[Congressional Record (Bound Edition), Volume 149 (2003), Part 7]
[Senate]
[Pages 9573-9577]
[From the U.S. Government Publishing Office, www.gpo.gov]




                      NOMINATION OF JEFFREY SUTTON

  Mr. HARKIN. Mr. President, we are wrapping up prior to going on a 2-
week break from the Congress. We have the supplemental appropriations 
bill yet to do, so we are wrapping up this evening, late on Friday 
night. Congress will be gone for 2 weeks.
  Something happens when we come back. Something very important and 
something very meaningful happens when we come back. I will talk about 
that for a few moments.
  Mr. President, what is going to happen when we come back, there will 
be at some point soon after we get back from our break, a vote up or 
down on the Senate floor on whether or not the Senate will advise and 
consent to approving President Bush's nominee, Mr. Jeffrey Sutton, to 
be a judge on the Sixth Circuit Court of Appeals.
  I will speak for a while tonight about Jeffrey Sutton, but when we 
come back I will have a lot more to say. I don't think too many people 
have focused on this. There has been a lot of talk about Mr. Estrada 
and now there is talk about Judge Owen from Texas but not too much has 
been said about Mr. Sutton. I will lay out the case and lay out for my 
fellow Senators and for the public at large what is at stake in this 
nomination.
  First, for the record, Mr. Sutton is a 42-year-old lawyer, currently 
a partner at Jones, Day, Reavis and Pogue in the Columbus, OH, office. 
He is an adjunct professor of law at Ohio State University College of 
Law. He served as State Solicitor of Ohio from 1995 to 1998. He is a 
former law clerk to Justice Powell and Justice Scalia and Justice 
Thomas Meskill of the Second Circuit Court of Appeals. He has been 
nominated by President Bush to be a member of the Sixth Circuit Court 
of Appeals.
  At the outset, Jeffrey Sutton has a great resume. He hails from Ohio 
State Law School, is a former solicitor for the State of Ohio, and he 
has argued cases before the U.S. Supreme Court. Quite frankly, he has 
won many of them. So he has a great resume. Quite frankly, my arguments 
will not be about whether he is qualified. That is not the point.
  I will state at the outset in terms of legal qualifications and 
background that Mr. Sutton is qualified to sit on a bench. However, I 
don't believe that is all we have to look at.
  I had the opportunity to meet with Mr. Sutton for about an hour and a 
half in my office. He was kind enough to come to my office. We sat 
there and discussed an issue of great importance to me and to him. We 
had a great conversation. I found him to be personable. I found him to 
be highly intelligent, very bright. He is definitely an accomplished 
attorney. Frankly, I enjoyed my conversation with him for an hour and a 
half.
  However, I take very seriously our responsibility to advise and 
consent on lifetime judicial nominees. These are not positions to 
rubberstamp or just to lightly say that simply because someone is 
qualified they should be on the court. I have done a careful review of 
Mr. Sutton's advocacy inside and outside the courtroom.
  What I come to, I am not convinced Jeffrey Sutton would be able to 
put aside his own personal agenda and be a fair and balanced judge. 
Especially for me, I cannot support putting someone on a Federal 
circuit court who has worked, worked assiduously, worked intelligently, 
to undermine the Americans with Disabilities Act.
  As many here know, my brother, Frank, now deceased, was deaf. Through 
his eyes and through his life, my family and I saw firsthand what 
discrimination against persons with disabilities looks like. It was not 
something abstract. It was real. It was personal. It was up close. I 
often said if I could ever be in a position to do something about the 
kind of discrimination that my brother and so many others had faced, I 
would do it. Through the generosity of the voters of Iowa, I was in 
that position. In both the House and later in the Senate, I spent my 
time working to develop legislation to bring out of the shadows of 
discrimination, of institutionalization, people with disabilities, 
bring them out of the shadows and bring into the sunshine of civil 
rights laws in this country.
  The day before the Americans with Disabilities Act was signed by the 
first President Bush, the day before it was signed, if you were a 
person of color in this country, say, you were an African American, and 
you went down the street and answered an ad for a job for which you 
were qualified, and you walked in there and your prospective employer 
looked at you and said, I'm not hiring Black people, get out of here. 
You could have walked out that door, walked down the street, and walked 
right into the courthouse because we passed a Civil Rights Act in 1964 
that outlaws, bans that kind of discrimination, based upon race.
  If, however, on that same day a person in a wheelchair, qualified for 
that job, had rolled that wheelchair down there and the prospective 
employer looked at you and said, Get out of here; I don't hire 
cripples, and you rolled that wheelchair down to the courthouse door, 
the doors were locked. They were open if you were a person of color and 
you had been discriminated against. But, if you were a person with a 
disability, the courthouse door was locked because there was no law 
that banned discrimination based upon disability.
  The next day President Bush signed it into law and you, Mr. 
President, or anybody else who might have a disability, took their 
place alongside those who had been brought into our civil rights laws 
in America.
  We did not pass that bill overnight. We didn't just all of a sudden 
decide we were going to pass a civil rights bill for people with 
disabilities, and pass it. We spent years. I am going to have more to 
say about this when we come back after the break, but we spent years on 
this, holding hearings and hearings, in forums all over the United 
States; a Presidential task force appointed by a Republican President, 
having hearings all over the United States. There were years of 
drafting, debating, trying to hone it down to make sure we had it 
right. With bipartisan support it passed overwhelmingly in the Senate. 
It passed overwhelmingly in the House of Representatives with 
bipartisan support.
  I will never forget that grand day when President Bush signed that 
into law on the White House lawn. At that time it was the biggest 
gathering ever in White House history for the signing of legislation.
  Justin Dart was there. Justin Dart was right there on the platform. 
Justin Dart, the hero of the disability rights movement in America, now 
also sadly deceased. Justin Dart sitting up there, and President Bush 
talking about Justin Dart leading this great movement

