[Congressional Record (Bound Edition), Volume 149 (2003), Part 7]
[Senate]
[Pages 9859-9877]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

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

  The PRESIDING OFFICER. Under the previous order, the Senate will now 
go into executive session and resume consideration of Executive 
Calendar No. 32, which the clerk will report.
  The assistant legislative clerk read the nomination of Jeffrey S. 
Sutton, of Ohio, to be United States Circuit Judge for the Sixth 
Circuit.
  The PRESIDING OFFICER. Under the previous order, the time until 12 
noon shall be equally divided between the chairman of the Judiciary 
committee and the Senator from Iowa, Mr. Harkin.
  The Senator from Nevada.
  Mr. REID. Mr. President, I ask unanimous consent that Senator Durbin 
be recognized on the Democrats' time first for 20 minutes. Our next 
speaker would be Senator Schumer for 15 minutes. There will be a 
Republican in between, I am sure, if that is the wish. But I ask 
unanimous consent that our first two speakers be lined up accordingly.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from New York.
  Mr. SCHUMER. Mr. President, I ask unanimous consent that I 
immediately proceed after Senator Durbin for 15 minutes--that I follow 
him.
  Mr. REID. The Senator from New York understands----
  Mr. STEVENS. I reserve the right to object.
  Mr. REID. There will be a Republican in between him and Senator 
Durbin.
  Mr. SCHUMER. Yes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Illinois.
  Mr. DURBIN. Mr. President, this week appears to be ``Judge Week'' in 
the Senate. We are going to focus on judicial nominations.
  It is interesting, as I traveled across Illinois over the last 2 
weeks, not a soul raised a question about Federal judges--the debate 
here in the Senate. It does not seem to be on the radar screen of 
average Americans. It is certainly an important issue; it is one that 
we focus on as political parties, and it is one that I think is timely 
when we consider the nominees who are before us.
  For the average American, it may not mean much, it may not mean much 
until that day comes that a decision is handed down by a court that has 
an impact on families across America, and businesses and individuals, 
because Federal judges have extraordinary power. The men and women we 
are considering in the Senate are being given lifetime appointments to 
the Federal bench. If they are good, they will be good for a lifetime; 
if they are bad, they will be bad for a lifetime. Most of us in the 
Senate will come and go, and they will still be sitting on the bench 
with gavel in hand, in their black robes, meting out justice according 
to their own values. So it is important that we ask questions and make 
inquiries as to what those values might be.
  The judge before us today is Jeffrey Sutton. If you read about 
Jeffrey Sutton, you find a man of extraordinary intellect. He is a 
partner in a large Columbus, OH, law firm, and served as State 
solicitor in Ohio. He is a professor at Ohio State University Law 
School. He has been a law clerk for Supreme Court Justices Scalia and 
Powell, and he has done a number of other things which suggest that 
this is a thoughtful man.
  There is no question as to whether he is up to the job 
intellectually. The question is whether he brings to the job the values 
that are in the mainstream of America. I would suggest that he does 
not.
  As a result of that, I will oppose his nomination. I would like to 
spell out exactly why. In the cases he has taken, and the legal 
arguments he has advanced, Jeffrey Sutton has shown a consistent 
pattern of insensitivity to civil rights, human rights, and the rights 
of minorities, women, and the disabled in America.
  Time and again, he has asked the Federal courts to remove the 
authority of Congress to create laws involving individual rights and 
liberties and to give compensation to those who have been wronged. That 
is the hallmark of his legal career. That is who Jeffrey Sutton is. 
That is what he believes.
  Given a lifetime appointment to this bench in the Sixth Circuit Court 
of Appeals, we can predict, with some degree of certainty, he will 
continue in his quest to try to deny those coming before the court the 
right for a day in court if they happen to be disabled, victims of age 
discrimination, victims of civil rights discrimination, and the like.
  His hearing was held on January 29, with two other controversial 
nominees: Deborah Cook, also a nominee for the Sixth Circuit, and John 
Roberts, for the DC Circuit. It was the first time since 1990 that the 
Judiciary Committee held a hearing on one day for three circuit court 
nominees. It is unfortunate. We had some time to ask Professor Sutton 
questions, but not as much time as we needed. I sent some written 
questions to him and have those responses.
  But if you look at the interest in his nomination, you will find an 
extraordinary lineup of organizations that oppose Jeffrey Sutton. It is 
hard to believe, but true, that 70 national and nearly 400 local 
organizations oppose Jeffrey Sutton for confirmation to the Circuit 
Court of Appeals. Twenty-three of them are based in Illinois. The 
disability community is particularly alarmed. And you will understand 
that as I talk about some of the cases he has taken.
  In our history, seldom do people stand and announce publicly they are 
prejudiced. That is not something you hear very often. There are a lot 
of things people say. Usually the shield, the explanation, and the 
rationale for prejudice in America is to say: I am standing up for 
States rights. Boy, that has been the clarion call from those who 
oppose universal concepts and principles of human rights and civil 
rights, I guess dating back to our debates in the Senate and the House 
about slavery, which led to the Civil War. You remember that, of 
course.
  The States argued that the Federal Government could not impose on 
them a standard relative to slavery; it would be a matter of States 
rights. It reached such a high peak of anger and frustration that it 
led to the secession of States, a civil war, and the bloodiest moment 
in the history of the United States.
  The end of that war did not end the debate. Those who continue to 
oppose civil rights and human rights--whether they are for people of 
color; for those of different ethnic backgrounds, different genders, or 
sexual orientation; or for those with certain disabilities--never stand 
up and say: I am really prejudiced against these people; I just don't 
like these people. They say: No, no, we are for States rights. We don't 
believe the Federal Government should have a standard across America 
for all people who are in this category. We think each State should 
make up a standard.
  That is what former Senator Hubert Humphrey referred to as ``the 
shadow of civil rights''--a shadow cast over America after the Civil 
War, until Brown v. Board of Education, a case handed down in 1954 
across the street at the U.S. Supreme Court. It was finally after that 
decision that, as Senator Humphrey once said, we came out of the shadow 
of civil rights into the bright sunshine of human rights.
  Jeffrey Sutton has never come out from under that shadow. In fact, he 
has made a legal career of extending that shadow over more and more 
Americans so that they would have less likelihood of prevailing when 
they were discriminated against. While Mr. Sutton's record is devoid of 
obvious manifestations of prejudice, his vision of a Federal Government 
with diminished power to enforce civil rights would achieve the goals 
of those who oppose equality.
  Mr. Sutton has been front and center in some of the most important 
Supreme Court cases of our generation. He personally argued five of the 
most significant cases in the past decade before the Supreme Court. 
That attests

[[Page 9860]]

to his legal skill, but it certainly speaks volumes, as well, as to 
what is in his heart, what he believes, and where he would stand as a 
judge if confronted with similar issues. And in every one of these 
cases, Jeffrey Sutton asked the Supreme Court to restrict the rights of 
the disabled, women, the elderly, the poor, and racial and ethnic 
minorities. He is consistent and, from my point of view, consistently 
wrong.
  Consistently he has argued before the Supreme Court to take away the 
power of individuals to recover for discrimination. One of the most 
glaring cases is the Board of Trustees of the University of Alabama v. 
Garrett. I took a look at the published decision in this case because I 
wanted to read specifically what was at issue.
  We can talk a lot about States' rights and discrimination, and the 
Americans with Disabilities Act, but let me read you what was at issue 
in this case so you understand where Jeffrey Sutton was in this 
argument.
  This is a case involving a woman, a respondent, Patricia Garrett. She 
is a registered nurse, and she was employed as the director of nursing, 
OB-GYN and Neonatal Services, for the University of Alabama in its 
Birmingham hospital. I might say parenthetically, that this is an 
extraordinarily well respected medical institution. Patricia Garrett 
was director of nursing at this hospital, think of that--quite an 
achievement in her career.
  In 1994, Patricia Garrett was diagnosed with breast cancer, 
subsequently underwent a lumpectomy, radiation treatment, and 
chemotherapy. Garrett's treatments required her to take substantial 
leave from work because of this cancer. Upon returning to work in July 
of 1995, Patricia Garrett's supervisor informed her that she would have 
to give up her position as director of nursing at the hospital.
  Garrett then applied for, and received, a transfer to another, lower 
paying position as a nurse manager. She brought a case under the 
Americans with Disabilities Act, and she said: I think the Federal 
Government passed a law that said you cannot discriminate against a 
person because of a disability or an illness--exactly the situation 
that she faced.
  I voted for that law. I remember it well. It brought together an 
extraordinary bipartisan coalition.
  In a few moments, the Senate will hear from my colleague, the Senator 
from Iowa, Tom Harkin. He was one of the leaders on that bill. Senator 
Bob Dole was a leader as well. It was bipartisan legislation which, for 
our generation, said: We will open up opportunities for a group of 
Americans who have been subject to discrimination because they have a 
disability or illness.
  We passed the bill overwhelmingly with a bipartisan vote. I believed 
we were establishing a new frontier of civil rights. I was proud to be 
part of the debate. I contemplated, in voting for it, as many Senators 
did, people such as Patricia Garrett, a woman who reached a pinnacle of 
success in her career as director of nursing at an extraordinary 
hospital in Alabama, learned she had breast cancer, went through the 
anguish and pain of treatment, successful treatment, only to return to 
work after her illness and be told that she had been demoted from her 
position and would suffer a pay cut. She felt she had been wronged. I 
agreed with her.
  When she turned to sue the State of Alabama, which managed the 
university hospital, she ran into a brick wall named Jeffrey Sutton. 
Jeffrey Sutton, the nominee before us, stood up and said: Patricia 
Garrett and people like her, who have been discriminated against by 
States such as Alabama, have no right to recover under the Americans 
with Disabilities Act. This was a decision made by Mr. Sutton to take a 
case which involved more than Patricia Garrett. It involved a basic 
principle of law. Time and again and this case stands out because the 
facts are so compelling that has been the story of Jeffrey Sutton's 
legal career.
  In another disability case, Olmstead v. LC, Mr. Sutton argued it was 
not a violation of the Americans with Disabilities Act to force people 
with mental disabilities to remain institutionalized even when less 
restrictive settings were available. Thank God the Supreme Court 
rejected Jeffrey Sutton's twisted logic in that case 7 to 2. Only 
Justices Scalia and Thomas, the most--let me be careful of my 
language--conservative members of the Supreme Court agreed with Jeffrey 
Sutton's twisted logic.
  In Alexander v. Sandoval, Jeffrey Sutton argued that private 
individuals did not have the power to bring lawsuits under the 
disparate impact regulations of title VI of the Civil Rights Act of 
1964. The Supreme Court agreed with Sutton by the same 5 to 4 majority 
we saw in the Garrett case. As a result of his advocacy, it is now 
impossible for individuals to use title VI to challenge the 
disproportionate impact of many wrongful situations; for example, the 
dumping of toxic waste in poor minority neighborhoods. Congratulations, 
Mr. Sutton. You stood up to stop poor families exposed to toxic waste 
from bringing suit against those responsible for it and who chose their 
neighborhoods as the dumping grounds. I am sure that is a feather in 
his cap with some people but not with this Senator.
  It is impossible to use title VI--because of Jeffrey Sutton's 
argument--to challenge educational tests or tracking procedures that 
disproportionately harm minority students.
  Sutton claims that he was just being an advocate in these cases. He 
says he just wanted to develop a Supreme Court litigation practice. 
While I accept the principle that it is wrong to ascribe the views of a 
client to that client's attorney, I believe it is appropriate to 
consider which clients an attorney chooses to represent. Time and time 
again, Jeffrey Sutton, who is asking for a lifetime appointment to sit 
on a bench in a Federal courtroom and decide the fate of people such as 
Patricia Garrett and victims of discrimination, has chosen to come down 
on the wrong side of history.
  Another indicator of Mr. Sutton's conservative ideology is that he is 
a member and, indeed, an officer of the famed Federalist Society, an 
organization with a mission statement claiming:

       Law schools and the legal profession are strongly dominated 
     by a form of orthodox liberal ideology which advocates a 
     centralized and uniform society.

  Mr. Sutton, an officer of the organization, came before us as a 
nominee--no surprise. If you scratch the DNA of most of President 
Bush's judicial nominees, you will find the Federalist Society 
chromosome. I think about two-thirds of President Bush's circuit court 
nominees who have been brought before the committee have to pass the 
test of being Federalist Society true believers. Jeffrey Sutton goes 
beyond membership. He is an officer of the organization.
  Fewer than 1 percent of attorneys across America belong to the 
Federalist Society. But if you want to make it big in President Bush's 
White House and make it to a high level, you better show credentials 
with the Federalist Society. That is your ticket to being considered 
for a nomination. Mr. Sutton had his ticket punched, as did Miguel 
Estrada, Pricilla Owen, Timothy Tymkovich, Jay Bybee, and Carolyn Kuhl. 
Jeffrey Sutton is part of a pattern of conservative ideologues that 
President Bush has nominated to the Federal court.
  The Sixth Circuit is evenly balanced now, but the President wants to 
change it. He has already nominated six staunch conservatives to that 
court. The President is using ideology as a basis for his nomination, 
and the Senate should reject it.
  Mr. Sutton's legal career has been spent practicing in the shadows of 
States' rights. He has said repeatedly how much he values federalism. 
Time and again he has argued important cases on the side of States' 
rights and not individual rights. We should reject that. We should say 
that as a matter of principle and practice, the men and women seeking 
appointments to these circuit courts of appeal, who decide tens of 
thousands of cases each year and are the gatekeepers for most cases 
before they come to the Supreme Court, should be people who are 
moderate, centrist, and reasonable in their views.

[[Page 9861]]

  Jeffrey Sutton is not one of those nominees. What he brings to this 
nomination is an extreme viewpoint, one that should be rejected, one 
that certainly should not be enshrined for a lifetime at the circuit 
court of appeals.
  I was in Alabama several months ago visiting Birmingham, Montgomery, 
and Selma with John Lewis, Congressman from Atlanta, GA, who was part 
of the civil rights movement. He told me, as we visited the shrines of 
the movement--the street corner where Rosa Parks boarded the bus and 
refused to sit in the segregated section, and the bridge at Selma where 
John Lewis had his head bashed in by an Alabama State trooper trying to 
protest civil rights discrimination--that none of that could have taken 
place were it not for one Federal judge with courage, Judge Frank 
Johnson of Alabama. He stood up to the establishment and other Federal 
courts and said: We are going to see civil rights in America. He had 
the courage of his convictions. Because of that courage, people have a 
chance to succeed in America today that they did not have in the 1960s.
  I thought to myself, as I reflected on Frank Johnson, an unheralded 
hero, how many nominees to the Federal court coming before us today 
would have the courage and vision of Frank Johnson. Trust me, based on 
his record, Jeffrey Sutton would not be one of those judges.
  Jeffrey Sutton, time and time again in his legal career, has stood in 
the path of progress toward equality and opportunity. He has denied 
opportunity to people who are disabled. He has denied people who have 
been victims of age discrimination, he has denied people of color and 
poor people who are looking for their day in court, he has denied them 
that chance.
  How can we in good conscience look the other way? How can we say: 
this is just another political decision, this man may sit on the bench 
for a lifetime but it is the President's right to pick his nominees?
  I don't think we can. In good conscience, we have to say no to this 
nominee. We have to say to the White House: Send us moderate people. Do 
not send us people who will preach intolerance from the bench. Do not 
send us people who will close the courthouse door to Americans who have 
no other recourse when it comes to protecting their civil rights.
  Jeffrey Sutton is just that sort of nominee. For that reason, his 
nomination should be rejected. I reserve the remainder of my time.
  The PRESIDING OFFICER. Who seeks recognition? Who yields time?
  Mr. HARKIN. Mr. President, parliamentary inquiry.
  The PRESIDING OFFICER. The Senator will state his inquiry.
  Mr. HARKIN. Will the Chair inform the Senator as to the agreement 
entered into and what is the time agreement?
  The PRESIDING OFFICER. It is the Chair's understanding that the 
Senator from Illinois is to speak for 20 minutes, followed by a 
Republican to speak, and then Senator Schumer is to speak for 15 
minutes.
  Mr. HARKIN. Therefore, if time is running, it runs off of the other 
side.
  The PRESIDING OFFICER. That is correct. It is being charged to the 
Senator speaking, but that would be correct.
  Mr. HATCH. I have no objection if the Senator from Iowa wants to 
speak at this time.
  Mr. HARKIN. The order was entered into and Mr. Schumer is not here.
  Mr. HATCH. It is our understanding if we didn't take the floor, 
Senator Schumer would. He is not here, but I would be happy to yield to 
the Senator from Iowa. I reserve the remainder of our time.
  The PRESIDING OFFICER. The Senator from Ohio is recognized.
  Mr. DeWINE. Mr. President, if I may ask the Chair to state the 
parliamentary situation now on the time. My understanding is that we 
had a total of 2 hours.
  The PRESIDING OFFICER. Under the previous order, the time reserved 
until 12 noon is to be equally divided between the chairman of the 
Judiciary Committee and the Senator from Iowa, Mr. Harkin. The Senator 
from Illinois was recognized first under the agreement. Now the 
Republican side has the opportunity to respond, followed by Senator 
Schumer of New York.
  Mr. HATCH. Mr. President, I reserve the remainder of our time. 
Senator Schumer is now here and he can go ahead.
  Mr. HARKIN. Mr. President, parliamentary inquiry: Since the other 
side is not speaking, does their time run?
  The PRESIDING OFFICER. If someone is claiming time on the Democratic 
side, it would be charged to the Democrats.
  The Senator from New York is recognized.
  Mr. SCHUMER. Mr. President, before I begin, was the Senator from Iowa 
seeking extra time?
  Mr. HARKIN. Under the previous order, how much time was the Senator 
from New York given?
  The PRESIDING OFFICER. He is to have 15 minutes.
  Mr. SCHUMER. Could my colleague from Iowa proceed following me?
  The PRESIDING OFFICER. By consent.
  Mr. HATCH. I have no objection if the Senator from Iowa would like to 
follow the Senator from New York.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HARKIN. Mr. President, I was informed that I may reserve time for 
the end of the debate also.
  The PRESIDING OFFICER. Is there objection?
  Mr. HATCH. Mr. President, I understand the time is divided equally. 
Whatever is left, they would use.
  The PRESIDING OFFICER. That is correct.
  Mr. HATCH. As long as it is on their time, it is fine with me.
  The PRESIDING OFFICER. The time will be charged to the Senator 
speaking.
  With that understanding, the Senator from New York is recognized.
  Mr. SCHUMER. Mr. President, I rise in opposition to the nomination of 
Jeffrey Sutton to the Sixth Circuit Court of Appeals. I am going to get 
into Mr. Sutton in a minute, but I just say that Mr. Sutton is another 
example of nominees who have been nominated who are not simply 
mainstream conservatives but are way over to the right side. That is 
what we have seen in this judicial process. We have seen nominee after 
nominee after nominee who is not simply a mainstream conservative--we 
voted for most of those--but a nominee who is a passionate ideologue 
and whose major view--if you had to underline it all, perhaps with the 
exception of the issue of choice--is a wish to curtail the power of the 
Federal Government.
  They, in a very real sense, wish to turn the clock back--many not to 
the 1930s but even to the 1890s. There has been 100 years of history 
that the Federal Government expanded its power to deal with injustices 
that occurred with individuals. Keeping in concept with a limited 
government and a free market society, the general consensus in our 
society has been to move forward. There have been ebbs and flows. I 
think there was legitimacy to Ronald Reagan. There had been 50 years of 
Federal expansion and he said retrench. Since that time I think there 
is no groundswell among the American people to turn the clock back to 
1930 or 1890. Any attempts by either the President or the Congress to 
do that are always defeated, or almost always defeated in the long run 
because those two parts of our Government, the article I part, the 
Congress, and the article II part, the Executive, are elected.
  What has happened here, Mr. President, is that those who wish to turn 
the clock back--a narrow band of ideologues--have either captured the 
President's ear or certainly captured the nomination process, and they 
put forward nominee after nominee after nominee who is beyond the 
mainstream--not people who disagree on views but people, if they sat in 
this Chamber, would be more conservative perhaps than any of the 100 
Senators. But they are not elected.
  The President and his allies thought they could do this without a 
whimper. Some of us, a year and a half ago, said we were going to 
question these nominees on their ideological views, on

