[Senate Hearing 108-135]
[From the U.S. Government Publishing Office]
S. Hrg. 108-135, Pt. 1
CONFIRMATION HEARING ON FEDERAL APPOINTMENTS
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HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
__________
JANUARY 29, 2003
__________
PART 1
__________
Serial No. J-108-1
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Printed for the use of the Committee on the Judiciary
89-324 U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2003
____________________________________________________________________________
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COMMITTEE ON THE JUDICIARY
ORRIN G. HATCH, Utah, Chairman
CHARLES E. GRASSLEY, Iowa PATRICK J. LEAHY, Vermont
ARLEN SPECTER, Pennsylvania EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin
LARRY E. CRAIG, Idaho CHARLES E. SCHUMER, New York
SAXBY CHAMBLISS, Georgia RICHARD J. DURBIN, Illinois
JOHN CORNYN, Texas JOHN EDWARDS, North Carolina
Makan Delrahim, Chief Counsel and Staff Director
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Chambliss, Hon. Saxby, a U.S. Senator from the State of Georgia.. 42
Cornyn, Hon. John, a U.S. Senator from the State of Texas........ 69
Durbin, Hon. Richard J., a U.S. Senator from the State of
Illinois....................................................... 84
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin...................................................... 49
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 2
prepared statement........................................... 599
Kennedy, Hon. Edward M., a U.S. Senator from the State of
Massachusetts.................................................. 29
Kohl, Hon. Herbert, a U.S. Senator from the State of Wisconsin... 74
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 7
prepared statement........................................... 635
Schumer, Hon. Charles E., a U.S. Senator from the State of New
York........................................................... 59
PRESENTERS
Cornyn, Hon. John, a U.S. Senator from the State of Texas
presenting Robert Junell, Nominee to be District Judge for the
Western District of Texas...................................... 140
DeWine, Hon. Mike, a U.S. Senator from the State of Ohio:
presenting Deborah L. Cook and Jeffrey S. Sutton, Nominees to
be Circuit Judges for the Sixth Circuit.................... 22
presenting John Adams, Nominee to be District Judge for the
Northern District of Ohio.................................. 139
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California presenting S. James Otero, Nominee to be District
Judge for the Central District of California................... 20
Hutchison, Hon. Kay Bailey, a U.S. Senator from the State of
Texas presenting Robert Junell, Nominee to be District Judge
for the Western District of Texas.............................. 14
Voinovitch, Hon. George, a U.S. Senator from the State of Ohio
presenting Deborah L. Cook and Jeffrey S. Sutton, Nominees to
be Circuit Judges for the Sixth Circuit and John Adams, Nominee
to be District Judge for the Northern District of Ohio......... 16
Warner, Hon. John, a U.S. Senator from the State of Virginia
presenting John G. Roberts, Jr., Nominee to be Circuit Judge
for the District of Columbia Circuit........................... 13
prepared statement........................................... 714
STATEMENTS OF THE NOMINEES
Adams, John, Nominee to be District Judge for the Northern
District of Ohio............................................... 141
Questionnaire................................................ 149
Cook, Deborah L., Nominee to be Circuit Judge for the Sixth
Circuit........................................................ 27
Questionnaire................................................ 275
Junell, Robert, Nominee to be District Judge for the Western
District of Texas.............................................. 142
Questionnaire................................................ 190
Otero, S. James, Nominee to be District Judge for the Central
District of California......................................... 141
Questionnaire................................................ 222
Roberts, John G., Jr., Nominee to be Circuit Judge for the
District of Columbia Circuit................................... 28
Questionnaire................................................ 297
Sutton, Jeffrey S., Nominee to be Circuit Judge for the Sixth
Circuit........................................................ 28
Questionnaire................................................ 340
QUESTIONS AND ANSWERS
Responses of Deborah L. Cook to questions submitted by Senators
Leahy, Kennedy, Biden, Feingold, Edwards and Grassley (February
6, 2003)....................................................... 373
Responses of Deborah L. Cook to questions submitted by Senator
Durbin (February 12, 2003)..................................... 404
Responses of John G. Roberts, Jr. to questions submitted by
Senators Biden, Feingold, Feinstein, and Kennedy (February 5,
2003).......................................................... 412
Responses of John G. Roberts, Jr. to questions submitted by
Senator Schumer (February 11, 2003)............................ 435
Responses of John G. Roberts, Jr. to questions submitted by
Senators Leahy, Kennedy, Kohl and Durbin (May 6, 2003)......... 443
Responses of Jeffrey S. Sutton to questions submitted by Senators
Leahy, Biden and Kennedy (February 6, 2003).................... 462
Responses of Jeffrey S. Sutton to questions submitted by Senator
Schumer (February 11, 2003).................................... 490
Responses of Jeffrey S. Sutton to questions submitted by Senator
Durbin......................................................... 495
SUBMISSIONS FOR THE RECORD
Ability Center of Greater Toledo, Sylvania, Ohio, resolution..... 500
Access to Independence of Cortland County, Inc., Mary E. Ewing,
Executive Director, Cortland, New York, letter................. 501
Access II Independent Living Center, Gary E. Maddox, Executive
Director, Gallatin, Missouri, letter........................... 503
Access Living, Marca Bristo, President & CEO, Chicago, Illinois,
letter......................................................... 504
Advocates for Ohioans with Disabilities, Alice Sporar, President,
Cleveland, Ohio, letter........................................ 507
AIDS Action, Claudia Dawn French, Executive Director, Washington,
D.C., letter................................................... 508
Akron Beacon Journal, January 6, 2003, editorial................. 509
American Association of People with Disabilities, Andrew J.
Imparato, President & CEO, Washington, D.C., letter............ 511
American Council of the Blind, Melanie Brunson, Director of
Advocacy and Governmental Affairs, Washington, D.C., letter.... 513
Barnard, Brian, Utica, New York, letter.......................... 515
Barnhill, Susan, Sacramento, California, letter.................. 517
Beytagh, Francis X., Dean Emeritus, Ohio State University School
of Law, Columbus, Ohio, letter................................. 519
Boxer, Hon. Barbara, a U.S. Senator from the State of California,
statement in support of the nomination of S. James Otero to be
District Judge for the Central District of California.......... 521
Brick, Lawrence J., Philadelphia, Pennsylvania, letter........... 522
Bryant, S., Frederick, Maryland, letter.......................... 523
Burt, Sharon, Meridian, Mississippi, letter...................... 524
Campbell, Bonnie J., Arent Fox, Washington, D.C., letter......... 525
Cashin, Margarette Berg, Attorney at Law, Staten Island, New York 527
Center for Civil Justice, Jacqueline Doig, Attorney at Law,
Saginaw, Michigan, letter...................................... 528
Center for Independent Living Options, Cincinnati, Ohio, letter.. 531
Central Utah Center for Independent Living, Eileen D. Glathar,
Provo, Utah, letter............................................ 533
Cerebral Palsy Association of Ohio, Beverly Johnson, Executive
Director, Columbus, Ohio, letter............................... 534
Cerebral Palsy of New Jersey, Myra Ryan, Executive Director,
Trenton, New Jersey, letter.................................... 536
Cincinnati Enquirer, Ray Cooklis, November 8, 2002, article...... 537
Cleveland Plain Dealer, October 29, 2000, editorial.............. 538
Coalition for Independent Living Options, Inc., Genevieve
Cousminer, Coordinator of Advocacy Services, West Palm Beach,
Florida, memorandum............................................ 541
Columbus Dispatch, August 18, 1999, editorial.................... 543
Committee for Justice, Washington, D.C., editorial............... 545
Crosby, Ronna, I.L. Coordinator, Southeast Kansas Independent
Living Resource Center, Inc., letter........................... 555
Cunningham, Jo, Lower Lake, California, letter................... 556
Dart, Yoshiko, Washington, D.C., letter and attachment........... 557
DeWine, Hon. Mike, a U.S. Senator from the State of Ohio,
excerpts from Ohio newspapers.................................. 559
Dole, Hon. Bob, former U.S. Senator from the State of Kansas,
letter......................................................... 560
Durham, Kirsten, St. Louis, Missouri, letter..................... 563
Eastern Paralyzed Veterans Association, John D. Del Colle,
Associate Executive Director, Government Relations, Jackson
Heights, New York, letter...................................... 564
Environmental organizations, joint letter and attachments........ 565
Everybody Counts Center for Independent Living, Teresa L. Torres,
Executive Director, Merrillville, Indiana, letter.............. 583
Fischer, Cheryl A., Cleveland, Ohio, letter...................... 585
Ford, Ann, Springfield, Illinois, letter......................... 586
Forman, Vicki, La Canada, California, letter..................... 587
Freedom Center, Inc., Jamey George, Executive Director,
Frederick, Maryland, letter.................................... 588
Gilhool, Thomas K., Attorney at Law, Philadelphia, Pennsylvania,
letter......................................................... 589
Godbout, Pam, Women's Coordinator, Gender Justice Action Group,
Park Forest, Illinois, letter.................................. 591
Godino, Michael, Baldwin, New York, letter....................... 593
Grant, Patricia, Piscataway, New Jersey, letter.................. 594
Grim, Nancy, Attorney at Law, Kent, Ohio, letter................. 595
Groedel, Caryn M., Attorney at Law, Cleveland, Ohio, letter...... 597
Guagliano, Joseph L., Pawling, New York, letter.................. 598
Heightened Independence & Progress, Nancy Hodgins, Community
Advocate, Hackensack, New Jersey, letter....................... 603
Hetrick, Susan, Advocacy Director, Ability Center of Greater
Toledo, Toledo, Ohio, letter................................... 604
Holman, Stewart, Independent Living Specialist, North Country
Independent Living, Washburn, Wisconsin, letter................ 605
Hyman, Lester S., Counsel, Swidler Berlin Shereff Friedman, LLP,
Washington, D.C., letter....................................... 606
Independence Now, Inc., Catherine A. Raggio, Executive Director,
Riverdale, Maryland, letter.................................... 607
Individual state Attorneys General, joint letter................. 609
James, Michele, Independent Living Specialist, Auburn,
California, letter............................................. 614
Jirschele, Lorie A., Pierre, South Dakota, letter................ 617
Johnson, Harriet McBryde, Attorney at Law, Charleston, South
Carolina, letter............................................... 618
Jonas, Judy, Paramus, New Jersey, letter......................... 619
Jones, Eddie, Hattiesburg, Mississippi, letter................... 620
Judicial Selection Monitoring Project, Washington, D.C., letter.. 621
Katyal, Neal Kumar, Visiting Professor of Law, Yale Law School,
New Haven, Connecticut, letter................................. 625
Knoblauch, Roger, Bloomington, Illinois, letter.................. 627
Knop, Shirley, Clinton, New York, letter......................... 628
Lawyers who served in the Office of Solicitor General, joint
letter......................................................... 629
Laycock, Douglas, Alice McKean Young Regents Chair in Law,
University of Texas at Austin, Austin, Texas, letter........... 633
Leahy, Hon. Patrick J., Hon. Edward M. Kennedy, Hon. Joseph R.
Biden, Jr., Hon. Herbert Kohl, Hon. Russell D. Feingold, Hon.
Charles E. Schumer, Hon. Richard J. Durbin, and Hon. John
Edwards, joint letter.......................................... 642
Leonard, James, Professor of Law and Library Director, University
of Alabama School of Law, Tuscaloosa, Alabama, letter.......... 644
Liberty Resources, Inc., Thomas H. Earle, Esquire, Executive
Director, Philadelphia, Pennsylvania, letter................... 646
Linking Employment, Abilities and Potential, Melanie Hogan,
Interim Director, Cleveland, Ohio, letter...................... 647
Long, Beverly B., Member, Board of Neuroscience and Behavioral
Health, Atlanta, Georgia, letter............................... 648
Meckler, Theodore E., Attorney at Law, letter.................... 649
Members of the Bar of the District of Columbia, joint letter..... 652
Messing, Rudavsky & Weliky, P.C., Boston, Massachusetts, joint
letter......................................................... 657
Michigan Association of Centers for Independent Living, Liz
O'Hara, Executive Director, Haslett, Michigan, letter.......... 659
Michigan Developmental Disabilities Council, Duncan Wyeth, Chair,
Public Policy Committee, Lansing, Michigan, letter............. 660
Montgomery, Betty D., Attorney General of the State of Ohio,
Columbus, Ohio, letter......................................... 661
National Coalition for Disability Rights, Washington, D.C.,
sample petition and attachments................................ 663
National Council on Independent Living, Arlington, Virginia,
statement...................................................... 667
National Disabled Students Union, Portland, Oregon, letter and
attachment..................................................... 668
National Employment Lawyers Association, Frederick Gittes,
President, San Francisco, California, letter................... 672
National School Boards Association, Anne L. Bryant, Executive
Director, and Julie Underwood, General Counsel/Associate
Executive Director, Alexandria, Virginia, letter............... 675
New York State Independent Living Council, Brad Williams,
Executive Director, Albany, New York, letter................... 677
New York Times, editorial, October 14, 2000...................... 679
Northern Regional Center for Independent Living, Aileen Martin,
Executive Director, Watertown, New York, letter................ 680
Ocean State Center for Independent Living, Susan Eleoff, Warwick,
Rhode Island, memorandum....................................... 681
Ohio disability organizations, joint letter...................... 682
Options for Independence, Inc., Judy Wright, Statewide Systems
Advocate, Auburn, New York, letter............................. 683
Oregon State Rehabilitation Council, Tim E. Holmes, SRC Chair,
Salem, Oregon, letter.......................................... 684
Perez, Clifton, Systems Advocate, Independent Living Center of
the Hudson Valley, Troy, New York, letter...................... 685
Pressley, Fred G., Jr., Attorney at Law, Porter Wright Morris &
Arthur LLP, Columbus, Ohio, letter............................. 687
Progress Center for Independent Living, Diane Coleman, Executive
Director, Forest Park, Illinois, letter........................ 688
Pryor, Bill, Attorney General, State of Alabama, letter.......... 689
Redenbaugh, Russell G., Commissioner, United States Commission on
Civil Rights, Washington, D.C., letter......................... 690
Regional Access and Mobilization Project, Inc., Peter Schultz,
Education & Advocacy Coordinator, Rockford, Illinois, letter... 691
Reich, Alan A., President, National Organization on Disability,
Washington, D.C., letter....................................... 692
Rothenberg, Ira, North Hollywood, California, letter............. 693
Ruben Center for Independent Living, Emas Bennett, Executive
Director, Merrillville, Indiana, letter........................ 694
Sanderson, Robert G., Roy, Utah, letter.......................... 696
Sauerland, Paul, Hicksville, New York, letter.................... 697
Schumer, Hon. Charles E., submission of Jeffrey S. Sutton quotes
on federalism.................................................. 698
Seamon, Richard H., Assistant Professor of Law, University of
South Carolina, Columbia, South Carolina, letter............... 701
Skaggs, Kimberly M., Executive Director, Equal Justice
Foundation, Columbus, Ohio, letter............................. 702
Sommers, Andrew R., Agency for Healthcare Research and Policy,
Rockville, Maryland, letter.................................... 703
Southern Maryland Council of the Blind, Robert A. Kerr,
President, Mechanicsville, Maryland, letter.................... 704
Steiner, David J., Esq., Attorney at Law, Cleveland, Ohio, letter 705
Sullivan, Julie, Rock Island, Tennessee, letter.................. 706
Tanya Towers Treatment Apartments, New York Society for the Deaf,
New York, New York, joint letter............................... 707
Toledo Blade, December 15, 2002, editorial....................... 708
Treanor, Richard B., Esq., Attorney at Law, Washington, D.C.,
letter......................................................... 710
Van Dyke, David A., Pastor, Broad Street Presbyterian Church,
Columbus, Ohio, letter......................................... 712
Watson, Patricia, Barboursville, West Virginia, letter........... 719
Waxman, Seth P., Attorney at Law, Washington, D.C., letter....... 720
Williams, Keith, Statewide Action Team Community Organizer,
Northeast Pennsylvania Center for Independent Living, Scranton,
Pennsylvania, letter........................................... 721
Wolman, Benson A., Attorney at Law, Wolman, Genshaft & Gellman,
Columbus, Ohio, letter......................................... 722
Worth, Vonne, former owner, Different Times, Seattle, Washington,
letter......................................................... 724
Zietlow, Rebecca, Professor of Law, University of Toledo College
of Law, Toledo, Ohio, letter................................... 725
NOMINATION OF DEBORAH L. COOK, NOMINEE TO BE CIRCUIT JUDGE FOR THE
SIXTH CIRCUIT; JOHN G. ROBERTS, JR., NOMINEE TO BE CIRCUIT JUDGE FOR
THE D.C. CIRCUIT; JEFFREY S. SUTTON, NOMINEE TO BE CIRCUIT JUDGE FOR
THE SIXTH CIRCUIT; JOHN ADAMS, NOMINEE TO BE DISTRICT JUDGE FOR THE
NORTHERN DISTRICT OF OHIO; S. JAMES OTERO, NOMINEE TO BE DISTRICT JUDGE
FOR THE CENTRAL DISTRICT OF CALIFORNIA; AND ROBERT JUNELL, NOMINEE TO
BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF TEXAS
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WEDNESDAY, JANUARY 29, 2003
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 9:39 a.m., in
Room SD-226, Dirksen Senate Office Building, Hon. Orrin G.
Hatch, Chairman of the Committee, presiding.
Present: Senators Hatch, Kyl, DeWine, Sessions, Graham,
Craig, Chambliss, Cornyn, Leahy, Kennedy, Biden, Kohl,
Feinstein, Feingold, Schumer, Durbin, and Edwards.
Chairman Hatch. Our hearings are open to the public and to
the interested public. Of course, as a champion of the ADA and
the Americans with Disabilities Act, I've done everything
possible to accommodate the persons with disabilities, who
informed us yesterday that they would be attending the hearing.
Now, in fact, when we received word that there would be
three deaf people in attendance, we immediately arranged an
interpreter for them. When we were informed that up to 100
people with disabilities would be coming, we immediately began
looking throughout the building for an additional suitable room
to accommodate all of them.
As background, the Committee practices to allow the public
to attend hearings on a first-come, first-serve basis, and
often many of the people who wait in line never get in. Rather
than follow the usual practice and have most people in the
hallways, we instead reserved SD-G50, a special first floor
room for any guest who could not be accommodated in the hearing
room. Now, we are very disappointed that we were unable to get
SH-216, which would have been a bigger room and would have
allowed us perhaps to get everybody in. I have asked my staff
to look at SD-G50 and see how full it is, and see if we can
accommodate everybody down there because we could immediately
move down there if it is. Our problem is all of the television
is set up and everything else right now, but we will check on
it and we will see what we can do, because I am the last person
on earth who would not want to accommodate those who are
persons with disabilities. So we will start here and we will
check out that room. If it is capable of handling this, we will
try to accommodate if we can move everything down there, but as
of right now, I think we are going to have to proceed here
until I receive back word from staff.
Senator Leahy. Can I say something about that?
Chairman Hatch. And I would like your staff to work with
them.
Senator Leahy. I would. I have already asked my staff to go
down and look at SD-G50. When I went by there earlier this
morning, I mean it is a huge room. I think it would probably
accommodate. We had people standing out here for an hour
waiting, and maybe one way to do it would be to have the
Senators who are here to make their statements, but I would
really strongly urge that we move down there. It is a much
larger room and it would be a lot easier to accommodate some
people who have not been able to get in.
Chairman Hatch. Let's see if we can do it.
[Applause.]
Senator Kennedy. I think it is a reasonable way to proceed
in terms of hearing from the presenters here, and then as I
understand as well, that SD-G50 is open and is available, and
it seems to me that we ought to give the opportunity for people
who have an interest in these nominees, an opportunity to hear
them. And so I support Senator Leahy's proposal and hope that
that can be--
Chairman Hatch. I think I made that comment, and I am
certainly amenable to that. So let's have Senator Leahy's staff
and my staff go down there and see if we can accommodate us
down there. If we cannot, we are going to continue here. If we
can, we will move down there with dispatch, because I am not
going to waste a lot of time moving. So everybody is just going
to have to move down there as quickly as they can. But I
certainly want to always accommodate as many people as we
possibly can, and especially those who suffer from
disabilities, and we will just do it that way.
We can make our two statements, and then we will have the
two Senators make theirs or any other Senators who want to come
at this time.
OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM
THE STATE OF UTAH
Chairman Hatch. Good morning. I am pleased to welcome all
of you to the committee's first judicial confirmation hearing
of the 108th Congress. I first would like to acknowledge and
thank Senator Leahy for his service as Chairman of this
Committee over the past 16 months.
I also would like to extend a particular welcome to Senator
Bob Dole, our former majority leader, and to Commissioner
Russell Redenbaugh, the three-term U.S. Civil Rights
Commissioner, who also happens to be the first disabled
American to serve on that Commission. It means a great deal to
me that they are both here today to support Mr. Jeff Sutton's
nomination, and of course, I would also like to express my deep
appreciation for the members we have here who have taken time
to come and present their views on the qualifications of our
witnesses today.
