has 
serious implications given a history of state discrimination against 
individuals. In numerous papers for the Federalist Society, he has 
repeatedly stated his belief that federalism is a ``zero-sum situation, 
in which either a State or a federal lawmaking prerogative must fall.'' 
In his articles, he has stated that the federalism cases are a battle 
between the states and the federal government, and ``the national 
government's gain in these types of cases invariably becomes the 
State's loss, and vice versa.''
  He also states that federalism is ``a neutral principle'' that merely 
determines the allocation of power. This view of federalism is not only 
inaccurate but troubling. First, these cases are not battles in which 
one law-making power must fall, but in which both the state and the 
federal government--and the American people--may all win. Civil rights 
laws set federal floors or minimum standards but states remain free to 
enact their own more protective laws. Moreover, federalism is not a 
neutral principle as Mr. Sutton suggests, but has been used by those 
critical of the civil rights progress of the last several decades to 
limit the reach of federal laws.
  Mr. Sutton tried to disassociate himself from these views, by saying 
that he does not specifically recall these remarks and that, in the 
ones he recalls, he was constrained to argue the positions that he 
argued on behalf of his clients. As far as I know, no one forced Mr. 
Sutton to write any article, and most lawyers are certainly more 
careful than to attribute their name to any paper that professes a view 
with which they strongly disagree. In my view, Mr. Sutton's suggestions 
that he does not personally believe what he has written are 
intellectually dishonest, insincere and misleading.
  In sum, Mr. Sutton's extreme theories would restrict Congress' power 
to pass civil rights laws and close access to the federal courts for 
people challenging illegal acts by their state governments (limiting 
individuals' ability to seek redress for violations of civil rights). 
If a State government does something wrong, we ought to be able to sue 
the State government.
  I remember shortly after the Soviet Union broke up, when a group of 
parliamentarians and lawyers came here to visit with a number of 
Senators about how they would set up a judicial system in the former 
Soviet Union.
  One asked the question: We have heard that there are cases where 
somebody may sue the Government, and the Government loses. How could 
that possibly happen?
  So we explained the independence of our courts, and we look for 
justice in the law and so on.
  He said: You mean you didn't fire the judge if he allowed the 
Government to lose?
  I said: Quite the opposite. In fact, the Government often loses.
  Listening to Mr. Sutton, there are a lot of areas where the Federal 
courts would be closed to people who challenge illegal acts by their 
State government.

  In the name of the concept of sovereign immunity, Mr. Sutton 
threatens to undermine uniform national laws protecting individuals' 
rights to welfare, housing, clean air, equality, and a harassment-free 
environment, and to undermine the core protections and services 
afforded by Congress to workers, the disabled, the aged, women, and 
members of religious minorities.
  This view of federalism undermines the basic principle, announced in 
Marbury v. Madison, that ``[t]he very essence of civil liberty 
certainly consists in the right of every individual to claim the 
protection of the laws, whenever he receives an injury.'' The judicial 
role of enforcing and upholding the Constitution becomes hollow when 
the government has complete immunity to suit. The burden should be on 
Mr. Sutton to show that he will protect individual rights and civil 
rights as a lifetime appointee to the Sixth Circuit Court of Appeals. 
This he has not done.
  As I have said on other occasions, when the President sends us a 
nominee who raises concerns over qualifications or integrity or who 
displays an inability to treat all parties fairly, I will make my 
concerns known. This is one of those times. In his selection of Mr. 
Sutton for the Sixth Circuit, the President and his advisors are 
attempting to skew its decisions out of step with the mainstream and in 
favor of States' rights over civil rights, anachronistic ideas over 
people.
  The Sixth Circuit is one on which Senate Republicans stalled three 
nominees of President Clinton during his last four years in office. 
They closed and locked the gates to this court in 1997. Professor Kent 
Markus' courageous testimony about that partisan process rings in my 
ears. Despite those excesses by Senate Republicans, during my 
chairmanship, the Senate confirmed two new conservative members to the 
Sixth Circuit. With this nomination, the plan of Republicans to pack 
this court and tilt it sharply out of balance is evident for all to 
see.
  Before and after he took office, President Bush said that he wants to 
be a uniter and not a divider, and yet he has sent and resubmitted to 
the Senate several nominees who divide the American people. The Senate 
has already confirmed 119 of his other judicial nominees. The Committee 
and the Senate made the judgment that those nominees will fulfill their 
duties to act fairly and impartially. Most were not divisive or 
extreme. I urge the President to choose nominees who fit that profile, 
rather than the alternative he seems intent on imposing for so many 
circuit court nominees. End the court-packing effort and work with all 
in the Senate to name consensus, fair-minded federal circuit judges.
  The oath taken by federal judges affirms their commitment to 
``administer justice without respect to persons, and do equal right to 
the poor and to the rich.'' No one who enters a federal courtroom 
should have to wonder whether he or she will be fairly heard by the 
judge. Jeffrey Sutton's record does not show that he will put aside his 
years of passionate advocacy in favor of states' rights and against 
civil rights, and his extreme positions favoring severe restrictions on 
Congress' authority. Accordingly, I will not vote to confirm Mr. Sutton 
for appointment to one of the highest courts in the land.

                          ____________________