[[Page 9862]]

their judicial philosophy. Initially, there was an outcry, but I think 
basically the argument has been settled.
  Certainly, there is a right to ask nominees about their views. 
Secondly, I believe there is an obligation because the article III 
section of Government, the judiciary, has huge power. The nominees, if 
they become members of the bench, are there for life. This is the only 
chance because the White House doesn't vet their views. In fact, there 
seems to be a philosophy in the White House to tell the nominees to say 
as little as possible, and the apotheoses of that was Miguel Estrada, 
who was like a Cheshire cat and would not say a single thing about his 
views. But with the problems that Mr. Estrada has had on this floor, I 
think that philosophy is not going to work.
  My guess is if any other nominees to the court of appeals took the 
strategy of not dare telling us how they think on anything, they would 
reach the same fate as Mr. Estrada, and they would not be supported by 
a majority here. They will not be nominated either. Mr. Sutton is one 
of these nominees. He is not merely a conservative judge. In fact, as I 
said, conservative judges are nominated--there is a nominee, for 
instance, in the Fifth Circuit who is pending right now, Judge Prado. 
Judge Prado is conservative, but he is not out of the mainstream. He is 
Hispanic. He is nominated to the Fifth Circuit. The majority doesn't 
bring him forward. Why? Because they know he will be supported by the 
majority on our side. Instead, we are going to refight the nomination 
of Priscilla Owen, one of the judges like Judge Sutton who is way over.
  The point is that we are not blocking every judge. I don't have the 
exact number, but of approximately 110 or 120 of the President's 
nominees, I have supported around 100. And 111 out of 116 of the 
President's nominees have been confirmed. I voted for all 111 of them.
  There are some who are so far over that we have to say no. Mr. Sutton 
is such a nominee. I just wish our President would understand this, 
would treat the Senate with some respect, would understand that the 
checks and balances in this Government make sense, and that he cannot 
just give the nominating process to a small group of ideologues, led by 
the Federalist Society, who have a view--a very respectful view, but it 
is out of the mainstream, way out of the mainstream.
  Very few people believe the Federal Government's role should be cut 
so dramatically that we go to a Federal Government ala 1930 or 1890. So 
I believe our fight on these issues is gaining support, not losing it. 
It is a tough fight to make.
  Why not give the President his way? No one knows the damage these 
nominees will do because they have not heard these cases. I will say 
that when our caucus rallied and coalesced around opposing the nominee 
Miguel Estrada and not letting him come to a vote until he was doing 
what the Founding Fathers wanted him to do, discuss the issues, we did 
not do it in this caucus for political advantage. We did it because we 
were so appalled by the arrogance of a nominating process that said the 
advise and consent process could be ignored and the nominee could say, 
I cannot answer this because I might have to judge it on a future case. 
No other nominee has done that.
  In fact, yesterday, in my State, I was proud to support a nominee of 
the President named Judge Irizarry, another Hispanic nominee. I called 
her into my office and talked to her. I said, give me some court cases 
you do not like. And without flinching, this woman, educated, I 
believe, at Columbia and Yale, an excellent lawyer, an excellent judge, 
told me two cases, one she disagreed with from the right, one she 
disagreed with from the left. I told the White House, let's move her.
  So this is not an issue of Hispanics or women. This is not an issue 
of being obstructionist. This is very simply an issue about the 
Constitution and about some degree of balance that ideologs--neither 
ideologs of the far left nor ideologs of the far right should capture 
the judiciary, because when they do, they do not interpret the law, 
which is what the Founding Fathers wished them to do but, rather, they 
make law.
  The great irony is the conservative movement in the 1960s and 1970s 
had a revulsion towards judge-made law. I remember arguing with some of 
my classmates in college about this. All of a sudden it has flip-
flopped and now activism on the rightwing side is okay, turning the 
clock back, which certainly in an Einsteinian way, and I think in a 
general way, is as much changing direction as moving it forward, is not 
activism but fidelity to the Constitution? Judge after judge will 
reverse precedent--that is what activism is--when they should not.
  So I believe, with every bone in my body, with every atom in my body, 
that we are doing the right thing here--that we are doing more than the 
right thing; we are doing the Nation a service. If we succeed, no one 
will ever know because the kinds of cases that would be ruled on will 
not come to the fore. If we fail, people will know, but it may not be 
for 5 or 10 years. It is the right thing to do. We know it, and I 
believe most people over there know it.
  These are not nominees who are mainstream. They are not the kinds of 
nominees Bill Clinton generally nominated, people who were to the 
liberal side but not out of the mainstream, not a whole lot of legal 
aid lawyers or ACLU advocates but, rather, partners in law firms and 
prosecutors. That was the Clinton nominee.
  Here, it is nominee after nominee who sort of with a passion wishes 
to say the minute the Federal Government moves its fingers, chop them 
off.
  Let's talk a little bit about Mr. Sutton, because I think he fits 
that extreme mold. Now to his credit--and I want to give him credit--he 
answered questions when we asked him. He was not silent like Miguel 
Estrada. I do not hear anybody saying he is violating Canon No. 5 of 
the lawyers' ethics by saying how he felt on certain issues. That was 
why Mr. Estrada would not tell us things.
  In general, some of the cases he has talked about advance an agenda 
that is antirights, antifairness and, in my judgment, antijustice. 
Probably the most notorious is Patricia Garrett. There, he sought and 
obtained--this was not just someone who looked up his name in the phone 
book, went and looked up an ``S'' and came to Sutton. He went out of 
his way to find the opportunity to oppose a breast cancer patient's bid 
to vindicate a right to keep her nurse's job. In other words, she was 
fired because she had breast cancer.
  He went so far as to argue the Congress had no power under the 14th 
amendment to protect the disabled. Whether you agree or disagree with 
the view, it is clearly an attempt to say the Federal Government, in 
the kind of general, gradual, fitful progress we have made to protect 
the rights of individuals, should be pushed back.
  In the case of Westside Mothers, Mr. Sutton again grabbed the 
opportunity to oppose a group of mothers whose children were being 
deprived of services under Medicaid. Mr. Sutton apparently believed 
impoverished children should not have the right to force the State they 
live in to provide them services that Congress guaranteed to them. 
Again, cut the Federal Government back.
  In another case, Mr. Sutton sought the opportunity to file a brief 
arguing Congress does not have the power to address violence against 
women and argued that significant portions of the Violence Against 
Women Act were unconstitutional.
  Do my colleagues think most of America agrees with that? Do they 
think most of America thinks Congress has no right to legislate, 
particularly when there are findings that say this is interfering with 
commerce and interfering with women's rights to hold jobs and be 
productive citizens? It is sort of obvious if a woman is beaten at 
home, that that will interfere. Do my colleagues think most Americans 
agree with Mr. Sutton to say there should be no Federal power to do it?
  The bottom line is, in case after case, Mr. Sutton has sought the 
opportunity to represent States rights at the expense of individual 
rights. He has sought the opportunity to seek injustice at the expense 
of basic fairness, guided by some ideological construct that the 
Federal Government is bad, it

[[Page 9863]]

is evil, it grabs too much power, in ways that most Americans, 95 
percent--99 percent, maybe of all Americans--would have no problem 
with.
  The PRESIDING OFFICER. The Senator from New York has used 15 minutes.
  Mr. SCHUMER. I ask unanimous consent that I be given an additional 5 
minutes of our time.
  The PRESIDING OFFICER. Is there objection?
  Mr. HARKIN. How much time do we have remaining?
  The PRESIDING OFFICER. Nineteen minutes 38 seconds.
  Mr. HARKIN. Five more minutes.
  Mr. SCHUMER. I thank my colleague for his generosity.
  The PRESIDING OFFICER. The Senator from New York.
  Mr. SCHUMER. Now, it is no exaggeration to say Jeffrey Sutton is one 
of the architects of the rightwing revolution that is taking place in 
our Federal courts. In hearings before the Judiciary Committee, he 
claimed he was trying to build a Supreme Court practice and he cannot 
be condemned for the views espoused in his advocacy, because lawyers 
have to represent their clients. Generally, that is true. If Mr. Sutton 
were a public interest lawyer taking all cases that come to him, I 
would agree. If he were a junior associate taking the cases partners 
assigned to him, I would agree. If he had a diverse array of cases 
taking different ideological perspectives, I would agree. But the cases 
Mr. Sutton took reflect a clear agenda. He believed in what he was 
doing.
  In one interview, Mr. Sutton said: I love this Federalism stuff. It 
was obvious to me, at least, that at the hearing this was a personal 
agenda for him. He has taken positions far beyond what his clients' 
interests have demanded. His record, viewed as a whole, makes clear he 
has an agenda and his career has been devoted to advancing that agenda.
  Frankly, I do not believe someone with such strong against-the-grain 
ideological views will simply set them aside to become a fair and 
neutral judge. That is a pretty tough thing to do.
  So the bottom line is we have another nominee from the extreme, 
another nominee clearly bright, clearly accomplished--I have no dispute 
with his intellectual character or his ethics, but he comes from way 
outside the mainstream. It is a pity this judge divides us, does not 
unite us. If every judge the President nominated were that way, I would 
say it is not much of an argument, but it is just some. So I would urge 
my colleagues to oppose Mr. Sutton.
  Frankly, I think a large number will. I think because Mr. Sutton 
answered questions and other reasons that there is not going to be a 
prevention of his nomination from coming to a vote. He certainly adds 
weight and burden to future nominees because many Members want to seek 
balance on the courts. Jeffrey Sutton does not bring a bit of balance 
to the courts. It continues the push, bringing them far over to the 
right side to eliminate the powers of the Federal Government or to 
greatly reduce the powers of the Federal Government at a time when only 
a small band of ideologues is demanding just that.
  I yield the remainder of the time I have not used to my colleague 
from Iowa, and I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  Mr. HARKIN. Mr. President, I reserve the remainder of my time.
  The PRESIDING OFFICER. Who yields time?
  If no one yields time, time will be charged equally to both sides. 
Senator Harkin from Iowa has 16 minutes and the chairman of the 
Judiciary has 53 minutes.
  The Senator from Iowa.
  Mr. HARKIN. Mr. President, it is an odd game that is being played 
here by the majority party of the Senate. First, we asked a vote be put 
off until after the caucus this afternoon. The majority leader could 
not even do that. Why do they want to rush a vote at noon after we have 
been gone for 2 weeks? Senators have just come back. Some Members 
wanted the opportunity to talk about Mr. Sutton in our caucuses. The 
majority leader says no, we will vote at noon; we cannot vote at 2:15. 
We will not have any other votes today but they want to ram this 
through and vote at noon. I know our assistant minority leader, Senator 
Reid, asked if we could have the vote later on and the majority leader 
objected. Why? What are they afraid of?
  Again, I point to an incident that happened today and yesterday that 
again illustrates why people with disabilities have every reason to be 
out here in the lobby today--and the reception room--opposing Mr. 
Sutton's nomination. We had a room reserved, the Mansfield Room, for a 
press conference this morning for disability groups. Somehow yesterday 
it was taken away from us. We do not know why; it was just taken away. 
Then we were told we could use the LBJ Room--fine--at 10 o'clock. 
People with disabilities lined up outside to come in to that press 
conference at 10 o'clock, but they were not allowed to come in until 
9:30. People with wheelchairs, people what seeing eye dogs, people who 
are hearing impaired, standing in line out there to try to come in here 
to exercise their legitimate rights; yet they are held up out there 
because it takes a long time to process them and get them through.
  When I heard this was happening, I called Mr. Pickle, the Sergeant at 
Arms, and he rushed right down there and he made sure they got through. 
I thank Mr. Pickle.
  But why do we have to do that? The people who are down there should 
have been treated just like a banker, a financier, or K Street lobbyist 
who come up here when we have votes on the floor. And they were not--
until Mr. Pickle went down there and straightened things out.
  People with disabilities struggle every day just to get through. We 
had years, decades, centuries of discrimination against people with 
disabilities in this country, so we passed the Americans with 
Disabilities Act in 1990. Mr. Sutton, the nominee before the Senate, 
says it is not needed. It was not needed? On National Public Radio he 
said ``disability discrimination in a constitutional sense is difficult 
to show.''
  We did not think it was that difficult: 25 years of study by the 
Congress, starting in 1965 with the National Commission on 
Architectural Barriers, through 1989--25 years. And then Congress, 
recognizing that we had left out of the Civil Rights Act of 1964 people 
with disabilities.
  After all the studies--we had 17 hearings, we had a markup by five 
separate committees, 63 public forums across the country, held by 
Justin Dart, who was President Reagan's appointee to head the National 
Committee on People With Disabilities. Justin Dart collected over 8,000 
pages of testimony of individual acts of discrimination against people 
with disabilities in this country. Attorney General Thornburg testified 
on behalf of it and said it was needed, along with Governors and State 
attorneys general. We had over 300 examples of discrimination by State 
governments in the legislative record--300 examples of discrimination 
by State governments. Yet when Patricia Garrett of Alabama was fired 
from her job because of her disability, Mr. Sutton, in representing the 
State of Alabama, just said that is tough; we do not need the ADA. He 
said it is not needed. Well, Congress thought it was needed and people 
with disabilities all over this country knew it was needed also.
  I make it clear, I am not accusing Jeffrey Sutton of having any 
personal animosity toward people with disabilities. I spent an hour and 
a half with him. I don't believe he does. But what he does have is a 
very narrow, rigid view of the law which he summed up best when he said 
that in the contest involving these laws between the Federal Government 
and States rights, it is a zero sum game. In other words, if a claimant 
on civil rights under a Federal civil rights statute, for example, such 
as the Americans with Disabilities Act, if that person wins against a 
State that does not protect those civil rights, then somehow the State 
loses. The Federal Government wins and the State loses. He says it is a 
zero sum game.

