[Congressional Record Volume 149, Number 61 (Monday, April 28, 2003)]
[Senate]
[Pages S5422-S5431]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                    NOMINATION OF JUDGE EDWARD PRADO

  Mr. LEAHY. Mr. President, I am disappointed that Senate Republicans 
continue to focus on the most divisive judicial nominees and the White 
House continues its efforts to pack the courts ideologically, while the 
nomination of Judge Edward Prado to the United States Court of Appeals 
for the Fifth Circuit is being held captive on the Senate calendar. All 
Democratic Senators serving on the Judiciary Committee voted to report 
this nomination favorably. All Democratic Senators have indicated that 
they are eager to proceed to this nomination and, after a reasonable 
period of debate, voting on the nomination.

[[Page S5423]]

  I am confident this nomination will be confirmed by an extraordinary 
majority--maybe unanimously. The question arises why the Republican 
leadership in the Senate has made no effort to proceed to Senate 
consideration of this judicial nomination--none.
  In a statement in the Record early this month, I raised this matter. 
Then at the Judiciary Committee business meeting on April 10, more than 
two weeks ago, I raised this matter, again. Still, there has been no 
response and no effort to bring this matter before the Senate for 
consideration and a vote. The Republican leadership would rather focus 
exclusively on those controversial circuit court nominees that raise 
the most problems than proceed to fill vacancies with nominations on 
which we are able to achieve agreement.
  That is most unfortunate and most telling.
  Instead of proceeding to the nomination of Judge Prado, Republicans 
insisted on pressing forward with the controversial and divisive 
nomination of Priscilla Owen in early April and with the controversial 
and divisive nomination of Jeffrey Sutton this week.
  Judge Prado is nominated to the Fifth Circuit and is an exceptional 
candidate for elevation to the appeals court. He has significant 
experience as a public servant in west Texas. Perhaps the fact that he 
has bipartisan support is the reason why he is not being brought 
forward at this time for a floor vote.
  That does not fit the Republican message but reveals the truth: That 
Democratic Senators, having already acted on 119 judges appointed by 
President Bush are prepared to support even more of his nominations 
when they are mainstream, consensus nominees. Perhaps the fact that 
Democrats unanimously supported his nomination in Committee is seen as 
a drawback for Mr. Prado in the Republican world of nomination 
politics. I hope that is not the case.
  I also hope the fact that Judge Prado is Hispanic is not a factor in 
the Republican delay. Some have suggested that Judge Prado is being 
delayed because Democratic Senators are likely to vote for him and 
thereby undercut the Republican's shameless charge that the opposition 
to Miguel Estrada is based on his ethnicity. Republican partisans have 
made lots of partisan hay attacking Democrats in connection with the 
Estrada nomination. We all know that the White House could have 
cooperated with the Senate by producing his work papers and the Senate 
could have proceeded to a vote on the Estrada nomination months ago. 
The request for his work papers was sent last May.
  Rather than respond as every other administration has over the last 
20 years and provide access to those papers, this White House has 
stonewalled. Rather than follow the policy of openness outlined by 
Attorney General Robert Jackson in the 1940's, this administration has 
stonewalled. And Republican Senators and other partisans could not wait 
to claim that the impasse created by the White House's change in policy 
and practice with respect to nominations was somehow attributable to 
Democrats being anti-Hispanic. The charge would be laughable if it were 
not so calculated to do political damage and to divide the Hispanic 
community. That is what Republican partisans hope is the result. That 
is wrong.
  So some have come to the conclusion that Republican delay in 
connection with the consideration of Judge Prado's nomination may be 
related to the political strategy of the White House to unfairly 
characterize Democrats. Might the record be set straight if Democrats 
were seen to be supporting this Hispanic nominee to the Fifth Circuit. 
Might the Republicans' own record of opposing President Clinton's 
nominations of Judge Jorge Rangel and Enrique Moreno to that same 
circuit court be contrasted unfavorably with Democrats' support of 
Judge Prado.
  Might Judge Prado, a conservative from Texas with a public record 
service as a Federal district court judge, become the first Hispanic 
appointed by President Bush to the circuit courts with widespread 
support from Senate Democrats. Might this more mainstream, consensus 
nominee stand in stark contrast to the ideological choices intended to 
pack the courts on which the White House and Senate Republicans 
concentrate almost exclusively.
  Judge Prado has 19 years of experience as a U.S. District Court 
judge, which provides us with a significant judicial career to 
evaluate. A review of Judge Prado's actions on the bench demonstrates a 
solid record of fairness and evenhandedness.
  While I may not agree with each and every one of his rulings or with 
every action he has taken as a lawyer or judge, my review of his record 
leads me to conclude that he will be a fair judge. No supervisor or 
colleague of Judge Prado's has questioned his ability or willingness to 
interpret the law fairly. Judge Prado enjoys the full support of the 
Congressional Hispanic Caucus and the Mexican American Legal Defense 
and Education Fund. Not a single person or organization has submitted a 
letter of opposition or raised concerns about Judge Prado. No 
controversy. No red flags. No basis for concern. No opposition.
  This explains why his nomination was voted out of the Judiciary 
Committee with a unanimous, bipartisan vote on an expedited basis.
  To understand the importance of Judge Prado's nomination, we must put 
it in the context of prior nominations to the Fifth Circuit Court of 
Appeals. Until Judge Prado's hearing, it had been more than a decade 
since a Latino nominee to that Court had even been allowed a hearing by 
the Senate Judiciary Committee, let alone a vote on the floor. I recall 
President Clinton's two Hispanic nominations to the Fifth Circuit and 
the poor treatment they received from the Republican-led Senate.
  Judge Jorge Rangel was a former Texas State judge and a dedicated 
attorney in private practice in Corpus Christi, Texas when President 
Clinton nominated him to the United States Court of Appeals for the 
Fifth Circuit in 1997. Judge Rangel is a graduate of the University of 
Houston and the Harvard Law School and earned a rating of ``Well 
Qualified'' by the American Bar Association. Yet, under Republican 
leadership, he never received a hearing on his nomination, let alone a 
vote by the Committee or by the full Senate. His nomination languished 
without action for 15 months. Despite his treatment, this outstanding 
gentleman has recently written us in support of a judicial nominee of 
President Bush.
  After Judge Rangel, disappointed with his treatment at the hands of 
the Republican majority, asked the President not to resubmit his 
nomination, President Clinton nominated Enrique Moreno, a distinguished 
attorney in private practice in El Paso, Texas. Mr. Moreno is a 
graduate of Harvard University and the Harvard Law School. He was given 
the highest rating of unanimously ``Well Qualified'' by the ABA. Mr. 
Moreno also waited 15 months, but was never allowed a hearing before 
the Senate Judiciary Committee. President Clinton renominated him at 
the beginning of 2001, but President Bush, squandering an opportunity 
for bipartisanship, withdrew the nomination and refused to renominate 
him.
  In addition, President Clinton nominated H. Alston Johnson to the 5th 
Circuit in 1999. This talented Louisianan came to the Senate with the 
support of both of his home state Senators, but he never received a 
hearing on his nomination or a vote by the Committee or the full Senate 
in 1999, 2000, or the beginning of 2001. His nomination languished 
without action for 23 months.
  In contrast, when I served as Chair of the Judiciary Committee last 
Congress, we granted Edith Clement a hearing within months of her 
nomination. At that time there had been no hearings on 5th Circuit 
nominees since 1994 and no confirmations since 1995.
  Under Republican leadership, none of President Clinton's nominees to 
this Court received a hearing during his entire second term of office.
  Some of my friends on the other side of the aisle have made the 
outrageous claim that Democratic Senators are anti-Hispanic or anti-
Latino. I think it is important to set the record straight.
  Of the 10 Latino appellate judges currently seated in the Federal 
courts, eight were appointed by President Clinton. Three other Latino 
nominees of President Clinton to the appellate courts were blocked by 
Republicans, as