[[Page 9574]]

to bring people with disabilities under our civil rights laws.
  Here is what President Bush said that morning:

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

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

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

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

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

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

  Mr. HARKIN. We in Congress met, these many years, overwhelming 
evidence that discrimination in this country against people with 
disabilities was rampant, unchecked, building up year after year. It 
was not just in the private sector but in the public sector. State 
governments and the Federal Government discriminated against people 
with disabilities. It was pervasive in our society. We took care, when 
we passed that bill, to make sure we had the findings and the 
constitutional basis to pass muster in the United States Supreme Court.
  The signing sealed the work of a monumental bipartisan effort that 
sought to right decades of wrong. It took the tireless work of 
Democrats and Republicans alike. As I said, it passed the Senate 91 to 
6. The House passed it 402 to 20. Then-Attorney General Thornburgh was 
a strong supporter. The Chamber of Commerce was on our side, the 
business community, the States, President Bush, all stood together. Why 
did we all stand together on the ADA? Because it was the right thing to 
do. Justice demanded it.
  July 26, 1990--President Bush said a lot of good things that day as 
he signed this bill. As I said, I will never forget it.
  I was proud of this because it represented the hard work of a lot of 
people and it broke down these old barriers of exclusion and 
intolerance and injustice toward people with disabilities. Now after 
all the work we did, all the findings, all the hearings, all the 
documentation we compiled, all that President Bush said, Mr. Sutton--
guess what he said. He said it wasn't needed. He said the ADA was not 
needed.
  Why did he say it was not needed? Why, because the States were doing 
the job. This was a State responsibility and Congress did not have the 
findings that States had been discriminating. As I told Jeffrey Sutton 
when he sat in my office that day, I said, ``How could you say that?'' 
I said, ``Did you read all the documentation? Did you read all the 
findings that we had?'' Twenty-five years of studies going clear back 
to 1965 and beyond; 1974. There were 17 formal hearings by 
congressional committees, markup by 5 separate committees. There were 
63 public forums across the country by congressionally established task 
forces. There was oral and written testimony by the Attorney General of 
the United States, Governors, States' attorneys general and State 
legislators. There were over 300 examples of discrimination by State 
governments in that record.
  Yet before the Supreme Court of the United States, Mr. Sutton said it 
wasn't needed. That is Garrett v. Alabama. I'll have more to say about 
Pat Garrett, too. But he said it just wasn't needed.
  Regarding the Americans With Disabilities Act, I see them chipping 
away at a law that symbolizes the inclusion of all Americans in our 
society. For the past few years, Jeffrey Sutton has held the hammer and 
the chisel.
  In my mind it is not about whether he is qualified to be a Federal 
judge, or whether he is a nice guy. As I said, I happen to have enjoyed 
my conversation with him. Frankly, I know who the six Senators were who 
voted against the ADA in the Senate. I hope to enjoy my conversations 
with them, too. I just disagreed with them and so did 91 other Senators 
disagree with them. But that doesn't mean the six who voted against it 
are bad people. I, frankly, enjoy the friendship of those six people.
  That is not the point. The point is whether or not someone should be 
on the circuit court who holds that same kind of opinion. His 
qualifications--to me, a judge's qualifications are half of the 
equation. In other words, I think they have to meet the test of are 
they qualified. I think the other half of our responsibility is to 
determine whether or not that person can be a fair and balanced judge 
who understands the role of Congress in correcting ancient wrongs and 
helping to make our society more fair and more just. Frankly, in his 
writings and in his statements, and even in my conversation with him in 
my office, Mr. Sutton seems to have a unique view of our role here that 
somehow when it comes to civil rights laws, especially the Americans 
with Disabilities Act, that we have a very narrow area in which we can 
operate; the rest must be left to the States.
  As I said, you read his writings. I was in the Supreme Court. I sat 
there in the front row the day he argued the Garrett case, sat right 
next to Bob Dole. And when I heard him stand up and say the ADA was not 
needed, I said: Wait a minute. When I heard him talk about how we had 
not really established the record, that we had not really had the 
findings of State discrimination, I said: How could he possibly say 
that? Only someone who did not know what we did could ever say that.
  And that is what I talked to him about in my office. How could he say 
such a thing, when we had all this? Well, he said, yes, OK, he 
appreciated that, but I never got to the bottom of it with him.
  Anyway, his arguments before the Supreme Court articulated that 
States can do a better job of it than we can, and Congress did not find 
enough evidence. We found the evidence. It is there. It is in the 
record. It is compiled.
  Mr. Sutton has said a lot of times: Well, I was only representing my 
client, and I am duty bound as a lawyer to do the best I can for my 
client. And he was representing the State of Alabama. Well, OK, I can 
accept that. But here is what Mr. Sutton said on National Public Radio 
on October 11, 2000.