[[Page 9864]]

  What an odd view to have that somehow if the civil rights of people 
with color, the civil rights of women, the civil rights of the elderly, 
the civil rights of people with disabilities, if somehow they are 
constitutionally upheld by the Federal courts, a State loses--an odd, 
odd view. But that is Mr. Sutton's view, a narrow, rigid, 
interpretation of the law that does not recognize what we did, that 
does not recognize the history of discrimination, only his own ideology 
about how that law should be interpreted. If civil rights wins, the 
State loses, according to Mr. Sutton.
  This is what the New York Times said yesterday morning in the 
editorial: ``Another ideologue for the courts.'' Not that he is a bad 
man. I am not saying he is a bad man at all. I am just saying his views 
are antithetical to civil rights laws in this country. That is why over 
400 civil rights groups in this country have come out in opposition to 
Mr. Sutton. Never before have all these groups come together to oppose 
a nominee to the Federal bench. Maybe this group or that group might 
have opposed this judge or that judge, but never before have all 400 
come together in opposing Mr. Sutton. Yet we are told we have to rush 
the vote. We have to vote. We cannot debate it. We can't talk to our 
caucuses; we have to vote at noon.
  We hear all this talk that Mr. Sutton was just representing his 
clients. He wasn't just representing his clients. In his writings, in 
his statements, in his sayings outside the courtroom, he says his 
ideology, his belief is that it is a zero sum game. He believes in this 
federalism stuff.
  He says any congressional staffer with a laptop can make 
constitutional law. That is not what we did when we passed the 
Americans with Disabilities Act. We spent years documenting 
discrimination against people with disabilities.
  People may get up and say, ``I voted for the Americans with 
Disabilities Act.'' ``I cosponsored the Americans with Disabilities 
Act.'' Fine, we appreciate it. It passed the Senate 90 to 6. But I 
don't understand how you can say you voted for it, you supported the 
Americans with Disabilities Act, but now you want to put a judge on the 
bench who wants to undermine that law and has so stated and has so 
written, that he would be willing to undermine it in preference to 
States rights.
  In 1948, the then-mayor of Minneapolis, Hubert Humphrey, stood up in 
front of the national convention of the Democratic Party when then 
Strom Thurmond, who later became a Senator, walked out, took the South 
with him, and formed the Dixiecrat Party because they didn't like the 
civil rights plank in the Democratic platform in 1948. It was then-
Mayor Humphrey who got up before that Democratic convention and said: 
It is time we get out of the shadow of States rights and into the 
sunshine of human rights.
  He was right. The history of this country since then has been one of 
ensuring the civil rights and civil liberties of our citizens.
  I say to my fellow Senators, when you come over to vote, go through 
the reception room. You will see dozens of people there: Hearing 
impaired, some who are blind, people who use wheelchairs--people with 
all forms of the different types of disabilities. They are there. Walk 
by them and tell them you are going to vote for Jeffrey Sutton. Tell 
them you are going to vote for Jeffrey Sutton because you believe their 
individual States will protect their civil rights; that the individual 
States will take care, will make sure they are not discriminated 
against.
  Mr. REID. Will the Senator yield for a question?
  Mr. HARKIN. I will.
  I just hope Senators will go by and, rather than saying they are 
going to vote for Sutton, will strike another blow for civil rights in 
this country and tell the assembled people with disabilities out here 
in this reception room that we are going to say no to Mr. Sutton and we 
are going to set a higher standard for our Federal judges.
  Let's defeat this nominee, not on a personal basis, but let's have 
judges who will understand that upholding people's civil rights against 
States rights is not a zero sum game. When we win on our civil rights, 
we all win.
  I am glad to yield to my friend from Nevada.
  Mr. REID. I said yesterday evening as we closed how I appreciated the 
statements of the Senator from Arkansas yesterday and how the 
statements were based on substance. A lot of times when we come to the 
Senate floor we talk in the abstract. You have not. I was touched when 
I heard the Senator from Iowa speak of his brother who was sent to a 
school for the deaf and dumb--even though he was not dumb; he just 
couldn't hear.
  Mr. HARKIN. That is true.
  Mr. REID. I want the Senator to answer this question. The Senator 
from Iowa remembers Congressman Jim Bilbray, a Congressman from Nevada. 
When he was living back here, he had a daughter who had graduated from 
high school and invited one of her friends from Nevada to come back to 
Washington. They were trying to find accommodations for her friend, who 
was a paraplegic. He was confined to a wheelchair. They called over 50 
hotels and motels before they could find a place to stay for this young 
man with his wheelchair. That was prior to the Americans with 
Disabilities Act.
  Is the Senator from Iowa describing what my friend Congressman 
Bilbray's daughter went through, trying to find State-protected rights 
for people with disabilities?
  Mr. HARKIN. I say to my friend from Nevada, when my brother Frank was 
out of school and in the workforce, I remember I was in the military. I 
was a Navy pilot. I was down in Florida. I wanted my brother to come 
down and visit me on one of his vacations. He didn't want to do that. I 
was wondering why.
  He said, You know, I am really concerned. I can get a car; I have a 
driver's license. But he was afraid of staying in hotels and motels 
because he was concerned because he had read about a couple of motel 
fires. He said, What if I am in a motel or hotel and there is a fire? I 
won't be able to hear anything. So he was afraid to travel.
  Today when you go to hotels or motels, they have lights that flash 
and modest little improvements to make sure people with disabilities 
can basically enjoy the same things we do.
  The Senator from Nevada has accurately described what this country 
was like before the Americans with Disabilities Act. Architectural 
barriers? My nephew is an architect. After the act was passed, I 
remember my nephew said, Now we can start designing buildings the way 
they ought to be designed, with universal accessibility. That is 
happening today.
  There was a young child turned away from a zoo because the child had 
cerebral palsy. The child was turned away from the zoo because they 
were afraid that child would scare the chimpanzees. That is a true 
story.
  The PRESIDING OFFICER. The time of the Senator has expired.
  Mr. HARKIN. I ask unanimous consent for 5 more minutes.
  Mr. REID. Mr. President, I had spoken to the majority staff. The 
majority leader wants the vote at noon. However, the majority, of 
course, has indicated if we need another 5 minutes on each side, that 
would be fine. So I ask unanimous consent the time for the vote be 
scheduled at 12:10, rather than 12, and that each side have an 
additional 5 minutes.
  The PRESIDING OFFICER (Mr. Enzi). Without objection, it is so 
ordered.
  The Senator from Utah.
  Mr. HATCH. Mr. President, the distinguished Senator from Iowa is 
concerned that they have used up their time. I would have yielded him 
some time from my time if necessary. So there is no desire to mistreat 
him or to treat him unfairly.
  But let's just get the facts here. The nomination of Jeffrey Sutton 
has been sitting here for 2 solid years and now we hear complaints that 
we have to have a vote at 12:10 or 12? Come on.
  Plus, I get a little tired of hearing from the other side that they 
seem to be the only people who care about persons with disabilities. I 
can tell you

[[Page 9865]]

 that bill would not have passed had it not been for people on this 
side, and I was one of the leaders. I managed the floor for the 
Americans with Disabilities Act. I was in all the meetings. I helped to 
negotiate the compromise with the White House. I helped to resolve the 
problem. And I feel every bit as deeply about persons with 
disabilities, and so do all of my Republican colleagues, as do my 
wonderful friends on the other side, who seem to think they are the 
only ones who care about persons with disabilities, or civil rights.
  The fact is that had it not been for the Republican Party, the Civil 
Rights Act of 1964 wouldn't have passed. I get a little tired of this 
holier-than-thou attitude--that they are the only ones who understand 
and they are the only ones who feel deeply about it.
  I managed the floor the day we passed the Americans with Disabilities 
Act--and I went with the distinguished Senator from Iowa outside to 
meet with the folks who were suffering from disabilities, and we both 
broke down and cried because we were so happy to have passed that bill. 
I remember the day that I carried my brother-in-law through the Los 
Angeles temple in my arms with a great effort because he contracted 
both types of polio. He contracted polio and became a paraplegic who 
went on to finish his undergraduate, and went on to receive his 
master's in electrical engineering. He worked up to the day he died, 
although he came home every night and got into an iron lung.
  So I hope our colleagues on the other side quit suggesting that we 
don't seem to understand on this side the problems people have with 
disabilities. We do understand.
  Jeffrey Sutton worked for his father who ran a school for kids with 
cerebral palsy. To have him maligned here today and yesterday the way 
he has been, after 2 years of sitting here waiting to get a chance to 
have a vote up or down, goes a little bit beyond the pale.
  I support this nomination of Jeffrey Sutton to be a judge on the 
Sixth Circuit Court of Appeals precisely because he is a person of 
capacity, decency, and honor who cares for those with disabilities. He 
is one of the top appellate lawyers in the country. He has nearly the 
highest rating from the American Bar Association. They don't give that 
rating out easily. To have him presented here today as outside of the 
mainstream--that means outside of the way certain Senators on the other 
side believe--well, I have to say that isn't the description of the 
mainstream. Mr. Sutton is one of the top appellate lawyers in the 
country. He has argued over 45 appeals in this country--appeals for a 
diversity of citizens in Federal and State courts across the country, 
including an impressive number--12 cases--before the U.S. Supreme 
Court. And I hear that he is outside the mainstream because he wins his 
cases before the Supreme Court? In a couple of cases, he lost. They 
disagree with that, too.
  I happen to believe the Supreme Court decides what mainstream is, in 
many cases. They are not always right; I admit that. I was disappointed 
in some of their decisions. But the fact is he has been more in the 
mainstream than some of his critics. He understands what mainstream is. 
In 2001, he had the best appellate advocate record of any advocate 
before the Supreme Court, arguing four cases and winning all four of 
them. The fact that my colleagues on the other side do not like the 
results in those cases--a number of which were decided unanimously by 
the Supreme Court--shows they are outside the mainstream.
  On January 2, 2003, the American Lawyer named him one of the best 45 
lawyers in the country under the age of 45. That doesn't sound like 
somebody who is out of the mainstream.
  He is an outstanding nominee. I urge all of my colleagues to support 
him.
  I am happy to yield time to the distinguished Senator from Ohio.
  The PRESIDING OFFICER. The Senator from Ohio.
  Mr. DeWINE. Mr. President, I thank my colleague from Utah.
  After 2 years, in about an hour from now we will finally be voting on 
the nomination of Jeffrey Sutton, 2 years after his nomination was 
submitted by President Bush to this body.
  I spoke twice yesterday in the Chamber in regard to his nomination, 
so I will not take much of my colleagues' time today to talk about the 
nomination. I have listened to my friends' comments--they are my 
friends--who oppose this nomination. I have a great deal of respect for 
them. But I believe I had to come back to the floor this morning and 
respond, however briefly, to their comments.
  As I have listened to their comments, it has become clear that the 
opposition to Jeffrey Sutton really does boil down to this: The fact 
that the opponents to Jeffrey Sutton, those who in a few moments will 
vote against his nomination, do not like the positions he has taken in 
cases he has argued. The Garrett case is a prime example.
  Mr. President and Members of the Senate, as I said yesterday, and as 
I explained in more detail than I will today, I thought Jeffrey 
Sutton's own argument on behalf of the State of Alabama in the Garrett 
case was wrong. This Senator from Ohio believed it was wrong. And the 
U.S. Supreme Court decided that I was wrong. They decided that Jeffrey 
Sutton and the State of Alabama were right. I happen to still think the 
Supreme Court got it wrong. I still happen to think Mr. Sutton's 
arguments on behalf of his client, the State of Alabama, were wrong.
  But the fact remains that Jeffrey Sutton was simply acting as a 
lawyer. He was acting as a lawyer--and in this case a successful 
lawyer--representing his client. If you analyze the different 
criticisms and the different cases, what you will find time after time 
after time is that he was acting in his capacity as a lawyer, and a 
pretty successful lawyer.
  If we would deny Jeffrey Sutton the ability to serve on the Federal 
bench because we do not like his clients, or we do not like the 
position of his clients, or we do not like his advocacy for those 
clients or the position he took as a good lawyer following the canons 
of judicial ethics, it would set a very dangerous precedent for this 
Senate. It would have a chilling effect on the practice of law in this 
country.
  Every lawyer in this country who had any thought or any ambition of 
ever serving on the Federal bench--I will guarantee that there are an 
awful lot of them out there who someday will have some dream in their 
mind of serving on the Federal bench, however realistic or not it might 
be--each one of them would have to think: Gee, is my representation of 
this client, is my representation of this particular cause going to 
somehow affect my ability to get on the Federal bench? Will some 
judiciary committee, will some U.S. Senator, will some White House in 
the future look at this and say, oh, that was a bad cause, that was 
something that was just too controversial?
  No, my friends in the Senate, we don't want to go down that path. 
That is a wrong path to go down. We know better. We know better than to 
do that.
  My colleagues on the other side of the aisle have said: No, that is 
really not what we are talking about. We are not talking about his 
representation of someone in court. We are talking about what he said 
outside of the court. I think we have to look at that.
  I submit to Members of the Senate, when you look at that allegation, 
and when you strip it away and look at the real facts, what you find 
is, in the cases that we look at, Jeffrey Sutton was still working as a 
lawyer.
  I will give you an example: The famous NPR interview, National Public 
Radio interview, that has been cited time and time again on the floor 
by the opponents. There are quotes from Jeffrey Sutton about that, and 
people say: Oh, look. He was talking on National Public Radio, and he 
was not serving as a lawyer then, or he was not arguing a case in front 
of the United States Supreme Court; that must have been his own ideas.
  What my colleagues fail to mention is that interview was done in 
conjunction with an oral argument in front of the United States Supreme 
Court. If I am not mistaken, I think it was actually the same day he 
was making the oral argument in front of the United

[[Page 9866]]

States Supreme Court. He was talking, I believe, about the Garrett 
case, and he was telling the interviewer from NPR what his oral 
argument was going to be.
  We would obviously expect him not to disagree with what his oral 
argument was going to be. We would not expect him to say anything 
inconsistent with what his oral argument was going to be. And we would 
expect him to advocate for his clients and say the same thing on 
National Public Radio that he would say in the courtroom of the United 
States Supreme Court. So again, Mr. Sutton was acting as a lawyer.
  So to put it in a common term, it is a ``bum rap.'' This man has a 
right to be a lawyer--not only has a right to be a lawyer, he has an 
obligation to be a lawyer. It is what he has to do once he takes a 
case.
  He is a good lawyer. He is a lawyer who has done his job. He is a 
lawyer who is well qualified to serve on the Federal bench. I hope my 
colleagues, when they come to the floor, will consider his life 
experiences, his life's work, things he has done outside the courtroom 
as far as community service, as well as how well respected he clearly 
is by courts, by his colleagues, and by the community. Therefore, I 
hope my colleagues will vote to confirm Jeffrey Sutton to the Sixth 
Circuit Court of Appeals.
  I thank the Chair and yield the floor.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, I also compliment my esteemed colleague 
from Ohio for his excellent remarks. Nobody knows this man better than 
the distinguished Senator from Ohio. And, frankly, I know him quite 
well myself. We ought to pay attention to the people who know him and 
not make up stories about him, which I think is what is happening.
  I have seen more and more of a vindictive approach against President 
Bush's judgeship nominees than I have ever seen in my 27 years in the 
Senate. To malign these people who have the highest rating from the 
American Bar Association, as though they are not in the judicial 
mainstream, I think is hitting below the belt. And everybody suspects 
the reason why this hitting below the belt is occurring is because, No. 
1, they think he might be pro-life. I do not know what he is as far as 
that particular issue. The fact is, no single issue should stop 
somebody who is otherwise qualified from serving in the Federal 
Government and serving his fellow human beings in this country.
  But No. 2 is, they are afraid this fellow has Supreme Court 
potential, as many of President Bush's nominees have who have such high 
ratings. So there is a deliberate attempt to damage him on his way up 
to the Sixth Circuit Court of Appeals so he will never be nominated for 
the Supreme Court.
  Mr. President, I support the nomination of Jeffrey Sutton to be a 
judge on the Sixth Circuit Court of Appeals because he is worthy of it. 
Mr. Sutton, like I say, is one of the top appellate lawyers in the 
country today. There is no question about it. I have mentioned how many 
cases he has argued, appellate cases, and at least 12 before the 
Supreme Court, winning most of them. I spoke yesterday at length about 
Mr. Sutton's extremely accomplished legal record and the numerous 
letters of support I have received on his behalf.
  Let me just take a few minutes today to discuss some additional 
points my colleagues on the other side have raised.
  Specifically, I would like to respond to the points raised on the 
topic of federalism. It is as though they do not believe in federalism, 
they only believe the Federal Government should have total control over 
everything. It is one reason I left the Democratic Party long ago, 
because I realized there is a principle of federalism that is hallowed 
in this country, constitutionally hallowed.
  Mr. Sutton has argued three very important cases that have resulted 
in hotly debated U.S. Supreme Court opinions concerning the scope of 
Congress's power under section 5 of the 14th amendment to regulate 
State governments. Some of his critics--and a number of them, almost 
all of them--have suggested his involvement in these cases should 
somehow disqualify him from the bench.
  I think everyone here knows I have worked hard to enact some of the 
very laws Mr. Sutton argued against on behalf of his clients as an 
advocate, which is his responsibility as an attorney. Together with my 
good friend and colleague, the senior Senator from Massachusetts, and 
others, I worked very long hours on the Religious Freedom Restoration 
Act, which was struck down in the City of Boerne case. I was one of the 
principal sponsors of and managed the floor for the Americans with 
Disabilities Act, a small portion of which was limited by University of 
Alabama v. Garrett, a case argued by Jeffrey Sutton. I also worked 
closely with the distinguished Senator from Delaware on another law 
that the Supreme Court, in the Morrison case, found, in part, to be 
beyond Federal authority--the Violence Against Women Act.
  It is important to understand that, notwithstanding the suggestions 
of some of my Democratic colleagues yesterday, the arguments Mr. Sutton 
advanced on behalf of his clients in Garrett and Morrison did not 
advocate an outright repeal of the ADA or the Violence Against Women 
Act, nor did those arguments suggest the purposes of those laws were 
not worthwhile. Ultimately, the Supreme Court's decisions in those 
cases did limit certain aspects of those pieces of legislation, and I 
will admit it was disappointing to see that happen after I put so much 
time and energy into their enactment.
  Under these circumstances, it would be relatively easy for me to take 
cheap shots and criticize Mr. Sutton for the role he played as an 
advocate in those cases. But I am certainly not going to do so, for the 
simple reason that ascribing to Mr. Sutton the positions of his clients 
is wrong, it is unfair, it is not right, it is beneath the dignity of 
those who are attorneys who understand that advocates are advocates, 
and they should carry the best argument for their clients they can.
  This principle is so fundamental that it hardly merits mention, and 
yet you hear these arguments like he should not have done that. If we 
should not do things as attorneys, maybe there will not be any 
advocates to advocate for various positions.
  Moreover, as a substantive matter, none of Mr. Sutton's arguments can 
fairly be characterized as outside the mainstream--not one.
  In the City of Boerne v. Flores, a 6-to-3 decision he won, dealing 
with the Religious Freedom Restoration Act, none--none--of the Supreme 
Court Justices disagreed with the position Mr. Sutton advocated in that 
case--none. All nine agreed with him. So he is outside the mainstream 
of American jurisprudence? Guess who is outside the mainstream. It 
isn't Mr. Sutton. It is this desire that everybody think in lockstep, 
and do in lockstep, what some on the other side think ought to be done. 
No Justice disagreed with him.
  Now, as much as my colleagues do not like the Supreme Court, I have 
to tell you, they are a coequal branch of Government, and they do help 
us to know what the law really is. And none of them disagreed with Mr. 
Sutton.
  The same was true in Kimel v. Florida Board of Regents--not one 
Justice on the Supreme Court disagreed with the interpretation of the 
14th amendment Mr. Sutton advanced in that case--not one. Who is 
outside the mainstream? It certainly isn't Mr. Sutton.
  Now, I will concede the Garrett case was a bit narrower, but it was 
still a 5-to-4 decision. Five of the Justices voted with Mr. Sutton's 
argument in that case. Nevertheless, almost by definition, I think 
legal arguments which garner that kind of support in the Supreme Court 
simply cannot be pegged as outside of the mainstream of American legal 
thinking as to be somehow unworthy of an advocate--or a judicial 
nominee.
  I agree. My colleagues don't agree with him or didn't agree with his 
arguments. I didn't in some ways. But that disagreement should not stop 
us from voting for a person who, as an advocate, had an obligation to 
make those