[[Page S5424]]

well as several others for the district court. In fact, in contrast to 
the President's selection of only one Latino circuit court nominee in 
hist first 2 years in office, three of President Clinton's first 14 
judicial nominees were Latino, and he nominated more than 30 Latino 
nominees to the Federal courts.
  During President Clinton's tenure, 10 of his more than 30 Latino 
nominees, including Judge Rangel, Enrique Moreno, and Christine 
Arguello to the circuit courts, were delayed or blocked from receiving 
hearings or votes by the Republican leadership.
  Republicans delayed consideration of Judge Richard Paez for over 
1,500 days, and 39 Republicans voted against him. The confirmations of 
Latina circuit nominees Rosemary Barkett and Sonia Sotomayor were also 
delayed by Republicans. Judge Barkett was targeted for delay and defeat 
by Republicans based on claims about her judicial philosophy, but those 
efforts were not successful.
  After significant delays, 36 Republicans voted against the 
confirmation of this nominee who received a ``Well-Qualified'' rating 
by the ABA. Additionally, Judge Sotomayor, who also received a ``Well-
Qualified'' rating and had been appointed to district court by 
President George H.W. Bush, was targeted by Republicans for delay or 
defeat when she was nominated to the Second Circuit. She was confirmed, 
although 29 Republicans voted against her.
  It is unfortunate how few Latino nominees this President has sent to 
the Senate. It is reassuring, however, that the Latino nominations that 
we have received have been acted upon in a expeditious manner.
  They have overwhelmingly enjoyed bipartisan support. Under the 
Democratically-led Senate, we swiftly granted hearings for and 
eventually confirmed Judge Christina Armijo of New Mexico, Judge 
Phillip Martinez and Randy Crane of Texas, Judge Jose Martinez of 
Florida, U.S. Magistrate Judge Alia Ludlum, and Judge Jose Linares of 
New Jersey to the district courts. This year, we also confirmed Judge 
James Otero of California, and we would have held his confirmation 
hearing last year if his ABA peer rating had been delivered to us in 
time for the scheduling of our last hearing.
  Also on the Senate executive calendar is the nomination of Cecilia 
Altonaga to be a Federal judge in Florida.
  We expedited consideration of this nominee at the request of Senator 
Graham of Florida. She will be the first Cuban American woman to be 
confirmed to the Federal bench when Republicans choose to proceed to 
that nomination. Indeed, Democrats in the Senate have worked to 
expedite fair consideration of every Latino nominee this President has 
made to the Federal trial courts in addition to the nomination of Judge 
Prado.
  Another example, may be the nomination of Consuelo Callahan to the 
Ninth Circuit Court of Appeals. Unlike the divisive nomination of 
Carolyn Kuhl to the same court, both home state Senators returned their 
blue slips and support a hearing for Judge Consuelo Callahan. I hope 
she receives a hearing in the near future and look forward to learning 
more about her record as an appellate judge for the State of 
California. Rather than disregarding time-honored rules and Senate 
practices, I urge my friends on the other side of the aisle to help us 
fill more judicial vacancies more quickly by bringing those nominations 
that have bipartisan support to the front of the line for Committee 
hearings and floor votes.
  As I have noted throughout the last two years, the Senate is able to 
move expeditiously when we have consensus, mainstream nominees to 
consider. Nationally-respected columnist David Broder made this point 
in an April 16 column that appeared in the Washington Post. Mr. Broder 
noted that when he asked Alberto Gonzales if there might be a lesson in 
Judge Prado's easy approval, Mr. Gonzales missed the point. In Mr. 
Broder's mind: ``The lesson seems obvious. Conservatives can be 
confirmed for the courts when they are well known in their communities 
and a broad range of their constituents have reason to think them fair-
minded.'' To date the Senate has proceeded to confirm 118 of President 
Bush's nominees, 100 in the 17 months in which Democrats made up the 
Senate majority.
  The lesson that less controversial nominees are considered and 
confirmed more easily was the lesson of the last two years and that 
lesson has been lost on this White House.
  Unfortunately, far too many of this President's nominees raise 
serious concerns about whether they will be fair judges to all parties 
on all issues. Those types of nominees should not be rushed through the 
process. I invite the President to nominate more mainstream individuals 
like Judge Prado. His proven record and bipartisan support makes it 
easier for us to uphold our constitutional duty of advise and consent. 
I encourage those on the other side of the aisle to allow us to 
consider his nomination.
  I look forward to casting a vote in favor of his confirmation.
  I, again, urge the Senate Republican leadership to work with us and 
to agree to proceed to this consensus nomination, to provide adequate 
time for debate and to proceed to a vote without further delay. Judge 
Prado's nomination has been delayed on the Senate executive calendar 
for several weeks, unnecessarily in my view. I recall all too vividly 
when anonymous Republican holds delayed Senate action on the nomination 
of Judge Sonia Sotomayor to the Second Circuit for seven months. I do 
not want to see that experience repeated by Judge Prado. Let us work 
together. Let us debate and act on the nomination of Judge Prado 
without further unnecessary delay.
  I ask unanimous consent that a copy of David Broder's April 16 column 
on the nomination of Judge Prado be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                           Tale of Two Judges

                          (By David S. Broder)

       Were it not for an old friend, I would have been as 
     oblivious to the story of Judge Edward Prado of San Antonio 
     as the rest of the Washington press corps.
       Judge Tom Stagg of Shreveport, La., told me his pal was up 
     for appointment to the U.S. Court of Appeals for the 5th 
     Circuit and suggested I go by and ``see how they treat him'' 
     at his confirmation hearing.
       Turns out it's like the Sherlock Holmes story of the dog 
     that didn't bark. In the midst of the bitter partisan battle 
     in which Democrats have repeatedly blocked a Senate 
     confirmation vote on the nomination of Miguel Estrada to the 
     U.S. Court of Appeals for the D.C. Circuit, Prado went 
     through like gangbusters.
       The story of why one Latino Republican has such an easy 
     time while another creates such controversy is an instructive 
     tale--and one with hopeful implications.
       Estrada has been denied an up-or-down vote on the Senate 
     floor because Democrats call him ``a stealth nominee,'' a man 
     of high credentials but no judicial experience and one they 
     say was unresponsive to their questions. Their demand to look 
     at memos he wrote while serving in the Justice Department has 
     been rejected by the administration and neither side has 
     yielded.
       Given this background, I was expecting to see Prado, 55, 
     put to the test at his Judiciary Committee hearing. His 
     credentials are impressive: a graduate of the University of 
     Texas and its law school, four years each as a prosecutor and 
     a public defender, a short stint as a state judge, U.S. 
     attorney for three years and, since 1984, a federal district 
     judge--the last two appointments coming from President Ronald 
     Reagan.
       But Prado is also a character. His courtroom is wired with 
     the latest audiovisual equipment, which Prado, a music lover 
     and showman, loves to demonstrate. Three years ago, during a 
     murder-for-hire trial, he came onto the bench while a 
     recording of ``Happy Together'' by the Turtles filled the 
     air, and then sang: ``Imagine me as God. I do. I was 
     appointed by the president. Appointed forever. My decisions 
     cannot be questioned by you. I'm always right.''
       Many judges may feel that way; few say so, and even fewer 
     put it to music.
       More seriously, in answering the committee's questionnaire, 
     Prado noted controversial cases in which he ruled against a 
     woman's claim of job discrimination by the San Antonio fire 
     department, a diabetes patient's claim that he was unfairly 
     found to be medically ineligible for a police officer's job, 
     and a claim that the Texas high school graduation test 
     discriminated against Hispanics.
       In another part of the questionnaire, he listed 68 
     criminal, immigration and civil cases in which he had been 
     reversed or criticized by the court of appeals. Plenty of 
     fertile ground, one imagined, for liberal groups to challenge 
     elevating a Reagan judge to a closely balanced and important 
     bench just one level below the Supreme Court.
       But in fact the Congressional Hispanic Caucus--which has 
     vigorously opposed the Estrada nomination--wrote a letter 
     endorsing Prado. Rep. Charlie Gonzalez, a Texas Democrat and 
     co-signer of the letter, told me that he had known Prado for 
     almost 40 years and ``he was everything you want in a

