Statement Of Senator Patrick Leahy
On The Nomination Of Jeffrey S. Sutton
To The U.S. Court Of Appeals For The Sixth Circuit
April 29, 2003

Today 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 long-standing 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 he 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 older Americans. 

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 his concept of “states’ rights” and, as my colleagues have noted, he has made clear in his own statements 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 that 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 Americans with disabilities.  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 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 nominee’s 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 do equal right to the poor and to the rich.”  No one who enters a federal courtroom should have to wonder whether he or she will be fairly heard by the judge.  Jeffrey Sutton’s record does not show that he will put aside his years of passionate advocacy in favor of his brand of “states’ rights” and against civil rights and his extreme positions limiting Congress’ authority to protect all Americans.  His judicial philosophy, when it is used to roll back the hard-won rights of millions of Americans, translates into far-reaching, real, and harmful consequences in the lives of these Americans, and in American society.  Accordingly, I will not vote to confirm Mr. Sutton for appointment to one of the highest courts in the land.

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