[[Page 9867]]

arguments and who won on his arguments.
  I would also like to discuss Mr. Sutton's comments in the media 
mentioned during the course of this debate. Much ado has been made 
about his comment reported in the Legal Times that:

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

  Tell me what is wrong with that. Federalism is a hallowed principle 
of constitutional law. I believe in it, too. I believe deep down some 
of my colleagues on the other side believe in it, although I have to 
admit, I think a number of them don't. They are wrong not to. They are 
outside of the mainstream of American jurisprudence.
  Well, federalism is not a bad word or an unpopular concept. It is a 
well-established part of our system of government. As the Supreme Court 
noted in its 1995 decision in U.S. v. Lopez:

       Just as the separation and independence of coordinate 
     branches of the Federal Government serve to prevent the 
     accumulation of excessive power in any one branch, a healthy 
     balance of power between the States and the Federal 
     Government will reduce the risk of tyranny and abuse from 
     either front.

  The court also noted that:

       This constitutionally mandated division of authority ``was 
     adopted by the framers to ensure protection of our 
     fundamental liberties.''

  Who is outside of the mainstream of American jurisprudence? Certainly 
not Mr. Sutton. Some of these arguments made against him are outside. I 
admit that.
  That is what federalism means. Like Jeffrey Sutton, I believe in it, 
too. I think anybody who understands constitutional law must believe in 
it. We could differ as to how it should be applied in all cases, but 
those are political arguments. Frankly, an advocate has an obligation 
to represent his client and do the best he can for them, which Sutton 
did, and he won.
  Just as I believe in the separation of powers of the three branches 
of the Federal Government, believing in federalism does not mean you 
always believe States should prevail in any given dispute. Mr. Sutton 
doesn't believe that; neither do I. As I have stated before, I am 
disappointed any time the Supreme Court holds unconstitutional any 
legislation for which I fought and bled, that I vigorously worked to 
enact. However, I do believe in the Federal system that our Founders 
created and the courts have protected over the years. I cannot derive 
from Mr. Sutton's quote that he meant anything more than he believed in 
federalism as a structural component of our American system of 
government, something I think is certainly true.
  I want to make a few points about Mr. Sutton's record which has been 
attacked, I believe, unfairly. We are getting used to that in the 
Senate. Some suggest that the few cases in which Mr. Sutton has 
represented States, in what some consider unpopular causes, 
demonstrates a bias towards States rights. However, Mr. Sutton has 
represented a wide range of clients in his legal practice. In those 
cases where he represented States, he was either acting in his official 
capacity or was hired by the State and paid a full fee. However, he has 
represented a significant number of clients with very diverse interests 
on a pro bono basis. These clients include death row defendants, 
prisoner rights plaintiffs, the National Coalition for Students with 
Disabilities, the NAACP, the Center for Handgun Violence--to name a 
few. I notice some of my colleagues on the Judiciary Committee on the 
Democrat side have sent out a letter criticizing him, saying he has 
never done anything for civil rights. What are those cases?
  In addition, I recently received a very supportive letter from Mr. 
Riyaz Kanji, a former law clerk to Supreme Court Justice David Souter 
and Judge Betty Fletcher of the Ninth Circuit, neither of whom would be 
considered conservatives by any judicial measure. He said that he 
contacted Mr. Sutton in advance to ask for assistance on an amicus 
brief for the National Congress of American Indians and an Indian law 
case pending before the U.S. Supreme Court. Mr. Kanji wrote:

       Mr. Sutton took the time to call me back from vacation the 
     very next morning to express a strong interest in working on 
     the case. In our ensuing conversations, it became apparent to 
     me that Mr. Sutton did not simply want to work on the matter 
     for the small amount of compensation it would bring him (he 
     readily agreed to charge far below his usual rates for the 
     brief), but that he instead had a genuine interest in 
     understanding why Native American tribes have fared as poorly 
     as they have in front of the Supreme Court in recent years . 
     . . I think it is fair to say that most individuals who are 
     committed to furthering the cause of State's rights without 
     regard to any other values or interests in our society do not 
     evidence that type of concern for tribal interests.

  I would also like to share a letter from a good friend, former 
colleague to all of us in this body, Senator Robert Dole. Senator Dole 
was also in the meetings when we were able to arrive at a final 
conclusion on the Americans with Disabilities Act. He was instrumental 
in passing the Americans with Disabilities Act. Senator Dole is a well-
known advocate for the rights of disabled Americans. He wrote a letter 
to the Judiciary Committee strongly supporting Jeffrey Sutton because 
of his ``demonstrated commitment to safeguarding the rights of all 
Americans, especially those of persons with disabilities.''
  I ask unanimous consent to print a copy of the Dole letter in the 
Record, along with some of the copies of other letters of support for 
Jeffrey Sutton's nomination that the committee has received.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                             Senator Bob Dole,

                                 Washington, DC, January 16, 2003.
     Hon. Orrin G. Hatch,
     Chairman, Committee on the Judiciary,
     U.S. Senate, Washington, DC.
       Dear Mr. Chairman: On May 9 of 2001, President Bush 
     nominated to a vacancy on the U.S. Court of Appeals for the 
     Sixth Circuit one of the most distinguished lawyers in the 
     United States: Jeffrey S. Sutton of Columbus, Ohio. I ask 
     that you join me in backing Jeff's nomination, which I 
     support in part because of his demonstrated commitment to 
     safeguarding the rights of all Americans--especially those of 
     persons with disabilities.
       As you know, some in the disability-rights community--for 
     whom I have great respect and with whom I have had the 
     privilege of working in the past, including during our joint 
     efforts to pass the landmark Americans with Disabilities Act 
     in 1990--have raised questions about Jeff's nomination. I 
     believe that these criticisms miss the mark, and do so by a 
     wide margin. For during his career as a lawyer, both as an 
     Ohio government official and in private practice, Jeff Sutton 
     has gone out of his way to defend the interests of the 
     disabled.
       In 1996, Jeff tried to convince the Ohio Supreme Court that 
     Case Western Reserve University had unlawfully discriminated 
     against Cheryl Fischer, who is blind, when it refused to 
     admit her to its medical school solely on the basis of her 
     disability. Jeff actively sought out the opportunity to 
     represent Ms. Fischer, and he was passionately dedicated to 
     her cause. But don't take my word for it. Here's what Ms. 
     Fischer has to say:
       ``Working for the State, Jeff took my case on, firmly 
     convinced I had been wronged. I recall with much pride just 
     how committed Jeff was to my cause. He believed in my 
     position. He cared and listened and wanted badly to win for 
     me. I recall well sitting in the courtroom of the Ohio 
     Supreme Court listening to Jeff present my case. It was then 
     that I realized just how fortunate I was to have a lawyer of 
     Jeff's caliber so devoted to working for me and the countless 
     of others with both similar disabilities and dreams.''
       Jeff fell just one vote short of prevailing, but his 
     service to Ms. Fischer leaves no doubt as to his commitment 
     to defending the rights of the disabled.
       Cheryl Fischer is not the only person with a disability to 
     be helped by Jeff Sutton. Six years later, Jeff was the lead 
     counsel in a case brought by the National Coalition of 
     Students with Disabilities against the state of Ohio, his 
     former employer. Jeff argued that Ohio universities were 
     failing to provide voter-registration materials to their 
     disabled students, in violation of the federal ``motor 
     voter'' law. As a direct result of Jeff's efforts, the 
     National Coalition of Students with Disabilities prevailed, 
     and the state of Ohio was made to set up voter-assistance 
     stations at state colleges and universities.
       Beyond representing them in court, Jeff Sutton has improved 
     the lives of the disabled through his service to a 
     disability-rights group. Since 2000, Jeff has served on the 
     Board of Trustees of the Equal Justice Foundation, which 
     provides free legal services to the disadvantaged, including 
     persons with disabilities. During his service, the Equal 
     Justice Foundation has filed lawsuits against three Ohio 
     cities demanding that they make their sidewalks wheelchair 
     accessible. It has sued an amusement park that

[[Page 9868]]

     flatly prohibited the disabled from riding its rides. And it 
     has represented a woman with a mental illness who lived in 
     subsidized housing, when her landlord tried to evict her on 
     the ground of her disability.
       Again, those who know Jeff Sutton best speak with great 
     eloquence about his dedication to the disabled. Kim Skaggs, 
     the Executive Director of the Equal Justice Foundation, 
     testifies that:
       ``I admired Mr. Sutton's abilities so much that, upon 
     joining the Equal Justice Foundation, I actively recruited 
     him to become a member of the Equal Justice Foundation's 
     Board of Trustees. Much to his credit, Mr. Sutton accepted 
     and has been extremely supportive of the Foundation's work. I 
     believe that Mr. Sutton possesses all the necessary qualities 
     to be an outstanding federal judge. I have no hesitation 
     whatsoever in supporting his nomination.''
       These are not the actions of a man who is indifferent to 
     the rights of persons with disabilities. Although he defended 
     the state of Alabama in an Americans with Disabilities Act 
     lawsuit, the complete picture of Jeff Sutton's career reveals 
     a consistent concern about the special burdens that the 
     disabled face in their everyday lives, and an equally 
     consistent commitment to alleviating those burdens. In all 
     candor, I believe that my friends in the disability-rights 
     community should be actively supporting Jeff Sutton's 
     nomination. For we are not likely to find a more sympathetic 
     ear on the federal bench.
       I do not write these words lightly. As you know, I spent 
     many years in the United States Senate fighting for the 
     rights of the disabled. I co-sponsored and worked hard for 
     passage of the 1990 Americans with Disabilities Act. I have 
     no doubt that, if he is confirmed, Jeff Sutton will 
     faithfully enforce that law, just as he will enforce all acts 
     of Congress. And I have no doubt that he will scrupulously 
     respect the rights of the disabled, just as he will respect 
     the rights of all Americans.
           Sincerely,
     Bob Dole.
                                  ____

                                         Arent Fox Kintner Plotkin


                                                 & Kahn, PLLC,

                                  Washington, DC, January 7, 2003.
     Re nomination of Jeffrey S. Sutton to the Sixth Circuit.

     Hon. Patrick J. Leahy,
     Chairman, Senate Judiciary Committee, U.S. Senate, Russell 
         Senate Office Building, Washington, DC.
     Hon. Orrin G. Hatch,
     Ranking Member, Senate Judiciary Committee, U.S. Senate, Hart 
         Senate Office Building, Washington, DC.
       Dear Senator Leahy and Senator Hatch: I am writing to urge 
     the prompt confirmation of Jeffrey S. Sutton to the United 
     States Court of Appeals for the Sixth Circuit. I believe that 
     Mr. Sutton is eminently qualified and would be a great asset 
     to the federal judiciary.
       Mr. Sutton is one of the top appellate advocates in the 
     country, having argued twelve cases in the United States 
     Supreme Court, with a 9-2 record (and one case pending). In 
     the 2000-2001 Term, he argued more cases than any other 
     private attorney in the country, and won all four of them. 
     And in Hohn v. United States, 524 U.S. 236 (1998), the Court 
     sua sponte appointed Mr. Sutton to argue the case as a friend 
     of the Court. When he served as the State Solicitor of Ohio, 
     the National Association of Attorneys General presented Mr. 
     Sutton with a Best Brief Award for practice in the United 
     States Supreme Court an unprecedented four years in a row. 
     And this month, the American Lawyer included Mr. Sutton in 
     its list of the top forty-five lawyers in the country under 
     the age of forty-five.
       I understand that some legal arguments Mr. Sutton has made 
     in the course of representing clients have aroused some 
     controversy in connection with his nomination. Having recent 
     experience myself with the judicial confirmation process, 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.
           Sincerely,
     Bonnie J. Campbell.
                                  ____



                                                Cleveland, OH,

                                                     May 21, 2001.
     Hon. Senator Mike DeWine,
     Member of the Senate Judiciary Committee, Russell Senate 
         Building, Washington, DC.
       Dear Senator DeWine: A few weeks ago my sister called to 
     tell me that President Bush nominated Jeff Sutton to serve on 
     the Sixth Circuit Court of Appeals. I was thrilled to hear 
     the news.
       While working as Solicitor General for the State of Ohio, 
     Jeff represented me in a lawsuit the Ohio Civil Rights 
     Commission brought against Case Western Reserve University on 
     my behalf. I sought but was denied admission to the Case 
     Western medical school. I alleged then, as I continue to 
     believe now, that the school denied my application for one 
     impermissible reason: I'm blind. The Ohio Civil Rights 
     Commission agreed with me. After a thorough investigation, 
     the Commission determined that I was otherwise qualified for 
     admission and that the school could make reasonable 
     accommodations to enable me to pursue training to become a 
     psychiatrist.
       The case worked its way through the Ohio courts and 
     ultimately landed on the Ohio Supreme Court. It was at this 
     point that I first met Jeff Sutton. Working for the State, 
     Jeff took my case on, firmly convinced I had been wronged. I 
     recall with much pride just how committed Jeff was to my 
     cause. He believed in my position. He cared and listened and 
     wanted badly to win for me. I recall well sitting in the 
     courtroom of the Ohio Supreme Court listening to Jeff present 
     my case. It was then that I realized just how fortunate I was 
     to have a lawyer of Jeff's caliber so devoted to working for 
     me and the countless of other with both similar disabilities 
     and dreams.
       Although I ultimately fell short in the courts, Jeff Sutton 
     stood firm by my side. My experience confirmed what President 
     Bush understands: Our nation would be greatly served with 
     Jeff Sutton on the federal bench.
           Sincerely yours,
     Cheryl A. Fischer.
                                  ____

                                                 State of Arizona,


                               Office of the Attorney General,

                                       Phoenix, AZ, July 24, 2001.
     Re nomination of Jeffrey Sutton to the United States Court of 
         Appeals for the Sixth Circuit.