[[Page S5425]]

     judge--he's smart and articulate, he's not arbitrary, and he 
     really understands people. Some of his rulings I would take 
     issue with, but when the caucus interviewed him, he talked 
     honestly about cases that have impacted minorities and he 
     made it clear he knows how important the courts have been to 
     us. It was so different from our hour's conversation with 
     Estrada, who conveyed no sense of what we would think a 
     Latino should appreciate about the historical role of courts 
     in bringing us to where we are today and where we need to be 
     tomorrow.''
       With the backing of the White House and the Hispanic 
     caucus, Prado's confirmation hearing was perfunctory Sen. 
     Patrick Leahy of Vermont, the ranking Democrat and scourge of 
     Estrada, read a statement complaining of past Republican 
     treatment of President Bill Clinton's Latino nominees, then 
     left without asking any questions. The two Republicans 
     present--Sens. John Cornyn of Texas and Jeff Sessions of 
     Alabama--said they had known Prado for years and simply 
     congratulated him.
       Prado was then unanimously confirmed by the Judiciary 
     Committee.
       When I asked Alberto Gonzales, the White House counsel, if 
     there might be a lesson in Prado's easy approval, he replied, 
     ``It's hard to say. We view Judge Prado as no more qualified 
     than Miguel Estrada or others they [the Democrats] have 
     opposed.''
       But the less on seems obvious. Conservatives can be 
     confirmed for the courts when they are well known in their 
     communities and a broad range of their constituents have 
     reason to think them fair-minded. Even if they can't resist 
     breaking into song.

  Mr. LEAHY. Mr. President, I am concerned that we seem to have these 
divisive nominees. The Republicans are unwilling to bring forward Judge 
Edward Prado to the U.S. Court of Appeals for the Fifth Circuit. I 
mention this because I have checked every single Democrat who is 
willing to have an extremely short time agreement and go to a vote on 
Judge Prado. Apparently, it is not being brought forward because of a 
hold on the Republican side. I mention this because we hear often from 
the White House: Why are Democrats holding up these court of appeals 
judges?
  Well, here is one where every Democrat is willing to vote on the 
President's nomination to the Fifth Circuit. He is a distinguished 
Hispanic, Judge Edward Prado. We are ready to vote on him. We have 
cleared it on this side of the aisle. Apparently, it is being held up 
on the Republican side. So the next time the White House asks why we 
cannot move forward with some of these people, let's say: Don't look at 
us; you may want to ask the other side.
  It is even interesting that David Broder wrote a column, April 16, on 
the nomination of Judge Prado to this seat and pointed out that he had 
come to the hearings to see what kind of divisiveness there was and 
found a love-in, and he was probably surprised--I don't want to put 
words in his mouth, but he is probably surprised that it has not been 
voted on.
  I will note that Judge Prado has significant experience. I do not 
agree with him on everything, by any means, but he was originally 
appointed, I believe, by President Reagan to the district court. He is 
a conservative Republican, a Hispanic. Every Democrat is prepared to go 
forward. I ask whoever is holding him up on the Republican side to 
release the hold, let this man go forward and let him be elevated to 
the U.S. Court of Appeals.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Ohio is recognized.
  Mr. DeWINE. Mr. President, I want to talk for just a moment about a 
case that has seen the most attention in this debate over Mr. Sutton's 
nomination, and that is the case of the Board of Trustees of the 
University of Alabama v. Garrett.
  Mr. Sutton has been criticized for representing the University of 
Alabama in the U.S. Supreme Court; specifically, for presenting 
Alabama's constitutional sovereignty immunity argument before the U.S. 
Supreme Court.
  In the Garrett case, the Supreme Court held that a disabled 
individual cannot sue a State for money damages for employment 
discrimination under the Americans with Disabilities Act. The Court 
held that in order for Congress to pass that particular remedy--money 
damages against a State--it first had to show that States were engaging 
in a pattern of employment discrimination against the disabled. The 
Court said that Congress had not met the burden of proof required by 
the Constitution. That was the finding of the U.S. Supreme Court.
  I disagreed with the Court's decision in Garrett, and I disagreed 
with Alabama's argument as presented by Mr. Sutton in the Supreme 
Court. I believe that Congress did, in fact, meet its burden in passing 
the ADA. Congress established a record of discrimination against the 
disabled necessary to pass constitutional scrutiny by the courts. 
Congress sent a loud and clear message to the courts in the findings of 
the ADA and in an extensive legislative history.
  What happened in Garrett was that the Supreme Court--unwisely, I 
believe--substituted its judgment for ours. The Court reviewed our 
extensive findings and our legislative history, then, one by one, 
dismissed them as inadequate.
  I must say to my colleagues that I am deeply troubled by the Court's 
lack of deference to Congress in the Garrett case. This lack of 
deference is why many of us in this body believe the U.S. Supreme 
Court, in Garrett, simply got it wrong.
  Ultimately, whether I agree or disagree with Mr. Sutton's arguments, 
or whether this Senator from Ohio agrees or disagrees with the Supreme 
Court in that Garrett case, is really irrelevant to whether Mr. Sutton 
is qualified to serve on the Federal bench because, you see, Mr. Sutton 
was doing nothing more than acting as a lawyer, as an advocate.
  It is clear that all Mr. Sutton has done is successfully argue his 
client's position in that case and in some other controversial cases. 
Bluntly, that is what lawyers do. They argue for their clients. As Mr. 
Sutton has testified, he has argued on behalf of a wide range of 
clients, on a wide range of issues.
  Back in January of this year, the Columbus Dispatch weighed in on 
this exact point when it wrote:

       The fact is, Sutton is guilty of nothing except being a 
     good lawyer. When he represents a disabled client, he fights 
     hard for the disabled client. When he is representing a State 
     opposing an extension of Federal power, as in the ADA case, 
     he fights hard for his State client. That is what attorneys 
     are supposed to do.
  I absolutely agree with that editorial from the Columbus Dispatch and 
with that assessment. I believe arguing that Jeff Sutton should not be 
confirmed because of his legal representation in Garrett or any other 
case would set a very bad precedent for this body. We should not go 
down that path today or tomorrow when we vote. We should not go down 
the path of denying the confirmation of a nominee because we may not 
like some of the clients he has represented or because we disagree with 
the arguments he has made as an attorney. Think about it. If that is 
the standard we apply, we would never confirm anyone who has a 
background as a criminal defense lawyer.
  The examples are legion.
  What would this criterion have meant for Supreme Court Justice 
Thurgood Marshall? In 1943, Thurgood Marshall successfully argued a 
case before the U.S. Supreme Court on behalf of an accused rapist.
  He used a technical jurisdictional argument to defend his client. 
Specifically, he argued that the Federal Government could not prosecute 
his client for a rape that took place on a Federal military 
installation in Louisiana, based on an obscure land acquisition act. 
There was no question in this case as to the actual guilt of the 
defendant, only whether the Federal Government had jurisdiction to 
prosecute the individuals guilty of the crime.
  Nobody argued that Thurgood Marshall should not be confirmed because 
of his role as a defense lawyer in that case. He was doing his job--
defending his client's legal position.
  Obviously his role in this case did not mean that he believed that 
the Federal Government should not be able to prosecute crimes, or that 
Thurgood Marshall was not sympathetic to women's issues, or that he was 
in any way sympathetic to rapists, for Heaven's sake.
  Let me raise an example that was called to the attention of the 
Senate Judiciary Committee by a another Court of Appeals nominee--the 
famous example is John Adams. John Adams, the revered and well-known 
patriot of our Nation's Revolutionary War, represented extremely 
unpopular clients while acting in his capacity as a private attorney.
  As some of my colleagues may recall, John Adams argued in a murder 
trial on behalf of a prominent captain in the British army and several 
of his soldiers