[[Page 9575]]

Now, a lawyer's responsibility to fully represent his or her client 
does not spill over into talking on National Public Radio. That is his 
personal opinion. And here is what he said:

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

  That is what Mr. Sutton said on National Public Radio.
  I am going to talk more about this when we come back after the break, 
about the extensive record that we found of constitutionally based 
discrimination against people with disabilities--discrimination that 
was pervasive in our society, the institutionalization of people, the 
blatant discrimination in jobs, in transportation, in public places 
against people with disabilities. And yet he said it is difficult to 
show.
  Well, we showed it. But evidently that was not enough for Mr. Sutton 
because he has his own narrow view, his own personal view of what the 
limits of Congress are in addressing these wrongs.
  People with disabilities, as I said, locked away in institutions for 
years; people with mental disabilities subjected to involuntary 
sterilization because, in the words of the late Justice Holmes: ``Three 
generations of imbeciles are enough.'' Persons with severe hearing 
loss, like my brother Frank, labeled deaf and dumb. They sent my 
brother away to a school, segregated him away from his friends, from 
his family, from his community, to go to the Iowa State School, as they 
said in those days, for the deaf and dumb. What does that do to people, 
simply because they are deaf, being called dumb? For too many years, 
those who were blind were forced to sell pencils on a street corner to 
earn a living.
  When the day is done, and we all go home, Jeffrey Sutton--no matter 
how likable he is, no matter how good his qualifications are--has an 
extreme, limited view of our congressional role to legislate in this 
important area. From his arguments before the Supreme Court, he seems 
to believe that each State does its job to protect the constitutional 
rights of persons with disabilities as the State sees fit.
  After what I saw and heard with my own ears, and during the crafting 
of the ADA over all those years and all those hearings, I cannot fathom 
anyone reaching that conclusion.
  Pat Garrett--I will have more to say about the Garrett case--Pat 
Garrett, from Alabama, working in a job for the State, came down with 
breast cancer. She had to go have an operation. She had chemotherapy. 
She recovered. She went back to work. She was told by one of her fellow 
coworkers that her boss didn't like sick people. Her boss fired her.
  So she brought a case under the Americans with Disabilities Act. She 
won. She won her case in the lower court. Then the State of Alabama 
hired Jeffrey Sutton to argue its case before the Supreme Court, and 
the Supreme Court found for Alabama by a 5-to-4 decision.
  It seems to me that according to Jeffrey Sutton, that if Pat Garrett 
does not like the fact that the State of Alabama did not have a law 
that protected her rights as a disabled person, why, she can move to 
Nevada, maybe move to Minnesota, maybe move to Iowa. That is her right, 
that she can just move out of the State, maybe find some other place to 
live, where a State does have laws against discrimination against 
people with disabilities in their State institutions.
  But is that what we have become in our country, a patchwork quilt? 
That is what we found in all these hearings on the ADA, a patchwork. 
Yes, some States were good; some States had none--a patchwork quilt.
  I do not believe that your civil rights ought to depend on your 
address. Your civil rights, under the Constitution of the United 
States, ought to depend on whether you are in this country and you are 
a citizen of the United States, not whether you live in Minnesota, 