Our first panel features three outstanding circuit nominees
who were nominated on May 9, 2001, whose hearing was originally
noticed for May 23, 2001. I agreed to postpone that hearing for
a week at the request of some of my Democratic colleagues who
claimed that they needed an additional week to assess the
nominees' qualifications. As we all know, control of the Senate
and the Committee shifted to the Democrats shortly thereafter
on June 5th, 2001, and these nominees have been languishing in
the Committee without a hearing ever since. So I am
particularly pleased to pick up where we left off in May of
2001 by holding our first confirmation hearing for the same
three nominees we noticed back then: Justice Deborah Cook,
Jeffrey Sutton and John Roberts. It is with great pleasure that
I welcome these distinguished guests before the Committee this
morning.
We also have three very impressive District Court nominees
with us today: John Adams for the Northern District of Ohio,
Robert Junell for the Western District of Texas, and S. James
Otero for the Central District of California. I will reserve my
remarks about these District Court nominees until I call their
panel forward.
Our first nominee is Ohio Supreme Court Justice Deborah
Cook, who has established a distinguished record as both a
litigator and a jurist. Justice Cook began her legal career in
1976 as a law clerk for the firm now known as Roderick Linton,
which is Akron's oldest law firm. Upon her graduation from the
University of Akron School of Law in 1978, Justice Cook became
the first woman hired by that firm. In 1983 she became the
first female partner in the firm's century of existence. I am
proud to have her before us as a nominee who knows firsthand
the difficulties and challenges that professional women face in
breaking through the glass ceiling.
During her approximately 15 years in the private sector,
Justice Cook had a large and diverse civil litigation practice.
She represented both plaintiffs and defendants at trial and on
appeal in cases involving, for example, labor law, insurance
claims, commercial litigation, torts and ERISA claims.
In 1991 Justice Cook left the private sector after winning
election to serve as a judge on the Ninth Ohio District Court
of Appeals. During her 4 years on the Ninth District Bench she
participated in deciding over 1,000 appeals. The Ohio Supreme
Court reversed only 6 of the opinions that she authored, and 8
of the opinions on which she joined. In 1994 Justice Cook was
elected to serve as a Justice on the Ohio Supreme Court. She
therefore brings to the Federal Bench more than 10 years of
appellate judicial experience which is built on a foundation of
15 years of solid and diverse litigation experience. There can
be little doubt that she is eminently qualified to be a Sixth
Circuit jurist, and I commend President Bush on his selection
of her for this post.
Our next nominee is Jeff Sutton, one of the most respected
appellate advocates in the country today. He has argued over 45
appeals for a diversity of clients in Federal and State Courts
across the country, including a remarkable number, 12 to be
exact, before the U.S. Supreme Court. His remarkable skill and
pleasant demeanor have won him not only a lot of decisions, but
also a wide variety of prominent supporters including Seth
Waxman, President Clinton's Solicitor General; Benson Wolman,
the former head of the Ohio ACLU; Bonnie Campbell, a Clinton
nominee to the Eighth Circuit Court of Appeals; Civil Rights
Commissioner Redenbaugh, the first disabled American to serve
on the U.S. Civil Rights Commission; and former Senate Majority
Leader Bob Dole, who is among the country's most powerful
advocates on behalf of persons with disabilities.
I feel it necessary for me to comment briefly on some of
the recent criticisms we have heard. Of course, no one familiar
with the nominations process is surprised. We have the usual
gang opposing Republican nominees. Well, their opposition of
Jeff Sutton is for all of the wrong reasons. But as people who
know me well will attest, I have always been willing to
acknowledge a fair point made by the opposition. So in keeping
with that principle, I want everyone to know that I found
something commendable in the so-called report published by one
of these groups about Jeff Sutton. That report conceded that,
``No one has seriously contended that Sutton is personally
biased against people with disabilities.'' Now, that is a very
important point, and should be obvious since Jeff Sutton has a
well-known record of fighting for the legal rights of persons
with disabilities. And he was raised in an environment of
concern for the disabled. His father ran a school for people
affected by cerebral palsy.
Since the opposition to Jeff Sutton is not personal, then
what is it? It seems to come down to a public policy
disagreement about some Supreme Court decisions relating to the
limits to Federal power when Congress seeks to regulate state
governments. Those cases include the City of Berne, Kimel and
Garrett, among others. But in those cases it was Jeffrey
Sutton's job, as the chief appellate lawyer for the State of
Ohio and as a lawyer, to defend his client's legal interest. As
the American Bar Association ethics rules make clear: ``[a]
lawyer's representation of a client, including representation
by appointment, does not constitute an endorsement of the
client's political, economic, social or moral views of
activities.''
Now, I do not think anyone on this Committee would actually
consider voting against a nominee out of dislike for the
nominee's clients. We had an important discussion about clients
in connection with the confirmation of Marsha Berzon, now a
judge on the Ninth Circuit, who was born in Ohio by the way,
and this Committee ultimately decided not to hold her
responsible for her clients' views. Judge Berzon had been a
long-time member of the ACLU, serving on the board of directors
as the vice president of the Northern California Branch. She
testified that, quote: ``If I am confirmed as a judge, not only
will the ACLU's positions be irrelevant but the positions of my
former clients and indeed my own positions on any policy
matters, will be quite irrelevant, and I will be required to,
and I commit to look at the statute, the constitutional
provisions and the precedents only in deciding the case.'' That
was on July 30th, 1998.
Now, I want to remind my colleagues that that answer
sufficed for Judge Berzon, and she was approved by this
Committee with my support and confirmed by the Senate. It took
longer than I would have liked it to have taken, but she was
approved. I think we all agree that anybody involved in a legal
dispute has a right to hire a good lawyer, even if that person
is guilty of murder. And Jeff's clients are not murderers. They
are state governments defending their legal rights. So let's
not beat up on Mr. Sutton because he worked for the State of
Ohio.
Of course, I am not suggesting that Committee members must
praise the effects of the Supreme Court's rulings in City of
Berne, Kimel and Garrett. Those decisions affected real people
and undid some of the hard work on the part of Congress. I
should know. A number of us on this committee, and certainly
Senator Kennedy and I, we did a lot of work on those cases. We
put in a great deal of time and energy into drafting and
passing the Religious Freedom Restoration Act, the Americans
with Disabilities Act, and other laws that have been declared
Federal power, including the Violence Against Women Act, which
Senator Biden spent so much time on, and myself. I thought
those laws would be good for the country, and they still are.
It was not easy to see them limited or struck down. Of course I
understand the powerful constitutional principles and
underpinning of the Supreme Court's decisions in those cases,
but I can sympathize with those who see things differently. I
have no sympathy, however, for the notion that those Supreme
Court decisions and the positions of the states that were Mr.
Sutton's clients are somehow a legitimate reason to oppose Mr.
Sutton's nomination. That is ridiculous.
So since even the people for the American Way concedes that
Jeff Sutton harbors no personal bias, and since Mr. Sutton
cannot be held responsible for the Supreme Court's decisions,
and since we all agree that Ohio and Alabama and Florida have
the right to representation in court, then I do not see any
real reason to oppose this highly skilled and highly qualified
and highly rated lawyer by the ABA. I do look forward to his
testimony and would only urge my colleagues and observers to
keep an open mind. From the record I have observed so far, I am
convinced that Jeff Sutton will be a great judge, and one who
understands the proper role of a judge.
Our final circuit nominee today is Mr. John Roberts, who
has been nominated for a seat on the D.C. Circuit Court of
Appeals. He is widely considered to be one of the premier
appellate litigators of his generation. Most lawyers are held
in high esteem if they have the privilege of arguing even one
case before the U.S. Supreme Court. Mr. Roberts has argued an
astounding 39 cases before the Supreme Court. At least that as
the last count I had. It is truly an honor to have such an
accomplished litigator before this committee, and one of the
most well-recognized and approved appellate litigators in
history.
The high esteem in which Mr. Roberts is held is reflected
in a letter the Committee recently received urging his
confirmation. This letter, which I will submit for the record,
was signed by more than 150 members of the D.C. Bar, including
such well-respected attorneys as Lloyd Cutler, who was the
White House Counsel to both Presidents Carter and Clinton;
Boyden Gray, who was the White House Counsel for the first
President Bush; and Seth Waxman, who was President Clinton's
Solicitor General. The letter states, quote: ``Although as
individuals we reflect a wide spectrum of political party
affiliation and ideology, we are united in our belief that John
Roberts will be an outstanding Federal Court of Appeals Judge
and should be confirmed by the United States Senate. He is one
of the very best and most highly respected appellate lawyers in
the Nation, with a deserved reputation as a brilliant writer
and oral advocate. He is also a wonderful professional
colleague, both because of his enormous skills and because of
his unquestioned integrity and fair-mindedness.'' This is high
praise from a group of lawyers, who themselves have clearly
excelled in their profession, who are not easily impressed, and
who would not recklessly put their reputations on the line by
issuing such a sterling endorsement if they were not 100
percent convinced that John Roberts will be a fair judge who
will follow the law regardless of his personal beliefs.
Let me just say a brief word about Mr. Roberts' background
before turning to Senator Leahy. He graduated from Harvard
College summa cum laude in 1976, and received his law degree
magna cum laude in 1979 from the Harvard Law School, where he
was managing editor of the Harvard Law Review. Following
graduation he served as a law clerk for Second Circuit Judge
Henry J. Friendly, and for then Justice William Rehnquist of
the Supreme Court. From 1982 to 1986 Roberts served as
associate counsel to the President in the White House Counsel's
Office. From 1989 to 1993 he served as Principal Deputy
Solicitor General at the U.S. Department of Justice. He now
heads the appellate practice group at the prestigious D.C. law
firm Hogan & Hartson, and he has received the ABA's highest
rating of unanimously well qualified.
I have to say that this panel represents the best, and I
commend President Bush for seeking out such nominees of the
highest caliber.
Now, I just have a note here. Let me see what it says, and
then I will turn to Senator Leahy. For everybody's information,
I have been advised that we can set up in another large room.
We will proceed here until the other room is ready for us at
which time we will take a short recess and accommodate further
the request made yesterday for additional accommodations. So I
would prefer that, and even though it is an inconvenience to
all of you, let's see if we can try and get at least these
folks into that room first because they were here first, as
well as those persons with disabilities who desire to attend.
Anybody know what the room is? SD-G50 will be the room, so
apparently we can hold it there.
Senator Kennedy. Could I just thank the chair for that
accommodation? Appreciate it very much.
Chairman Hatch. That is fine.
Senator Leahy. Chairman, I think it was--
Chairman Hatch. Let me turn to the Ranking Member for his
remarks.
[The prepared statement of Chairman Hatch appears as a
submission for the record.]
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
STATE OF VERMONT
Senator Leahy. I think it was a wise thing to do. As I
said, when I walked by there, there appeared to be plenty of
room. I am wondering, Mr. Chairman, I am wondering if we are
going to be moving down there anyway, and Senator Warner and
Senator Hutchinson, I would just as soon withhold my statement
until we go down there, as a courtesy to Senator Warner and
Senator Hutchison, and if Senator Voinovich comes, if they want
to give their statement here, and then I will give my opening
statement down there.
Chairman Hatch. I would prefer for you to give your opening
statement, and then we will hear from the two Senators.
Senator Leahy. Happy to do that, Mr. Chairman. I tried.
Chairman Hatch. I think my colleagues understand.
Senator Leahy. I know they are anxious to hear my statement
anyway.
Chairman Hatch. Well, I am certainly anxious to hear it.
Senator Leahy. Following the Chairman's example, it will be
a little bit lengthy.
We meet in an extraordinary session to consider six
important nominees for lifetime appointments to the Federal
Bench. During the last 4 years of the Clinton administration
this Committee refused to hold hearings and Committee votes on
qualified nominees to the D.C. Circuit and the Sixth Circuit.
Today, in very sharp contrast, the Committee is being required
to proceed on three controversial nominations to those same
circuit courts and do it simultaneously. Many see this as part
of a concerted and partisan effort to pack the courts and tilt
them sharply out of balance.
In contrast to the President's Circuit Court nominees, the
District Court nominees to vacancies in California, Texas and
Ohio, seem to be more moderate and bipartisan. Today we will
hear from Judge Otero, nominated to the U.S. District Court for
the Central District of California, unanimously approved by
California's bipartisan Judicial Advisory Committee,
established through an agreement between Senator Feinstein and
Senator Boxer with the White House. I wish the White House
would proceed to nominate another qualified consensus nominee
like Judge Otero for the remaining vacancy in California. Too
often in the last 2 years we have seen the recommendations of
such bipartisan panels rejected or stalled at the White House.
I note that Judge Otero's contributed to the community, worked
on a pro bono project for the Mexican Legal Defense and
Education Fund, served as a member of the Mexican Bar
Association, the Stanford Chicano Alumni Association and the
California Latino Judges Association, among others.
We will hear from Robert Junell, nominated to the U.S.
District Court for the Western District of Texas, another
consensus nominee who has a varied career as litigator and
member of the Texas House of Representatives, life member of
the NAACP, and a former member of the board of directors of La
Esperanza clinic. I spoke earlier with Representative Charlie
Stenholm, who strongly supports him.
And then of course, Judge Adams, nominated to the U.S.
District Court for the Northern District of Ohio.
These are not the ones who create the controversy, and I am
disappointed the Chairman has unilaterally chosen to pack so
many Circuit Court nominees onto the docket of a single
hearing. This is certainly unprecedented in his earlier tenure
as Chairman, and it is simply no way to consider the
controversial and divisive nominations in a single hearing. It
is not the way to discharge our constitutional duty to advise
and consent to the President's nominees.
When I was Chairman over 17 months we reformed the process
of judicial nomination hearings. We made tangible progress
repairing the damage done to the process in the previous 6
years. We showed how nominations of a Republican President
could be considered twice as quickly in a Democratic controlled
Senate as a Republican controlled Senate considered President
Clinton's nominees. We added new accountability by making the
positions of home-state Senators public for the first time, and
we did away with the previous Republican process of anonymous
holds.
We made significant progress in helping to fill judgeships
in the last Congress. The number of vacancies was slashed from
110 to 59, despite an additional 50 new vacancies that arose
during that time. Chairman Hatch had written in September 1997
that 103 vacancies--this was during the Clinton
administration--did not constitute a vacancy crisis. He also
stated his position on numerous occasions that 67 vacancies
meant full employment on the Federal court. Even with the two
additional vacancies that have arisen since the beginning of
the year, there are now 61 vacancies on the District and
Circuit Courts. Under a Democratic controlled Senate we went
well below the level that Chairman Hatch used to consider
acceptable, and the Federal Courts have more judges now than
when Chairman Hatch proclaimed them in full employment.
We made the extraordinary progress we did by holding
hearings on consensus nominees with widespread support and
moving them quickly, but by also recognizing that this
President's more divisive judicial nominees would take time. We
urge the White House to consult in a bipartisan way and to keep
the courts out of politics and partisan ideology. We urged the
President to be a uniter, not a divider, when it came to our
Federal Courts. We were rebuffed on that. All Americans need to
be able to have confidence in the courts and judges, and they
need to maintain the independence necessary to rule fairly on
the laws and rights of the American people to be free from
discrimination, to have our environmental consumer protection
laws upheld.
Under Democratic leadership in the Senate we confirmed 100
of President Bush's nominees within 17 months. Two others were
rejected by a majority vote of this committee. Several others
were controversial. They had a number of negative votes, but
they were confirmed. And given all the competing
responsibilities of the Committee and the Senate in these times
of great challenges to our Nation, especially after the attacks
of September 11th, then later the anthrax attacks directed at
Senator Daschle and myself, attacks that killed several people
and disrupted the operations of the Senate itself, hearings for
103 judicial nominees, voting on 102, and favorably reporting
100 in 17 months is a record we can be proud of, and one that I
would challenge anybody to show, certainly in recent years to
be matched. During the 107th Congress the Committee voted 102
of 103 judicial nominees eligible for votes. That is 99
percent. Of those voted upon, 98 percent were reported
favorably to the Senate. Of those, 100 percent were confirmed.
Incidentally, we completed hearings of 94 percent of the judges
that had their files completed.
Now, this 103 judges heard in 17 months is contrast to the
less than 40 a year that the Republicans had when they had
President Clinton as President. Indeed, they failed to proceed
on 79 of President Clinton's judicial nominees in the 2-year
Congress in which they were nominated. More than 50 of them
were never even given a hearing. Indeed, the Senate confirmed
more judicial nominees in our 17 months than the Republican
controlled Senate did during 30 months. More achieved in half
the time, but achieved responsibly.
We showed how steady progress could be made without
sacrificing fairness. But in contrast, this hearing today
portends real dangers to the process and to the results, all to
the detriments of our courts and to the protections they are
intended to afford to the American people. The Senate, in this
instance, and the Congress in many others, is supposed to act
as a check on the Executive and add balance to the process.
Proceeding as the majority has unilaterally chosen today is
unprecedented. It is wrong. It undercuts the ability of this
Committee and the Senate to provide balance. Three
controversial Circuit nominations of a Republican President for
a single hearing. That is something the Chairman, current
Chairman, something he never did for the moderate and
relatively noncontroversial nominees of a Democratic President
just a few years ago. One has to think it is a headlong effort
to pack the courts, and notwithstanding our efforts not to
carry out the same instruction as we saw with a Democratic
President, we seem to be going back to different rules for
different Presidents.
Jeffrey Sutton's nomination has generated significant
controversy and opposition. I have questions about his efforts
to challenge and weaken among other laws the Americans with
Disabilities Act, the Age Discrimination Employment Act, the
Violence Against Women Act, and his perceived general antipathy
to Federal protection for state workers. I am concerned that
more than 500 disability rights groups, civil rights groups,
and women's groups are opposed to his confirmation because they
feel. he will act against their interests and not protect their
rights. I am concerned about a reputation among observers of
the legal community that he is a leading advocate for the
states' rights revival. This is a nomination that deserves
serious scrutiny and which ought to be considered has been the
practice for decades in this Committee as the only circuit
court nominee in this hearing. The process imposed by my
friends on the other side of the aisle is cheating the American
people of the scrutiny these nominees should be accorded.
We are also being asked to simultaneously consider the
nomination of Deborah Cook. She is one of the most active
dissenters on the Ohio Supreme Court. She comes to the
Committee with a judicial record deserving of some scrutiny,
and it has also generated a good deal of controversy and
opposition as well.
I note that these two difficult nominations are both in
judgeships on the Sixth Circuit Court of Appeals. Now, that was
a court to which President Clinton had a much harder time
getting his nominees considered.
Republicans fail to acknowledge that most of the vacancies
that have plagued the Sixth Circuit arose during the Clinton
administration, when President Clinton had nominated people to
the Court, and they were never even given a hearing. The
Republicans closed the gates. They refused to consider any of
the three highly qualified, moderate nominees President Clinton
sent to the Senate for those vacancies. Not one of the Clinton
nominees to those current vacancies on the Sixth Circuit
received a hearing by the Judiciary Committee under Republican
leadership from 1997 through June 2001.
Now, in spite of that history, when the Democrats took
over, we gave Committee consideration, and we confirmed two of
President Bush's conservative nominees to that court last year.
We did not play tit for tat. With the confirmations of Judge
Julia Smith Gibbons of Tennessee, Professor John Marshall
Rogers of Kentucky, Democrats confirmed the only two new judges
to the Sixth Circuit in the past 5 years.
Regrettably, despite our best efforts, the White House
rejected all suggestions to address the legitimate concerns of
Senators in that circuit that qualified, moderate nominees were
blocked by Republicans when they were in charge.
The Republican majority refused to hold hearings on the
nomination of Judge Helen White, Kathleen McCree Lewis,
Professor Kent Markus. One of those seats has been vacant since
1995, the first term of President Clinton.
Judge Helene White of the Michigan Court of Appeals was
nominated in January 1997. She did not receive a hearing on her
nomination during the more than 1,500 days her nomination was
before this committee, which probably set a record--4 years--51
months, in fact, no hearing. She was one of 79 Clinton judicial
nominees who did not get a hearing during the Congress in which
she was first nominated, and she was denied a hearing after
being renominated a number of times, including in January 2001.
Actually, the committee, under Republican control, had only
about eight Courts of Appeals nominees a year that they heard.
In 2000, they only held five, which contrasted today, with a
Republican president, they will hold three in 1 day.
We have Kathleen McCree Lewis, a distinguished African-
American lawyer from a prestigious Michigan law firm was never
accorded a hearing on her 1990 nomination to the Sixth Circuit,
and that nomination was finally withdrawn by President Bush.