[[Page S5426]]

who had allegedly killed five Boston citizens and injured several 
others in what is known as ``the Boston Massacre.'' Adams described his 
work on behalf of the British soldiers as ``the most gallant, generous, 
manly and disinterested Actions of my whole life, and one of the best 
pieces of service I ever rendered my country.'' He also described his 
involvement in the Boston Massacre case as a source of great anxiety--
evidence enough that his representation of the soldiers was, as a 
political and social matter, extremely unpopular at the time.
  As my colleagues know, John Adams was successful in his 
representation of the soldiers. Clearly, however, John Adams was not 
sympathetic to British rule or murder nor opposed to popular citizen 
uprisings.
  Would the Senate have not confirmed John Adams to a court because of 
his work as a lawyer? I certainly hope that would not have been true.
  There are many examples of individuals who were confirmed by this 
body for service on the Federal bench and had, during their time in 
private practice, represented unpopular clients or causes.
  Supreme Court Justice John Paul Stevens, for example, represented two 
corporations charged in two separate cases with conspiracy to 
monopolize markets and illegal restraint of competition. Despite his 
work on behalf of these corporations, few would argue that Justice 
Stevens unfairly favors the interests of businesses over those of 
consumers or that his efforts as a lawyer in these cases reflect his 
personal feelings about corporate misconduct.
  To take a few more recent examples, Eric Clay, confirmed in 1997 to 
the 6th Circuit Court of Appeals, represented a number of client 
positions that many might find personally problematic: An insurance 
company that was seeking to deny benefits to a disabled individual 
covered by the company's policy; a defendant in a sex discrimination 
suit; and a corporation which was seeking to displace, by condemnation 
if necessary, an entire town in Michigan so that an automaker could 
build an assembly plant on the land. Nonetheless, nobody would argue 
that Judge Clay then or now on the basis of his work as an attorney, 
held personal views that were hostile toward employees, the disabled, 
or people who live in small towns.
  Frank Hull, who was confirmed in 1997 to the 11th Circuit, 
represented a company seeking to deny life insurance benefits to the 
spouse of a deceased employee and also represented an accounting firm 
that was accused of financial fraud. Justice Hull was confirmed 96 to 
0. Nobody believed that Judge Hull had a bias against widows or that he 
supported financial fraud.
  Merrick Garland was confirmed in 1997 to the D.C. Circuit Court. 
Prior to that, in his capacity as a Federal prosecutor, he successfully 
opposed a defendant who was trying to assert his constitutional right 
to due process in order to overturn a drug conviction. Nobody in the 
Senate believes that Judge Garland has any personal opposition to 
constitutional due process protections.
  Robert Bruce King, confirmed in 1998 to the 4th Circuit Court of 
Appeals, represented a client accused and convicted of defrauding the 
U.S. Department of Housing and Urban Development. Nonetheless, nobody 
believes that Judge King advocates the practice of defrauding the 
Government or that he is somehow hostile toward the mission of the 
Department of Housing and Urban Development.
  The list goes on and on, and I am sure that Members of the Senate and 
their staffs could easily come up with a laundry list of examples where 
an individual has represented potentially unsavory clients or causes in 
private practice and has nonetheless been confirmed to the Federal 
bench by the Senate. Members of this body did not oppose these nominees 
just because they might not have liked all of the nominee's clients, or 
because they did not like the positions they took or the issues they 
stood for while advocating for that particular client.
  This should not even be an issue. The idea of zealously advocating 
for your client, no matter who that client is and what he or she is 
accused of, is basic and fundamental to the very idea of being a 
lawyer. And, I might add, it goes to the core obligation of being a 
lawyer. Once a person takes a case, they must represent that client to 
the fullest of their ability.
  In fact, the American Bar Association Model Code of Professional 
Conduct explicitly addresses this issue. The Model Code, Canon 7-1, 
states this:

       The duty of a lawyer, both to his client and to the legal 
     system, is to represent his client zealously within the 
     bounds of the law.

  The individuals listed above represented their clients, even the 
unpopular ones I have mentioned, because they understood their role as 
attorneys. They were dedicated to representing their clients, whomever 
they might be, and to advocating the cause and positions of their 
clients. Jeff Sutton has shown the same dedication.
  He has been a passionate advocate for his clients, as every lawyer is 
duty-bound to be. He should be judged by his advocacy and ability as a 
lawyer. He should not be condemned for this.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. HARKIN. 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. HARKIN. Mr. President, I listened with care to the arguments 
espoused now by my good friend and colleague from Ohio, Senator DeWine. 
I compliment him on many aspects of his statement especially when he 
first opened up and said that he believed the Court got it wrong in the 
Garrett case; Congress did have our findings, which I have pointed out 
time and time again this afternoon that, in fact, Congress did have 
years and years of testimony, markups by five separate committees, 17 
formal hearings, on and on, making the case for the Americans with 
Disabilities Act. As I understood what my colleague from Ohio said, he 
believed the Court got it wrong. I commend him for his statement on 
that; obviously, I concur in that opinion.
  My good friend from Ohio goes on to say that basically Mr. Sutton, in 
arguing against Mrs. Garrett and in arguing for the State of Alabama in 
this case, was simply representing his client and following the canons 
of legal ethics in making sure he fought as vigorously as possible on 
behalf of his client. I understand that and I can accept that is what 
Mr. Sutton was doing in this particular case.
  However, the canons of legal ethics also make it clear that in 
representing your client to the best of your ability and to vigorously 
defend your client that you also have to adhere to the codes of ethics 
and legal ethics and one of those is to be truthful and to do due 
diligence in terms of understanding the parameters of mistakes. People 
do make mistakes; I understand that, but I do believe Mr. Sutton in 
what he said in his oral argument before the Court when he said the ADA 
was not needed. I think that goes a little bit far. Earlier I said he 
either did not know what Congress had done or he did know and treated 
it with disdain. If that were the only thing, if Mr. Sutton's 
representation in the Garrett case were the only thing, I would say 
those who oppose him would, indeed, have a weak reed on which to stand.
  But that is not the point. It is not just Garrett. It is the things 
Mr. Sutton has said outside of his representation of a legal client.
  Before I get to that I will, again, reiterate for the sake of 
emphasis what the Senator from Massachusetts, Mr. Kennedy, said 
earlier, that in all of his representations he has never taken a case 
on the other side that is against States rights. Never; not one. So he 
picks out and looks at those cases where he can be on the side of 
States rights versus ability or the authority of Congress to legislate 
on a national basis.
  Beyond that, it is what Mr. Sutton has said outside of the courtroom. 
First, I have pointed out before the Legal Times article in 1998 in 
which Mr. Sutton told a reporter he and his staff were always on the 
lookout for cases that would be coming before the Court that raise 
issues of federalism. He is always looking out for those cases. And 
what cases does he take? Only those in which he can argue on behalf of 
States rights versus Federal authority. He says: It does not get me 
invited to cocktail parties, but I love

[[Page S5427]]

these issues. I believe in this federalism stuff.
  Again, that in and of itself might be kind of harmless. But then on 
National Public Radio in 2000 he said, ``As with age discrimination, 
disability discrimination in the Constitution is really very difficult 
to show.'' Here is the evidence: 17 hearings, markup by five 
committees, 63 public forums across the country, thousands of pages of 
documents, oral and written testimony by the Attorney General of the 
United States, Governors, State attorneys general, State legislators, 
or 300 examples of discrimination by State governments, all on the 
legislative record. Yet he said it is really difficult to show. He did 
not say this on behalf of a client; he said this in a radio interview. 
So we have to add all of these and look at the whole picture that 
emerges of Mr. Sutton.