     Senator Patrick Leahy,
     Chairman, Senate Judiciary Committee.
     Senator Orrin Hatch,
     Ranking Member, Senate Judiciary Committee.
       Dear Senators Leahy and Hatch: As the Attorney General for 
     Arizona, and a former U.S. Attorney, I write to urge that Mr. 
     Sutton's nomination be considered based on his own merits as 
     a prospective judge rather than positions he may have taken 
     as an advocate for particular clients. Lawyers have a 
     professional obligation to be zealous advocates on behalf of 
     their clients, and the ethical rules governing lawyers 
     generally recognize that such representation does not 
     constitute a personal endorsement of a client's position. See 
     ABA Model Rules of Professional Conduct, ER 1.2(b). This 
     principle is particularly important for lawyers representing 
     State governments and other public entities. Often such 
     lawyers have a professional obligation to defend or advocate 
     positions taken by legislatures, elected officials, or public 
     agencies that may differ from the lawyer's personal views on 
     public policy or moral issues. Penalizing a lawyer for 
     vigorously advocating on behalf of such clients would be 
     wrong--it would not only blur the important distinction 
     between the positions a lawyer may take on behalf of a client 
     and the lawyer's own views, it would also undermine effective 
     representation for public entities.
       Mr. Sutton served with great distinction as the Solicitor 
     General of Ohio and has otherwise had a distinguished legal 
     career. I respectfully urge that his nomination be scheduled 
     for a hearing and considered based on his individual 
     qualifications rather than positions he may have advanced for 
     particular clients.
           Very truly yours,
                                                 Janet Napolitano,
     Attorney General.
                                  ____

                                           National Association of


                                            Attorneys General,

                                    Washington, DC, July 31, 2001.
     Re Nomination of Jeffrey Sutton to the United States Court of 
         Appeals for the Sixth Circuit.

     Hon. Thomas Daschle,
     Majority Leader, U.S. Senate, The Capitol, Washington, DC.
     Hon. Patrick Leahy,
     Chairman, Committee on the Judiciary, U.S. Senate, Dirksen 
         Senate Office Building, Washington, DC.
     Hon. Trent Lott,
     Senate Minority Leader, U.S. Senate, The Capitol, Washington, 
         DC.
     Hon. Orrin Hatch,
     Ranking Member, Committee on the Judiciary, U.S. Senate, Hart 
         Senate Office Building, Washington, DC.
       Dear Senators: We, the undersigned individual state 
     Attorneys General, are writing to urge your prompt and 
     affirmative vote on confirmation of the nomination of Jeffrey 
     Sutton to the United States Court of Appeals for the Sixth 
     Circuit.
       Mr. Sutton is an award-winning, highly-qualified attorney. 
     Jeff Sutton's intelligence and qualifications are 
     unquestioned, with a great deal of experience in commercial, 
     constitutional and appellate litigation. He has argued nine 
     cases in the United States Supreme Court, including Hohn v. 
     United States,

[[Page 9869]]

     in which the Court invited Mr. Sutton's participation, and 
     Becker v. Montgomery, in which he represented a prisoner's 
     interests pro bono. He has argued twelve cases in the Ohio 
     Supreme Court and seven cases in the federal courts of 
     appeal. And, as the former Ohio State Solicitor, he has also 
     handled countless cases in the state and federal courts. His 
     career has been distinguished, and he has displayed a rare 
     sense of principled fairness throughout it.
       Jeff Sutton graduated first in his law school class, and 
     clerked for two United States Supreme Court justices. It 
     deserves note that Mr. Sutton has represented a wide range of 
     clients. For example, he represented Cheryl Fischer, a blind 
     woman, who claimed that Case Western University Medical 
     School discriminated against her on basis of disability in 
     denying her admission to medical school. He also is a board 
     member of the Equal Justice Foundation, which provides legal 
     representation to the indigent and has filed several class 
     actions on behalf of the disabled. Beyond this, he has filed 
     pro bono amicus briefs on behalf of the NAACP, the 
     AntiDefamation League and the Center for the Prevention of 
     Handgun Violence.
       Unfortunately, Mr. Sutton's exemplary record is being 
     distorted by some critics, and as state Attorneys General, 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 State government. For example, some critics have claimed 
     that Mr. Sutton is against the Americans with Disabilities 
     Act because he argued that one provision of the law 
     overstepped States' rights (in the case of Univ of Alabama v. 
     Garrett). We do not wish here to debate the merits of that 
     position; although we note that the Supreme Court agreed with 
     that position. The important point here at issue is that Mr. 
     Sutton argued that case as a lawyer representing his client. 
     He was not advocating his personal views; rather, he was 
     working to represent a public-sector client.
       This distinction, between personal policy preferences and 
     legal advocacy, is a crucial one, and we Attorneys General 
     have a unique perspective on the importance of that 
     distinction. We are legal advocates, sworn to uphold the 
     interests of our clients, and while we also serve as policy 
     advocates for our States, we often must adopt legal positions 
     that do not match our personal beliefs.
       As you know, all attorneys have an ethical duty to 
     zealously represent their clients' interests within the 
     bounds of the law, even where the lawyer may not personally 
     share the client's views. This is especially true for public 
     sector lawyers, because we are bound not only by the same 
     ethical rules as all lawyers, but we are also bound by law to 
     represent our legislatures, governors, and agencies. As 
     Attorney General, each of us has worked to advocate legal 
     positions that may not reflect our personal beliefs. Doing so 
     may be difficult, but that is our job and our duty as lawyers 
     and as public servants.
       Just as we do this, so do the attorneys who work for us. 
     They have often been faced with the challenge of espousing a 
     position which might not match their own personal beliefs. 
     While their abilities in representing their clients will 
     surely be evaluated by the Senate whenever those government 
     lawyers are nominated for federal judgeships, we urge you not 
     to unnecessarily mistake their advocacy for personal belief. 
     We all believe that everyone in America deserves legal 
     representation no matter how unpopular his or her cause may 
     seem. Lawyers will not be willing to take on such causes if 
     they fear that their advocacy may later be used against them. 
     The potential chilling effect could be enormous.
       Indeed, as legislators, you have a great interest in seeing 
     that government lawyers advocate the government's position 
     and not their own. When Congress passes legislation, you have 
     the right to expect that the United States Solicitor General 
     and the entire Department of Justice will defend Congress's 
     work. Individual federal lawyers cannot pick and choose 
     whether to represent only the federal acts that they like. We 
     expect the same of lawyers for the States.
       We respectfully suggest that Mr. Sutton should not be 
     criticized because he has been a vigorous and effective 
     advocate. That has been his duty, and it is to his credit 
     that he has discharged that duty well.
       When you review Mr. Sutton's nomination, please look at his 
     qualifications and his ability to understand and apply the 
     law. Please do not assume that his past legal positions 
     reflect his personal views. No lawyer would wish to be 
     personally held to every position which, as an advocate, he 
     or she was required to advance.
           Sincerely,
         Betty D. Montgomery, Ohio Attorney General; Bill Pryor, 
           Attorney General of Alabama; Robert A. Butterworth, 
           Attorney General of Florida; Alan Lance, Attorney 
           General of Idaho; M. Jane Brady, Attorney General of 
           Delaware; Earl Anzai, Attorney General of Hawaii; Steve 
           Carter, Attorney General of Indiana; Carla J. Stovall, 
           Attorney General of Kansas; J. Joseph Curran Jr., 
           Attorney General of Maryland; Don Stenberg, Attorney 
           General of Nebraska.
         Philip T. McLaughlin Attorney General of New Hampshire; 
           Herbert Soll, Attorney General of N. Mariana Islands; 
           Hardy Myers, Attorney General of Oregon; Richard P. 
           Ieyoub, Attorney General of Louisiana; Mike Moore, 
           Attorney General of Mississippi; Frankie Sue Del Papa, 
           Attorney General of Nevada; Wayne Stenehjem, Attorney 
           General of North Dakota; W.A. Drew Edmondson, Attorney 
           General of Oklahoma; Mike Fisher, Attorney General of 
           Pennsylvania.
         Sheldon Whitehouse, Attorney General of Rhode Island; 
           Mark Barnett, Attorney General of South Dakota; John 
           Cornyn, Attorney General of Texas; Randolph A. Beales, 
           Attorney General of Virginia; Charlie Condon, Attorney 
           General of South Carolina; Paul Summers, Attorney 
           General of Tennessee; Mark Shurtleff, Attorney General 
           of Utah; Iver A. Stridiron, Attorney General of the 
           Virgin Islands.

  Mr. HATCH. Mr. President, I also point out a letter from Bonnie 
Campbell from Arent Fox, who herself was not approved to go on the 
court. I feel badly that we were unable to get to her. But she writes:

       . . . to urge prompt confirmation of Jeffrey S. Sutton to 
     the United States Court of Appeals for the Sixth Circuit. I 
     believe that Mr. Sutton is eminently qualified and would be a 
     great asset to the federal judiciary.

  By the way, Ms. Campbell headed the Violence Against Women efforts on 
behalf of the Clinton administration; some on the other side have 
criticized Mr. Sutton and his arguments on the violence against women 
cases before the Supreme Court.
  She goes on to say:

       Mr. Sutton is one of the top appellate advocates in the 
     country, having argued twelve cases in the United States 
     Supreme Court, with a 9-2 record (and one case pending). In 
     the 2002 and 2001 Term, he argued more cases than any other 
     private attorney in the country, and won all four of them. 
     And in Hohn v. United States . . . the Court sua sponte 
     appointed Mr. Sutton to argue the case as a friend of the 
     Court.

  That in and of itself, I might add, shows the high esteem with which 
the Supreme Court holds this man, certainly a man not outside the 
mainstream. She said:

       When he served as State Solicitor of Ohio, the National 
     Association of Attorneys General presented Mr. Sutton with 
     the Best Brief Award for practice in the United States 
     Supreme Court, an unprecedented four times in a row.

  Does that sound like somebody outside the mainstream? Continuing from 
the letter:

       And this month the American Lawyer included Mr. Sutton in 
     its list of the top 45 lawyers in the country under the age 
     of forty-five.
       I understand that some legal arguments Mr. Sutton has made 
     in the course of representing clients have aroused some 
     controversy in connection with his nomination. Having recent 
     experience myself with the judicial confirmation process, 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.

  This is exactly the argument made by a number on the other side, an 
argument she rejects. She continues:

       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.

  I respect her for writing that letter. I have to say I admire her for 
doing so.
  I might add that in Senator Dole's letter, he went on to list Mr. 
Sutton's work on behalf of Cheryl Fischer and the nonprofit Equal 
Justice Foundation, which often represents disabled clients in the Ohio 
community. Senator Dole continued:

       I do not write these words lightly. As you know, I spent 
     many years in the United States Senate fighting for the 
     rights of the disabled.
       I have no doubt that, if he is confirmed, Jeff Sutton will 
     faithfully enforce that law, just as he will enforce all laws 
     of Congress. And I have no doubt that he will scrupulously 
     respect the rights of the disabled, just as he will respect 
     the rights of all Americans.

  I hope my colleagues will take note of Senator Dole's endorsement, 
which I believe speaks volumes on the integrity and fairness of Jeffrey 
Sutton. His record indicates he will be a brilliant jurist of whom we 
can all be proud.

[[Page 9870]]

  I am going to cast my vote in favor of this confirmation to the Sixth 
Circuit, and I strongly urge all of my colleagues to do the same. I 
urge my colleagues to get beyond these fallacious arguments that he is 
outside of the mainstream of American jurisprudence, these arguments 
that he is unworthy of being in this position--although they admit he 
is a highly qualified, good person. Think about it.
  The fact is, their gold standard rated him--the American Bar 
Association--nearly the highest possible rating available. Now, that 
speaks volumes.
  I reserve the remainder of my time.
  Mr. BUNNING. Mr. President, today I come to the floor of the Senate 
to offer my support for Jeffrey Sutton and urge my colleagues to 
support his confirmation. The Sixth Circuit, which includes my State of 
Kentucky, is experiencing a true judicial emergency. Six of the sixteen 
seats on that court currently sit vacant, leading to justice delayed--
and thus justice denied--for the citizens of Kentucky, Ohio, Tennessee, 
and Michigan. We need Jeffrey Sutton and we need five others like him 
on the Sixth Circuit.
  Jeffrey Sutton was first nominated by President Bush on May 9, 2001. 
It has taken him almost 2 years to be confirmed and assume his seat on 
the bench. That is a long time to wait--but he is one of the lucky 
nominees, since he is actually getting a vote.
  Jeffrey Sutton is an example of the fine nominees President Bush has 
submitted to the Senate. He was rated ``Qualified'' by the American Bar 
Association. He has argued 12 cases before the United States Supreme 
Court, with a strong record of success. He has served as State 
Solicitor of Ohio and was highly respected by his peers in that 
position. He clerked for two Supreme Court justices as well as for the 
Second Circuit Court of Appeals. Currently, Mr. Sutton is a partner at 
the well respected Jones Day law firm and he teaches law school classes 
at Ohio State University. His experience in appellate law practice has 
earned him acclaim from one legal publication as one of the 45 best 
lawyers under the age of 45 in the whole country.
  I am proud that President Bush nominated Jeffrey Sutton and I am 
proud to vote for him. He is well qualified to serve on an appellate 
court and will do a fine job for all states in the circuit. I am glad 
he will soon be confirmed to the Sixth Circuit, and I urge my 
colleagues to support him as well.
  Mr. FEINGOLD. Mr. President, I will vote no on the nomination of 
Jeffrey Sutton to be a judge on the U.S. Court of Appeals for the Sixth 
Circuit. I'd like to take a moment to explain my decision.
  I have concluded that I cannot support the nomination of Mr. Sutton 
because I am not convinced that he will give all those who appear 
before him a fair and impartial hearing. I am greatly troubled by Mr. 
Sutton's record of handling cases that have resulted in the curtailment 
of important civil rights, environmental, and other protections. Mr. 
Sutton has filed amicus briefs that argued for limiting Congress' 
authority to enact laws to protect the rights of the disabled, women, 
the elderly, the poor, and racial or ethnic minorities, as well as laws 
critical to protecting the environment.
  These cases resulted in some of the most notable Supreme Court 
decisions of the last decade that have restricted the ability of 
Congress to protect the rights of Americans and the environment.
  Now, at his confirmation hearing, Mr. Sutton repeatedly defended his 
involvement in these cases by stating that he was simply doing his job 
of zealously representing his client. I appreciate this argument to 
some extent, especially during his tenure as State Solicitor of Ohio. 
But my concerns remain because I know that once he went into private 
practice, he certainly had the ability to choose whether to accept 
clients and inject himself into cases. Moreover, the purpose of amicus 
briefs, which Mr. Sutton filed while in both the Solicitor's office and 
private practice, is not to defend a client against litigation or to 
seek redress on behalf of that client. It is, as we know, an 
opportunity for a third party to inject an opinion into a case for 
which the third party has no immediate interest. In significant states' 
rights case after case, Mr. Sutton consistently sought out cases in 
which he could argue for limiting the role of Congress in ensuring 
constitutional protections for Americans.
  Furthermore, it seems as though this is a personal crusade for Mr. 
Sutton. Outside of his role as a lawyer representing clients, he took 
time to articulate his personal view that Congress should be restrained 
in its effort to protect civil rights and the environment. Through his 
involvement with the Federalist Society, including serving as an 
officer of its Separation of Powers and Federalism practice group, and 
his writings and statements, Mr. Sutton has said that he ``believes in 
this stuff'' and is ``on the lookout'' for cases where he can raise 
federalism issues.
  I am concerned about this pattern of arguments, writings, and 
statements that challenge laws Congress has worked so hard to advance 
those that would safeguard our precious wetlands and natural habitats 
and fight discrimination of any and every kind. We cannot reasonably 
expect to one day eliminate discrimination in this country if we 
confirm nominees like Mr. Sutton, who seem to be ready to turn back the 
clock on civil rights through the application of a dry but extremely 
consequential federalism doctrine, to one of the most important courts 
in the nation.
  Finally, I want to add that I was troubled by Mr. Sutton's response 
to one of my questions. In answering to a question about congressional 
authority for enacting a Federal environmental law, he said that the 
case involved statutory interpretation and that he simply argued that 
the Court need not reach the constitutional question. I later reviewed 
the brief and confirmed that six out of ten pages of his brief, in 
fact, focused on the constitutionality of the Federal environmental 
regulation. I confronted him with this fact in a followup question, and 
he continued to insist that the argument he made was not unusual. I do 
not believe that is the case. Mr. Sutton himself filed an amicus brief 
in another case urging ``constitutional avoidance'' without making such 
an extensive argument against the constitutionality of the statute.
  I don't like voting against judicial nominees. This was a difficult 
decision for me because I do think that Mr. Sutton made an effort to 
address the Committee's concerns, in contrast to some other nominees 
who have come before us. I understand that President Bush has the right 
to nominate whomever he wants to the federal bench. But the Senate is 
not obligated to let the President's nominees sail through, as if there 
were no checks and balances, no constitutional requirement of advise 
and consent. As much as it is our duty to fill vacancies in the Federal 
judiciary, it is also our duty to give great and searching scrutiny to 
those nominees who have a record that calls into question their ability 
to give all those litigants who would appear before the nominees a fair 
and impartial hearing.
  I am more than pleased to vote to confirm judicial nominees that are 
fair-minded and supported by a consensus of members, and, once again, I 
urge the President to speed up the nominations process by sending such 
nominees to the Senate. I do not believe that Mr. Sutton is such 
nominee. He is a bright and accomplished attorney, but he is not the 
right person for this seat on the Sixth Circuit Court of Appeals.
  Mr. JEFFORDS. Mr. President, I would like to take this opportunity to 
express my strong opposition to the nomination of Jeffrey Sutton to the 
Sixth Circuit Court of Appeals.
  During my time in Congress, I have worked hard to ensure equal rights 
for all Americans. Over the last three decades we have made great 
strides in ensuring equal rights for disabled Americans, older 
Americans, and other individuals. The confirmation of Jeffrey Sutton to 
the Sixth Circuit Court of Appeals will set back our progress if he is 
allowed to continue his work of eroding the coverage of civil rights 
laws passed by Congress, not just as an attorney, but as a Federal 
judge.

