[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.
____________________