  Then in an article for the Federalist Society of 2000 Mr. Sutton 
says: Unexamined deference to the Violence Against Women Act fact 
findings would give to any congressional staffer with a laptop the 
ultimate Marbury power to have the final say over what amounts to 
interstate commerce.
  Take that with the statement about how difficult it is to show in a 
constitutional sense, discrimination against disability, then his 
comments about how he believes and loves this federalism stuff, and the 
fact that he only takes cases on that side of the ledger. It adds up to 
one thing: That Mr. Sutton, in wanting to be a Federal judge, believes 
that when it comes to civil rights legislation, States rights trumps 
what we do here. When it comes to our ability to address underlying 
civil rights issues, States rights trumps the Federal Government. The 
fact he would even think that somehow Congress, in passing a law such 
as the ADA or the Violence Against Women Act, or any of these other 
civil rights bills, that somehow we have a staffer just sit down and 
type it out on a laptop and we bring it out here and pass it, again, 
that either illustrates that Mr. Sutton has a terribly uninformed view 
as to how we operate or he just has a disdain for what we do here.
  As I said, I may disagree with some of my colleagues on the other 
side of the aisle on this issue or that issue, or how we approach this, 
but I do believe, whether it is under Republican control or Democratic 
control, Senators and Congressmen work very hard. We take an oath of 
office to uphold and defend the Constitution. We do not come out here 
willy-nilly and let ``staffers with laptops'' draft up a bill and just 
sort of vote it through. That is not what we do.
  According to Mr. Sutton, he says we do that. Well, we do not do that. 
We have hearings. We have findings. We work things out. We took a long 
time in the case of the Americans with Disabilities Act--many, many 
years--to get it right, to make sure that we pass constitutional 
muster.

  So it is not just Mr. Sutton's representation of his client in any 
particular case. It is the cases he takes, the writings he has made, 
the statements he has made outside the courtroom that indicate he would 
be an ideology-driven, activist judge on the circuit court.
  If Mr. Sutton is so balanced, why didn't he ever take a case that 
took the opposite side on States rights? Not one. Not one.
  My friend from Utah earlier pointed out he has represented people 
with disabilities and he sits on a board that looks out for the 
interests of people with disabilities. Let's take a look at that. 
Jeffrey Sutton did, indeed, represent the National Coalition of 
Students with Disabilities. According to my staff's research, the case 
was filed on November 6, 2000. Mr. Sutton was nominated for this court 
on May 9, 2001, almost 6 months later, and then Mr. Sutton did not 
become attorney of record on this case until April 26, 2002. That is 
quite a bit later. I find that very curious. In all the cases Mr. 
Sutton has taken, the one case they point to where he represented some 
people with disabilities he took after he was nominated for the vacancy 
on the Sixth Circuit Court of Appeals.
  We have heard here time and time again that Mr. Sutton represented 
Cheryl Fischer in her attempt to be admitted to Case Western Medical 
School. Again, Mr. Sutton did work on the case, but he did not 
represent Cheryl Fischer. He was the Ohio Solicitor. He represented the 
Ohio Civil Rights Commission that supported Cheryl Fischer because that 
was his job. Again, he represented his client, which was the Ohio Civil 
Rights Commission. Cheryl Fischer's attorney was Thomas Andrew Downing.
  Again, I commend Mr. Sutton's work on that case. But I guess it 
troubles me that Mr. Sutton's hearing testimony indicates his view that 
his work on that single case, a case in which he acted in his official 
capacity, balances out the significant impact that his arguments had on 
all these other cases, Garrett included.
  Last, someone said Mr. Sutton sits on the board of the Equal Justice 
Foundation. Mr. Sutton came on that board a year before he was 
nominated. My question is, Has Mr. Sutton ever been the lawyer for any 
of the cases my colleagues mentioned that the foundation took? The 
foundation took cases. Was Mr. Sutton ever a lawyer for any of the 
cases my colleagues mentioned?
  My friend from Utah named a few individuals who ``work in the 
disability community'' who support Mr. Sutton. I understand that. There 
are a few individuals who claim to be active in the disability 
community, and they support Mr. Sutton's nomination. But here is a list 
of 400 civil rights organizations, including every major disability 
organization, that have come together opposed to Mr. Sutton's 
nomination. As I look through this list, as I look especially at those 
who deal with disability issues, because that is my area of interest, I 
see sometimes they might have been opposed to this judge and then a 
different part of the group might have been opposed to that judge, but 
this is the first time that I know of that all of them came together on 
one judge: Mr. Sutton. All of them came together in opposing him.
  My friend from Utah mentioned a person in particular, Francis 
Beytagh, mentioned by the Senator as the Director of the National 
Center of Law and the Handicapped.
  I have been dealing in disability issues now going on 25 years. I 
said I don't know about this group. Let's find out about it. There is 
nothing in Mr. Beytagh's current and very detailed resume posted on the 
Web page of the Florida Coastal School of Law that mentions any work of 
his in the disability community--not even one mention. But I did find 
out that the National Center of Law and the Handicapped was founded in 
the early 1970s, in South Bend, IN, and has not existed for 15 years at 
least, according to Harvey Bender, one of its founders.

  I don't know. My friend from Utah said he was the legal director for 
the National Center of Law and the Handicapped. We can't even find that 
that exists anymore, but evidently, in the 1970s, it was someplace at 
Notre Dame.
  I understand from Mr. Beytagh's letter of support he worked 
extensively with Mr. Sutton when Mr. Beytagh was Dean of the Ohio Law 
School, and I also notice Mr. Beytagh also worked for Jones Day law 
firm, which is on his resume, which of course is the law firm for which 
Mr. Sutton works.
  That is all great. But the statement that Mr. Beytagh represents a 
viewpoint of the disability community is totally inaccurate--totally 
inaccurate.
  I just wanted to make those points to clear up some misconceptions 
that may have come out here on the floor earlier today, and hopefully I 
will have some more to say about this tomorrow.
  Again, I want to make it very clear that it is not just Mr. Sutton's 
statements in the Garrett case. My friend from Ohio, Senator DeWine, is 
absolutely right. He is representing his client. That is not the point.
  However, he did say one thing in that case that bothers me. That was, 
basically, that ADA was not needed.
  OK, maybe you might excuse that and say that is just pushing the 
envelope on being a vigorous proponent of his client's views. But then 
take that in the contextual framework of everything else--Mr. Sutton 
always taking cases that are just on one side of the States rights 
issue, just one side; the fact that on numerous occasions outside the 
courtroom, in speaking and in writing, Mr. Sutton has shown either a 
total misunderstanding of how we operate here or a clear disdain for 
the ability of Congress to respond nationally in the area of civil 
rights. Take this all together and, again, it points to a person who 
has an ideology, as the New