Professor Kent Marcus, another outstanding nominee to a
vacancy in the Sixth Circuit, never received a hearing on his
nomination. And while his nomination was pending, his
confirmation was supported by individuals of every political
stripe, including 14 past presidents of the Ohio State Bar
Association, and more than 80 professors and groups like the
National District Attorneys' Association and virtually every
newspaper in the State.
Now, Professor Marcus did say in testimony at another
hearing how what happened to him, here are some of the things
he said:
``On February 9, 2000, I was the President's first judicial
nominee in that calendar year. And then the waiting began.''
``At the time my nomination was pending, despite lower
vacancy rates in the Sixth Circuit, in calendar year 2000, the
Senate confirmed circuit nominees to the Third, Ninth and
Federal Circuits.'' No Sixth Circuit nominee was given a
hearing.
``. . .more vacancies on the way, why then did my
nomination expire without even a hearing?''
And then, to quote him, ``To their credit, Senator DeWine
and his staff and Senator Hatch's staff and others close to him
were straight with me.''
``Over and over again they told me two things: There will
be no more confirmations to the Sixth Circuit during the
Clinton Administration. This has nothing to do with you,
personally. It doesn't matter who the nominee is, what
credentials they may have or what support they may have,
they're not going to be heard.''
As Professor Markus identified, some on the other side of
the aisle held these seats open for years for a Republican
President to fill, instead of proceeding fairly. That is why
there are now so many vacancies on the Sixth Circuit. Had
Republicans not blocked President Clinton's nominees to the
Sixth Circuit, if the three Democratic nominees had been
confirmed and President Bush appointed the other vacancies on
the Sixth Circuit, that court would be almost evenly balanced
between judges appointed by Republican and Democratic
Presidents, and that is why the Republicans blocked it. They do
not want balance, and the same is true of a number of other
circuits.
The former Chief Judge of the Sixth Circuit, Judge Gilbert
Merritt, wrote to the Judiciary Committee Chairman years ago to
ask the nominees get hearings. He predicted by the time the
next President is inaugurated, there will be six vacancies on
the Court of Appeals. Almost half the court will be vacant.
But no Sixth Circuit hearings were held in the last three/4
years of the Clinton administration, almost the entire second
presidential term, despite these pleas. And when I scheduled
the April 2001 hearing on President Bush's nomination of Judge
Gibbons to the Sixth Circuit, it was the first hearing on a
Sixth Circuit nomination in almost 5 years, even though there
had been three pending for President Clinton that never got
heard, and we confirmed Judge Gibson by a vote of 95 to
nothing.
But we did not stop there. We proceeded to hold this
hearing on a second Sixth Circuit nominee just a few short
months later--Professor Rogers. He, too, was confirmed.
This is very similar to what had happened in the Circuit of
Appeals for the District of Columbia, the Nation's circuit. It
plays a significant role in environmental areas, OSHA, the
National Labor Relations Board. There, again, President
Clinton's nominees were not allowed to be heard, although we
did hold a hearing for one of President Bush's last year.
Allen Snyder was a law partner of Mr. Roberts and a former
clerk to Chief Justice Rehnquist. He was never allowed a
Committee vote. The Republicans refused to give Professor Elena
Kagan, another D.C. Circuit nominee, a hearing during the 18
months she was pending.
Today's nominees to the D.C. Circuit, John Roberts, worked
in the Reagan Justice Department, in the Reagan White House,
was an associate of former Solicitor General Kenneth Starr. It
is obvious the Bush administration feels far more comfortable
with him.
Also, home-State Senators I understand have not been
consulted in these. We have certainly not received any ``blue
slips'' back. What we are doing is we are appointing people to
the highest courts in the land, with little more attention and
scrutiny than we would pay to appoint these for a temporary
Federal commission. It is a disservice to the American people.
The American people can be excused for sensing that there
is the smell of an ink pad in the air, rubber stamps already
out of the drawer.
Thank you, Mr. Chairman.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
Chairman Hatch. Thank you, Senator Leahy.
[Applause.]
Chairman Hatch. We will have order in the room.
We will turn to--yes, sir?
Senator Schumer. I know we do not have opening statements,
and I do not want to get into any of the substance here, but I
would ask that a letter that a number of us signed to you be
added to the record.
Chairman Hatch. We will put both your letter--
Senator Schumer. And I would just make this point. We
received notice of who the witnesses would be at 4:45
yesterday. That does not give anyone any chance to prepare. The
Committee has not organized. We do not have rules. You are
changing the rule of the tradition of the ``blue slip,'' but we
do not know what it is. This is just being rushed beyond, aside
from the fact which Senator Leahy dealt with, in terms of the
three nominees, now we have received notice for a hearing next
Tuesday. We do not know who is going to be on the hearing, and
there is a rule in the Committee of a one-week notice.
And so there is just a tremendous rush to judgment here
that is just not fair. We know we have differences on these
nominees, but all of the procedures seem to be being ripped up
in an effort to rush things through, and I would just ask that
you give the letter that we sent you some consideration.
It is not fair to tell us at 4:45 last night as to who the
witnesses were going to be. On important judges like this, it
is important that we get a chance to prepare, and I would just
urge that in the future, this policy--or whatever it is--be
reexamined. We have no chance, no chance to adequately prepare.
If the impression that Senator Leahy said that we are just
trying to rush things through without thorough examination is
rankling some people, it is no wonder, because of all of these
things. It is just not right for us.
And I would ask you really give consideration to the
letter, as you were generous enough to move the room as well,
because we are going to have an awful time over the next year
if we are not going to get an adequate chance to prepare to ask
questions fully, et cetera, and I know it has not been your way
in the past. You have always tried to be fair.
Chairman Hatch. I appreciate the Senator's remarks.
Certainly, your letter will go into the record, and our
response to your letter will go into the record as well, and I
intended to put them in the record.
Also, I have been announcing for two weeks who are the
witnesses are. They have been waiting 630 days. I think that is
adequate time to prepare, but on the other hand, if there is a
problem here, I am going to solve it for you. We will try and
give better notice, but our obligation is to give notice of the
hearing. Sometimes it is very difficult to adjust and get
people, you know, prepared and there, but I will certainly take
your comments into consideration.
Let us turn to Senator Warner, and then Senator Hutchison,
and then Senator Voinovich, and then, of course, we have
Senator DeWine, who, also, along with Senator Voinovich, has
two Ohio State judges, and then Senator Feinstein, if you would
care to make your remarks about your judge here today or we
could do it right before they are called up.
Senator Feinstein. Whatever is your pleasure.
Chairman Hatch. I will accommodate you. I will accommodate
you.
Senator Feinstein. I would be happy, since I am going to be
here, I would be happy to wait for the other Senators.
Chairman Hatch. And then wait until your judge is called
up.
Senator Feinstein. Yes.
Chairman Hatch. That will be fine. Senator Warner?
PRESENTATION OF JOHN G. ROBERTS, JR., NOMINEE TO BE CIRCUIT
JUDGE FOR THE DISTRICT OF COLUMBIA CIRCUIT BY HON. JOHN WARNER,
A U.S. SENATOR FROM THE STATE OF VIRGINIA
Senator Warner. Chairman Hatch, Senator Leahy, and members
of the committee, I will ask to submit my statement for the
record--
Chairman Hatch. Without objection, all statements will be
put in the record.
Senator Warner. --for three reasons: First, as a courtesy
to the Committee and to our guests who have been very patient;
secondly, this nominee, John Roberts, is indeed one of the most
outstanding that I have ever had the privilege of presenting on
behalf of a President in my 25 years in the United States
Senate. His record needs no enhancement by this humble Senator,
I assure you.
So I ask that the Committee receive this nomination. He is
accompanied by his wife Jane, his children Josephine and John,
who have been unusually quiet, and we thank you very much and
patient--
[Laughter.]
Senator Warner. --his parents and his sisters.
Mr. Chairman, members of the committee, if I may indulge a
personal observation, Mr. Roberts is designated to serve on the
Circuit Court of Appeals for the District of Columbia. Exactly
one-half century ago, 50 years, I was a clerk on that court,
and so I take a particular interest in presenting this nominee.
Also, the nominee is a member of the firm of Hogan &
Hartson, one of the leading firms in the Nation's capital.
Fifty years ago, I was a member of that firm. And I just
reminisced with the nominee. I was the thirty-fourth lawyer in
that firm, which was one of the largest in the Nation's
capital. Today, there are 1,000 members of that law firm, to
show you the change in the practice of law in the half-century
that I have been a witness to this.
Mr. Chairman, you covered in your opening remarks every
single fact that I had hopefully desired to inform the
committee. So, again, for that reason you have, most
courteously, Mr. Chairman, stated all of the pertinent facts
about this extraordinary man, having graduated from Harvard,
summa cum laude, in 1976.l Three years later, he graduated from
Harvard Law School, magna cum laude, where he served as
managing editor of the Harvard Law Review. Those of us who have
pursued the practice of law, know that few of us could have
ever attained that status. Even if I went back and started all
over again, I could not do it.
He served as law clerk to Judge Friendly on the usn Court
of Appeals for the Second Circuit and worked as a law clerk to
the current Chief Justice of the Supreme Court, Judge
Rehnquist--Justice Rehnquist.
So I commend the President, I commend this nominee. I am
hopeful that the Committee will judiciously and fairly consider
this nomination and that the Senate will give its advice and
consent for this distinguished American to serve as a part of
our Judicial Branch.
I thank the chair and members of the committee.
[The prepared statement of Senator Warner appears as a
submission for the record.]
Chairman Hatch. Thank you, Senator Warner. We appreciate
it.
Senator Hutchison?
PRESENTATION OF ROBERT JUNELL, NOMINEE TO BE DISTRICT JUDGE FOR
THE WESTERN DISTRICT OF TEXAS BY HON. KAY BAILEY HUTCHISON, A
U.S. SENATOR FROM THE STATE OF TEXAS
Senator Hutchison. Thank you very much, Mr. Chairman.
I am very pleased to introduce my friend, Rob Junell, who
has been nominated to serve as a district judge for the Western
District in Midland, Texas. This court is identified as a
judicial emergency by the Judicial Conference of the United
States.
Rob has brought his wife Beverly with him today, and I know
he will introduce her later, but I want to say that Rob and
Beverly are real friends of mine. Sometimes we nominate people
that are great on the merits, but we do not know them. Well,
Rob is great on the merits, and I know him well.
He served seven terms in the Texas House of
Representatives, retiring voluntarily last year. He was
Chairman of the House Appropriations Committee and the House
Budget Committee, and I worked with him when I was State
treasurer. And just a little vignette about the kind of person
he is, I was elected to a 4-year term as State treasurer and
introduced a very complicated piece of legislation to limit our
State debt to the legislature. I asked Representative Junell to
carry that bill, since he was Chairman of the Appropriations
Committee, and I thought, since it was so complicated, that I
would put it out there, talk about it, let the members have the
chance to really look at it and study it, and then in my second
year, second part of my term, after the fourth year, I thought
we would try to pass it.
Well, Representative Junell did such a terrific job of
carrying the bill that he passed it the first session that I
had given it to him, and we do have a limit now on general
obligation debt in Texas, which has served us very well
throughout the ups and downs of the economy of our State.
Rob graduated from NMMI, then graduated from Texas Tech and
Texas Tech Law School, with honors. He received a master's
degree from the University of Arkansas. He is very active in
his local community of San Angelo, including service on the
boards of the United Way of the Concho Valley, the San Angelo
AIDS Foundation, and Schreiner University in Kerrville, Texas.
He is a lifetime member of the NAACP.
He also has received numerous honors and awards recognizing
his leadership in serving the people of Texas. He has earned
the distinction as Legislator of the Year given by the Texas
Public Employees Association, the Vietnam Veterans Association,
and the Greater Dallas Crime Commission. The Dallas Morning
News named him one of the best of the best in the Texas
legislature in 1995.
In addition to Rob's legislative service, he has continued
to maintain a law practice. In Texas, the legislature only
meets 5 months every other year, a practice that I would
recommend to the U.S. Congress. So these are people who have
real jobs in the real world.
He has been a practicing lawyer, very well-respected in the
San Angelo and West Texas communities and has a wide range of
clients, including hospitals, small businesses, school
districts and individuals. I recommend my friend Rob Junell
highly to you and hope that we can have an expeditious
confirmation of his nomination.
Chairman Hatch. Well, thank you, Senator Hutchison. We are
sorry you have had to wait this long, but it is just the way it
is on this committee, so we appreciate your patience.
Senator Hutchison. Thank you.
Senator Leahy. I appreciate you being here, too. You have
mentioned him before with the same kind of glowing--he should
know that even when he is not in the room, you have always said
such nice things about him. As I said, Congressman Stenholm
called me, too, to say similar things, and I do appreciate it.
Senator Hutchison. Yes. Thank you very much.
Chairman Hatch. Thank you. We will turn to Senator
Voinovich, first, and then we will wind up with Senator DeWine.
PRESENTATION OF DEBORAH L. COOK AND JEFFREY S. SUTTON, NOMINEES
TO BE CIRCUIT JUDGES FOR THE SIXTH CIRCUIT AND JOHN ADAMS,
NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OHIO BY
HON. GEORGE VOINOVICH, A U.S. SENATOR FROM THE STATE OF OHIO
Senator Voinovich. Thank you, Mr. Chairman, members of the
committee. I thank you for allowing me to speak on behalf of
three deserving attorneys from the State of Ohio. I am anxious
to express my strong recommendations for Justice Deborah Cook,
Jeffrey Sutton, both of whom the President nominated to serve
on the United States Court of Appeals for the Sixth District,
as well as Judge John Adams, who has been nominated to serve on
the U.S. District Court for the Northern District of Ohio.
Judge Cook and Mr. Sutton were members of the original
group that the President of the United States nominated for the
Federal judiciary, and I am very pleased that this Committee is
finally having a hearing on their nominations.
I have known Judge Cook for over 25 years. I know her to be
a brilliant lawyer, a wonderful person. She graduated from the
University of Akron Law School in 1998 or 1978, and immediately
went to work for the law firm of Roderick, Myers and Linton,
Akron's oldest law firm. She was the first female lawyer to be
hired by this firm, and in 1983 she became its first female
partner.
Deborah remained at Roderick Myers until 1991, when she was
elected to Ohio's Ninth District Court of Appeals. She remained
on this bench until 1995, when she was elected to the Supreme
Court of the State of Ohio, an office which she continues to
hold.
She is married to her husband, Robert Linton, and Deborah
has always exhibited a love of her family and community, and I
am glad that her brother and her nephews are here today for
this hearing. It is an historic day for their family.
As a long-time resident of Akron, Deborah has demonstrated
her commitment to her community, involved in the Akron Women's
Network, the Akron Bar Association, the Akron Volunteer Center,
Summit County United Way, and the Akron Art Museum, just to
name a few.
Throughout these 25 years, I have found Deborah to be a
woman of exceptional character and integrity. Her professional
demeanor and thorough knowledge combine to make her truly an
excellent candidate for appointment to the Sixth Circuit.
Deborah has served with distinction on Ohio's Supreme Court
since her election in 1994 and reelection in the year 2000.
My only regret is the confirmation to the Sixth District
that we will lose and an outstanding judge in our Supreme
Court. However, I am confident that she will be a real asset to
the Federal bench. With the combined years of 10 years of
appellate judicial experience on the Court of Appeals and the
Supreme Court, she uniquely combines keen intellect, legal
scholarship and consistency in her opinions.
She is a strong advocate of applying the law without fear
or favor and not making policy towards a particular
constituency. She is a committed individual and trusted leader,
and it is my pleasure to give her my highest recommendation.
I would just like to mention, in closing, that newspapers
from Ohio have endorsed her on two occasions. Recently, on
January the 6th, 2003, the Columbus Dispatch said, ``Since
1996, she has served on the Ohio Supreme Court, where she has
distinguished herself as a careful jurist, with a profound
respect for judicial restraint, and the separation of powers
between the three branches of Government.''
The Plain Dealer, the largest newspaper in Ohio said,
``Cook is a thoughtful, mature jurist, perhaps the brightest on
the State's highest court.''
And in May of 2000, the Beacon Journal, the Akron paper,
stated that ``Deborah Cook's work has been a careful reading of
the law, buttressed by closely argued opinions and sharp legal
reasoning.''
I think that Deborah is someone that is very ideal for the
Federal bench.
Jeffrey Sutton, another nominee. I am pleased to speak on
behalf of Jeffrey, a man of unquestioned intelligence and
qualifications. With vast experience in commercial,
constitutional and appellate legislation litigation. Jeffrey
graduated first in his law school from the Ohio State
University, followed by two clerkships with the United States
Supreme Court, as well as the Second Circuit.
Because he was the solicitor general of Ohio when I was
Governor, I worked with him extensively when he represented the
Governor's office, and in my judgment, he never exhibited any
predisposition with regard to an issue. He has contributed so
much with his compassion for people and the law. In my opinion,
Jeffrey Sutton is exactly what the Federal bench needs--a
fresh, objective perspective. He is fair and eminently
qualified.
His qualifications for this judgeship are best evidenced
through his experience. He has argued nine cases before the
United States Supreme Court, including Hohn v. The United
States, in which the court invited Mr. Sutton's participation,
and Becker v. Montgomery, in which he represented prisoners'
interests pro bono.
It is worthy to note that when I recently visited the
Supreme Court to move the admission of some of my fellow Ohio
State University graduates, that the clerk of the court himself
commented favorably on Jeff's abilities. I will never forget
it. We were moving him through, and he went out of the way.
In addition to the U.S. Supreme Court, Jeff has argued 12
cases in the Ohio Supreme Court and six in the Sixth Circuit.
While his unwillingness to shy away from challenging or
controversial issues has, in some instances, led critics to
question his qualifications and accomplishments, I believe such
comments do not accurately reflect Jeff Sutton's heart.
What these detractors fail to mention is how he argued pro
bono on behalf of a blind student seeking admission to medical
school; how he filed an amicus curiae brief with the Ohio
Supreme Court in support of Ohio's hate crimes law on behalf of
the Anti-Defamation League, the NAACP and other human rights,
Bar Association; or his work on behalf of the Equal Justice
Foundation, arguing on behalf of the poor. You do not hear that
much about Jeff.
Jeff Sutton also should not be criticized on assumptions
that past legal positions reflect his personal views. Instead,
he should be lauded for always zealously advocating his
clients' interests, no matter what the issue. In fact, the
letters I received in support of Jeff's nomination are some of
the best evidence of his overwhelming, across-the-board support
in the State of Ohio.
I am going to ask that these letters that I have got be
submitted for the record, Mr. Chairman.
Chairman Hatch. Without objection. We will put them in the
record.
Senator Voinovich. But I would like to just read an excerpt
from Benson Wolman. Benson Wolman and I have known each other
since we were in law school together. He was probably the most
liberal member there at the Ohio State University. He is a
former executive director of the ACLU of Ohio, a self-
proclaimed liberal Democrat, and here is what he said:
``Jeff's commitment to individual rights, his civility as
an opposing counsel, his sense of fairness, his devotion to
civic responsibilities and his keen and demonstrated intellect
all reflect the best that is to be found in the legal
profession.''
Greg Myers, chief counsel in the Death Penalty Division of
the Office of the Public Defender, remarked:
``Jeff's integrity, respect, tolerance and understanding
not only for the lawyers who advocate different positions, but
for the legal ideas that stand in opposition to his.''
Mr. Chairman, I could go on praising Jeff for the
outstanding--he is one of the brightest--may be the brightest
lawyer we have got in the entire State. I have questioned his
sense of wanting to serve on the Federal bench at his young
age, with the family that he has, but you will see from his
testimony he is an unbelievably qualified individual that
really wants to serve his country.
He has been active in his community. I am glad that his
wife and his children are here today with him, members of his
family, and I want to thank them for the sacrifice that they
are willing to make, to allow him to serve in the judiciary.
So, Mr. Chairman, I have worked with Deb and with Jeff, and
they are wonderful people, and they will be real assets to the
court.
The last individual, and I will try to make it short, is
John Adams. John is a native of Orville, Ohio. He is a very
qualified candidate for the U.S. District Court for the
Northern District.
Judge Adams received his degrees from Bowling Green and his
juris doctorate from the University of Akron. He currently is a
judge in the Court of Common Pleas in Summit County. The Court
of Common Pleas is the primary State court having original
jurisdiction in all criminal felony cases and all civil cases,
where the amount in controversy is over $15,000. Prior to that,
the judge worked as a partner in the law firm of Kaufman &
Kaufman in Akron as a Summit County prosecutor and as an
associate with the law firm of Germano, Rondy and Ciccolini.
Judge Adams has demonstrated a commitment to the community
he lives in. He is a member of the Akron Bar Association, the
Ohio Bar. He received a Volunteer Award in 2000 for the
Dramatic Brain Injury Collaborative. He has memberships in the
Summit County Mental Health Association, the NAACP, Summit
County Criminal Justice Coordinating Council, Summit County
Civil Justice Commission.