[[Page 9871]]

  Let me provide my colleagues a quick review of Mr. Sutton's record 
and its impact on equal rights for all Americans. In University of 
Alabama v. Garrett, State workers lost their right to bring damage 
suits under the Americans with Disabilities Act. In Kimel v. Florida, 
State workers lost the right to bring damage suits under the Age 
Discrimination in Employment Act. In Alexander v. Sandoval, all 
Americans lost the ability to file a private right of action to enforce 
the disparate impact regulations of title VI of the Civil Rights Act. 
In fact, the Sandoval rationale has been applied to say that 
individuals who are fired or demoted because they complain about gender 
inequities in a school's sports or education program cannot bring a 
challenge under title IX.
  Unfortunately, for all Americans interested in equal rights, the 
examples above have already occurred. Other arguments Mr. Sutton has 
made will provide my colleagues and all Americans a look ahead to the 
further erosion of equal rights if Mr. Sutton is confirmed to the Sixth 
Circuit Court of Appeals.
  Mr. Sutton has argued that advocates for low-income children should 
not be allowed to effectively enforce a State's failure to provide them 
essential health services required by the Medicaid Act, Westside 
Mothers v. Haveman. Families would not be able to challenge a State's 
failure to provide notices or hearings when their Medicaid HMOs deny or 
delay needed treatment if Sutton's theories from Westside Mothers had 
been accepted. Additionally, parents would not be able to bring a 
challenge to a State's systemic failure to provide occupational 
therapy, speech therapy, and other services that help ensure that 
disabled children receive a free and appropriate public education as 
required by the Individuals with Disabilities Education Act if Sutton's 
theories in Westside Mothers had been accepted. Deaf students at State 
universities would not be able to require schools to provide them with 
interpreters, captioning, and other assistance as required by title II 
of the Americans with Disabilities Act. if Sutton's additional far-
reaching arguments in Garrett had prevailed.
  Mr. Sutton's history shows more than just a desire to represent his 
clients zealously; it shows a belief in a philosophy. This is a 
philosophy that says the right of the State trumps all, even in the 
face of extensive Congressional findings. This is a philosophy that 
says the right of the State overrules the most basic of equal rights 
laws that the Federal Government may pass. This is a philosophy that 
the State can discriminate against its employees and citizens even in 
the face of Federal antidiscrimination laws. This is not a philosophy I 
can support, and I urge my colleagues to join me in opposing this 
nomination.
  Mr. LEAHY. Mr. President, this morning we are going to vote on the 
nomination of Jeffrey Sutton to the U.S. Court of Appeals for the Sixth 
Circuit. Yesterday, I spoke about some of my concerns, but I want to 
again discuss my serious concerns with this nominee.
  Mr. Sutton has a legal philosophy focused on limiting Congress' 
historic role in protecting the civil and constitutional rights of all 
Americans. He has led an aggressive campaign to dismantle longstanding 
Federal laws, enacted with bipartisan support, that have made this 
country more inclusive over the last half-century, and to close access 
to the Federal courts for people challenging illegal acts by their 
State governments.
  As a lawyer in private practice, he has aggressively sought out cases 
to limit the power of Congress to enact laws protecting individual 
rights, and has been dismissive of congressional findings and hearings 
supporting important Federal laws. He has sought to weaken, among other 
laws, the Americans with Disabilities Act, the Age Discrimination in 
Employment Act, the Violence Against Women Act, and the Religious 
Freedom Restoration Act. He has also sought to limit the ability of 
Medicaid recipients to enforce their rights and the ability of 
individuals to enforce disparate impact regulations under title VI of 
the Civil Rights Act. In essence, he has argued for the Supreme Court 
to repudiate more than 25 years of legal precedents that permitted 
individuals to sue States when they violate Federal civil rights 
regulations. His extreme judicial philosophy would undermine the rights 
of State workers, disabled individuals, women, children, racial and 
ethnic minorities, and senior citizens.
  Mr. Sutton and his supporters have claimed that he was merely acting 
on behalf of his clients in all these cases, but this claim is 
unconvincing. Mr. Sutton had no obligation to participate in any of the 
cases taken after he left the Ohio State Solicitor's office in 1998. In 
fact, he has admitted that he sought out cases curtailing congressional 
power as a private lawyer and that he is on the ``lookout'' for these 
cases. He has aggressively pursued a national role as the leading 
advocate of States' rights and, as my colleagues have noted, he has 
stated that his advocacy on the principles of federalism is something 
that he believes in.
  He has made statements praising many of the Supreme Court's decisions 
undermining Congress' authority to protect and assist citizens, and in 
his personal writings and speeches he has advocated an even narrower 
view of Congress' role. Perhaps most significantly, Mr. Sutton has 
taken not a single case that supports congressional power to enact laws 
protecting civil and individual rights. In each case he has argued 
before the Supreme Court he has always been on the same side of this 
issue--arguing that individuals have no right to enforce the civil 
rights protections that Congress has given them. This must be more than 
a coincidence.
  His personal writings and speeches promote his theory that State laws 
adequately protect civil liberties, and display a lack of respect and 
understanding for Congress' long-standing role in protecting individual 
rights.
  Mr. Sutton has stated in several articles that States should be the 
principal bulwark in protecting civil liberties, a claim that has 
serious implications given a history of State discrimination against 
individuals. In numerous papers for the Federalist Society, he has 
repeatedly stated his belief that federalism is a ``zero-sum situation, 
in which either a State or a Federal lawmaking prerogative must fall.'' 
In his articles, he has stated that the federalism cases are a battle 
between the States and the Federal Government, and ``the national 
government's gain in these types of cases invariably becomes the 
State's loss, and vice versa.''
  He also states that federalism is ``a neutral principle'' that merely 
determines the allocation of power. This view of federalism is not only 
inaccurate but troubling. These cases are not battles in which one law-
making power must fall, but in which both the State and the Federal 
government--and the American people--may all win. Civil rights laws set 
Federal floors or minimum standards but States remain free to enact 
their own more protective laws. Moreover, federalism is not a neutral 
principle as Mr. Sutton suggests, but has been used by those critical 
of the civil rights progress of the last several decades to limit the 
reach of Federal laws.
  Mr. Sutton tried to disassociate himself from these views, by saying 
that he was constrained to argue the positions that he argued on behalf 
of his clients. As far as I know, no one forced Mr. Sutton to write any 
article, and most lawyers are certainly more careful than to attribute 
their name to any paper that professes a view with which they strongly 
disagree. In my view, Mr. Sutton's suggestions that he does not 
personally believe what he has written are intellectually dishonest and 
insincere.
  I would also like to respond to the claim by those of the other side 
of the aisle. Those opposed to Mr. Sutton's confirmation believe he has 
a personal antipathy to people with disabilities. I know of no Senator 
who is claiming that Mr. Sutton has a personal antipathy to the 
disabled. I have heard from hundreds of people and organizations who 
express concern that millions of disabled individuals have been harmed 
by his broad advocacy to limit the rights of the disabled as a class. 
The

[[Page 9872]]

fact is that Mr. Sutton has chosen to argue against the rights of 
people with disabilities in three major cases to the Supreme Court; 
that he has argued that the ADA is ``not needed''; and that he has 
devoted his career to making States less accountable.
  I have been stunned by the Republican Senators who have come to this 
floor to argue that Senators should not consider a lawyer's 
representation of clients in considering a judicial nomination. I am 
stunned because so many of them voted against so many nominees of 
President Clinton on that very basis, but they now condemn the approach 
they themselves took--without, of course, acknowledging the 
contradiction. I am reminded that a key member of this President's 
judicial nomination selection team, his former White House Deputy 
Counsel testified before the Senate in 1997 that:

       Although the Senate Judiciary Committee has long 
     recognized--correctly, in my view--that positions taken as an 
     advocate for a client do not necessarily reflect a nominees 
     own judicial philosophy, a long history of cases in which a 
     nominee has repeatedly urged courts to engage in judicial 
     activism may well be probative of the nominee's own 
     philosophy.

  With this nomination, we have Mr. Sutton's admissions in statements 
and interviews and articles outside the courtroom that he believes 
strongly in this ``federalism stuff.''
  Mr. Sutton is opposed by more than 400 disability and civil rights 
organizations. They have concluded that his ideological views and 
extremely narrow reading of the Constitution make it doubtful that he 
would be a fair and balanced judge. The burden is on Mr. Sutton to show 
that he will protect individual rights and civil rights as a lifetime 
appointee to the Sixth Circuit Court of Appeals. This he has not done.
  The oath taken by Federal judges affirms their commitment to 
``administer justice without respect to persons, and of equal right to 
the poor and to the rich.'' No one who enters a Federal courtroom 
should have to wonder whether he or she will be fairly heard by the 
judge. Jeffrey Sutton's record does not show that he will put aside his 
years of passionate advocacy in favor of States' rights and against 
civil rights and his extreme positions limiting Congress' authority to 
protect all Americans. Accordingly, I will not vote to confirm Mr. 
Sutton for appointment to one of the highest courts in the land.
  The PRESIDING OFFICER. The Democratic leader is recognized.
  Mr. DASCHLE. Mr. President, I will use my time as leader to make a 
few comments regarding this nominee.
  Mr. President, I first want to commend the distinguished Senator from 
Iowa for his extraordinary work on this nomination. I watched him prior 
to the time we recessed a couple of weeks ago. His passion, his 
eloquence, and the power of his words were ones that I wish the rest of 
the country could have heard. I have no doubt he would have persuaded 
many had they heard him, as I did. He was back in the Chamber yesterday 
and again this morning. I thank him for that commitment and his 
extraordinary efforts to make sure that people understand the 
consequences of this decision and the great difficulty many of us have 
with this nomination.
  Let me also thank our distinguished ranking member for all his work, 
both in the committee and on the Senate floor, again, in opposition to 
this nomination.
  I have not seen the letter of Senator Dole, and I don't know that 
many of us have had the opportunity to talk to Senator Dole about it, 
but I will say this: Senator Harkin and Senator Dole were both very 
directly and successfully involved with the passage of the ADA some 
years ago. That legislation has been monumental in terms of the change 
it has meant for the rights of the disabled.
  The Americans with Disabilities Act passed in 1990. George Bush said 
at the time that ``as a result of its passage, every man, woman, and 
child with a disability can now pass through once closed doors into a 
bright new era of equality, independence, and freedom.'' Those were the 
words of President Bush when he signed this extraordinary legislation.
  But that legislation depends, of course, on interpretation, and 
interpretation depends upon the courts. What happens at the district 
and circuit court levels, not to mention the Supreme Court level, 
profoundly affects the words and, obviously, more important, the effect 
of the act as it is viewed today, 13 years later.
  I must say that we are considering a nominee today, to a lifetime 
position as a Federal judge, who has worked his entire career to roll 
back the progress of the ADA. Over the past several years, the courts 
have consistently acted to weaken and limit the important protections 
provided by the Americans with Disabilities Act, as well, I might add, 
as the Age Discrimination and Employment Act, the Civil Rights Act, and 
the Violence Against Women Act.
  Those doors to a bright new era, as President Bush once called them, 
are slowly being closed. Jeffrey Sutton is one of the most significant 
reasons why. He has spent years fighting aggressively to limit the 
legal protections of individuals who experience discrimination and 
restrict the authority of Congress to protect those who are most 
vulnerable to discrimination.
  Mr. Sutton was the lead attorney in the case of the University of 
Alabama v. Garrett. It has been discussed and noted on several 
occasions, of course, in the debate, but it bears repeating. In that 
case, he fought to limit, incredibly, the rights of a breast cancer 
survivor who was told by her employer, after she finished chemotherapy 
treatment, that she would have to quit, accept a limited demotion, or 
be fired solely because of her illness. He was the lead attorney in 
Kimel v. Florida Board of Regents. In that case, he argued aggressively 
to limit the rights of Americans who experienced age discrimination.
  In both of these cases, Mr. Sutton acted as a private attorney, which 
means he chose to represent his clients. He didn't have to take those 
clients. No one forced him, saying, you have to go into court, 
regardless of your position, and you have to go make your defense, your 
arguments, as he did before the Court. In both cases, he argued 
aggressively that, despite clearly discriminatory actions, national 
legal protections were not only unnecessary; they were 
unconstitutional.
  In other cases, Mr. Sutton has fought to limit the protections under 
the Violence Against Women Act and to enable States to restrict access 
to health care for low-income children. He has made a career of 
fighting to weaken protections for some of America's most vulnerable 
citizens--the sick, the elderly, the disabled, battered women, and poor 
children. I don't know what ``compassionate conservatism'' is exactly, 
but I surely know this is not it.
  I must say, Mr. President, we will be casting a number of challenging 
and difficult votes as we consider the judiciary. Already we have 
confirmed 18 judges in this Congress. In the last Congress, we 
confirmed 100.
  I am dismayed that this nominee is before us today, given his record, 
given the implications of that record for his future decisions as a 
judge on such an important court. I am dismayed and concerned by its 
implications for all of the vulnerable people of this country, all of 
those who have already sacrificed, all of those who have hoped and 
dreamed that there could be a new day of freedom and independence for 
themselves as a result of the passage of this critical and monumental 
legislation just 13 years ago. I am dismayed that one person can be so 
effective in rolling back those protections and eliminating their 
access in dealing with their independence in such a crass and 
unfortunate way. Closing the door to those people, after waiting 
decades for them to reach this point of freedom and independence in our 
country today, is all the reason one needs to vote against this 
nomination.
  We will have many more nominees, many conservative nominees. Most, if 
not all, of the nominees who will come before us today will be 
conservative, and many will have the same Federalist mentality and 
philosophical approach that Mr. Sutton represents; but they will not be 
the opponents of those who seek independence, freedom, and

[[Page 9873]]

equality as disabled people, as Mr. Sutton has done throughout his 
public career.
  I urge my colleagues, let us not retreat from the progress this 
country has achieved. Let us reject this nomination and protect the 
hard-won legal protections of America's most vulnerable citizens.
  Our only hope in doing so would be to reject this nomination, to 
speak out as loudly and clearly as we can that ADA is as important 
today, if not more important, than it was in 1990 when it passed, 
thanks to the leadership of Senator Harkin, the leadership of Senator 
Dole, the leadership of those who understood the importance of equality 
for everyone, especially those disabled, those who sought that same 
freedom we take for granted today.
  I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  Mr. HATCH. Mr. President, I yield 5 minutes to the distinguished 
Senator from Georgia.
  The PRESIDING OFFICER. The Senator from Georgia.
  Mr. CHAMBLISS. Mr. President, I rise today in strong support of the 
nomination of Jeffrey Sutton to the Sixth Circuit Court of Appeals. I 
have been sitting in my office today listening to the debate on this 
nomination, and I am really a little bit taken aback, as I was in the 
Judiciary Committee hearing when I heard the discussion about Mr. 
Sutton and the opposition to Mr. Sutton.
  It is not as though Mr. Sutton is not qualified to be a nominee to 
the Sixth Circuit. He is a gentleman who graduated first in his class 
from the Ohio State University Law School. He is a gentleman who has 
argued 12 cases before the United States Supreme Court, winning nine of 
them and only losing three. No Sixth Circuit judge currently serving 
has ever had as much Supreme Court experience before taking the bench.
  During the Supreme Court's 2000-2001 term, Mr. Sutton argued four 
cases and won four cases, the best win-loss record of any private 
lawyer in the country that year.
  On January 2, 2003, the American Lawyer named Mr. Sutton one of the 
45 best lawyers in America under the age of 45. They did not say one of 
the best 45 conservative lawyers or federalist lawyers, but one of the 
best 45 lawyers in America under the age of 45. He is an eminently 
qualified man, and I am really appalled by the objections I am hearing.
  The critics who are trying to put various labels on Mr. Sutton, such 
as anti-Americans with Disabilities Act and anti-environment, based on 
positions that he has taken as an attorney advocate, really miss the 
whole point about the American adversarial and judicial system. Lawyers 
routinely adopt positions on behalf of their client as an advocate, 
positions to which they personally might not subscribe, but that is 
what makes our judicial system so great. It is the core of our legal 
system that people are entitled to have attorneys argue their cases for 
them.
  If we start to walk down the road where lawyers are accountable for 
any of the positions they take on behalf of their clients, then we 
might as well write off any criminal defense lawyer for judicial 
appointments because they routinely have to argue for some pretty 
unsavory characters. Our legal system would not be as great as it is 
without these attorney advocates fighting for and advancing the rights 
of their clients.
  As an example of this mislabeling, it is wrong to try to paint 
Jeffrey Sutton as someone who works against the interests of the 
disabled. In truth, he has actually worked as an advocate in cases 
where he represented disabled clients in advancing their rights. This 
man's father ran a home for disabled children where Jeffrey Sutton 
worked as a young man. Beverly Benson Long, who is the immediate past 
president of the World Federation for Mental Health, which is among one 
of many posts she has held, has said:

       No doubt that Mr. Sutton would rule fairly in all cases, 
     including those involving persons with disabilities.