[[Page S5428]]

York Times editorial said this morning: It is another ideologue for the 
court, someone who is driven by an ideology.
  I don't mind someone having an ideology. All of us have different 
beliefs. But to be driven by an ideology and to carry that on the court 
indicates to me that Mr. Sutton would be an ideologically driven 
activist judge who would do all that he could to find on behalf of 
States rights as opposed to Federal rights.
  There may be times when States rights should trump Federal rights--
obviously. Sometimes Federal rights ought to trump States rights. That 
is the give and take of our system. But according to Mr. Sutton's 
views, his writings, his statements, the cases he has taken, his view 
is that States rights should always trump what we do here at the 
Federal level.
  That is why I believe Mr. Sutton should not be on the circuit court. 
Maybe he should be on a State court someplace but not on the Federal 
bench.
  I yield the floor. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. SESSIONS. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Cornyn). Without objection, it is so 
ordered.
  Mr. SESSIONS. Mr. President, I would like to make some remarks on the 
pending nomination of Jeffrey S. Sutton, a nominee for the Sixth 
Circuit Court of Appeals. He is an extraordinary and excellent attorney 
whom the President has nominated.
  In 1990, he graduated first in his class at Ohio State University Law 
School. I know Senator DeWine would agree that that is one of America's 
great law schools. After law school, he served as a law clerk for a 
judge on the Second Circuit Court of Appeals, the same kind of court of 
appeals on which he would be now a judge. He has had firsthand 
experience on how a court of appeals operates. Then he clerked for two 
Justices on the U.S. Supreme Court. That is not something easily 
achieved for a graduating lawyer. To be chosen to be a law clerk for a 
Supreme Court Justice is a remarkable achievement. Not many get it, and 
many apply for it. He clerked for Justices Lewis Powell and Antonin 
Scalia on the Supreme Court.
  From 1995 to 1998, he served as the Solicitor for the State of Ohio. 
That means he was chosen to argue appellate cases for the State of 
Ohio, to advise the State on what cases to take up, what positions to 
take on those cases. Again, it is the kind of experience that is 
invaluable for a court of appeals nominee.
  Since 1995, he has taught courses on Federal and State constitutional 
law as adjunct professor at Ohio State. He is currently a partner in 
the Columbus, OH, office of the esteemed law firm of Jones, Day, Reavis 
& Pogue.
  Mr. Sutton has argued 12 cases before the U.S. Supreme Court; he has 
won 9 of them. That is quite an extraordinary record. Whether he won 
them or not, just being chosen to argue any case before the Supreme 
Court is a great honor. Very few lawyers in their entire career will 
ever be able to argue a single case before the Supreme Court. Why was 
he chosen to argue 12 cases before the Court? Because he was recognized 
as a brilliant lawyer, a person who understood appellate law and 
procedure, who understood constitutional issues and statutory 
construction and the things that appellate judges do. That speaks well 
of him. He also has argued 14 cases in State supreme courts.

  Just this year, the American Lawyer magazine named Mr. Sutton one of 
the best lawyers in America under age 45. To recite his credentials is 
to reach one conclusion: If you need representation in appellate court, 
you could hardly do better than Jeffrey Sutton. We are looking at a 
preeminent nominee, one of the best lawyers in America.
  The ABA has given Mr. Sutton what the Democrats call the gold 
standard, a qualified rating, with a minority voting ``well-
qualified.'' His qualifications don't seem to matter to a few who are 
dedicated opponents, and who, I have to say, are not being realistic in 
this matter. They are not being fair, and they are showing 
partisanship, and an extreme ideological bent.
  The special interest groups and some in this body have targeted this 
nominee. They have raised the same arguments we have heard before. They 
allege, amazingly, that he is hostile to the rights of the disabled. 
They claim he favors weakening laws that deal with age discrimination. 
They say he is pro-life because he is a member of the supposedly pro-
life Federalist Society. But these claims are not pertinent. They miss 
the mark.
  Let's start with this disability rights question. It is a very 
important issue. It is something we ought to talk about with regard to 
Jeffrey Sutton, and we need to remember the concepts on this matter as 
we deal with other nominees who come before the Senate.
  The charges and complaints are based in large part on Mr. Sutton's 
representation of my home State of Alabama in Board of Trustees of the 
University of Alabama v. Garrett. In the Garrett case, what happened 
was that an employee of the university sued the university, claiming 
that university's policies violated the Americans with Disabilities 
Act. Mr. Sutton argued on behalf of the State of Alabama, and the 
Supreme Court agreed with him that Congress had not identified a 
pattern of irrational State discrimination in employment against the 
disabled. Congress, therefore, he argued, could not abrogate the 
State's 11th amendment immunity from suits for money damages by the 
passage of the Americans with Disabilities Act. This well-established 
principle was recognized centuries ago by Blackstone before the 
founding of this country.
  I would say parenthetically that I served as attorney general of the 
State of Alabama. I know what the duties of attorneys general are, as 
does Senator Cornyn in the chair, a member from the State of Texas. It 
is the duty of the State to defend its prerogatives. An attorney 
general who does not defend the legal authority of a State, and allows 
that authority to be eroded from any source whether it be the Congress 
or any other entity is failing in his or her duty.
  Blackstone, with regard to the concept of being able to sue the 
States, said:

       No action lies under a republican form of government 
     against the state or nation, unless the legislature has 
     authorized it: [this is] a principle recognized in the 
     jurisprudence of the United States, and of the individual 
     states.
  So no action lies against the State or the Nation unless a 
legislature authorizes it.
  The reason is pretty simple. The power to sue is the power to 
destroy. States or the Federal Government will not allow themselves to 
be destroyed by lawsuits. So the ability of private parties to sue a 
sovereign Federal Government, or a sovereign State government, is 
limited.
  Now, State sovereign immunity under the Eleventh Amendment is the 
concept we are dealing with, but those who want to oppose Mr. Sutton 
have taken the position that his defense of sovereign immunity shows 
that he is opposed to the Disabilities Act. Critics say he doesn't care 
about disabled children because he defended the legitimate interests of 
the State of Alabama in a lawsuit involving how the Americans with 
Disabilities Act ought to be interpreted. This argument is baseless on 
many levels.
  First, I want to talk about these sovereign immunity cases. Some 
critics say that because Mr. Sutton argues for state sovereign 
immunity, he somehow believes that persons who are discriminated 
against because of their disabilities are not entitled to redress. That 
is not true. The National Association of Attorneys General--which I was 
pleased to be a member of, as was the Presiding Officer, and I'm sure 
as were a majority of attorneys general at that time who were also 
members of the Democratic Party--in a letter signed by 27 of their 
members, including 12 Democrats, said:

       We are particularly concerned when we see a lawyer being 
     attacked not for positions he advocated as a private 
     individual, but for positions he argued as a legal advocate 
     for the State government.