I sincerely hope that the Committee acts favorably on Judge
Adams' nominations and sends this qualified nominee to the
Senate floor as soon as possible.
Mr. Chairman, I would like to say one other thing. I know
there has been a lot of controversy about the Sixth District
and who did what and so on and so forth, whether it was during
the Clinton administration and now the Bush administration.
The Sixth District is in need of new, more judges. They are
in a crisis situation, and I would ask this Committee to
expeditiously move on those two nominees. Either they are up or
down, but let us get on with it. It is important. We have, I
mean, it is just unbelievable to me that this has gone on as
long as it has, and I am hopeful that maybe somehow all of you
can work together to move forward to fill those two vacancies
on that court.
Thank you very much for giving me the chance to be here.
Chairman Hatch. Thank you.
Senator Schumer. Would my colleague yield just for a
comment?
Senator Voinovich. Certainly.
Senator Schumer. It has been a long time, and we want to
fill them, but it would work a lot better if the White House
consulted with some of the Senators in the area involved, such
as Senators Levin and Stabenow, who had nominated people for
years. They were not even given a hearing.
There is a way to move things along, but it is not simply
saying, ``This is who we pick after we blocked everybody you
wanted. Now you must do those.'' That is all I would say to my
good friend, who I now is a very fair-minded person.
Chairman Hatch. Well, let me just say this, that the
administration has consulted with the in-State Senators from
Ohio on this matter, which is their obligation, and I expect
them to consult with the Senators from the other States when
they have nominees that are up from their States, and I have
demanded that they do, and I believe they are doing that. Now,
I think they have met the requisite consultation here, without
question, and both Senators are for all three of these Ohio
nominees.
But your statement, Senator, is high praise, indeed, with
the experience that you have had in the State of Ohio. I think
you have made a terrific statement for these nominees from
Ohio, and I commend you for it. I am sorry you had to wait so
long, but we are grateful to have had you here.
Go ahead, Senator.
Senator Leahy. I think it is fair to say that the two
Senators from Ohio are well-liked by everybody on this
Committee on both sides of the aisle, and I have certainly
appreciated serving with them.
I was struck, though, by something that Senator Voinovich
said about the delays in getting vacancies filled on the Sixth
Circuit. I wished that, frankly, George, I wish there had been
more in your party who had expressed the same concern when
there were several moderate nominees, including one from your
own State, and strongly supported in your State, during the
Clinton administration, and been more effort to get them to at
least have a hearing so that they might have been put on there.
I would contrast that with when I became chairman, we moved
two people to the Sixth Circuit within a relatively short time.
From the time of their hearing to the time of their vote on the
floor, was a matter of weeks, at best, and I think that you
would not see the vacancies had there been more of a bipartisan
effort to get those nominees of President Clinton's, to get
them through, rather than to be held up by Republican holds.
Chairman Hatch. Senator Feinstein has asked to be able to
go now, and then I am going to give Senator DeWine--we
understand the room is available downstairs now and prepared.
So, Senator DeWine, if you would prefer to go here or down
there, we will give you that choice.
Senator DeWine. It does not matter, Mr. Chairman.
Chairman Hatch. Well, then we will wait.
Senator Voinovich. Thank you very much, Mr. Chairman.
Chairman Hatch. Thank you, Senator Voinovich.
Then, if you do not mind--
Senator DeWine. No, it does not matter.
Chairman Hatch. --we will wait until we get down there, and
then you can finish your statement.
And, Senator Feinstein, if you would care to make yours
now, I would be happy to accommodate you.
PRESENTATION OF S. JAMES OTERO, NOMINEE TO BE DISTRICT JUDGE
FOR THE CENTRAL DISTRICT OF CALIFORNIA BY HON. DIANNE
FEINSTEIN, A U.S. SENATOR FROM THE STATE OF CALIFORNIA
Senator Feinstein. Thank you very much, Mr. Chairman.
I am very pleased to introduce Judge James Otero to the
committee. He is nominated for the Central District of
California. He is the sixth candidate to come before this
Committee as a product of California's Bipartisan Screening
Committee, which the White House, Senator Boxer and I have set
up. He received a unanimous 6-0 vote from this Screening
Committee.
He is joined at the hearing today by his wife Jill, his son
Evan, and his daughter Lauren. Jill is a special education
teacher in the Los Angeles Unified School District. She has
been that for 28 years. Evan is a junior at my alma mater,
Stanford, where he is majoring in political science, and
Lauren, a high school senior, just got accepted to Stanford
University.
I would like to ask them to stand and be acknowledged by
the committee.
Thank you very much for being here.
Judge Otero is a native Californian. He spent his entire
legal career in the State. He graduated from California State
University, Northridge, in 1973 and Stanford Law School in
1976.
Immediately out of law school, he joined the Los Angeles
City Attorney's Office. He practiced there for 10 years. He
held a number of important assignments, including assistant
supervisor for the city's Criminal Division, where he was in
charge of 35 trial deputies.
In 1987, he entered private practice as a lawyer for
Southern Pacific Transportation Company. His time in private
practice was brief, as he was appointed to the Municipal Court
of Los Angeles in 1988. Two years later, he was elevated to the
Superior Court.
His 13-year career on the State bench has been
distinguished. Notably, from 1994 to 1996, he served as a
supervising judge of the Northern District in Los Angeles.
In 2002, he was named assistant supervising judge for the
court's Civil Division, and he has earned a reputation as one
of the top judges in Los Angeles City.
I can give you many quotes from Judge Gregory O'Brien,
Attorney Tom Girardi, Los Angeles Superior Court Judge Chris
Conway, who has described him as one of the best judges on the
court.
He is active in professional and civic activities. He is
secretary of the California Latino Judges' Association and
previously served as vice president of the California Judges'
Association.
He is a board member of the Salesian Boys & Girls Club and
the Salesian Family Youth Center.
I could also note he is a fitness buff, and over the past
years, he has run in over 100 races, including 10 marathons.
I think it is fair to say that I strongly recommend Judge
Otero, and I thank you, Mr. Chairman.
Chairman Hatch. Well, thank you, Senator Feinstein.
Now, here is what we are going to do. We are going to move
down to SD-G50. We would like all of you in this room--we are
trying to accommodate you by having the Sergeant of Arms and
his people accompany you downstairs so you can get seated down
there. So we would like you, row by row, after the dais is
cleared, to come through this door, just come up through there,
through that door, and we will try and get this started.
We are going to recess for 10 minutes, and hopefully we can
get set up in that time down there.
[Recess from 10:45 a.m. to 11:00 a.m., to move to Room SD-
G50.]
Chairman Hatch. If everybody will come to order. I,
personally, feel very, very good that we have been able to
accommodate everybody, and I apologize that we did not get this
done--can we turn these up somehow or another? I wonder if we
can get these mikes--that is better. Now, the mikes are all
open, for everybody, so they will know.
I, personally, apologize that this was not taken care of in
advance. We did not know. We tried to get 216 and other large
rooms, and they were not available. But when I found this was
available, then we have made this accommodation which I think
absolutely had to be made.
[Applause.]
Chairman Hatch. Thank you, but we would like no further
demonstrations. This is a very, very serious hearing. These are
three very important people who have been nominated by the
President. And if you have heard the statements, and we have
one more to go, a very important statement by the distinguished
Senator from Ohio, then you will understand that this a hearing
that deserves dignity.
So we will now turn to Senator DeWine, who is from the
State of Ohio, and ask him--if you would go ahead, Senator
Leahy. We will turn to Senator--
Senator Leahy. I also want to thank the Chairman for moving
down here. It was the right thing to do. It was something that,
when it was suggested, we moved quickly. I applaud you for
doing that and then moving out of our regular place. But I just
wanted to note my applause of the Chairman for moving us down
here as quickly as he did.
Chairman Hatch. Well, thank you, and I am very grateful to
the Senate for scrambling and getting this room prepared and
helping us to get this done in an efficient and quick manner.
Now, we will have one more statement, and then we are going
to call on the witnesses, the three Circuit witnesses. We will
finish with them before we call on the District Court
witnesses. I know it is going to be a pain to wait for you
District Court nominees, but that is the way it is going to
have to be, and we will turn to our good friend and colleague,
Senator DeWine.
PRESENTATION OF DEBORAH L. COOK AND JEFFREY S. SUTTON, NOMINEES
TO BE CIRCUIT JUDGES FOR THE SIXTH CIRCUIT BY HON. MIKE DEWINE,
A U.S. SENATOR FROM THE STATE OF OHIO
Senator DeWine. Well, thank you, Mr. Chairman. It is my
pleasure, as a U.S. Senator from Ohio, to introduce to this
Committee today two very distinguished Ohioans, who have been
nominated by President Bush to serve on the Sixth Circuit Court
of Appeals.
First, I would like to introduce to the Committee Justice
Deborah Cook, who is from Akron, Ohio. Justice Cook currently
is serving her second term as an Ohio Supreme Justice, a post
she was first elected to in 1994.
Let me welcome to the Committee several people who are here
to support Justice Cook. First, is her husband, Bob Linton.
Bob, thank you very much for being with us today.
Let me also welcome Justice Cook's brother, Kevin Cook, and
his wife Katerina, and their 8-year-old son Jordan, and 6-year-
old Christina, as well as Justice Cook's sister, Susan Adgate,
and her two children, Frankie and Audrey, as well as two of
Justice Cook's judicial clerks, Shawn Judge and his wife Corie,
and another judicial clerk, Amy Cadle.
Justice Cook is an excellent judge and a gracious and
giving individual who has dedicated a great deal of her
personal time and energy to helping the underprivileged.
First, let me give the members of the Committee a little
bit about her work as a judge. Justice Cook has been an
appellate judge for over 11 years--4 years on the Ohio Court of
Appeals, over 7 years on the Ohio Supreme Court.
While Justice Cook was on the Court of Appeals, she
participated in deciding over a thousand cases. Of the opinions
that she wrote, she was reversed just six times. Of the cases
in which she joined other judge's opinions, her appeals panel
was reversed eight times. So, together, of course, that is a
1.4-percent reversal rate, and by any standards, that is a
remarkable record.
Now, let us take a look at the statistics during her time
on the Ohio Supreme Court. As we are all aware, few State
Supreme Court cases are taken for review by the United States
Supreme Court. The Ohio Supreme Court is certainly no exception
to that rule. But this statistic for the Ohio Supreme Court and
for her decisions on that court is still worth considering.
During Justice Cook's time on the Ohio Supreme Court, the
United States Supreme Court has reviewed five Ohio Supreme
Court decisions. The U.S. Supreme Court has agreed with Justice
Cook in all five of those cases. Let me repeat that. The United
States Supreme Court has agreed with Justice Cook in all five
of those cases.
Of those cases, one of those cases was simply a unanimous
Ohio Supreme Court decision affirmed by the U.S. Supreme Court
8 to 1. But in the other four cases, Justice Cook had dissented
in the underlying Ohio case. She was the dissenter, and in each
of these four cases, the U.S. Supreme Court reversed--
reversed--Ohio Supreme Court's majority opinion and reached the
same conclusion--the same conclusion--as Justice Cook did.
Now, these were not all the close 5 to 4 decisions that we
sometimes see in the U.S. Supreme Court. In a Fifth Amendment
self-incrimination case, the Supreme Court sided with Justice
Cook 9 to nothing. Another case went 8 to 1, again siding with
Justice Cook's dissent.
So it is clear from these statistics that Justice Cook's
decisions, when she was dissenting in these cases, was well-
founded.
Mr. Chairman, members of this committee, another useful
gauge of a sitting judge is the evaluation she gets from
objective observers who watch the court on a day-to-day basis.
In Ohio, the major newspapers closely watch our High Court.
After observing Justice Cook on the Ohio Supreme Court for a
full 6-year term, Justice Cook was endorsed by all of the major
newspapers in the State of Ohio for her 2000 reelection
campaign. These newspapers included the Cleveland Plain Dealer,
the Columbus Dispatch, the Cincinnati Inquirer, the Akron
Beacon Journal, the Dayton Daily News, and the Toledo Blade.
Let me just say, as someone who has a lot of experience
with these newspapers, that covers the entire political
spectrum in the State of Ohio.
Since the election in the past few weeks, several Ohio
papers have endorsed her nomination to the Sixth Circuit. The
Cincinnati Post wrote on January 8th of this year, and I quote,
Mr. Chairman, ``Cook is serving her second term on the Ohio
Supreme Court, where she has been a pillar of stability and
good sense. Her role on that court, one, which in the last few
years has repeatedly marched on 4-to-3 votes into the realm of
policy-making, has often been writing sensible dissents.''
On December 29th, 2002, insisting that the Judiciary
Committee act on Justice Cook, the Cleveland Plain Dealer
wrote, and I quote, ``Cook is a thoughtful, mature jurist,
perhaps the brightest on the State's highest court.''
The Akron Beacon Journal wrote on January 6th, 2003, and I
quote, ``Those who watch the Ohio court know Cook is no
ideologue. She has been a voice of restraint in opposition to a
court majority determined to chart an aggressive course, acting
as problem-solvers more than jurists. In Deborah Cook, they
have a judge most deserving of confirmation, one dedicated to
judicial restraint.''
And the Columbus Dispatch wrote on January 6th, 2003, and I
quote, ``Cook's record is one of continuing achievement. Since
1996, she has served on the Ohio Supreme Court, where she has
distinguished herself as a careful jurist, with a profound
respect for judicial restraint and the separation of powers
between the three branches of Government.''
Now, Mr. Chairman, these quotes are from papers across the
political spectrum, all of which endorsed Justice Cook. As
these comments make clear, Justice Cook is a talented, serious
judge, who works diligently to follow the low. At the same
time, she also dedicates, though, a great deal of her time to
volunteer work and community service.
Justice Cook has served on the United Way Board of
Trustees, the Volunteer Center Board of Trustees, the Akron
School of Law Board of Trustees, and the Women's Network Board
of Directors. She was named Woman of the Year in 1991 by the
Women's Network. She has volunteered for the Safe Landing
Shelter and for Mobile Meals, and she has served as a board
member, and then president, of the Akron Volunteer Center.
Furthermore, Mr. Chairman, Justice Cook has served as a
commissioner on the Ohio Commission for Dispute Resolution and
Conflict Management, where she focused on, among other things,
truancy, mediation for disadvantaged students.
She has chaired Ohio's Commission on Public Legal Education
and has taught continuing legal education seminars on oral
argument and brief writing.
I find it, Mr. Chairman, remarkable that Justice Cook has
found time for this level of commitment to her community, and I
have yet to describe the most amazing, to me, commitment
Justice Cook has made helping the underprivileged in Ohio. Like
many of us, Justice Cook believes that the ticket out of
poverty is a quality education, and over the years Justice
Cook, and her husband, in their everyday lives, have come
across hardworking young people who are making an effort to
improve their lives through education.
Tasha Smith is one of those people. Justice Cook met her
when she was struggling to put herself through college at Kent
State by working as a waitress. Justice Cook assisted her with
tuition for several years, and today this woman is in her final
year of nursing school, carrying a 3.8 grade point average.
Tara King is another of these students. With Justice Cook's
help, she recently graduated from the University of Akron, and
she just enrolled in graduate school at Cleveland State.
After helping several students in this manner, Justice Cook
and her husband decided they should structure their assistance
so they could help more young people early on in their
education. Four years ago, they started the College Scholars
Program with a group of 20 disadvantaged third-graders from an
inner-city school. The students were selected to participate
based on teacher recommendations, financial need and level of
family support.
Justice Cook matched each of the students with a mentor in
the community. The students met with their mentors weekly and
participated in other program activities. If the students
maintained good grades and conduct through secondary school,
Justice Cook and her husband will pay for 4 years of their
tuition in any public university in Ohio. Let me repeat that.
Justice Cook is going to pay for 4 years of college tuition for
20--20--disadvantaged children.
Now, Mr. Chairman, members of the committee, these
activities demonstrate a commitment to the community and
dedication to helping the disadvantaged that we would like to
see in everyone, and these are qualities that help make Justice
Deborah Cook a fine judge.
Now, Mr. Chairman, members of the committee, let me turn my
attention to another one of our fine nominees from Ohio, Mr.
Jeff Sutton. Mr. Sutton, who is from Columbus, is here today
with his family. I would like to introduce the Committee to his
wife Peggy and their three children, Margaret, who is 6 years
old; John, who is 9 years old; and Nathaniel, who just today is
turning 11. Happy birthday, Nathaniel.
I would like also to welcome Jeff's parents, Nancy and
David Sutton, his sister Amy, his brothers Craig and Matt, and
several additional friends and family. We are very pleased that
all of you could be here on this very important day.
Mr. Chairman, Mr. Sutton's legal and life experiences are
extensive. A couple of years ago, before high school, his
father took over--a couple of years before high school, his
father took over a boarding school for children with severe
cerebral palsy. Over 6 years, Mr. Sutton spent much of his time
around the school doing odd jobs for his father. He was deeply
affected by this experience and by the interactions that he had
with these students during his formative years. It reinforced
what he had been taught by his parents; that serving others is
an important calling and virtue.
Mr. Sutton attended Williams College, where he was a layman
scholar and varsity soccer player. He graduated with honors in
history, and after college, from 1985 to 1987, Mr. Sutton was a
seventh grade geography teacher and tenth grade history
teacher, as well as the high school varsity soccer coach and
the middle school baseball coach.
From there, he went on to law school and graduated first in
his class from the Ohio State University College of Law, where
he served as issue planning editor of the Law Review.
Mr. Sutton clerked for Judge Thomas Meskill on the U.S.
Court of Appeals for the Second Circuit. He clerked for two
U.S. Supreme Court Justices, retired Justice Powell and Justice
Scalia.
From 1995 to 1998, Mr. Sutton was the State solicitor of
Ohio, which is the State's top appellate lawyer. During this
service, the National Association of Attorneys General
presented him with the Best Brief Award for practicing in the
U.S. Supreme Court, a recognition he received an unprecedented
4 years in a row.
Mr. Sutton is currently a partner in the Columbus law firm
of Jones, Day, Reavis and Pogue. He is a member of the Columbus
Bar Association, the Ohio Bar Association, and the American Bar
Association. He has also been an adjunct professor of law at
the Ohio State University College of Law since 1994, where he
teaches seminars on Federal and State constitutional law.
Recently, Mr. Chairman, the American Lawyer rated him one
of its 45 under 45; that is, they ranked him, named him as one
of the 45 top lawyers in the country under the age of 45.
He has appeared frequently in court, having argued 12 cases
before the United States Supreme Court, where he has a 9 and 2
record, with one case still pending. In the Supreme Court's
2000 to 2001 term, Mr. Sutton argued four cases. That is more
cases than any other private practitioners in the entire
country. Can we imagine preparing to argue one case before the
Supreme Court, much less than four? And to no one's surprise,
Jeff Sutton won all four.
Mr. Sutton also has argued 12 cases before the Supreme
Court, 6 cases before various U.S. Courts of Appeal, and
numerous cases before the State and Federal trial courts. Over
the years, Mr. Sutton has been the lawyer for a range of
clients on a wide range of issues. Some of these cases are
quite well-known. For example, he represented the State of Ohio
in Flores v. City of Berne; the State of Florida in Kimel v.
Florida Board of Regents; and the State of Alabama in
University of Alabama v. Garrett.
But, Mr. Chairman, I would like to tell the Committee about
some less-well-known cases. He represented, as my colleague
Senator Voinovich has indicated, Cheryl Fischer, a blind woman
who was denied admission to a State-run medical school in Ohio
because of her disability.
He represented the National Coalition of Students with
Disabilities in a lawsuit, alleging Ohio University was
violating the Federal motor voter law by failing to provide
their disabled students with voter registration materials.
He filed an amicus brief in the Ohio Supreme Court,
defending--defending--Ohio's hate crime statute, and he filed
it on behalf of the NAACP, the Anti-Defamation League and other
civil rights groups.
He defended Ohio's minority set-aside statute against
constitutional attack.
He filed an amicus brief in the Sixth Circuit on behalf of
the Center for the Prevention of Hand Gun Violence, defending--
defending--an assault weapon ordinance.
He represented two capital inmates in State and Federal
court, and he represented an inmate who brought a prisoners'
rights lawsuit in the United States Supreme Court.
Mr. Chairman, I am sure we will have the opportunity to go
through these cases in some detail and many other cases, but I
am confident the Committee will be impressed by Mr. Sutton's
ability in representing these various clients in these cases.
Like Justice Cook, and consistent with his upbringing, Mr.
Sutton has found an extraordinary amount of time to give back
to his community. Between a demanding law practice and time
with his very young family, he serves on the Board of Trustees
of the Equal Justice Foundation, a nonprofit provider of legal
services to disadvantaged individuals and groups, including the
disabled. He has spent considerable time doing pro bono legal
work, averaging between 100 and 200 hours per year.