  Mrs. Long described the lobbying against Mr. Sutton by advocates of 
the disabled as unfortunate and misguided:

       In my own opinion, it is not only unfortunate and 
     misguided, it is just plain wrong.

  There was also a quote in the Cleveland Plain Dealer, which is really 
somewhat of an independent-thinking newspaper in our great country. An 
editorial which ran on June 17, 2001, compared Sutton to John Adams, 
who represented the British troops accused of perpetrating the Boston 
Massacre. The Plain Dealer said:

       It is the duty of a lawyer to represent to the best of his 
     ability the interests of his clients. That, the record shows, 
     Sutton has done throughout his career.
       A good judge, doing his job, will have but one abiding 
     friend--the law he has sworn to uphold. Sutton's ability to 
     honor that friendship should be the criterion of his 
     consideration.

  In summary, one cannot deny Mr. Sutton has the intellectual abilities 
we need in our appellate judges. Moreover, he has tremendous 
experience, arguing before the State and Federal Courts of Appeal as 
well as before the United States Supreme Court.
  Finally, he has another quality we need in our appellate judges. The 
Attorney General of my home State, who is a dear friend of mine, is a 
man who is an elected Democrat, and he is a man for whom I have the 
utmost respect and a man who has had an occasion to work with Jeffrey 
Sutton. He said it best when he told me Mr. Sutton would have a great 
judicial temperament. So we have a nominee with intellect, with 
experience, and with temperament. We cannot ask for more than that in a 
judicial nominee, and yet his confirmation has been delayed because of 
partisan bickering.
  It is no wonder we are in a judicial crisis with so many open 
judicial seats unfilled. It is no wonder we are stalled in moving 
forward on other judicial nominees. Jeffrey Sutton is a highly 
qualified nominee for the appellate bench. Let us move forward. I 
strongly urge a vote to confirm Jeffrey Sutton to the Sixth Circuit 
Court of Appeals.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. How much time remains on both sides?
  The PRESIDING OFFICER. Twenty minutes on the Senator's side and 5 
minutes on the other side.
  Mr. HATCH. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. HATCH. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Iowa.
  Mr. HARKIN. Mr. President, a lot of times these debates, especially 
when they involve a court nominee such as Mr. Sutton, tend to get 
personal, and they should not. I hope no one here interprets anything I 
have said as being any kind of personal thing against Mr. Sutton.
  I said at the beginning I found him to be a pleasant, intellectual 
individual with whom I spent an hour and a half. I do not know him 
personally, of course. That is not the point. It is just like my good 
friend from Utah, Senator Hatch. Senator Hatch was very helpful when we 
passed the Americans with Disabilities Act. I have told him that many 
times. He happens to be a good friend of mine on a whole host of issues 
on which we have worked together. I have no doubt that perhaps Mr. 
Sutton has compassion toward people with disabilities, but that also 
raises a problem with me.
  It has been said many times Mr. Sutton's father had a school for kids 
with cerebral palsy. When Mr. Sutton was in my office, I asked him if 
that was a segregated school and he said, no, it was not. But he 
thought I meant male and female. What it was, was kids with cerebral 
palsy only went to this school. Well, I commend Mr. Sutton's father for 
his compassion, for having a school for kids with cerebral palsy, but 
that is what we are trying to get over with the Americans with 
Disabilities Act. That is what we are trying to get beyond. We are 
trying to get beyond segregation.

[[Page 9874]]

  I spoke about my brother Frank when he was sent half way across the 
State to the school for the deaf--segregation because he was disabled. 
So, again, to have that mindset that somehow people have to be put in 
an institution, like the Olmstead case--fortunately, Mr. Sutton did not 
win that one, but if his view had prevailed, the two women in that case 
would still be in an institution. Now they are living by themselves, 
out free to shop, free to make their own meals, free to travel, not 
being stuck in an institution.
  This vote we are about to have has nothing to do with Jeffrey Sutton 
as a person, but it has a lot to do with him as a potential judge and 
how he views his role and how he views Congress's role. He said that 
the Americans with Disabilities Act was not needed. On National Public 
Radio he said that, ``disability discrimination in a constitutional 
sense is really very difficult to show.''
  Then, later on, Mr. Sutton said that in this context it is a zero sum 
game; that if civil rights wins, the States lose.
  It is not a zero sum game at all. Yes, like my friend from Utah, I 
believe in federalism. I believe in the Federal/State system on which 
our country is set up, on which our constitutional framework is 
established. I think it is the best system ever devised on the face of 
the Earth. But I do not believe in the kind of federalism that Mr. 
Sutton espouses, that it is a zero sum game; that if we expand civil 
rights somehow a State loses, or that somehow Congress does not have 
the authority, constitutionally, to address the kinds of social ills 
and social wrongs perpetrated so long in our country on minorities and 
on people with disabilities. That is why 400 civil rights groups have 
come out opposed to Mr. Sutton.
  We here in the Congress did our job. We worked long and hard over 
many, many years, Republicans and Democrats, to pass the Americans with 
Disabilities Act. Mr. Sutton says that discrimination against people 
with disabilities is very difficult to show. Is that the mindset we 
want on the Federal bench? I ask my fellow Senators, send a strong 
message that we are going to stand behind the Americans with 
Disabilities Act, that we are not going to let it be chiseled away by a 
Federal judge such as Mr. Sutton. I ask for a ``no'' vote to send that 
message.
  Mr. President, I ask unanimous consent to have printed the Record a 
list of letters the Committee has received in opposition to the 
confirmation of Jeffrey Sutton to the Sixth Circuit Court of Appeals, 
and three of these letters which come from large coalitions of civil 
rights, women's rights and disability rights organizations.
  First, a letter from the Leadership Conference on Civil Rights and 
the Alliance for Justice, dated April 28, 2003.
  Second, a letter from 25 women's groups, dated April 28, 2003.
  Third, a letter from ADA WATCH, a coalition of disability rights 
organizations, dated May 14, 2003.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

  Opposition to Jeffrey Sutton, Nominee to the United States Court of 
                     Appeals for the Sixth Circuit


                         public interest groups

       Ability Center of Defiance also signed by: Courage 
     Incorporated, Independent Living Center of North Central 
     Ohio, Ability Center of Greater Toledo, Access II Independent 
     Living Center, Access to Independence of Courtland County, 
     Inc., Access Living, Advocates for Ohioans with Disabilities, 
     ADA WATCH, AIDS Action, Alliance for Disabled in Action, 
     American Association of People with Disabilities, American 
     Association of University Women, American Council of the 
     Blind, American Council of the Blind of Maryland, American 
     Council of the Blind of South Carolina, AFL-CIO, American 
     Federation of State, County and Municipal Employees (AFSCME), 
     Americans for Democratic Action, Arizona Bridge to 
     Independent Living, Brain Injury Association of Tennessee, 
     Capitol District Center for Independence, Inc., Center for 
     Civil Justice, Center for Independent Living Options, Center 
     for Independence of the Disabled in New York, Inc., Cerebral 
     Palsy Association of Ohio, Cerebral Palsy Association of New 
     Jersey.
       Civil Rights coalition letter signed by: ADA Watch/National 
     Coalition for Disability Rights, AFL-CIO, Alliance for 
     Justice, American Association of University Women, Feminist 
     Majority, Leadership Conference on Civil Rights, MoveOn.org, 
     NAACP, NAACP Legal Defense and Education Fund, National 
     Council of Jewish Women, National Fair Housing Alliance, 
     National Partnership for Women and Families, National Women's 
     Law Center, People for the American Way, United Auto Workers, 
     Coalition for Independent Living Options, Inc., Council for 
     Disability Rights, Deaf and Hard of Hearing Consumer Advocacy 
     Network, Eastern Paralyzed Veterans Association.
       Environmental coalition letter signed by: Clean Water 
     Action, Community Rights Counsel, Defenders of Wildlife, 
     Earthjustice, Endangered Species Coalition, Friends of the 
     Earth, Natural Resources Defense Council, Oceana, Physicians 
     for Social Responsibility, Sierra Club, The Wilderness 
     Society, Everybody Counts Center for Independent Living, 
     Freedom Center, Inc., Gender Justice Action Group, Harrison 
     County Sheltered Workshop, Inc., Heightened Independence & 
     Progress, Human Rights Campaign, Independent Living Center of 
     the Hudson Valley.
       Justice for All Project signed by: California Abortion and 
     Reproductive Rights Action League, California Employment 
     Lawyers Association, Committee for Judicial Independence, 
     Democrats.com, Environmental Law Foundation, National Center 
     for Lesbian Rights, California National Organization for 
     Women, Planned Parenthood Los Angeles County, Progressive 
     Jewish Alliance, Stonewall Democratic Club, Unitarian 
     Universalists Project Freedom of Religion, Western Law Center 
     for Disability Rights, Women's Reproductive Rights Assistance 
     Project, Leadership Conference on Civil Rights, Liberty 
     Resources Inc. (the Center for Independent Living in 
     Philadelphia County), Linking Employment, Abilities & 
     Potential, Mental Health Association in Monongalia County, 
     Michigan Centers for Independent Living, Michigan 
     Developmental Disabilities Council, Mid Atlantic Chapter of 
     TASH, National Association for the Advancement of Colored 
     People (NAACP), National Association for Rights Protection 
     and Advocacy, National Association of the Deaf, National 
     Council of Jewish Women, National Disabled Students Union, 
     National Employment Lawyers' Association, National 
     Organization for Women, New York State Independent Living 
     Council, Inc., New York Society for the Deaf, Northern 
     Regional Center for Independent Living, Ocean State Center 
     for Independent Living, Options for Independence, Inc., 
     Oregon Disabilities Commission, Pennsylvania Council of the 
     Blind, Progress Center for Independent Living, Queens 
     Independent Living Center, Inc., Regional Access & 
     Mobilization Project, Inc., River Falls Access Ability 
     Center, Ruben Center for Independent Living, Service 
     Employees International Union, Sierra Club, Southern Maryland 
     Council of the Blind, Statewide Parent Advocacy Network, 
     Inc., United Auto Workers, United Food and Commercial Workers 
     International Union, Utah Statewide Independent Living 
     Council, Vermont Statewide Independent Living Council, 
     Western Law Center for Disability Rights.
       Women's Rights Organizations letter signed by: American 
     Association of University Women, Business and Professional 
     Women/USA, Center for Women Policy Studies, Choice USA, 
     Coalition of Labor Union Women, Equity in Education and 
     Employment, Feminist Majority, GenderWatchers, Ms. Foundation 
     for Women, National Council of Jewish Women, National Network 
     to End Domestic Violence, National Partnership for Women & 
     Families, National Women's Law Center, National Organization 
     for Women, NOW Legal Defense and Education Fund, National 
     Partnership for Women & Families, National Women's 
     Conference, National Women's Law Center, Northwest Women's 
     Law Center, Religious Coalition for Reproductive Choice, 
     Wisconsin Coalition Against Sexual Assault, Women Against 
     Abuse, Inc., Women's Caucus for Political Science, Women 
     Employed, Women Empowered Against Violence, Inc., Women's 
     Institute for Freedom of the Press, Women's Sports 
     Foundation, Young Democrats of America Disability Issues 
     Caucus.


                               attorneys

       Susan Barnhill, Sacramento, CA; Margarette Berg Cashin, 
     Staten Island, NY; Richard Chudner, Cleveland, OH; Kathryn 
     Engdahl, Minneapolis, MN; Frederick Ford, West Palm Beach, 
     FL; Nancy Grim, Kent, OH; Caryn Groedel, Cleveland, OH; 
     Harriet McBryde Johnson, Charleston, SC; Theodore Meckler, 
     city and state unknown; Dahlia Rudasky, Boston, MA.
       Also signed by: Ellen Messing; James Weliky; Jeremy 
     Cattani; Shawn Scharf, Youngstown, OH; Judity Schermer, 
     Minneapolis, MN; David Steiner, Cleveland, OH; Richard 
     Treanor, Washington, DC; Brian Williams, Akron, OH; Jeffrey 
     Neil Young, Topsham, ME.


                               professors

       Douglas Laycock, University of Texas at Austin School of 
     Law, Austin, TX; American Law Teachers, signed by Michael 
     Rooke-Ley, Emeritus Professor of Law and Paula Johnson, 
     Professor of Law; Rebecca Zietlow, University of Toledo 
     College of Law.


                             citizen groups

       Concerned Citizens of Ohio letter signed by: Tim 
     Harrington, Director and Sue

[[Page 9875]]

     Hetrick, Ability Center for Greater Toledo; Roy Poston, 
     Director, Access Center for Independent Living (Dayton); 
     Patrick Shepherd, President, Cleveland Stonewall Democrats; 
     Bev Rackett, Director, Mid-Ohio Board for an Independent 
     Living Environment; Joan Kazan, Immediate Past President, 
     National Council of Jewish Women, Cincinnati Section; Susan 
     Levine, President, National Council of Jewish Women, 
     Cleveland Section; Cathy Stone, President, National Council 
     of Jewish Women, Columbus Section; William Burga, President, 
     Ohio AFL-CIO; Ronald Malone, Director, Ohio AFSCME United; 
     Sandy Buchanan, Ohio Citizen Action; Fred Gittes, Ohio 
     Employment Lawyers Association; Diane Doge, Ohio National 
     Organization for Women; William Olubodun, Ohio Statewide 
     Independent Living Council; Jonathan Varner, President, Ohio 
     Young Democrats; Belinda Spinosi, Director, Southeastern Ohio 
     Center for Independent Living; NARAL Ohio letter signed by 
     279 individuals.
                                  ____

         Leadership Conference on Civil Rights, Alliance for 
           Justice,
                                   Washington, DC, April 28, 2003.
     Hon. Bill Frist,
     Majority Leader, U.S. Senate, Washington, DC.
     Hon. Tom Daschle,
     Minority Leader, U.S. Senate, Washington, DC.
       Dear Senators Frist and Daschle: We, the undersigned civil 
     rights, women's rights, labor, and human rights 
     organizations, together representing millions of Americans 
     across the United States, write to express our opposition to 
     the confirmation of Jeffrey Sutton to the United States Court 
     of Appeals for the Sixth Circuit. Mr. Sutton's record as a 
     lawyer and advocate reveals him to be an extremely 
     ideological and conservative activist with a particularly 
     troubling record in many areas important to our communities.
       We have serious concerns about Mr. Sutton's legal 
     philosophy in a number of areas, particularly his views on 
     Congress' authority to enact laws protecting civil and other 
     individual rights. Mr. Sutton has become, over the last 
     several years, a leading activist in the so-called ``states' 
     rights'' movement. In fact, he has personally argued key 
     Supreme Court cases that, by narrow 5-4 majorities, have 
     undermined Congress' ability to protect Americans against 
     discrimination based on race, age, gender, disability, and 
     religion. Mr. Sutton's arguments in several of these cases 
     sought to restrict civil rights and environmental protections 
     even more severely than has the Supreme Court. Also, Mr. 
     Sutton was not just making a strong case on behalf of his 
     client; he actively sought out these cases in order to expand 
     states' rights doctrines. As he told the Legal Times, ``I 
     love these issues. I really believe in this federalism 
     stuff.''
       Mr. Sutton's work on behalf of limiting Congress' power to 
     enact protective legislation has had a devastating impact on 
     the rights of individuals with disabilities. Over the past 
     several years, Mr. Sutton has been involved in an effort to 
     challenge and weaken the Americans with Disabilities Act 
     (ADA), a popular and important bill enacted by a bipartisan 
     Congress and signed into law by President George H.W. Bush. 
     Mr. Sutton represented the University of Alabama in the case 
     of University of Alabama v. Garrett, 531 U.S. 456 (2001), in 
     which the Court ruled 5-4 that it was unconstitutional for 
     the ADA to permit state employees to bring lawsuits for 
     damages to protect their rights against discrimination. In 
     fact, Mr. Sutton's arguments went even further than the 
     Court's decision. During oral argument, Mr. Sutton told the 
     Court that the ADA was ``not needed.'' In another case, 
     Olmstead v. L.C., 527 U.S. 581 (1999), Mr. Sutton argued that 
     it should not be a violation of the ADA to force persons with 
     mental disabilities to remain institutionalized without 
     proper justification, despite clear congressional findings to 
     the contrary. In a third case, Pennsylvania Department of 
     Corrections v. Yeskey, 524 U.S. 206 (1998), Mr. Sutton filed 
     an amicus brief arguing that the ADA does not apply at all to 
     state prison systems. The Supreme Court rejected Mr. Sutton's 
     arguments in Olmstead and Yeskey, which would have further 
     weakened the ADA had they been accepted.
       Mr. Sutton has also argued for a narrow view of Congress' 
     ability to protect the environment or to provide a means for 
     individuals to vindicate their rights. In Alexander v. 
     Sandoval, 532 U.S. 275 (2001), he argued against allowing 
     private individuals to sue to enforce the disparate impact 
     regulations of Title VI of the 1964 Civil rights Act, which 
     prohibits discrimination based on race, color, or national 
     origin, by recipients of federal financial assistance. He has 
     also argued for severe limits on the ability of state 
     employees who are victims of age discrimination to recover 
     damages, against increased protection for religious freedom 
     from encroachment by states, and against a federal remedy for 
     victims of sexual assault and violence, positions adopted by 
     the 5-4 Supreme Court majority. He also argued that Congress 
     did not have the Constitutional authority to enact 
     legislation protecting environmentally sensitive wetlands 
     from harmful dumping.
       In addition, Mr. Sutton has advocated for other specific 
     steps by the courts to limit federal civil rights 
     protections. In an article for the Federalist Society, Mr. 
     Sutton praised a concurring opinion by Justices Thomas and 
     Scalia in Holder v. Hall, 512 U.S. 874 (1994), which would 
     have severely restricted the application of Section 2 of the 
     Voting Rights Act (prohibiting state and local conduct that 
     has a racially discriminatory purpose or effect), and would 
     have required overturning or reconsidering at least twenty-
     eight previous Supreme Court voting rights decisions. Mr. 
     Sutton has even suggested that the Thomas-Scalia concurrence 
     provided a blueprint for broadly reconsidering and 
     overturning court decisions that right-wing advocates do not 
     like in civil rights and other areas.
       In sum, based on his record as a lawyer and legal advocate, 
     it is clear that Mr. Sutton's legal philosophy is focused on 
     limiting Congress' historic role in protecting the civil and 
     constitutional rights of all Americans. Jeffrey Sutton's 
     advocacy on many issues important to our communities, such as 
     the reach of federal civil rights and environmental statutes, 
     federalism, the right to vote, and the ability of individuals 
     to vindicate their rights, reflect views that are outside the 
     mainstream of judicial thought.
       Therefore, given Mr. Sutton's record of hostility to 
     important civil rights and equal opportunity principles, we 
     urge the Senate to reject his nomination to the U.S. Court of 
     Appeals for the Sixth Circuit.
           Sincerely,
     Wade Henderson,
                            Leadership Conference on Civil Rights.
     Nan Aron,
     Alliance for Justice.
                                  ____