  Well said. It is not a question of whether Mr. Sutton believed that 
an employee of any State ought not to have redress. The question is 
whether or not this was a constitutionally proper way to go about it. 
If lawyers were

[[Page S5429]]

attacked for vigorous client representation, this would have a chilling 
affect on their willingness to take unpopular cases. That would be 
unfortunate for our legal system.
  With respect to the Garrett case, it is not an exaggeration to say 
that the case has nothing to do with the overall worthiness of the 
Americans with Disabilities Act--nothing at all. Mr. Sutton himself 
stressed in his brief to the U.S. Supreme Court that the ADA ``advances 
a commendable objective--mandatory accommodation for the disabled.''
  Seth Waxman, President Clinton's Solicitor General and Mr. Sutton's 
opponent in the Garrett case, said he saw nothing to suggest that Mr. 
Sutton disagreed with the aims of the Americans with Disabilities Act. 
What Mr. Sutton did argue was that the 11th amendment principle of 
State sovereign immunity protects States from lawsuits in federal court 
asserting violations of the Americans with Disabilities Act. Seven 
other States--Arkansas, Hawaii, Idaho, Nebraska, Nevada, Ohio, and 
Tennessee--submitted briefs joining with him to affirm this position. 
The Supreme Court ultimately agreed.
  In the Garrett case, the question before the Supreme Court was not 
the validity or purpose of the ADA; it was whether the Federal 
Government could abridge State sovereign immunity by making States 
liable in Federal court for violations of the ADA. This issue involves 
a very narrow and small part of the act. In fact, only the 3.7 percent 
of the American workforce employed by a State would be affected by this 
issue. The 96.3 percent of the workforce not employed by a State was 
not at all affected by the Supreme Court's decision. In other words, 
this Congress authorized individuals to file lawsuits for ADA 
violations against both private entities and also against the States. 
The State of Alabama said that allowing the Garrett lawsuit to go 
forward against the State violated the State's sovereign immunity.

  When the State of Alabama took the case to the Supreme Court, it 
looked around the country for one of America's best appellate lawyers, 
and it chose Jeffrey Sutton. He argued the case and won it in the 
Supreme Court. That win does not gut the ADA; it hardly impacts it in 
even a minor way. Only 3.7 percent of the workforce would be impacted 
by it. So the Supreme Court's decision in Garrett meant almost nothing, 
as far as the overall enforcement of the ADA was concerned, in dealing 
with discrimination against those employees who are disabled.
  What was at stake for the States in Garrett was how the Constitution 
defined the fundamental relationship between the State government and 
Federal Government. The Supreme Court explained the relationship in the 
Garrett case this way:

       The ultimate guarantee of the Eleventh Amendment is that 
     nonconsenting States may not be sued by private individuals 
     in Federal Court. We have recognized, however, that Congress 
     may abrogate the States' Eleventh Amendment immunity when it 
     both unequivocally intends to do so and ``act[s] pursuant to 
     a valid grant of constitutional authority.'' Congress may 
     subject nonconsenting States to suit in Federal Court when it 
     does so pursuant to a valid exercise of its Section 5 power 
     under the Fourteenth Amendment.

  That is what the Supreme Court was talking about. It didn't have 
anything to do with the merits or demerits of the Americans with 
Disabilities Act itself. The Supreme Court went on to conclude that the 
narrow provision applying the ADA to the States was not a valid 
exercise of Congress's section 5 power under the 14th amendment:

       Congress is the final authority as to desirable public 
     policy, but in order to authorize private individuals to 
     recover money damages against the States [also sovereign 
     entities, I add parenthetically], there must be a pattern of 
     discrimination by the States which violates the Fourteenth 
     Amendment, and the remedy imposed by Congress must be 
     congruent and proportional to the targeted violation. Those 
     requirements are not met here.

  So when my good friend Senator DeWine--an excellent lawyer from 
Ohio--earlier indicated he thought the Supreme Court was in error, 
maybe that was because he was here when the ADA was passed and I 
wasn't. But as a former attorney general, I think the Supreme Court was 
correct: If we allow Congress to go around willy-nilly and knock down 
the classical, historic sovereign immunity of our States, it will 
weaken the States to an extraordinary degree.
  The Supreme Court went on to take pains to emphasize that its 
decision did not deprive the disabled of their rights:

       Our holding here that Congress did not validly abrogate the 
     States' sovereign immunity from suit by private individuals 
     for money damages under Title I [of the Americans with 
     Disabilities Act] does not mean that persons with 
     disabilities have no Federal recourse against discrimination. 
     Title I of the ADA still prescribes standards applicable to 
     the States. Those standards can be enforced by the United 
     States in actions for money damages, as well as by private 
     individuals in actions for injunctive relief. . . .
       In addition, State laws protecting the rights of persons 
     with disabilities in employment and other aspects of life 
     provide independent avenues of redress.

  In other words, the Supreme Court said this would not leave a 
disabled person who works for a State without a remedy for 
discrimination. That person can file for an injunction, receive back 
wages if they have been unfairly terminated, and get an order that they 
have to be reinstated. But given the classical doctrine of sovereign 
immunity, given the record this Congress developed in passing the ADA, 
and given the language of the statute that was passed, the Supreme 
Court could not legitimize an action for money damages against the 
States.
  As a matter of fact, I would note all 50 States have passed laws to 
give protections to the disabled, in addition to the Federal ADA, in 
part by providing remedies like injunctions and back pay. It is simply 
not true that the States do not have any concern for disabled citizens.
  I also think it is notable that when Congress passed the ADA, it did 
not impose on the Federal Government the obligations it placed on the 
States. The Members of this body express great anguish that the States 
did not gracefully allow themselves to be sued, and they complain that 
the attorneys general of the States did not knuckle under by allowing 
people to sue the States. But when Congress passed the ADA, it did not 
make the act applicable to the United States Government. Even though 
the Federal Government is the largest employer in America, it does not 
have to extend to its own disabled employees the same benefits it 
demands of the States. It would be ironic, to say the least, for us to 
criticize Jeffrey Sutton for advocating State constitutional immunity 
from suit under the ADA when this very Senate exempted the Federal 
Government from the ADA's requirements.
  This criticism is particularly unfair to Mr. Sutton because he has a 
demonstrated commitment to the disabled. Beyond his sound historical 
and effective legal arguments in the Garrett case before the Supreme 
Court, anyone who knows Jeffrey Sutton knows that he is sensitive to 
the needs of the disabled. When Mr. Sutton started ninth grade, his 
father became head of the Matheny School in Peapeck, NJ. Matheny was a 
boarding school providing education and life skills to disabled 
children with cerebral palsy.
  Mr. Sutton spent time at the school doing maintenance work. This 
experience made him well aware of the challenges faced by the disabled.
  Since that time, Mr. Sutton has continued his commitment to the 
disabled. Few are better qualified to speak about that than Cheryl 
Fischer. Ms. Fischer, a blind woman, applied for admission to Case 
Western Reserve University's medical school. The school denied her 
admission because of her disability.
  Mr. Sutton was asked to participate in the case by Ohio's attorney 
general, and was given a choice of whom to represent. He was told, 
``you can represent the school and oppose a blind woman's right to be 
admitted to the medical school, or you can represent her.'' He chose to 
represent Cheryl Fischer, without charge, pro bono, and he passionately 
argued her case before the Supreme Court of Ohio.
  He lost the case, but Ms. Fischer has no doubt about Mr. Sutton's 
ability and integrity. She said:

       I think he believes thoroughly in the civil rights of all 
     people. He is not someone who would want to minimize the 
     rights of disabled people. He helped me stand up for what I 
     believe in.

  She went on to say:

       I would definitely like to see him on the Federal court.