He is an elder and deacon in the Presbyterian Church, as
well as a Sunday School teacher. He participates in numerous
other community activities, including I Know I Can, which
provides college scholarships to inner-city children, and Pro
Musica, a chamber music organization.
He also coaches soccer and basketball teams.
Finally, Mr. Chairman, I was struck by something I once
read that Mr. Sutton wrote in the Columbus Dispatch about
former Supreme Court Justice Powell. In describing Justice
Powell's practical voice on the court, he wrote the following,
and I quote, ``Justice Powell never lost sight of the context
in which each decision was made and the people, the people,
that it would affect. He believed in people more than ideas and
experience, and experience, more than ideology, and in the end
embraced a judicial pragmaticism that served the country
well.''
Mr. Chairman, I believe this same description applies to
Mr. Sutton. He will approach the bench in the same pragmatic,
tempered and very thoughtful way.
I appreciate the chairman's time, and I yield the floor.
Chairman Hatch. Well, thank you. Thank you, Senator.
We will call the three nominees, Hon. Deborah Cook Mr. John
Roberts and Professor Jeffrey Sutton to the witness table, and
if you will stand and raise your right hands.
Do you solemnly agree to tell the truth, the whole truth
and nothing but the truth, so you help you God?
Justice Cook. I do.
Mr. Roberts. I do.
Mr. Sutton. I do.
Chairman Hatch. We will start with you, Justice Cook. If
you have any opening statement, we would like you to introduce
your families again and those who are with you. We are just
delighted to have you here, and we look forward to completing
this hearing.
STATEMENT OF DEBORAH L. COOK, NOMINEE TO BE CIRCUIT JUDGE FOR
THE SIXTH CIRCUIT
Justice Cook. Thank you, Mr. Chairman.
My family has been introduced, but I would like to
introduce one additional friend who has appeared today with me,
and it is Mr. Robin Weaver. Robin is a partner with the
international firm of Squires, Sander and Dempsey. He is in the
home office in Cleveland, and Robin also serves as the
president of the Cleveland Bar Association, and he was kind
enough to come today, and I wish to thank him and introduce him
to the committee.
Chairman Hatch. We are delighted to have you hear, Mr.
Weaver. I have heard of you, and we are very privileged to have
you in our audience today.
Justice Cook. Thank you, Mr. Chairman.
Chairman Hatch. Do you care to make any statement?
Justice Cook. I won't reintroduce my family.
Chairman Hatch. That will be fine.
Justice Cook. They were good enough to already stand.
Chairman Hatch. Do you have a statement?
Justice Cook. I have no statement.
Chairman Hatch. That will be fine.
Justice Cook. Thank you, Mr. Chairman.
Chairman Hatch. Mr. Roberts, we will turn to you.
STATEMENT OF JOHN G. ROBERTS, JR., NOMINEE TO BE CIRCUIT JUDGE
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Mr. Roberts. Thank you, Mr. Chairman.
I would like to introduce my wife Jane.
Chairman Hatch. Where is Jane? Oh, yes.
Mr. Roberts. The Committee has already heard some
unscheduled testimony from my children, Josephine and Jack--
[Laughter.]
Mr. Roberts. And I thank the Committee for its indulgence.
I thought it was important for them to be here.
Also, here are my parents, Jack Sr. and Rosemary Roberts.
Chairman Hatch. We are delighted to have you here.
Mr. Roberts. My three sisters, Kathy Godbey, Peggy Roberts
and Barbara Burke, my brothers-in-law, Tim Burke and Dusty
Godbey and my niece Katie Godbey and many other friends that I
am very happy to have here today.
Chairman Hatch. Well, we are delighted to have all of you
here, and we look forward to this hearing, and I hope you do,
too.
Mr. Sutton?
STATEMENT OF JEFFREY S. SUTTON, NOMINEE TO BE CIRCUIT JUDGE FOR
THE SIXTH CIRCUIT
Mr. Sutton. Thank you, Mr. Chairman. My family, I guess
they could stand up again. I think most of them have been
introduced, but there are a few that did not get mentioned. My
brother-in-law Bill Southard has come down from Boston, another
brother-in-law, Jim Southard, from Ohio, and Jim's two kids,
Emily and Tyler, joined us as well, and my sister Amy's
boyfriend, Chris Sterndale, who is earning a lot of praise from
me in Amy's choice.
Chairman Hatch. I did not see Chris stand up here now.
[Laughter.]
Chairman Hatch. Oh, I see. Okay.
Mr. Sutton. And, of course, thank you very much for the
opportunity to have this hearing today.
Chairman Hatch. Well, thank you so much. We are delighted
to have all of you here. We welcome you to the committee.
We are going to have 15-minute rounds. We have our staff
member sitting in the middle. He is going to hold up cards that
will tell the times left. What are the three cards? The red is
what? That is out of time. Orange is one minute--okay. Well, he
will give you notice when 5 minutes are remaining, then one
minute, and then we are out of time. We are going to cut it
off, but if a Senator feels that they just have to pursue a
line of questioning, we will certainly consider allowing that.
I will reserve my time and use it later, and we will turn
to Senator Kennedy at this time, with the permission of the
ranking member.
Senator Leahy. Mr. Chairman, if I could also just ask
permission that a number of letters referring to Professor
Sutton--I know you have introduced letters in favor of him, but
I would introduce this stack for the record that are opposed.
Chairman Hatch. Without objection, we will put them in the
record.
Senator Kennedy?
STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR FROM THE
STATE OF MASSACHUSETTS
Senator Kennedy. Thank you very much, Mr. Chairman. I must
say, just before questioning our nominees here--and I want to
congratulate all of them on receiving their nomination. I am
troubled like other members of the Committee of having three
nominees who are controversial, and having one hearing that is
going to do this. I, out of necessity and desire, will attend a
memorial service for the death of a former Congressman from
Utah this afternoon, which I had long scheduled to be an hour
and a half. We generally allocate 9:30 in the morning, and I am
glad to stay here whatever time, but I think there is--this
cramped process and procedure I think is unworthy, quite
frankly, of the committee. These are enormously important
nominees. These are incredibly important issues. And the
scheduling of three nominees and others here, suggests a policy
to try and jam those that have serious questions, and I resent
it, and I find that it is not a particularly good way to expect
that we are going to have a wide cooperation. If we have to
exercise all of our rights in order to protect them, so be it.
And if that is the desire to do so, so be it as well.
We have three nominees here for the Circuit Court. Mr.
Sutton is a nominee for the Court of Appeals for the Sixth
Circuit, has actively sought to weaken Congress's ability to
protect the civil rights and the ability of the individuals to
enforce their Federal rights in court. His efforts to challenge
and weaken the laws are central to our democracy and providing
equal opportunity are well documented. He has argued for the
limitation on the reach of the Civil Rights Act of 1964, the
Americans with Disabilities Act, the Age Discrimination Act and
Employment Act, the Violence Against Women Act, the Medicaid
Act, to name just a few. A large number of National, State and
local disability rights groups, civil rights groups, women's
groups, senior citizen's organizations and others have raised
serious questions about Mr. Sutton's nomination.
Justice Deborah Cook, another nominee for the U.S. Court of
Appeals, has a disturbing record of bias in favor of business
and corporation over the interest of injured individuals,
workers, consumers and women. Numerous Ohio citizens and groups
have raised strong concerns about her nomination, including the
National Organization of Women, Ohioans with Disabilities.
And finally, the nomination of John Roberts to the U.S.
Court of Appeals for the D.C. Circuit raises concerns. The D.C.
Circuit, one of the most important courts in the country,
having jurisdiction over many workplace, environmental, civil
rights, consumer protection statutes, wiretap, other important
security issues. I am concerned about Mr. Roberts' efforts to
limit reproductive rights as a Government lawyer, his advocacy
against affirmative action, and Federal Environmental
Protection Laws in his efforts to shield states from individual
suits, and to limit Congress's ability to pass legislation
regulating state conduct in the name of the states' rights.
And given the strong concerns raised by each of the
nominees to pack them into a single hearing impairs our ability
to fulfill, I think, our constitutional duty to rigorously
review their records. I will move towards questioning the
nominees.
Mr. Sutton, I happened to be here, Professor Sutton, during
the enactment of virtually all of these pieces of legislation
like the Americans with Disabilities Act. I remember the hours
of hearings, the length of the hearings, the work that was
done. Senator Hatch may remember opposition at that time,
objected to our considering the Americans with Disabilities
Act. We had to meet after the sessions for the Senate well into
the evening until it was actually filibustered to 1 or 2 in the
morning.
And then we saw those in the disability community in
wheelchairs come on into the hearing room, first of all 5, 10,
eventually about 100, 150, and suddenly, television cameras
began to come into the Committee room, more and more of them.
And then finally at 2:30 the individual, the Senator who was
filibustering, no longer in the Senate at this time, yielded,
and we were able to pass it.
We spent weeks and months I building a record because the
Americans With Disabilities Act follows a very important
movement in this country to knock down walls of discrimination,
which you are very familiar with, in terms of knocking down the
walls of discrimination on the basis of race, religion,
ethnicity, gender, and then finally the Americans with
Disabilities Act, and we still have, I think, work to do in
terms of sexual orientation, but the Americans with
Disabilities Act.
So this was something that those of us who had been a part
of that whole movement were here at the time when we made the
progress in terms of knocking down the walls of discrimination
on race, knocking down the walls of discrimination on gender,
knocking down on limiting the discriminatory provisions of the
Immigration Act, national origin quotas in the Asian-Pacific
triangle, saw this progress made.
Then we passed that Americans with Disabilities Act, and we
find that there is--and when we passed it and said we wanted it
to apply to all Americans, we meant all Americans. But we find
that the Supreme Court said that we, under arguments that you
made very effectively, it does not apply to the state
employees, and it means that state employees cannot get
protection of that.
We also had the Age Discrimination Act, and we find out
under your arguments on the reaches of the Constitution, that
we cannot apply that to state employees.
The Title VI and the Disparate Impact regulations, cannot
be privately enforced, positions that you presented to the
Court, supported. Those that find out that there are sitings of
toxic dumps in minority communities that are resulting in the
poor children suffering and contracting asthma, cancer. But the
fact that it is being used in a discriminatory way, something
that we take very seriously as legislators now, with
understanding your position in terms of the Constitution, those
kinds of remedies are not going to be able to be out there.
Title IX regulations. I remember the battle that we had.
Going back, we heard the eloquent statement not long ago when
Senator Bayh, the current Senator Bayh's father spoke about the
work that was being done on the Title IX, and we find out it
cannot be privately enforced because of the Sandoval decision;
and the Religious Restoration Act that the Chairman has
referenced, all extremely important kinds of progress over the
period of these past years.
You have supported viewpoint that has effectively
dismantled many of these protections, and it is one that has
been embraced in some instances by 5-4 decisions of these
courts, virtually divided by the Supreme Court in terms of
these protections which affect millions of fellow citizens,
those that have been left out and left behind, those that are
getting the short stick in our society. I am impressed, deeply
impressed by your own personal kinds of involvement, reaching
out with the works that you have done privately. But there is
very legitimate kind of questions about your being on the Court
and whether you are going to take this position with you in
terms of continuing dismantlement of the works of Congress and
the remedies, the remedies. We will come to that in just a
moment, which you have also questioned the ability for private
citizens to actually provide remedies for these statutes, which
I think for many of us who have seen the efforts and the
progress in civil rights cases just assume, but you challenge
this particularly, go out of your way in terms of amicus brief,
go out of your way. We will hear, well, this is a very
important constitutional issue which I affirm, but you go out
of your way in the amicus brief in the West Side issue to try
and diminish I think.
I am interested just about how you came to this position
and your own kind of experience, and your views on it, what you
can tell us about where you think as a judge, and what you
would say to so many of those people that are left out and
behind, that your presence on the court is not going to
endanger further their rights that have been passed by
Congress.
Mr. Sutton. Thank you, Senator Kennedy, for an opportunity
to address those issues and to discuss them with you and other
members of the committee. I do appreciate this opportunity, and
am an admirer of your work in all of those areas, and I hope
there's nothing about my career that makes you think otherwise.
I guess I have a few thoughts, and I hope I can answer this
question. And maybe I will be able to explore this with some
other questioners as well, but I guess the first point I would
make is that in all the cases you referenced, I was of course
an advocate. I'm not a sitting judge and not a scholar. I'm
flattered that someone has put ``professor'' in front of this.
The people at Ohio State University will be amused by that
designation.
But I'm an advocate and I have been since graduating from
Ohio State in 1990 and since finishing my two clerkships. And
while I do understand in all of these areas, and certainly in
the disability rights area, concern that an advocate would be
willing to represent a state, making the arguments in Garrett,
at the same time I would hope people would appreciate that the
clients I have had and the cases I have worked on, whether for
parties, for amicus entities, or on a pro bono basis, have
covered the spectrum of issues of really almost every social
issue of the day, and I have had an opportunity to be on
opposite sides of almost every one of these issues. If one
talks about the issue of disability rights I've had more cases
on the side in which I was representing a disabled individual
than the opposite. In fact there's only case that I can think
of in my career where I had two clients come to me at the same
time and say, ``You can represent either side of this
particular case.'' That of course was the Cheryl Fischer case,
which arose when I was State Solicitor of Ohio in the mid
1990's.
Ms. Fischer, as you may know, is blind, and was denied
admission to Case Western's Medical School on account of her
blindness. The Ohio Civil Rights Commission issued an order
saying that that violated State civil rights laws, which
incidentally went even further than the ADA and section 504 of
the Rehabilitation Act. When that case came to the Ohio Supreme
Court, there was the Ohio Civil Rights Commission order to
defend on the one hand, and on the other hand the State
Universities of Ohio thought that Case Western was correct,
that this had not been discrimination. It was then my job to go
to the Attorney General and explain to her that, in a somewhat
unusual situation, she needs to appoint lawyers on both sides
of this difficult issue. It fell to me to make a recommendation
to the Attorney General what should be done. I thought that the
State Solicitor of Ohio, the position I held, should argue
Cheryl Fischer's case. I agreed with her position in the trial
court. I thought it was the better of the positions, and I
recommended to the Attorney General that I argue that side of
the case. She agreed. She appointed someone else to argue the
other side of the case. We established an ethical wall. And I
think while I certainly understand people who are interested in
these important nominations looking at briefs and oral
arguments I made in Garrett, I would hope that they would take
the same time to read the briefs that I wrote in the Cheryl
Fischer case, my opening brief and my reply brief, and the oral
argument I made there. I'd be stunned if anyone read those
briefs and thought there was any risk whatsoever of hostility
to disability rights. I think if anything the concern would be
just the opposite.
I've had an opportunity to represent other individuals with
disabilities, most recently in Federal Court. I'm sorry, I
don't want to--
Senator Kennedy. No, no. I am just watching that clock. I
do not want to interrupt you, but there are--I want to let you
complete but I do want to get to, in this round, get to one
other area if I could.
Mr. Sutton. Well, I'll be brief. Just on the advocacy
point, I've represented several other clients with
disabilities. In all of those cases, as the ABA rules make
clear, the client's position can't be ascribed to the lawyer.
It's quite dangerous. In fact, my risk in this hearing is not
the failure to win a vote of a Democrat, I may lose everybody
if one looks at all of my representations.
Chairman Hatch said unfortunately that I never represented
murderers. Well, it turns out I have. I've represented two. And
I don't stand a chance in trying to become a judge if one looks
at all of my clients and decides whether they agreed with their
views. I was not working at the University of Alabama when they
formulated their policy. I didn't work on the case in the lower
courts. That position had been formulated by the time it got to
the U.S. Supreme Court. I'm sorry.
Senator Kennedy. Could I just--
Chairman Hatch. Your time is up, Senator, but I am going to
give you additional time.
Senator Kennedy. Just on this. The fact is it just is not
in the cases themselves, Professor Sutton. You have, in your
writings, in your speeches, in your talks, you have been very
eloquent, and have been, continue to be very supportive of this
concept. I think we ought to disabuse ourselves that this is
not something that is just you are representing a client,
because I have the examples in your statements, in your
writings, in the speeches, where there are positions where you
took in there, any, I think, fair-minded person would read
those, would find that they are deeply held.
Let me go just to one other area, and that is, the
limitations that you put in terms of the individual remedies.
We all understand a right without a remedy is not a right at
all. You, in the West Side filed a friend of the court. You did
not have to do that. There was no obligation. This was not a
client. You went about filing an amicus brief because you
wanted to, felt compelled to, and in that brief, if your
position had been sustained, would have effectively overturned
65 years of Federal Court jurisprudence in terms of the
Medicaid, spending clause under the Medicaid Act, and
effectively it would have, in those cases, would have closed
down the courthouse doors to the working parents in North
Carolina who drove 3-1/2 hours each way to get dental care for
their children because they could not find a dentist closer to
home who would accept Medicaid even though the Medicaid Act
requires states to ensure adequate supply of providers, or
children with mental retardation and development disability in
West Virginia who face institutionalization because they could
not get Medicaid to pay for home-based services they need, even
thought Medicaid Act requires the states to cover the services,
or families in Arizona who are not receiving notices of
impartial hearings when their Medicaid HMOs denied or delayed
needed treatments, even though the Medicaid Act requires states
to provide those rates to such persons.
You went into the court effectively to have them overturn
65 years of rights of individuals pursuant to try to get a
remedy. What do you think of those again that are the least
able to protect themselves when you are on that court, if you
are on the court, and look at you, how do you think they are
going to view your views about their rights and being able to
ensure that they are going to be able to get remedies which
have been in legislation passed by the Congress, intended to
be, and passed by the Congress. And with your own, I suppose,
knowledge at the efforts to reduce the enforcement of those is
quite common knowledge in terms of where the Congress is at the
present time in terms of enforcement of these statutes.
I thank the Chair for the additional time.
Mr. Sutton. Thank you, Senator Kennedy. I think the case
you're referring to is the West Side Mothers case, a District
Court case in Michigan.
Senator Kennedy. Yes.
Mr. Sutton. And I respectfully disagree with one component
of your question, and that's the indication that I volunteered
to take that case or I wrote the brief on my own behalf, and
that that brief reflected my views. That is not the case.
As has happened to me before in my career, I was lucky
enough to have the U.S. Supreme Court once invite me to brief
an issue that the advocates had not briefed, or that one
advocate was not willing to brief. They asked me to brief it
and I--you know, it's not a call you--
Senator Kennedy. This was an amicus brief.
Mr. Sutton. Yes. It's not a call you choose not to return.
Exactly, that's the Hohn case where I wrote an amicus brief for
the U.S. Supreme Court. In the West Side--
Senator Kennedy. Excuse me. Who asked you to file this?
Mr. Sutton. In the Hohn case it was--
Senator Kennedy. No, in the West Side.
Mr. Sutton. The judge, Judge Cleland. His clerk called me,
asked me to--said he had briefing on what he perceived to be a
very difficult issue, and I think the way it ultimately turned
out in the case, two competing lines of U.S. Supreme Court
authority. It wasn't--unlike the Hohn case this brief was not
on behalf of myself. The Michigan Municipal League ultimately
asked me to write the brief, so there was a client in the case.
And I did exactly what I did in the Hohn case when the U.S.
Supreme Court called me, which is brief the issue that I was
asked to brief. And it's very important to me to explain it. I
mean I was doing everything I could to advocate that particular
position. I could not fairly have said to the court, ``Yes,
I'll brief that argument,'' and then pull my punches and not
explain every conceivable argument that could have been raised
on that side of the case. I, of course, was not involved in the
case for Michigan.
I would point out as well, in hearing criticisms about that
particular decision, well, I'm not going to criticize Judge
Cleland's decision. The one thing I would ask you to look at if
you're concerned about the case is to please compare the brief
we wrote and the decision. Many of the positions he took in
that case were not positions we had advocated, so I feel that
that has not been accurate in the sense that it was something I
suggested he do.
Senator Kennedy. Well, but the only point--and I know that
time is going on--is that you are argued. It is not that they
did not accept it, because it would have basically overturned,
I believe, a fair reading of the existing law in terms of the
rights of individuals to be able to seek remedies.
The only point, and this is my last one, is just how can we
be sure that you are not going to continue this agenda should
you get on the court? If you could just give us a brief comment
on that.
Mr. Sutton. I really hope I can do my best to give you that
assurance. Again, I would point out I had never heard of this
case until I got a call from a Federal District Court Judge
asking me to brief that side of it. So there's nothing willful
about that case and my involvement in it. I was invited by an
Article III Judge to do it, and I did it just as I did when the
U.S. Supreme Court invited me.
The second thing is, if one is concerned about some of
these issues in general, or civil rights issues more
particularly, I would hope that the members of the Committee
would not just consider the cases and the issues in the cases,
but look at the briefs I worked on and wrote in many other
cases that I am sure you would be quite supportive of, whether
it was defending Ohio set-aside statute in two different cases;
whether it was defending Ohio's Hate Crime Statute on behalf of
virtually every civil rights group in the State that supports
that form of legislation; whether it was writing an amicus
brief, voluntarily, in the Sixth Circuit on behalf of the
Center for the Prevention of Handgun Violence; whether it was
seeking out a prisoner civil rights case in the U.S. Supreme
Court, where again one could not criticize that as states'
rights. I was representing Dale Becker, incarcerated in
Chilicothe, Ohio against my former boss, the Attorney General
Betty Montgomery.
