[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.
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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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