Iowa, Nevada, or Alabama.
  States rights--I don't know which seat the occupant of the chair from 
Minnesota holds, but it was that great Senator from Minnesota who, back 
in 1948, took on his own party--my party--the Democratic Party, in that 
great speech he gave at the convention and said: It is time to come out 
of the shadow of States rights and into the sunshine of civil rights. 
And that is when the Dixiecrat, Senator Strom Thurmond, left the party, 
because of what Hubert Humphrey said.
  But Hubert Humphrey was right, it was time to come out of that shadow 
of States rights and recognize that civil rights inures to all of us as 
citizens of the United States and not just because I happen to live in 
one State or another.
  But Jeffrey Sutton does not believe that; down deep inside he does 
not. And I say that only because of what he has said and what he has 
written, not just because of his representation of a client, but what 
he has said outside the courtroom.
  All the lawyer code and duty talk does not tell the whole story. He 
has written articles, participated in radio talk shows, panel 
discussions, expressing his personal views, not his clients', but his 
own personal views. That kind of publicity is not required by his role 
as a lawyer advocating on behalf of his clients.
  So based on his advocacy, based upon his own words, I am not 
convinced that a person with a disability, walking into Jeffrey 
Sutton's courtroom, can expect a fair shake from Mr. Sutton.
  Again, as I said, I find him a likable individual, obviously very 
intelligent. But he means to undo with his position all we have done 
here to make sure that people with disabilities have their civil 
rights.
  There are over 400 disability rights and civil rights groups in the 
United States opposing this nomination to the Sixth Circuit. I am hard 
pressed to know of any disability group that supports Mr. Sutton.
  Again, this is nothing personal. People with disabilities understand 
how tenuous their hold on their civil rights is today. The Supreme 
Court has chipped away a little bit here, a little bit there on the 
Americans with Disabilities Act. There are still those in our country 
who believe we should not have had that law. Mr. Sutton, obviously, is 
one of those. He says it wasn't needed.
  People with disabilities live every day wondering whether or not they 
will be treated fairly based not upon their disability but on their 
abilities: Will I be able to get a good education? Will I be able to be 
treated fairly and equitably in terms of employment? Will I be able to 
find some reasonable accommodation so I can do a job? Will I go into a 
place of business and be ignored because I look different, maybe I act 
differently?
  That is what people with disabilities live with every day. They know 
their hold on this is tenuous. I can understand very deeply the concern 
that people with disabilities all over America have about this 
individual, the deep concern they have, because they see in Mr. Sutton 
the personification of all of the people in their lives who made life 
harder for them, people who had a view that was narrow, who said that 
somehow our National Government cannot do anything to secure their 
civil rights, they only have to look to the State.
  I will have more to say about Mr. Sutton. I will close with this. On 
that National Public Radio broadcast I talked about, he also said:

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

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

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

  What happens when a State wins in these competitions? Do they get a 
prize? What happens to the people who are in the losing States? Are 
they just unlucky? What about Pat Garrett? Obviously, Alabama was not 
competing to