So I do understand your questions and I think they're very
important, but I hope people will--and I think this is why the
public wouldn't be concerned about my being a judge, if looked
at these other representations where I was acting as an
advocate.
Senator Kennedy. I thank the Chair for the extra time.
Chairman Hatch. Thank you, Senator Kennedy.
Let me ask a couple questions for you. You have argued
three very important but controversial cases, among others, in
front of the U.S. Supreme Court concerning the scope of
Congress's power, under Section 5 of the 14th Amendment, to
regulate state governments. Some of your critics suggest that
your involvement in those cases somehow disqualify you from
this position on the bench, so just let me ask you a few
questions about those cases. And I am sure you know that I
worked very hard, along with Senator Kennedy and others, to
enact some of the laws that you argued against. We wrote the
Religious Freedom Restoration Act. We brought together almost
everybody in Congress on that bill, which was struck down in
the City of Berne case. And of course I was one of the
principal sponsors, as was Senator Kennedy, of the Americans
with Disabilities Act, which was limited in scope by the
University of Alabama v. Garrett. I also worked closely with
Senator Biden--it was the Biden-Hatch Bill--on another law that
the Supreme Court has found to be beyond Federal power, in part
at least, and that's the Violence Against Women Act. It was not
easy for me, as well as my other people with whom I worked and
who worked with me, to see these struck down after we had put
so much time and energy into their enactment. Of course I
understand the powerful constitutional principles underpinning
the Supreme Court's decisions in those cases. But I can also
sympathize with those who might see things differently.
Regardless of my views about these Supreme Court decisions, I
certainly do not believe that you are acting as a lawyer for
your clients in those cases by itself should by any means
disqualify you from the bench.
So what we need to know is whether you understand the
difference between advocacy and judicial decision making, and
whether you are firmly committed to the highest standards and
principles of judicial restraint?
Mr. Sutton. Thank you, Mr. Chairman, for an opportunity to
discuss those cases. I guess the first point I would make in
response to that concern is there's nothing about the issues in
those cases or what happened in those cases that would have
precluded me from happily representing the other side in any of
them. And as a Court of Appeals Judge I have no idea what I
would do with those difficult issues except to say follow
whatever U.S. Supreme Court precedent was at the time.
The other point I would make is in 1995 when I became State
Solicitor of Ohio, I couldn't even have given a good definition
of federalism, much less a definition before this body. It
wasn't something I had any involvement with; it's not something
I had studied in law school. And as State Solicitor of Ohio
though, I suddenly found myself for 3-1/2 years with the
responsibility of representing the State's interest, sometimes
in cases like the Cheryl Fischer case, sometimes in the set-
aside cases, but also in the City of Berne case, which arose
while I was State Solicitor. And the Attorney General of Ohio
made the decision that the State was going to challenge RFRA.
That was not a decision I was involved in. That was a challenge
that started at the District Court level. I didn't get involved
in that issue until it got to the U.S. Supreme Court. And at
that point in time she said it would be appropriate to have an
amicus brief on behalf of many states, explaining the states'
perspective on these difficult issues, and that's what we did.
I do think the argument we made, while there's plenty of
reason to disagree with the decision, reasonable minds can
disagree about these issues. The fact of the matter is, not one
Justice of all 9 members of this Court, disagreed with the
position advocated in City of Berne, that ultimately the Court
has the final decision about what the Constitution means.
In Kimel, that's the ADEA case that Senator Kennedy
mentioned, the same is true. Not one member of the Court
disagreed with the position we advocated. Four members of the
Court disagreed with the Seminole Tribe position, but no one
disagreed with what we argued in our brief in terms of what
Section 5 of the 14th Amendment means.
And in the Garrett case, yes, there was disagreement. This
disagreement was 5-4, and the disagreement there was about your
record and whether it sufficed, and I can certainly understand
how different people take different views on the deference that
should be given to the record, the extensive and exhaustive
record that you compiled. But it wasn't my job to decide that
case. I was my job as a lawyer to represent the State and do my
best to advocate their position, and that's what I tried to do.
Chairman Hatch. And I agree with that. I think that is the
point. Do you commit to deciding cases on the basis of relevant
statutes and binding precedents and the Constitution, rather
than relying on any preconceptions on policy opinions that you
might hold personally?
Mr. Sutton. Absolutely.
Chairman Hatch. All right. Now, some people think this is
not so much an issue of adhering to your own clients as to
whether your arguments for those clients are within the
mainstream of American legal thought. So if you do not mind, I
am just going to go over those cases again so everybody here
understands.
In the City of Berne v. Florida, it was a 6 to 3 decision
dealing with the Religious Freedom Restoration Act, something
that a number of us on this Committee feel very deeply about.
And let me just ask it again, how many Justices on the Supreme
Court disagreed with the position you advocated in that case?
Mr. Sutton. None.
Chairman Hatch. Not one.
Mr. Sutton. The only disagreement was about a prior
decision in the Court called Smith, which is not something we
agreed to argue,
Chairman Hatch. And you mentioned the Kimel v. Florida
Board of Regents case. How many Justices on the Supreme Court
disagreed with the interpretation of the 14th Amendment that
you advanced in that case?
Mr. Sutton. None.
Chairman Hatch. Not one. All of the Justices agreed with
you.
Mr. Sutton. Well, I should make the point that the four
dissenters disagreed with Seminole Tribe, a prior decision of
the U.S. Supreme Court which we did not brief and I was not
involved in.
Chairman Hatch. You have made that point. And finally, just
once again, in the Garrett case, how many of the Justices
rejected your position in that case?
Mr. Sutton. Well, not to be too technical but it was the
State of Alabama's position, and I was arguing as their lawyer,
but four justices disagreed with the State's position in that
case.
Chairman Hatch. I think that there is a difference between
being an advocate for clients, where you have to give the best
you can for them, and being somebody who is out in the
mainstream of legal thought, and the fact of the matter is,
apparently you not only were in the mainstream, you were
overwhelmingly approved.
I have some other questions. I will reserve the rest of my
time and turn to Senator Leahy.
Senator Leahy. Thank you, Mr. Chairman.
I know Senator Kennedy had touched on this, and of course
Senator Hatch has said that it is one thing to be advocating
for a client, another thing for stating your own position. All
of us who have tried cases either at the trial level or at the
appellate level understand that you take your client's
position.
But I look at the way you do it. You have discussed the
Florida case. You had advocated to preclude claims for State
employees with disabilities, persons that are denied Medicaid
benefits. One newspaper called ``the leader of the States'
rights revival.'' And then you said yourself in a Legal Times
article, that you're quote, ``on the lookout'' for the types of
federalism cases you have become known for. In fact you once
said that while advocating for States' rights does not get you
invited to cocktail parties, that nevertheless you believe in
this stuff. So is this not a little bit different than a client
walks in and says, ``Mr. Sutton, please, take my position. Here
is what I would like you to argue. If you feel I am right or
not, go for it.'' And rather what you are doing is looking for
the particular cases that you can carry out your own agenda; is
that correct?
Mr. Sutton. Thank you for an opportunity to discuss this. I
would respectfully disagree with that characterization, and
here's why. I think the one legitimate accusation--
Senator Leahy. Well, not to interrupt, but do you disagree
with having said what I quoted you as saying in Legal Times?
Mr. Sutton. No, I wanted to explain what I said and what I
meant by it. On the lookout for U.S. Supreme Court cases, that
I can be fairly accused of. I was on the lookout for U.S.
Supreme Court cases after I left the State of Ohio, had the
good fortune to argue four cases there while State Solicitor,
and when I returned to Jones Day in 1998, I really was
interested in continuing and developing that practice, and that
is true. I don't think it's accurate to say I was only looking
for federalism cases, a fairly difficult term. I mean, that
covers a lot of things. I could cover any case involving a
state.
And the proof of that is one case I sought out soon after
leaving the State Solicitor's Office, was the Becker v.
Montgomery case that I referenced earlier, which was a prose
indigent civil rights case brought against the State of Ohio,
where I was representing Dale Becker on a pro bono basis. And I
will say I was willing to represent just about anybody at the
U.S. Supreme Court because I did want to develop a U.S. Supreme
Court practice which is not easy to do in Columbus, Ohio, and I
tried very hard to do that. That's what I think--that's exactly
what the first quote references, and that's quite true. As to
the believing in this federalism stuff, well, in one sense,
yes, of course I do believe at the end of the day there is a
checks and balances system here in our Government, one that has
checks and balances among the national branches of the
Government, and one that has a vertical checks and balances
between Congress on the one hand and the states. But that's a
principle as deeply respected as stare decisis. The question
is--
Senator Leahy. Do you have a feeling in your own mind or
interpretation in your mind of the expression ``new
federalism?''
Mr. Sutton. The new federalism that I'm familiar with is
one I teach at the Ohio State Law School, which is about
Justice Brennan's landmark article in 1977, explaining that
state supreme court and state supreme court justices should be
aggressively construing their state constitutions to further
civil liberties and go beyond what Justice Brennan perceived a
U.S. Supreme Court was not doing.
Senator Leahy. You say in the syllabus for that seminar,
that most controversial results of the new federalism are,
quote, ``increased uniformity of the law and attempting new
latitude for potentially result oriented judicial decision
making,'' which is what I would hope that all of us up here
would be concerned with.
Mr. Sutton. Well, maybe I--it's possible I'm
misapprehending your question because I--
Senator Leahy. Let me say it another way. If you were
confirmed as a judge, would you be able to resist the
temptation to use results oriented reasoning to implement an
agenda of new federalism?
Mr. Sutton. Absolutely. I thought the accusation that I
wasn't doing enough of that. I'm making the point the new
federalism that Justice Brennan advocated is one that has been
advancing civil liberties for the least 25 years. That's the
whole point of it, and doing it through the vehicle of state
courts. The state constitutional law syllabus to which you're
referring, I should point out, is one written by Richard
Cordray, who first--as you may know, he's a Democratic office
holder in the State of Ohio. He created that class at the Ohio
State University. He's a friend of mine and we have co-taught
the class, and we've used the same syllabus he wrote. But I
think you--I'd be very surprised, Senator Leahy--and maybe this
proves I'm misapprehending your question--but I'd be very
surprised if you attended that class and listened to what we
were talking about and saw the textbook we were using. It's a
textbook that is advancing civil liberties at every turn.
That's the whole point of it.
Senator Leahy. Would you feel it was a fair argument that
some would say you advocate States' rights over national
standards?
Mr. Sutton. I've been on both--I've been on virtually every
side of the--
Senator Leahy. What side are you on today?
Mr. Sutton. I'm on the side of trying very hard, very hard,
Senator, to show you that I would be an objective judge, and
that the client I would have is a client that is the rule of
law, not a former client, but the rule of law, and that's the
great honor of being a judge.
Senator Leahy. Which do you prefer, States' rights or
national standards?
Mr. Sutton. I have no idea, and it would depend on the
client of the day. Again, if you looked at the cases I've
represented, you'd see I've been--when I worked for the State I
only had the option for 3-1/2 years of representing the State.
Senator Leahy. Let me give you a couple examples.
Desegregation and the Jim Crow Laws. The arguments were made
that States' rights should override national standards. Which
side do you come down on?
Mr. Sutton. Well, the U.S. Supreme Court correctly rejected
all of those, and as a Court of Appeals Judge I would obviously
follow that U.S. Supreme Court precedent.
Senator Leahy. Then do you see the--let me ask it another
way. Absent a Supreme Court decision on all fours, which do you
feel carries more weight, States' rights or national rights?
Mr. Sutton. You know, there's no doubt when a Federal
statute is passed, as the U.S. Supreme Court has made clear, it
deserves--there's a heavy presumption of constitutionality. The
Court has said that in cases of upholding Federal laws and
striking them. And there's no doubt that a Court of Appeals
Judge has every obligation to follow that presumption.
Senator Leahy. You are well aware of the fact there have
been a number of writings, a lot of them by people strongly
supporting you. They feel you should be here because of your
advocacy of States' rights at the expense of national
standards. Are your friends giving you too much credit?
Mr. Sutton. Absolutely. Absolutely.
Senator Leahy. Well, the reason I ask that--and I don't ask
it lightly, Professor--because I have said over and over again,
been here with six different Presidents on this committee, and
I voted for an awful lot of Republican nominees, and on those
occasions when they would let us vote on the Democratic
nominees, I voted on those. But I have always had the same
standard. I have also voted against nominees of both Democratic
Presidents and Republican Presidents when I felt that a
litigant would not have a fair hearing. And I have said so many
times in this committee, that to get my vote, I must be
convinced that a judge not only have the abilities--and you
obviously have the legal abilities, the abilities and the moral
character, but also, if somebody came into that judge's
courtroom, they would not feel the case had been prejudged,
either because of who they are, that they would be treated
differently depending upon which side of an issue, whether
plaintiff or defendant, whether they are rich, poor,
Republican, Democrat or anything else. And what I am concerned
about in your writings and actually--and maybe you feel your
friends have done you a disservice, but in their strong support
and the strong support of the President and others, that you
will be one who would give far more weight on States' rights
and a number of these Federal laws over a national standard.
Now, the Supreme Court has done that, as you know, in a
couple of areas. They issued a series of 5 to 4 decision under
the Commerce Clause in U.S. v. Lopez. They said that Congress
could not enact a law to prohibit guns in or near schools. In
Morrison they struck down a provision of Federal law that
allowed women to sue their attackers in Federal Court. They
held that Congress may not regulate what the Court calls non-
economic activity, gender-motivated crimes of violence, for
example.
Now, do you agree that Congress's power to regulate an
intrastate activity should turn on whether the activity can be
classified as economic or non-economic?
Mr. Sutton. I would agree, of course, to do what the U.S.
Supreme Court has said in that area, and my understanding of
the Lopez, Morrison, Wickard v. Filburn, Jones v. Laughlin,
Jones and Laughlin cases, is that while the holdings of the
cases to date have been primarily economic, the Court has never
said it can only be economic. In fact, they specifically
reserved that point in Morrison. And in terms of what I would
do, I have no idea. I don't know--you know, I obviously haven't
gone through the process of what a judge would do, and that
process is critical to being a fair-minded judge, and that's
having an open mind about both parties' positions, looking
carefully at their briefs, looking for any indications the U.S.
Supreme Court has given as to what the Court of Appeals or
District Courts should do, listening with an open mind and a
fair mind to what the oral argument is, and then discussing the
issue with your clerks, with your colleagues in the Court, and
doing your best to get it right. And I promise that's exactly
what I would try to do.
Senator Leahy. Well, for example, last year the House of
Representatives passed a bill to prohibit human cloning. Is
human cloning more or less economic in nature than gun
trafficking near schools or gender-motivated crimes?
Mr. Sutton. You know, I have no idea. The one thing though
that that kind of law, partial-birth abortion, all of the
controversial issues that you all deal with, there's one thing
that does have to be true, and I certainly agree with it, that
to the extent there is a principle of federalism at the U.S.
Supreme Court is requiring lower courts to follow, it does have
to be followed in an even-handed way, and there's just no doubt
about that.
Senator Leahy. Let's talk about that. We have mentioned
Lopez before, and I mentioned that because the President, in
his first State of the Union message said that education is a
top Federal priority because education is the first essential
part of job creation, and I tend to agree with President Bush
on that. But then the Supreme Court in U.S. v. Lopez said that
education is a non-economic activity, therefore outside the
Federal regulatory power. Who is right, the Supreme Court or
the President?
Mr. Sutton. That's a great question, and I'm happy--
Senator Leahy. I am waiting for a great answer.
[Laughter.]
Mr. Sutton. I'm happy that it's the U.S. Supreme Court that
has to finally decide it. The one thing I can assure you is
that I would follow whatever decision they reached on that
issue and adhere to it as every Court of Appeals judge has to.
Senator Leahy. Well, we will bet back to another round, but
I am worried because you have argued the Constitution requires
deference to the sovereignty of states, but then when the
constitutional rights are asserted, due process protections,
reproductive rights, the right to be free of states trammeling
upon 14th Amendment freedoms, the standard retort we get from
many, including many that support you, is that if the text of
the Constitution does not articulate these rights, they do not
exist. But cannot the same point be made of a theory of state
sovereignty? I mean is there any words explicitly in the
Constitution given out the right of state sovereignty?
Mr. Sutton. It's a very difficult question, and as I think
you know, the U.S. Supreme Court has struggled with it for 200
years. I mean you can go back to Chisholm v. Georgia, and then
many of the cases in the last two decades addressing it, and of
course it is up to the U.S. Supreme Court at the end of the day
to decide whether there is such a thing as sovereign immunity
that applies to states. So far they have. I guess I don't know
what their explanation would be.
Senator Leahy. What is your philosophy on it, and
realizing--I certainly will grant this, and I have no question
you are honest enough in this when you say that the Supreme
Court has a decision, you are going to follow stare decisis,
but you have to get--if it is getting all the way up to the
Court of Appeals, you have to be getting a lot of cases of
first impression. What is your philosophy on that?
Mr. Sutton. Well, I mean, my philosophy, the point of
sovereign immunity I just wanted to mention is a difficult one
for the national government and the States. In other words, the
national government has sovereign immunity as well, of course.
That's this body, and that's not mentioned either. So that's I
think the reason the Court's been struggling. In terms of my
philosophy, my philosophy is about what's a good Court of
Appeals Judge and what he does. And what the good Court of
Appeals Judge should do is look at every case with an
exceedingly open mind and when they look at that case do what--
I've actually tried at sometimes as an advocate, at all times
to do--see the world through other people's eyes, see the world
through, when I'm an advocate, other judges' eyes, my
opponent's eyes. And I think when you're a Court of Appeals
Judge it's a different perspective. You're trying to see the
world through two different advocates. We have this adversarial
system. Their job, these lawyers, is to present the best
conceivable arguments within reasonable bounds that advance
their clients' position, and I would think I would do what I
think good Court of Appeals Judges do, and that's honestly and
in a fair way consider those arguments and do your best job to
get it right, and getting it right, 9 out of 10 times, if not
100 percent of the times, turns on understanding what U.S.
Supreme Court precedent is and adhering to it.
Senator Leahy. Is that a way of saying that people should
have no fear, depending upon who they are, whether they have
taken the position via the State or opposed to the State,
whether they are liberal, conservative, whatever, coming before
a Judge Sutton as compared to Professor Sutton?
Mr. Sutton. Absolutely, Your Honor, absolutely.
Senator Leahy. You do not have to call me ``Your Honor.'' I
have not quite made that--
Mr. Sutton. Old habits die slowly.
Senator Leahy. If it is any consolation--then I will
yield--if it is any consolation, I tried a huge number of cases
before I came here and I did a lot of appellate work, and I
found myself calling--because I was junior most member of the
Senate--I found myself referring to the Chairman as His Honor
so many times I--the inside of my mouth was sore from the
number of times I bit my tongue or the inside of my mouth on
that.
Mr. Sutton. Forgive me. I'll do my best not to do it again.
Senator Leahy. No, no, forget it.
Thank you.
Senator DeWine. [Presiding] I always thought you liked to
be called ``Your Honor.''
[Laughter.]
Senator Leahy. Excellency, excellency.
Senator DeWine. Excellency, that is right. I keep getting
it wrong.
Senator Chambliss.
Senator Chambliss. I was instructed to refer to Mr. Leahy
as His Honor, so do not worry, we all do that.
[Laughter.]
STATEMENT OF HON. SAXBY CHAMBLISS, A U.S. SENATOR FROM THE
STATE OF GEORGIA
Senator Chambliss. Let me just make a general comment about
all the nominees that we have today. Having looked at your bios
and knowing the background of all six nominees, it is a pretty
impressive group. And also, having been recommended by
colleagues and this body that I have such great respect for, it
is good to see legal minds of the caliber that all six of you
have and to be nominated. I commend all of you for that.
I am a little bit disconcerted by some of the criticism
that I have heard today and that I have read about with respect
to our nominees. Having practiced law for 26 years, I have
argued both sides of cases. Particularly early in my career I
was appointed to criminal cases that I did not necessarily want
to be appointed to. But those of us who practice law, which I
think is by far the greatest profession in the world,
understand that there are positions which we have to take that
are in the best interest of our clients, regardless of what our
personal feelings are. It is pretty obvious that all six of our
nominees have been in that same position. You have done a heck
of a job of representing your client, whatever their position.
So I think that kind of criticism really does not do justice to
you.