                                                   April 28, 2003.
     Hon. William H. Frist,
     U.S. Senate,
     Russell Senate Office Building,
     Washington, DC.
     Hon. Thomas Daschle,
     U.S. Senate,
     Hart Senate Office Building,
     Washington, DC.
       Dear Senators Frist and Daschle: We, the undersigned 
     women's rights organizations, write to express our strong 
     opposition to the nomination of Jeffrey Sutton to the United 
     States Court of Appeals for the Sixth Circuit. Jeffrey Sutton 
     is an experienced Supreme Court litigator who has gained 
     prominence because of his staunch advocacy in favor of 
     states' rights and elevating state sovereignty over Congress' 
     power to protect civil rights. As organizations dedicated to 
     the advancement of women, we are extremely concerned about 
     the growing resurgence of states' rights, particularly as a 
     tool to undermine rights essential to women's progress. 
     Jeffrey Sutton is not merely a proponent of state's rights--
     he has been the principal architect of an effort to curtail 
     Congress' efforts to protect against discrimination and 
     ensure equal opportunity. Indeed, his persistent, single-
     minded advocacy is reflected not only in his case 
     participation, but also in his speeches and writings. His 
     confirmation to a lifetime position on the federal bench 
     threatens to dismantle the important gains that have been 
     critical to women's success and we urge you to reject his 
     nomination.
       Jeffrey Sutton has argued before the Supreme Court in a 
     number of seminal civil rights cases that have weakened the 
     ability of Congress to protect women's rights. For example:
       Mr. Sutton represented Alabama as amicus curiae in United 
     States v. Morrison, 529 U.S. 598 (2000), and argued 
     successfully that the civil rights remedy of the Violence 
     Against Women Act (VAWA) was unconstitutional. Congress 
     passed VAWA after hearing wide-ranging testimony that states 
     were not adequately protecting women from violence motivated 
     by gender. Despite substantial evidence gathered by Congress 
     and the views of attorneys general from 36 states, Sutton 
     argue that ``there has been no tenable showing that the 
     [s]tates have violated the Fourteenth Amendment through their 
     regulation of gender-based violence.'' He not only 
     volunteered to write this brief, but also wrote two 
     subsequent articles for the Federalist Society which 
     supported the Court's decision and its rationale.
       Mr. Sutton played a significant role in weakening the Civil 
     Rights Act of 1964, arguing in Alexander v. Sandoval, 532 
     U.S. 275 (2001), that citizens could not sue under Title VI 
     to challenge federally funded programs that had the effect of 
     discriminating on the basis of race, color, or national 
     origin. This case has had a serious impact not only on Title 
     VI cases, but also on the implementation of Title IX, which 
     prohibits gender discrimination in federally funded education 
     programs or activities. Because Title IX was modeled on Title 
     VI, many courts have applied principles established under 
     Title VI to Title IX cases. Already, at least four courts 
     have found that Title IX retaliation claims were not 
     actionable in the wake of the Sandoval decision. While 
     further action in these cases is possible, these decisions 
     illustrate the potential harm posed by Sandoval in cases 
     challenging gender discrimination in education.
       Mr. Sutton represented the state of Alabama in Board of 
     Trustees of the University

[[Page 9876]]

     of Alabama v. Garrett, 531 U.S. 356 (2001), advancing a 
     state's rights argument that ultimately led the Supreme Court 
     to dismiss the claim of a woman who was fired because she had 
     breast cancer and to further undermine the Americans with 
     Disabilities Act. Despite evidence that Congress had mounted 
     to show that states had a history of discrimination in their 
     treatment of citizens with disabilities, Sutton argued to the 
     contrary, and urged the Court to find that Congress had 
     exceeded its power under the Fourteenth Amendment. These same 
     legal arguments are now being used to challenge the Family 
     and Medical Leave Act, another law that is critical to the 
     ability of women and men to balance their work and family 
     responsibilities.
       Mr. Sutton's unyielding and extreme views on federalism and 
     civil rights would restrict Congress' power to pass civil 
     rights laws and the abilities of individuals to seek redress 
     for violations of those rights, as well as inhibit access to 
     courts for people challenging illegal acts by their state 
     governments. These views are contrary to the balanced 
     approach we believe is necessary for a federal appeals court 
     judge.
       Because we believe Mr. Sutton's confirmation would 
     accelerate the rollback of essential civil rights laws and 
     undermine important gains for women, we urge you to oppose 
     his nomination.
           Sincerely,
       American Association of University Women.
       Business and Professional Women/USA.
       Center for Women Policy Studies.
       Choice USA.
       Coalition of Labor Union Women.
       Equity in Education and Employment.
       Feminist Majority.
       Gender Watchers.
       Ms. Foundation for Women.
       National Council of Jewish Women.
       National Network to End Domestic Violence.
       National Organization for Women.
       NOW Legal Defense and Education Fund.
       National Partnership for Women & Families.
       National Women's Conference.
       National Women's Law Center.
       Northwest Women's Law Center.
       Religious Coalition for Reproductive Choice.
       Wisconsin Coalition Against Sexual Assault.
       Women Against Abuse, Inc.
       Women's Caucus for Political Science.
       Women Employed.
       Women Empowered Against Violence, Inc.
       Women's Institute for Freedom of the Press.
       Women's Sports Foundation.
                                  ____



                                                    ADA WATCH,

                                     Washington, DC, May 14, 2001.
     Hon. Patrick Leahy,
     U.S. Senate, Washington, DC.
       Dear Senator Leahy: President Bush's nomination of Jeffrey 
     Sutton for federal judgeship is of great concern to members 
     of the disability community and it is our hope that you will 
     be willing to meet with representatives of the ADA WATCH to 
     discuss our opposition.
       The ADA WATCH is a campaign to protect the civil rights of 
     people with disabilities. This includes an informational 
     network designed to alert and activate the grassroots to 
     respond to threats to the ADA from Congress, the 
     Administration, and the courts. Our 100+ member organizations 
     include: ADAPT, National Council on Independent Living, 
     American Association of People with Disabilities, Consortium 
     for Citizens with Disabilities, Paralyzed Veterans of 
     America, and the National Association of Protection and 
     Advocacy Systems. While the ADA WATCH does not speak for any 
     of these individual organizations, we are currently making 
     the judicial nomination of Jeffrey Sutton a top priority and 
     a great majority of our partners are united in opposing this 
     nomination in light of Mr. Sutton's outspoken disregard for 
     the civil rights of people with disabilities. The nomination 
     of a lawyer who has enthusiastically argued against the 
     constitutionality of the ADA is hardly consistent with the 
     Bush Administration's stated support of the ADA and the 
     legacy of the man who signed the ADA into law, President 
     George H.W. Bush.
       Mr. Sutton has made it clear that he is not supportive of 
     the rights granted to people with disabilities by Congress 
     through the passage of the ADA. Despite extensive 
     documentation of state government discrimination against 
     people with disabilities, Mr. Sutton enthusiastically 
     supported the position that Congress did not have the 
     authority to create the important civil rights protections 
     afforded by the ADA. Mr. Sutton told the Supreme Court last 
     fall when he argued the Garrett case for Alabama that the ADA 
     ``exaggerated discrimination problems by states.'' He told 
     the court that the ADA was ``not needed'' and used similar 
     arguments to weaken civil rights laws in the Kimel and 
     Sandoval cases. His belief that laws of the various states 
     provide adequate protections ignores the hundreds of pages of 
     testimony before Congress that detailed the discrimination 
     faced by people with disabilities across the country at the 
     hands of state government agencies.
       Please understand the ADA WATCH's respectful opposition to 
     this nomination and our concern that the nomination of Mr. 
     Sutton represents a serious threat to the civil rights of 
     people with disabilities.
           Sincerely,
                                                         Jim Ward.

  The PRESIDING OFFICER. The time of the Senator has expired.
  Who yields time? The Senator from Utah.
  Mr. HATCH. Mr. President, I will only take a few minutes and then I 
intend to yield back the remainder of our time, as long as no one else 
wants to speak.
  I appreciate the distinguished Senator from Iowa. I would have 
yielded time to him, had he needed time, without the extra 10 minutes 
that were asked for.
  It seems to me the arguments on the other side come down to this. Mr. 
Sutton is outside the mainstream of American jurisprudence, that he 
advocated cases that literally the Supreme Court agreed with, that they 
disagree with, maybe I disagree with, but the Supreme Court did decide 
in at least two of those cases, nine to zip, in favor of Mr. Sutton's 
position. That is basically what it seems to come down to.
  The fact is, Mr. Sutton, as an advocate, has an obligation to argue 
the best he can for his clients. He did that, winning 9 of the 12 cases 
that he had before the Supreme Court, and a number of them 
unanimously--that they have been complaining about. In the Garrett 
case, he got five Justices on the Supreme Court, a clear majority, to 
go along with his particular position.
  I have read the letter from some of my colleagues on the Judiciary 
Committee that indicated he has never advocated for a civil rights 
position. That is pure bunk, and I have made that case here today.
  What is behind this type of treatment of an excellent nominee such as 
Jeffrey Sutton? I can understand the distinguished Senator from Iowa 
who is a very strong advocate for persons with disabilities, as am I, 
who may not have read the full judicial record and who may not, as a 
nonlawyer, fully appreciate the role of an advocate. But it is very 
difficult for me to understand how members of the Judiciary Committee 
who are advocates themselves, who hold their attorney's licenses in 
good esteem, can make some of the arguments they have made, and 
especially in the letter they distributed to all Senators.
  The record flies in the face of those allegations. The fact is, I 
believe Jeffrey Sutton will be one of the most sensitive people towards 
persons with disabilities because he comes from that mindset. His 
father ran a school for persons with disabilities, kids who suffered 
from cerebral palsy. He worked for his father. He has argued for 
persons with disabilities and he has argued in cases where the Court 
decided against the Americans with Disabilities Act. But the Court made 
that decision.
  Is the Court outside the mainstream of American juris prudence? I am 
sure each of us in this body can find a case or two in which we 
disagree with the Supreme Court. I can find a lot of cases with which I 
disagree. But their pronouncements happen to be the law and that has 
been the law ever since Marbury v. Madison.
  All I can say is that here is a person who is respected by his peers, 
who receives the highest rating from the American Bar Association--not 
a conservative organization, something that has been called the gold 
standard by my colleagues on the other side--who has eminent experience 
before the U.S. Supreme Court and other appellate bodies in this 
country, one of the premier appellate lawyers in the country, even 
though he is only 45 years of age, who has had extensive experience as 
an advocate for a wide variety of diverse people, who appeared before 
the committee and everybody on the committee, even those who are 
against him here today, admit he is a fine person with great ability.
  But they try to smear the Federalist Society by saying these are 
Federalist Society nominees. That is a joke. The Federalist Society 
puts on the best

[[Page 9877]]

seminars of any legal society in America today, and those seminars are 
always balanced with the left and the right. They give the left every 
chance to explain their position and give the right every chance to 
explain their position. That is precisely what a good legal society 
should do. They do not take advocacy positions but they do try to get 
people to think about the law.
  I get a little tired of having the Federalist Society run down when 
some of the most eminent people in society are members of the 
Federalist Society, which is basically a debating society considering 
the various aspects of the law and making sure both sides are heard. 
That is pretty hard to beat.
  I hope I am wrong, that the real reasons against Mr. Sutton is, No. 
1, he is so good; No. 2, he has a chance of being on the Supreme Court 
someday and why not damage him now so he can't be there; No. 3, he 
might be pro-life, although I personally don't know what he is with 
regard to that issue. Those seem to be the major issues.
  The fact is, he has the highest rating he can possibly have from the 
American Bar Association. He is an excellent lawyer. He is an excellent 
advocate. He is a person whom I believe will do justice on the courts. 
By all measurement by any fair person, any student of the law, you 
would have to conclude that this man not only is within the mainstream 
of American juris prudence, but he is one of the leaders in the 
mainstream of American juris prudence.
  For the life of me, I don't understand why anybody would vote against 
Jeffrey Sutton. The mere fact that he may have represented some clients 
who they don't like, they on the other side, that is not a good enough 
argument. In fact, it is laughable. Good lawyers represent their 
clients.
  In the Garrett case, contrary to what has been argued, he didn't ask 
for that case. He was called by the attorney general of the State 
involved and asked if he would be willing to represent them, if I 
recall correctly.
  So the arguments that have been made--I haven't heard one meritorious 
argument on this whole debate. If you look at the record, there is 
every meritorious argument as to why those who really understand the 
law, those who really are fair about this process, would vote for 
Jeffrey Sutton.
  Mr. President, if there is no one else who wants to speak, then I 
yield the remainder of my time.
  Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER (Mr. Sessions). Is there a sufficient second?
  There is a sufficient second.
  The question is, Will the Senate advise and consent to the nomination 
of Jeffrey S. Sutton, of Ohio, to be United States Circuit Judge for 
the Sixth Circuit?
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. McCONNELL. I announce that the Senator from Kansas (Mr. Roberts) 
is necessarily absent.
  Mr. REID. I announce that the Senator from Florida (Mr. Graham), the 
Senator from Massachusetts (Mr. Kerry), the Senator from Connecticut 
(Mr. Lieberman), the Senator from Arkansas (Mrs. Lincoln), the Senator 
from Georgia (Mr. Miller), and the Senator from Maryland (Mr. Sarbanes) 
are necessarily absent.
  I further announce that, if present and voting, the Senator from 
Maine (Mr. Kerry) and the Senator from Arizona (Mrs. Lincoln) would 
each vote ``no''.
  The result was announced--yeas 52, nays 41, as follows:

                      [Rollcall Vote No. 135 Ex.]

                                YEAS--52

     Alexander
     Allard
     Allen
     Bennett
     Bond
     Brownback
     Bunning
     Burns
     Campbell
     Chafee
     Chambliss
     Cochran
     Coleman
     Collins
     Cornyn
     Craig
     Crapo
     DeWine
     Dole
     Domenici
     Ensign
     Enzi
     Feinstein
     Fitzgerald
     Frist
     Graham (SC)
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchison
     Inhofe
     Kyl
     Lott
     Lugar
     McCain
     McConnell
     Murkowski
     Nelson (NE)
     Nickles
     Santorum
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stevens
     Sununu
     Talent
     Thomas
     Voinovich
     Warner

                                NAYS--41

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Breaux
     Byrd
     Cantwell
     Carper
     Clinton
     Conrad
     Corzine
     Daschle
     Dayton
     Dodd
     Dorgan
     Durbin
     Edwards
     Feingold
     Harkin
     Hollings
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Mikulski
     Murray
     Nelson (FL)
     Pryor
     Reed
     Reid
     Rockefeller
     Schumer
     Stabenow
     Wyden

                             NOT VOTING--7

     Graham (FL)
     Kerry
     Lieberman
     Lincoln
     Miller
     Roberts
     Sarbanes
  The nomination was confirmed.
 Mrs. LINCOLN. Mr. President, due to an electronic failure, I 
was absent during the vote on the confirmation of Jeffrey Sutton to be 
a United States Circuit Judge for the Sixth Circuit Court of Appeals. 
Had I been present, I would have voted ``no'' on his confirmation. 
After reviewing Mr. Sutton's record, I was not confident he could 
fulfill his obligation as a Federal appellate court judge to follow 
established precedent, interpret the law and Constitution fairly, and 
treat all litigants before him without favor or bias. In my estimation, 
Mr. Sutton's proactive and consistent advocacy to limit Federal civil 
rights protections is incompatible with the temperament and detachment 
I look for in nominees being considered for a lifetime 
appointment.

                          ____________________