  Cheryl Fischer is just one of many who believe Jeffrey Sutton would 
protect disability rights and civil rights

[[Page S5430]]

generally as a judge on the very important Sixth Circuit Court of 
Appeals.
  Mr. Sutton is also a board member of the Equal Justice Foundation. It 
is a nonprofit organization based in Columbus, OH, that provides legal 
representation to the disadvantaged, including the disabled. In 1999, 
the Foundation sued to compel the city of Columbus to comply with the 
Americans with Disabilities Act by installing curb cuts for wheelchairs 
on city streets.
  The executive director of the Equal Justice Foundation, Kimberly 
Skaggs, disagrees with Jeffrey Sutton politically but supports his 
nomination to the Sixth Circuit. She said:

       Mr. Sutton possesses all the necessary qualities to be an 
     outstanding Federal judge. I have no hesitation whatsoever in 
     supporting his nomination.

  Frankly, I have been disappointed by the leaders of the disability 
community on this issue. They have stirred up opposition. They have 
told the American disabled community that Jeffrey Sutton does not care 
about the disabled. That is not true, but that is what they have said. 
They said that the sovereign immunity position he advocated for his 
clients in ADA cases meant he personally did not care about the 
disabled, that he did not like them, that he was opposed to them, and 
that he would not give them a fair shake in court.
  That is basically what they have said. They have suggested his legal 
efforts were aimed at harming the disabled, when in truth he was simply 
vindicating the historical legal protection of the States for his 
clients. The State governments have long enjoyed this protection from 
federal lawsuits.
  Another groundless allegation is that Mr. Sutton opposes laws against 
age discrimination. This allegation stems from his representation of 
the State of Florida in a case called Kimel v. Florida Board of 
Regents. In Kimel, the Supreme Court agreed with Mr. Sutton's argument 
that it was not necessary for Congress to abrogate State sovereign 
immunity through the Age Discrimination in Employment Act because the 
States were already protecting their senior citizens against 
discrimination. As with the disabilities right issue, Mr. Sutton did 
not advocate judicial repeal of the act. Far from it. He explicitly 
stated that the ADEA advances a commendable policy--nondiscrimination 
against the elderly. What he argued for was the proper constitutional 
balance between the State and Federal governments. The Supreme Court 
agreed with him. So now these people are saying that a reasonable and 
honorable position he advocated for his client--whether he won or not, 
even though he did in fact win--somehow disqualifies him from the 
bench. I think that is unfair, and I am disappointed with some of the 
people who are making these arguments because I think if they took a 
moment to look at it, they would know these arguments were not well 
taken.
  Some have even brought up that he is a member of the Federalist 
Society. One special interest group deems the society hostile to 
reproductive rights, and suggested that this nominee is guilty by 
association. The way some of my colleagues on the other side of the 
aisle have talked about the Federalist Society, it would seem that 
membership might amount to a scarlet letter that nominees should wear 
during the hearings. But this is an unwarranted attack on the Society 
and its members. Although it sponsors numerous discussions of 
controversial issues, from abortion to the war against terrorism, the 
Federalist Society takes no position on any of these issues. Regular 
panelists at their conferences include noted liberals like Harvard law 
professor Laurence Tribe and ACLU president Nadine Strossen. The 
society cannot be said to be hostile to abortion rights or any other 
rights, and so its members--here, Jeffrey Sutton--should not be blamed 
for having participated in the Society.
  Finally, we should move this nomination forward because of the 
understaffed Sixth Circuit bench. The Judicial Conference of the United 
States, which deals with court staffing and other issues related to our 
Federal judges, has determined that the vacancy that would be filled by 
Mr. Sutton's appointment is a judicial emergency. In fact, there are 
currently six vacancies on the Sixth Circuit, all of which have been 
deemed emergencies. This court is in crisis. Those six vacancies impair 
the administration of justice.
  The current understaffing on that court makes it imperative we 
promptly examine and approve nominations of all the six circuit 
candidates, particularly this eminently, extraordinarily qualified 
nominee, one of the best lawyers in America, Jeffrey Sutton.
  I had the pleasure to see Mr. Sutton testify. He was asked questions 
all day long until 9 p.m. at night. He was complimented by Senator 
Dianne Feinstein for his willingness to discuss anything he was asked. 
He answered the questions openly. He answered the questions with great 
legal skill and judgment time after time after time. I cannot think of 
a single answer that he gave in that long examination that anyone found 
offensive. It was a tour de force of legal exposition. I was extremely 
impressed not only with his brilliance but with his kind demeanor and 
his sensitivity to the questions. He listened to people's questions. He 
responded very carefully and sensitively to those questions.
  Those were precisely the qualities I believe would make him an 
extraordinary court of appeals judge. You could look throughout this 
country and find very few people more qualified by ability, by 
experience, by integrity, to hold this high office.
  I strongly urge my colleagues to confirm his nomination.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. REID. 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. REID. Mr. President, I had the opportunity today to listen to 
Senator Harkin speak on the Sutton nomination. I was terribly impressed 
with his ability to explain to the American public on a very personal 
basis, as a result of his brother's handicap, why this nomination is so 
important. I hope all the Senate has the opportunity to see and review 
Senator Harkin's comments. They were so appropriate and directly on 
point.
  Again, the Senator from Iowa, the junior Senator from Iowa is a 
person of stature who always brings substance to a debate as he did in 
this instance.
  Mr. SESSIONS. Mr. President, I will comment to the distinguished 
Senator from Nevada about Senator Harkin's passionate advocacy for the 
disabled in America. He cares deeply about that issue and there is no 
one more eloquent on it than he is.
  I ask the Senator from Nevada if he is aware that Jeffrey Sutton 
voluntarily agreed, on a pro bono basis, to prepare and to passionately 
argue a case before the Supreme Court of the State of Ohio that a woman 
who was blind should be admitted to the Case Western University Medical 
School, even though he lost the case. I wonder if the Senator knew 
that? A lot of the Senators have not known that he has a personal 
concern about this issue and has given of his own wealth--that is, his 
time--toward that effort.
  Mr. REID. I say to the distinguished Senator from Alabama, I am aware 
of the information we have all been given on the nomination, and he 
certainly did do this.
  What we have to look at, though, is his entire background and we will 
all do that. My point was that I think the Senator from Iowa, Mr. 
Harkin, laid out a foundation for our taking a very close look at this 
nominee. As the Senator from Alabama knows, the nominee has stated his 
views over a considerable period of time, more than just the one case 
he argued in Ohio.
  All Members have a decision to make tomorrow as to whether this man, 
Jeffrey Sutton, would be the kind of person we want on the circuit 
court. We all have that decision to make, and we can weigh what he has 
done with what he has not done and make that judgment.
  My point I was making is that we oftentimes in the Senate debate in 
the abstract. Senator Harkin did not do that. He formed his debate 
based upon his brother, who was accepted to a school for the deaf and 
dumb; as Senator Harkin said, his brother may have been deaf but he 
wasn't dumb. I think this is the only case I am aware of where the 
disabled community has been so up in arms over a nominee.

[[Page S5431]]

  First, I hope we have the opportunity tomorrow to speak to our 
respective caucuses--the majority leader has to make that decision as 
to whether we will vote at noon tomorrow or after the caucuses. 
Regardless, it is quite clear that we are going to vote tomorrow. All 
100 Senators have to make a decision as to what they want to do.
  Mr. SESSIONS. I note that the Senator from Nevada, who is himself a 
superb lawyer, has represented criminals and defended them on occasion, 
as I have. I would point out that just because he represented a cause 
and advocated it, it does not necessarily mean he shared all those 
views, personally. I also would note, and am pleased to see, that the 
State of Nevada joined Alabama as amicus curiae in the Garrett case.
  Maybe the Senator would like to once again respond. I am not entitled 
to the last word. If not, I will go forward with morning business.
  Mr. REID. Mr. President, if I could just ask the Senator to yield, I 
have learned, having served in the Senate, that the majority always 
gets the last word, so the last word is that of the Senator from 
Alabama.

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