I want to first of all, Judge Cook, ask you about some of
this criticism that has been directed at you. It has been said
that you dissent a great deal in opinions that are rendered by
the Ohio Supreme Court. Well, again, having argued a large
number of cases on appeal, and having lost some of those cases,
I was kind of glad to see that there were some dissenting
opinions. I want to ask you about one case in particular
though, State ex rel Bray v. Russell. In that case you declared
in your dissenting opinion that, in order for the Court to
declare a statute unconstitutional, and I quote, ``It must
appear beyond a reasonable doubt that the statute is
incompatible with particular provisions.''
In this particular case, your dissent from the Court's
ruling meant that you would have allowed state prison boards to
sentence convicted criminals to extra time for ``bad time''
violations. Would you please elaborate on your decision in that
case? Also tell us generally what your views are on the
constitutionality of statutes enacted by the General Assembly
in Ohio in your case, and at the Federal level by the Congress.
Judge Cook. Thank you, Senator. The case to which you
refer, indeed I was a dissenter in that case, but the matter
involved a statute that permitted the Executive Branch to
impose what is called ``bad time'' on inmates for their
behavior or conduct during incarceration, and the disparity
between the majority and the dissent regarded just differing
views on the interpretation of the statute. In that case, one
of my colleagues who is--if you look at percentages, typically
is on the other side that I'm on; he's typically not with me--
did join the dissent. And the standard of review that you
mentioned, that it has to be beyond a reasonable doubt, is the
accepted standard in Ohio, and the statute made--this was all
about--it all concerned separation of powers. The majority felt
that allowing the Executive Branch to impose additional time
was a violation of the separation of powers doctrine. I merely
opined that the doctrine regarded those situations where one
branch interfered with another branch, and inasmuch as the
statute at hand, allowed bad time as part of the original
judicially imposed sentence. It was no separation of powers
impediment to this statute, and therefore I would have upheld
it. But as I say, that was a dissenting view. Yet it was joined
by one of the members of the Court who is often said to be at
odds with me, so I think it was a well supported decision.
Senator Chambliss. Thank you. Mr. Sutton, it appears that a
lot of your criticism, or a lot of criticism that is directed
at you, has to do with your work on disability cases. And
obviously, from the questions that have been directed to you
today, that is a very prominent area of law in which you have
practiced. I was particularly concerned about a case which you
handled for my State, the State of Georgia. I say you handled
it, I should say you were involved with it. Before I ask you a
question about it, I want to set the stage for my colleagues.
In 1978, the State of Georgia adopted a program for
treating mentally disabled citizens. The program placed the
mentally disabled citizens in community placements instead of
institutions. Due to limited resources the State of Georgia
resisted assigning a group of people, who later became the
plaintiffs in this case, to a community placement. The State of
Georgia was sued by these plaintiffs. The actual person sued
was the Director of Department of Human Resources (DHR), Mr.
Tommy Olmstead, so the case has been referred to as the
Olmstead case, which I know you remember very clearly. The
plaintiffs claimed that the State of Georgia discriminated
against them under the Americans with Disabilities Act. The
case revolved around an issue that all of us are extremely
sensitive to, and that is the issue of a mental disability, and
how and where those mentally disabled patients were to be
placed.
If I recall correctly, you helped the State of Georgia
argue this case before the Supreme Court, or you at least
participated in preparing the young lady who did argue that
case before the Supreme Court. And the basic argument was that
the Americans with Disabilities Act (ADA) did not require
states to transfer individuals with mental disabilities into
community settings rather than institutions. Would you please
tell me a little bit about your involvement in that case, the
argument you put forth and the actual outcome of that case?
Mr. Sutton. Yes, thank you, Senator. The Olmstead case I
think went to the District Courts. Yes, it did, a District
Court in Georgia than the Eleventh Circuit. And I did not have
any involvement in the case at that point, but when the U.S.
Supreme Court decided to review the Eleventh Circuit's decision
in Olmstead I was hired by the State to help them write what
was two briefs in the case at the U.S. Supreme Court and help
prepare Tricia Downing for the oral argument. And as you
acknowledged, it's a very--the institutionalization is a
difficult issue. I mean, in fact, it's actually an easy issue
in the States. Every State supports it. In fact, Georgia has a
law that requires the institutionalization for those who are
capable of living in a community setting.
So the rub in the case was not that policy debate. That had
long been decided in the late 1970's and early 1980's, that
everyone, every State should move in this direction. But the
problem I think Georgia must have run into was that they had a
budget shortfall, something not dissimilar to what some states
are having now, and wasn't able to move individuals as quickly
as they had in the past from State hospital settings to
community settings.
So when that happened, when that budget crunch happened,
they were sued under the ADA, and the gist of the plaintiff's
claim was that the State has to continue to move patients more
quickly regardless of resources. And of course, even that's a
very tricky issue.
The position we advocated primarily was the position of
whether that money, you know, whether--no matter the cost, the
State of Georgia had to move every single patient as soon as
they hired a lawyer and sued, or whether there was a
reasonableness component to this.
At the end of the day all 9 members of the Court agreed
there was a reasonableness component. 8 members of the Court
said it needed to be sent back to the Court of Appeals, and
eventually a District Court to determine whether in fact the
State had acted reasonably in not moving these two plaintiffs
into community settings. And I did my best to help the client.
Senator Chambliss. Well, the Attorney General in Georgia is
a gentleman named Thurbert Baker, who happens to be an elected
Democrat, and is a good friend of mine. And as I told you after
I talked to you earlier, I was going to check on you. And I
did. Attorney General Baker had this to say about you. He said
that Mr. Sutton is extremely intelligent. He's a hard worker,
and he would have a great judicial temperament.
Obviously we know your mental capabilities, but for
somebody who has worked very closely with you to say that you
have a good judicial temperament I think says volumes about
you.
One other thing that I was impressed with about you, Mr.
Sutton, is the fact that another constituent of mine, a lady
named Beverly Benson Long, has written a letter to Senator
Leahy regarding your nomination. And if this letter is not
already in the record, Mr. Chairman, I would like to ask that
it be made a part of the record.
Chairman Hatch. Without objection, it will be part of the
record.
Senator Chambliss. Mrs. Long is the immediate past
president of the World Federation for Mental Health. She has
been president of the Mental Health Associations of Atlanta,
the State of Georgia, and the National Mental Health
Association. She was a commissioner on the President's
Commission on Mental Health, having been appointed by President
Carter. She has an extensive background in this field, and here
is what she says about Mr. Sutton. ``I have no doubt that Mr.
Sutton would be an outstanding Circuit Court Judge and would
rule fairly in all cases, including those involving persons
with disabilities.''
She also says that she is familiar with the lobbying
against Mr. Sutton by various persons who advocate on behalf of
the disabled. Her comment is, ``This effort is unfortunate and
I am convinced is misguided.''
Again, I think that is a high compliment to you, Mr.
Sutton, and I look forward to bringing all three of you to a
vote in the very near future. Thank you.
Chairman Hatch. Thank you, Senator.
We will go to Senator Feinstein for 15 minutes, and then I
think we will have a short break for about a half hour, and
give you a little bit of a break.
Senator Feinstein.
Senator Feinstein. Thank you very much, Mr. Chairman.
Good morning, Dr. Sutton. I have been surprised to see that
your nomination has really generated a kind of intense
opposition from the disabilities community, even as far as my
State, California, with a number of organizations weighing in
very strongly. So I have been trying to figure out why. And one
of the cases I looked at was a case that was mentioned earlier,
and that was the Garrett case. And you can correct me if I
misstate any of these facts, but my understanding is that Ms.
Garrett was a 56-year-old woman who was diagnosed with breast
cancer. She was the Director of Nursing for Women Services at
the University of Alabama and she cared very much about her
job. So she arranged to have her chemotherapy after work on
Friday to allow her the weekend to recover. And she did not
really take very seriously the warning she got from a
colleague, that her supervisor did not like sick people and had
a history of getting rid of them. And as it turned out, her
supervisor did try to get rid of her by locking her out of a
computer and by beginning recruitment for the replacement of
her job.
And you represented the State, the University of Alabama in
that case, and you made this argument about the need for the
Americans for Disabilities Act, and I quote. ``All 50 States
have provisions of their own designed to guard against
disability discrimination by the sovereign. These laws and
administrative regulations predate the passage of ADA, far
exceed the rational basis requirements of equal protection
review. All permit monetary relief against the sovereign, and
in tend markedly over protect rather than under protect the
constitutional rights of the disabled.''
How do you reconcile that with Governor Hodges' recent
statement apologizing for South Carolina law which
involuntarily sterilized in the past decades a number of mental
patients? In essence, according to the Governor, these laws
were believed--and this is a quote--``to promote reproduction
by people with good and healthy genes, and discourage
reproduction by those with genes considered unfit. The goal was
a healthier population. Instead these laws allowed the State to
create a second-class citizenship deprived of their most basic
civil rights.''
How do you reconcile your statement in this case with the
statement by Governor Hodges, which clearly shows the
insufficiency of State law to meet any kind of what would be
considered a fair national standard?
Mr. Sutton. Thank you, Senator. I'm not familiar with that
statement, but I think I understand what it's about, and so
I'll do my best to respond to it.
Senator Feinstein. This is about the sterilization of
mental patients.
Mr. Sutton. Exactly. And that's where I wanted to start.
The reply brief in that very case, Garrett, addressed that
issue and that horrendous history in this country, and it
addressed it by talking about a case in the U.S. Supreme Court,
where of all people, Justice Holmes wrote in the Buck decision
for the U.S. Supreme Court, that in fact the very forced
sterilization you're talking about did not violate the United
States Constitution. Believe it or not, that case still is on
the books.
We did something which is unusual for any State to do. We
said that case was wrongly decided and quote Justice Souter for
the excellent point that when Justice Holmes errs, he errs
grandly, and he did in that case. And the brief on behalf of
the State made that very point, and so there was no debate
about that issue.
Senator Feinstein. But that is not my point in reading the
two of them. You are arguing in this case that State law offers
sufficient protection; therefore the Americans for Disabilities
Act is really not necessary, that State law actually over
protects individuals with disabilities.
Mr. Sutton. Right. I don't--
Senator Feinstein. It seems to me is not correct.
Mr. Sutton. And if we had argued that I could be accused of
malpractice because that's not what we argued and that's not
what the State's position was, and that's not what I as an
advocate recommended.
Senator Feinstein. You did not make this statement in your
brief?
Mr. Sutton. I made that statement, but I want to put it in
context. The issue in the Garrett case was a constitutional
issue. The issue was not whether the ADA was needed. The brief
contains many statements to the effect of, to its credit the
Federal Government passed the ADA. So there are many statements
conceding that Ms. Garrett could get her job back under the
ADA. The issue in the case arose because of the Court's
Seminole Tribe decision, and that's the question of whether
money damages were permissible. And in that setting the
question, according to the U.S. Supreme Court under City of
Berne, a decision that still to this day no Justice of the
Court has disagreed with, the question is whether the States
have violated the constitutional rights of their citizens.
Now, the one thing I think this Senate and Congress could
certainly be frustrated with is the City of Berne was decided
after the ADA was passed, and that of course made it difficult
for you to compile exactly the record that the Court ultimately
required, but the point, Senator, that the brief was making is
we were applauding the 50 State laws that protected disability
rights, and we were simply making the point that with those
laws in place, it was difficult to show that the States were
not, since the law's been passed, violating the constitutional
rights of their citizens.
Now, that position, keep in mind, is not a position I made
up. I mean I wasn't involved, obviously I wasn't involved in
the underlying decision with Mrs. Garrett. I wasn't involved in
the District Court. I wasn't involved in the Court of Appeals.
These were positions the AlabamaAttorney General's Office had
developed, made the constitutional challenge, and when it got
into the U.S. Supreme Court they asked me to argue the case for
them, and I did. But maybe we didn't do as well as we could
have, and the statement you read makes me worry about that, but
the brief was trying very hard to show that the States were
being sensitive to disability rights.
And I would point out in Ms. Garrett's case, she had a
parallel claim under another Federal law, Section 504 of the
Rehabilitation Act, which applies wherever Federal dollars are
involved. The University of Alabama gets Federal money. We
specifically in a brief I wrote said the U.S. Supreme Court
should not review the constitutionality of that issue. That
would be premature and that issue is still in the lower courts.
I mean at the end of the day Ms. Garrett may get her money
relief. That hasn't been decided yet.
Senator Feinstein. Let me ask you, during a radio interview
with Nina Totenberg on this very case, you made this statement,
which puzzled me. ``There are legitimate reasons for treating
the competent differently from the incompetent in certain
settings. And what the Court has said for some time now is it's
going to give States and the Federal Government quite a bit of
latitude when it comes to drawing those distinctions because
these are very difficult social issues and ones that political
bodies in each area need quite a bit of latitude over.''
I am puzzled what you mean by treating the competent
differently from the incompetent with respect to civil rights.
Mr. Sutton. Sure. I don't remember the statement, but I do
understand the point, so I'm happy to address it. The point I
assume I was addressing in response to a question from her
relates to the Court's City of Clayburn decision, a U.S.
Supreme Court case about what level of equal protection
scrutiny individuals with disabilities get. And what the Court
has said there, and presumably was the point I was making in
this interview, was that most of the time in an equal
protection setting, what courts are doing is they're saying
it's not ever--it's rarely if ever appropriate to make a
distinction based on someone's status, their age, their race,
their background, their religious background, and that
presumptively their gender--presumptively those laws are
invalid.
When it comes to laws dealing with the disabled, in an add
sort of way, particularly in the recent decades, things are
switched. Why are they switched? Because both Federal and State
Governments happily have passed lots of laws based exactly on
the classification of disability precisely to provide
accommodations to the disabled. Of course, that's exactly what
the ADA does. It makes classifications based on whether you're
disabled or not. So I was making the point that's a good thing,
and that's exactly why this constitutional issue is so
difficult, makes one wonder whether the due process clause
isn't a better vehicle for bringing these arguments, but the
distinction is a happy one.
Senator Feinstein. Thank you very much. If I might I would
like to change subjects for a minute and go to some questions
about the right to privacy. Do you believe there is a
constitutional right to privacy, and if so, would you describe
what you believe to be the key elements of that right?
Mr. Sutton. Well, the U.S. Supreme Court has made quite
clear in a series of decisions that there is a 14th Amendment
constitutional right to privacy growing principally out of
substantive due process and the 14th Amendment. They said that
in many areas. And I can assure, it's not an area where I've
done a lot of litigation, so it's not something I have lots of
familiarity with. But I can assure you that as a Court of
Appeals Judge I would follow the U.S. Supreme Court's
decisions, instructions across the board in any case involving
the right to privacy.
Senator Feinstein. Does that apply to Roe v. Wade?
Mr. Sutton. Absolutely.
Senator Feinstein. So what are your feelings about the Roe
case?
Mr. Sutton. Well, you know, like many a law student and
many lawyer, probably had many different views of it at various
times. I can say, as a Court of Appeals Judge, the thing that
would be very important to me is making sure that I followed
what the U.S. Supreme Court has required lower court judges to
do, both in Roe and then later in the Casey decisions, and
that's exactly what I would do.
Senator Feinstein. So do you believe that Roe is a settled
case?
Mr. Sutton. well, from a Court of Appeals perspective, it
sure is. I mean I can't think of any case that a Court of
Appeals Judge would say it's somehow not settled and the Court
of Appeals Judge would have a license to do something different
from the U.S. Supreme Court. That's exactly the opposite of
their oath.
Senator Feinstein. So let me just put it a little more
boldly. Do you support the holding of Roe that women have a
constitutionally recognized and protected right to choose?
Mr. Sutton. I would absolutely follow that decision and
Casey and every case before me that implicated it.
Senator Feinstein. Thank you very much.
Thank you, Mr. Chairman.
Chairman Hatch. I said we would break, but Senator Feingold
has a meeting at 1 o'clock, and he has asked if we can finish
with him and then we will break for a half hour.
STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE
STATE OF WISCONSIN
Senator Feingold. Thank you very much, Mr. Chairman. My
apologies, Professor Sutton.
Chairman Hatch. Do any of you need a break right now?
Because if we can just wait for another 15 minutes, we will
break.
Senator Feingold. Perhaps this will shorten the afternoon.
Mr. Chairman, I had planned an extensive critique of your
decision to have all three of these people today, but in light
of your courtesy, it will be a brief critique.
Chairman Hatch. That is very much appreciated.
Senator Feingold. Mr. Chairman, I have just been so
impressed with the way that you have run this Committee in the
past and in your role as ranking member, and always appreciated
your fairness. And I just have to say that I would have to be
in the camp of those who say that having all three of these
distinguished nominees on the same day is not the way that you
have done things in the past, and I note your letter where you
suggest in response to us that these nominees are not
controversial. Well, the fact is they are extremely qualified
people, but I do not think it is in the eyes of the Chairman to
determine whether they are controversial or not. That is sort
of our job. And these are controversial people.
Chairman Hatch. I will tell you, that is the first time
that a poor Chairman has been taken over the coals like that,
is all I can say.
[Laughter.]
Senator Feingold. Oh, it is brutal.
Chairman Hatch. That is all right.
Senator Feingold. I certainly do understand the pressure is
on you with regard to all the back and forth on this issue with
the administration and all these nominations, but I would urge
the this not be done again, that we only have one controversial
or allegedly controversial nominee per hearing.
Chairman Hatch. Well, Senator, if I could just interrupt
you for a second without costing you any time. This is
important, that we move with these three at this time. I am
going to try and accommodate you, but I cannot limit it to just
one. We held I think 11 with two last time. Senator Biden held
one with three. This is my one with three. Now, I cannot
guarantee you I will never do it again, but I think we ought to
be able to move ahead, and I am prepared to do what we have to
do, but I will certainly take all of my colleagues' advice into
great consideration.
Senator Feingold. Thank you, Mr. Chairman.
Professor Sutton, I understand that you filed an amicus
brief on behalf of the State of Alabama in Solid Waste Agency
of Northern Cook County v. United States Army Corps of
Engineers. In the brief you argued that in passing the Clean
Water Act, if Congress delegated authority to the Corps,
allowing the promulgation of the migratory bird rule, such a
delegation represented, in your words, ``every measure of
constitutional excess in full force,'' under the Commerce
Clause. As you know, the Court, by a 5 to 4 majority, limited
the authority of Federal agencies to use the so-called
migratory bird rule as the basis for asserting Clean Water Act
jurisdiction over non-navigable intrastate isolated wetlands,
streams, ponds and other water bodies. In effect, the Court's
decision removed much of the Clean Water Act protection for
between 30 to 60 percent of the Nation's wetlands.
An estimate for my home State of Wisconsin suggested that
60 percent of the wetlands lost Federal protection in my State.
Wisconsin is not alone. There is Nebraska, Indiana, Delaware
and other states face water loss that have and will continue to
have a devastating effect on our environment.
Now, in response to this decision of the Supreme Court, my
own State, Wisconsin, passed legislation to assume the
regulation of waters no longer under Federal jurisdiction. But
many states have not followed suit. So last Congress I
introduced the Clean Water Authority Restoration Act to clarify
Congress's view that all waters of the United States, including
those referred to as isolated, fall under the jurisdiction of
the Clean Water Act.
Now, is it your view that Congress's authority for passing
the Clean Water Act stems solely from the Commerce Clause or
might one find reason for Congressional authority over
protection of wetlands in not just the Commerce Clause, but
perhaps the Property Clause, the Treaty Clause or the Necessary
and Proper Clause?
Mr. Sutton. Yes. Thank you, Senator. Obviously in the
federalism area, environmental issues raise some issues that
aren't raised in other federalism cases, and that's principally
as a result of the externality problem that I'm sure you're
familiar with. When one State does something that imposes no
cost on them and imposes cost on another State, whether it's
water or air, and I think the U.S. Supreme Court has been very
attentive to that and the cases make that clear.
In terms of writing that brief again for a client in that
case, it was aware statutory interpretation case. It as not a
constitutional case necessarily. It was a statutory
interpretation case first and foremost, and that of course is
how it ultimately was resolved on the grounds you indicated.
And on behalf of the client, we made the argument that the
underlying statute--and the underlying statute referred to
Federal jurisdiction over, quote, ``navigable waters.'' And the
position that was taken and actually the lead lawyer for the
case is someone who's done a lot of work in a lot of different
areas in this, but took the view that ``navigable'' can't
possibly mean every water there is anywhere in the country. It
has to be water connected to something that's quote,
``navigable.'' And we advanced that position in the brief on
behalf of that client.
The second argument that was made that I'm sure you're
familiar with is what's called a constitutional avoidance
argument, and the notion of a constitutional avoidance argument
is really a--it's a backup to a statutory interpretation
argument. And what lawyers are trying to do there--and I do
feel I had an obligation to make this argument. I think it
would have been malpractice--
Senator Feingold. But in answer to my question, you do not
rule out the possibility of Congressional authority over
protection of wetlands based on the other clause in the
Constitution?
Mr. Sutton. Oh, of course not, of course not.