[[Page 9576]]

have the best antidisability discrimination laws in the country.
  I would be the first to say that one of the great things about our 
system of government is, it does allow for experimentation in different 
States. It allows different States to approach problems differently. 
Out of that we do get not a top-down, one-size-fits-all type of 
government. That is one of the beauties of our system. But when it 
comes to fundamental issues of fairness and justice and equity, when it 
comes to the basic, fundamental issues of civil rights, I say again, 
your civil rights as an American citizen should not depend on your 
address. It should not depend upon the shadow of States rights. It 
should depend upon the sunshine of being a U.S. citizen and having the 
Federal Government make sure that our civil rights are protected no 
matter where we are.
  Again, if we want to have competition among States on education and 
transportation and all kinds of different things, that is fine. But on 
fundamental, basic civil rights, one law, one Constitution, one Bill of 
Rights that covers us all.
  Mr. Sutton is going to be before us. He is not now, but I understand 
he will be as soon as we come back. I wanted to start the debate. Quite 
frankly, I don't think Mr. Sutton has received the kind of attention 
and the kind of discourse and debate in this body that a circuit judge 
of his stature deserves, at least one who has this background and one 
who by his statements invites this kind of controversy.
  We have approved circuit court judges around here almost on voice 
vote, 98 to nothing, 96 to nothing. I have joined in that. The people 
were not only qualified, but they didn't raise these kinds of troubling 
questions about how they will deal with fundamental civil rights laws. 
But Jeffrey Sutton does. He raises those issues. He has done it on his 
own.
  I will have more to say about his statements when we come back. I am 
hopeful--not in a vindictive sense or anything like that--that this 
Senate will disapprove of putting Mr. Sutton on the court, thereby 
sending a very loud and strong message to people with disabilities all 
over this country that we passed the Americans with Disabilities Act 
with our eyes wide open; that we knew what we were doing; that we 
assembled the data. We had all of the evidence we needed. We compiled 
the record, and we want to keep it as the law of the land--as the civil 
rights law of the United States.
  It would be a powerful message because I can tell you this. If 
Jeffrey Sutton ascends to the Sixth Circuit Court of Appeals, Americans 
with disabilities all over this country will see the hands of the clock 
turning backward--back, back to the days of discrimination, back to 
those days when they were afraid to enter that door, or to demand their 
rights as an American citizen, as a human being. I believe it is going 
to cause people with disabilities to wonder whose side we are on.
  Whose side are we really on? I hope we are on the side of civil 
rights.
  Mr. HATCH. Mr. President, I would like to respond to the comments 
made by my good friend from Iowa, Senator Harkin.
  I was also a cosponsor of the Americans with Disabilities Act, and I 
believe very much in that legislation and its goals. It is one of the 
most important pieces of legislation that I have worked on during my 
tenure in the Senate. I can certainly understand my distinguished 
colleague's concerns about the limitations that the Supreme Court 
placed on the Act in their decision in Garrett. However, I do not 
believe for one minute that Mr. Sutton's representation of the State of 
Alabama is in any way indicative of an agenda, personal or otherwise, 
against Americans with disabilities.
  Even the People for the American Way has conceded, ``No one has 
seriously contended that Sutton is personally biased against people 
with disabilities.'' Furthermore, Mr. Sutton's opposing counsel in the 
Garrett case, former Clinton administration Solicitor Seth P. Waxman, 
has written to me in support of Mr. Sutton. He stated:

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

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

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

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

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

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

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

  Beverly Long, Immediate Past President of the World Federation of 
Mental Health and former Commissioner of President Carter's Commission 
on Mental Health writes:

       I have followed news reports of the intense lobbying 
     against Mr. Sutton by various people who advocate on behalf 
     of the disabled. This effort is unfortunate and, I am 
     convinced, misguided. I have no doubt that Mr. Sutton would 
     be an outstanding circuit court judge and would rule fairly 
     in all cases, including those involving persons with 
     disabilities.

  In addition, my good friend from Iowa mentioned that he sat next to 
Senator Robert Dole at the Garrett arguments. Senator Dole, who has 
always been a great champion of disability rights, has of course joined 
the chorus of those who have written in support of Mr. Sutton.
  There is simply no evidence to suggest that Mr. Sutton took the 
Garrett case due to any personal agenda. It is a well-established 
principle in the legal profession that lawyers should not be held 
responsible for the positions of their clients. The ABA Model Rules of

[[Page 9577]]

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

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