Senator Feingold. Let me ask a more general question. In
passing our Federal environmental laws, Congress in some cases
seeks to justify such action on Commerce Clause grounds by
describing the relationship between the resources we seek to
protect and economic activities conducted in or affecting those
resources that are part of interstate commerce. For example, in
passing the Clean Water Act, Congress restricted discharges
from point sources such as manufacturing plants, which make
products that are then sold in interstate commerce. Do you
believe that such justifications, if included in the
legislative history or Congressional findings are insufficient
to establish the basis for Congressional action to protect the
environment under the Constitution?
Mr. Sutton. Well, I have to acknowledge, it's not something
I know a lot about, I mean the laws you're referring to. It's
just not something I've dealt with, and I don't know whether
it's something that could come before me as a judge. I do know
the U.S. Supreme Court decisions give broad deference to
Congress and they have given broad deference to Congress in the
environmental arena. In fact, I'm not aware of--there probably
is such a case. Someone's going to find it, but I'm just not
aware of a case where they've struck environmental law on the
ground that it exceeded Congress's Commerce Clause power, so it
seems to me those precedents support what you're suggesting.
And if that's true, Court of Appeals judges would have to
follow them.
Senator Feingold. Then let's turn to a better decision of
Justice Holmes, who we discussed before. In 1920 Justice Holmes
explained that the Federal Government must provide protection
for migratory birds because actions by the States individually
would be ineffectual. He said migratory birds can be protected
only by national action in concert with that of another power.
We see nothing in the Constitution that compels the Government
to sit by while a food supply I cut off and the protectors of
our forests and our crops are destroyed. It is not sufficient
to rely upon the States, Justice Holmes wrote.
Your brief in the Swank case takes a directly contrary
position. Whereas Justice Holmes viewed the protection of
migratory birds and wetlands as a national interest of very
nearly the first magnitude, you argued that it is truly a
matter of local oversight. Do you really believe that the
protection of these habitats is simply just a matter of local
oversight? In what circumstances are Federal protections
warranted?
Mr. Sutton. Yes. It's been a while. I think the case you're
referring to may be Missouri v. Holland. It's been a while
since I've read it. I'm not sure if I've got the right case,
but if it's the case I'm thinking of, I thought it was a case
that was about Congress's treaty powers. I may be wrong about
that, and obviously that was not implicated at all in the Cook
County case that you're referring to. But the point I would
make is again, I was simply representing a client, and it was
first and foremost a statutory interpretation case. The
constitutional arguments that were made were made as
constitutional avoidance arguments, and the whole premise of
that argument is asking the Court not to reach the
constitutional argument. That's why an advocate makes that
argument. They're signaling to the Court, you do not want to
wrestle with the difficult constitutional issues raised by this
law, and you shouldn't do that. And the best way to do that is
to deal with the case on statutory interpretation grounds, and
that's what the Court ultimately did.
Senator Feingold. Fair enough. In the amicus brief you also
argue that the interstate commerce justifications for
regulating wetlands used by migratory birds were false because
activities conducted in wetlands, such as bird watching and
hunting are non-economic. Well, in my home State of Wisconsin
hunters spent $500 million on deer hunting alone in 2002. And
we have been deeply concerned that the emergence of chronic
wasting disease in our State has curbed the hunting effort and
it has hurt our economy. Can you explain why you consider these
activities to be non-economic?
Mr. Sutton. Well, I am not a hunter. I have never fired a
gun, so maybe that's my problem. I didn't appreciate that fact,
and maybe that's exactly what the Court should have said in
dealing with that argument. But again, it was part of a
constitutional avoidance argument that the Court didn't reach
and we were actually encouraging them not to reach in that
case.
Senator Feingold. Let me ask you finally this point, more
generally. If we were to try to protect these habitats under
your argument, we would in effect have the only differing State
Clean Water Act for protection. How can you ensured Americans
that under this system, your vision of the way this works, that
there would be any sort of floor of national environmental
protections or any uniform standard of clean water in this
country?
Mr. Sutton. Well, I think that point goes exactly to what
you were saying Justice Holmes said in the case. I may be
misremembering, but at least what you were reading from the
case makes clear the point I said at the outset, that in
environmental concerns, the U.S.--environmental laws and
environmental cases, the U.S. Supreme Court has made clear
there are externality issues that alter the equation, and the
reasons they alter the equation is exactly the reason you're
suggesting, and that reason is that sometimes one state, one
city, one county can impose costs, environmental costs,
pollution costs, on others because of the direction of the
wind, the direction of the water, a navigable water flows, and
that's exactly why Congress has entered that sphere, and it's
exactly why the U.S. Supreme Court has said they should enter
that sphere, and Court of Appeals judges would be obligated to
follow those decision, and I certainly would be happy to.
Senator Feingold. I appreciate your answers to those
questions. Let me turn to the age discrimination issue, Kimel
decision which came down in 2000. In Kimel v. Florida Board of
Regents, again the Supreme Court ruled 5 to 4 that State
employees could not bring private suits for monetary damages
against States under the Age Discrimination and Employment Act.
As you know, the ADEA is a Federal law that prohibits
employers, including States to refuse to hire, to discharge or
otherwise discriminate against an employee based on an
employee's age. The majority of the Court found that while
Congress intended to abrogate States' immunity, that abrogation
exceeded Congress's authority under Section 5 of the 14th
Amendment.
Do you believe that older workers who are employed by
private businesses are entitled to protection under Federal
civil rights laws like the Age Discrimination and Employment
Act?
Mr. Sutton. I'd like to talk about that case, but of course
the ADEA requires that very thing. The brief for the State of
Florida made it quite clear that the ADEA did protect all State
employees and Federal employees and private employees when it
comes to relief like getting your job back, in some cases back
pay. The underlying issue in that case which divided the Court
along the 5-4 grounds to which you're referring was not the
question of Section 5 power, all right, but the question of
whether Congress had permissibly used its Section 5 power in
passing the ADEA. The question that divided the Court along 5-4
grounds was the issue of whether Commerce Clause legislation,
because everyone agrees the ADEA was also Commerce Clause
legislation. Whether that type of legislation, that source of
constitutional authority, could give Congress the right to
create money damages actions. I should tell you that was not
something we briefed in that case. The Seminole Tribe issue did
not come up either oral argument or in the briefing, but it was
how the Court broke down. Not 1 of 9 wrote an opinion
disagreeing with the Section 5 interpretation we--
Senator Feingold. Let me ask you this. Do you believe it
was wrong for Congress to enact the ADEA in the first place?
Mr. Sutton. Of course not.
Senator Feingold. If confirmed to the Sixth Circuit and
legislation restoring the right of older State workers to sue
their State employees were enacted and became the law of the
land, how would you treat a claim of age discrimination against
a State before you? Would you uphold the new Federal law?
Mr. Sutton. I mean I would do exactly what the U.S. Supreme
Court required in that area, and the notion that the ADEA could
be struck is borderline laughable. I mean there's a case--I
think it's Wisconsin--Wyoming--excuse me, wrong state. I can
see why I said Wisconsin. Wyoming v. EEOC in which the Court
specifically upheld the ADEA under Congress's Commerce Clause
power, so of course a Court of Appeals judge would be obligated
to follow that law and enforce it.
Senator Feingold. Thank you very much. I will wait for
further rounds for other questions, so that people can take a
break.
Chairman Hatch. Thank you, Senator Feingold. We are going
to give you until 1:30 which is almost 45 minutes. So we will
recess for 45 minutes, and I am going to start precisely at
1:30. With that, we will recess until 1:30.
[Luncheon recess taken at 12:49 p.m.] AFTERNOON SESSION
[1:39 p.m.]
Chairman Hatch. We will call this meeting to order again. I
do not see any other Senators here at this time, so I will just
start it off with you, Mr. Roberts. I want to ask a few
questions of you, and then hopefully, if I have enough time,
Justice Cook, I will ask a few of you as well.
We now have this timer, so our poor guy does not have to
stand there with a little slip of paper. I felt sorry for him.
It seems to me that both Mr. Roberts and Mr. Sutton are
being criticized for positions they have taken as attorneys
representing clients. Now, this is patently unfair, and it is
inappropriate because attorneys do represent clients, and they
should not be judged by who our clients are. Any of us who have
tried cases know that sometimes our clients may not be savory,
but the case may be a good case, who knows?
Now, attorneys are required to represent their clients, and
this is the case whether their client is the U.S. Government, a
State Government, a private citizen or a corporation, and this
fact is so fundamental that it should go beyond reproach.
In any legal matter, the arguments a lawyer makes in the
role of a zealous advocate on behalf of a client are no measure
of how that lawyer would rule if he were handling the same
matter as a neutral and detached judge, and I think it is very
unfair to imply that the judgeship nominee would not follow the
law.
Now, this is because lawyers have an ethical obligation to
make all reasonable arguments that will advance their clients
interests. According to Rule 3.1 of the ABA's model rules of
professional conduct, a lawyer may make any argument if,
``there is a basis in law and fact for doing so that is not
frivolous, which includes a good-faith argument for an
extension, modification or reversal of existing law.''
Now, lawyers would violate their ethical duties to their
client if they made only arguments with which they would agree
were they the judge or a judge.
Now, Mr. Roberts, although my Democratic colleagues are,
and some in the Senate and elsewhere, have tried to paint you
as an extremist, the truth is, is that you are a well-respected
appellate lawyer, who has represented an extremely diverse
group of clients before the courts. In fact, you have often
represented clients and what is considered to be the so-called
``liberal'' position on issues. I would just like to ask you
about a few of these cases.
In the case of Barry v. Little, you represented welfare
recipients in the District of Columbia, right?
Mr. Roberts. That is correct, Mr. Chairman.
Chairman Hatch. You took this case on a pro bono basis; is
that correct?
Mr. Roberts. Yes.
Chairman Hatch. Pro bono means that you did not get paid
for it.
Mr. Roberts. No, I did not.
Chairman Hatch. You voluntarily represented these people
and gave services to them.
Mr. Roberts. Yes.
Chairman Hatch. Now, in another case, Hudson v. McMillian,
you successfully argued before the Supreme Court the claims of
a prison inmate who alleged cruel and unusual punishment, did
you not?
Mr. Roberts. Yes. I was representing the United States in
that case. We filed a brief supporting the prisoner's claim
that his Eighth Amendment rights had been violated by a
beating.
Chairman Hatch. In Rice v. Kayatama, you argued on behalf
of a wise Democratic attorney general and Governor, both
Democrats, in favor of a race-conscious program to benefit
Native Hawaiians, right?
Mr. Roberts. That's correct, Mr. Chairman. It is one of
several cases that I have found particularly gratifying, where
Democratic State attorneys general have retained me to
represent their State in the Supreme Court. That has happened
on several other occasions as well, and a group of Democratic
attorneys general, as well as a couple of Republican attorneys
general, retained me to argue the Microsoft antitrust case in
the D.C. Circuit. I found that particularly gratifying because
it indicated that they thought my abilities were such that I
would be able to represent them effectively, and certainly
wouldn't be dissuaded in any way by any political
considerations.
Chairman Hatch. Let us talk about the Tahoe-Sierra
Preservation Council v. Tahoe Regional Planning Agency. In that
case, you represented a State regulatory agency before the
Supreme Court, arguing in favor of limits on property
development and in support of protection of the Lake Tahoe
area; is that correct?
Mr. Roberts. That is correct.
Chairman Hatch. Finally, in the 2001 landmark Microsoft
antitrust case, you argued on behalf of the Clinton Justice
Department. Who asked you to do that?
Mr. Roberts. It was the group of States that had jointly
pursued the litigation with the Federal Government. So it was
actually the Democratic and Republican attorneys general,
representing their States, that retained me to argue for them.
Chairman Hatch. So you argued on behalf of primarily
Democratic State attorneys; is that right?
Mr. Roberts. Yes, Mr. Chairman.
Chairman Hatch. Well, Mr. Roberts, in a Legal Times article
that ran last May described you as ``someone who has
represented clients on both the conservative side and the
liberal side of ideologically charged cases and who has
encountered no plausible criticism of his fitness to serve.''
I think these cases that I have just mentioned there, I
have asked you about, illustrate this point perfectly, and I
completely agree. I have yet to hear any plausible criticism of
your fitness to serve in this very important position.
Now, let me turn to you Justice Cook, because I think it is
important that we at least look at some of the things that have
been said about you. Now, it has been alleged by a few trial
attorney interest groups that you dissent too much; that you
have written too many dissenting opinions or that you have a
``troubling pattern'' of dissenting.
Of course, this charge is easy to make, and it seems
compelling on its face. However, out of basic fairness to you,
Justice Cook, we should all recognize that these allegations do
the work of implying that you regularly disregard precedent or
favor certain parties without necessarily demonstrating that
you do anything but conscientiously abide by precedent, and
faithfully and interpret and apply the law.
Now, since the charge has been made, however, Justice Cook,
let me ask you a few questions about your record as an Ohio
State judge or justice.
In general, Justice Cook, what would you say compels you to
write or join in a dissent?
Justice Cook. On those occasions, Mr. Chairman, where, and
the number has been cited, there are occasions in my 7 years
where I write dissents, and more often than others on the
court, I am quite often the one who writes for the court in
dissent, but the dissenting--the importance of dissent in any
court is to further the law. It's a matter of fairness. On
occasions, my dissents results from a disagreement about the
text at hand, a fair reading of the text, a procedural matter,
sometimes a disagreement on the statute of limitations. You
know it is not often a matter of, as has been implied, it is
not a matter of my particular bent or preference for any side
of a case, it is simply really the reasoned elaboration of
principle is the reason why any judge is moved to dissent.
Chairman Hatch. It is my understanding you also served as a
judge for the Ohio Court of Appeals for was it 4 years?
Justice Cook. Yes.
Chairman Hatch. I also understand that as a member of the
Court of Appeals, you decided over 1,000 cases.
Justice Cook. That is correct.
Chairman Hatch. How many times were you reversed by the
Ohio Supreme Court?
Justice Cook. What's been cited here, it is less than 1
percent of my decisions were ever reversed.
Chairman Hatch. Do you know how many times the Ohio Supreme
Court reversed an opinion in which you joined?
Justice Cook. It was fewer than 10 cases. The stats are
fairly low as a percentage.
Chairman Hatch. It's about a 1-percent reversal rate.
Justice Cook. Yes. The percentage is less than 1 percent.
Chairman Hatch. Now, I understand the United States Supreme
Court has granted certiorari in three cases the Ohio Supreme
Court has decided. In all three cases, the Supreme Court
reversed. In all there cases, Justice Cook, I understand that
the U.S. Supreme Court agreed with your dissent and that you
were the only one of the seven justices who ruled correctly, in
accordance with the U.S. Supreme Court's ultimate resolution of
the Federal constitutional issues in all three cases; is that
correct?
Justice Cook. That's correct.
Chairman Hatch. In State v. Robinette, Justice Cook, you
joined the dissent, arguing that the court majority had
developed a rule that was contrary to the Supreme Court
precedent. The U.S. Supreme Court agreed and reversed the
ruling; is that right?
Justice Cook. Yes.
Chairman Hatch. Agreed with you.
Justice Cook. Yes, they did.
Chairman Hatch. In American Association of University
Professors Central State University Chapter v. Central State
University, you wrote the dissenting opinion, and the U.S.
Supreme Court, again, agreed with you.
Justice Cook. Not only did it agree, we were pretty excited
about the fact that they quoted the language of the dissent.
Chairman Hatch. That is great.
Justice Cook. That doesn't happen often. It was a big day.
Chairman Hatch. In other words, they even quoted from your
dissent--
Justice Cook. Yes.
Chairman Hatch. That is kind of a badge of honor to--
Justice Cook. It was relished in my chambers.
Chairman Hatch. I see. Well, in State v. Reiner, the Ohio
court reversed the conviction of manslaughter against a father
who killed his two-month infant son on the grounds that the
baby sitter, who refused to testify, but denied involvement in
the infant's death, did not have a valid Fifth Amendment right
against self-incrimination and was therefore improperly denied
transactional immunity.
You dissented in that, right?
Justice Cook. I did. I was the sole dissenter.
Chairman Hatch. Could you tell us why?
Justice Cook. Well, my dissent essentially set forth a
fundamental principle that the guilty and the innocent enjoy a
right against self-incrimination, and so the fact that she
denied, this particular witness was granted transactional
immunity because she denied all culpability did not deny her
the right to invoke her Fifth Amendment privilege, as she did.
Chairman Hatch. Well, you in dissent, to use my terms,
argued that the immunity was property because the sitter, baby
sitter, had reasonable cause to believe that her answers could
put her in danger.
Justice Cook. That is right. She could provide a link. In
fact, the defense, the father's defense was that, indeed, it
was the baby sitter who had shaken this infant and killed the
infant.
Chairman Hatch. I see. The Supreme Court, again, of the
United States of America, agreed with your dissent, and you
were the sole dissenter, right?
Justice Cook. That's right.
Chairman Hatch. And ruled that the baby sitter was entitled
to immunity because, despite her claim of innocence, she had
reasonable cause to apprehend danger from her answers at trial.
Justice Cook. Yes. And, happily, that decision by the U.S.
Supreme Court was 9 to nothing, so it was unanimous.
Chairman Hatch. Justice Cook, a few others have charged
that the so-called objective observers view the Ohio Supreme
Court as a moderate one and that your dissenting opinions put
you outside the mainstream. Now, I think that is a pretty
strange charge, between you and me.
The allegation that the court is seen, by most objective
observers, as moderate and bipartisan belies the facts. Let me
quote what Ohio newspaper editorials have said, and I will put
all of these editorials in the record, without objection.
The Plain Dealer said, in endorsing Justice Cook and
Terrence O'Donnell in the 2000 judicial election, ``Both are
Republican nominees, but their party labels are not nearly as
critical as their shared philosophy of judicial restraint. By
contrast, success for their opponents would enhance the
prospect that a majority of the seven-member court would
continue on a controversial course of judicial activism best
illustrated in 4-3 decisions.''
The Columbus Dispatch wrote, ``A majority on the Ohio
Supreme Court has confused its role of checking the powers of
the general assembly. The court, instead, has turned into a
legislative bulldozer, up-ending whatever law conflicts with
the ideological bent of the majority, legal and constitutional
principles be damned.''
Are you familiar with those?
Justice Cook. Yes, I am aware of those.
Chairman Hatch. The Ohio Beacon Journal editorialized,
``Those who watch the Ohio High Court know Cook is no
ideologue. She has been a voice of restraint in opposition to a
court majority determined to chart an aggressive course, acting
as a problem-solver, as ward polls, more than problem
jurists.''
Justice Cook. That is a common--
Chairman Hatch. Now, it appears to me, Justice Cook, that
you possess an excellent understanding of your role as a judge
charged with faithfully and conscientiously following precedent
in upholding the Constitution, even if that means that
occasionally you have to dissent.
Justice Cook. That is right.
Chairman Hatch. Or even more than occasionally you have to
dissent, and that is the point I think I would like to make.
My time is just about up. I will turn to the distinguished
Senator from New York.
Senator Schumer. Thank you, Mr. Chairman.
Senator Leahy. Before you do, just one number, and I was
not quite sure of it, because it has been mentioned by Senator
DeWine, yourself and Senator Hatch, the reversals by the Ohio
Supreme Court, that was 1 percent of all of your cases that
were appealed to the--
Justice Cook. That's right. I think that it is 7 in 6--the
numbers are something like in 6 of the cases out of 1,000 that
I wrote, the Ohio--
Senator Leahy. But how many were appealed to the--
Justice Cook. Oh, gee, I'm afraid I don't know that.
Senator Leahy. Most of them?
Justice Cook. No, I wouldn't say that. The Ohio Supreme
Court is a certiorari court, so they choose their cases and--
Senator Leahy. But do you know how many of your cases went
up offhand?
Justice Cook. I'm afraid I don't, Senator Leahy.
Senator Leahy. Five hundred? Two hundred?
Justice Cook. In fact, I really wouldn't have any idea
because that is not--I never did pay attention and keep track
of the ones that were appealed. I knew the ones that were
accepted, and those are the statistics we have, but how many
were appealed, I actually don't know.
Senator Leahy. Do you know how many were accepted? That is
really what I mean.
Justice Cook. Yes.
Senator Leahy. How many were accepted on appeal?
Justice Cook. I could get that for you.
Senator Leahy. Two hundred?
Justice Cook. I would be making a wild guess, and the wild
guess might be 50.
Senator Leahy. Okay, and if it was 50, so 6 out of 50 that
were reversed.
Chairman Hatch. Well, she does not know.
Senator Leahy. No, that is okay. If you could get me the
number for the record, please.
Justice Cook. Yes, sir.
Senator Leahy. I just--because, obviously, you have a lot
of cases that were never appealed or a cert was never granted.
Justice Cook. That's right.
Senator Leahy. Thank you.
Thank you, Mr. Chairman.
Chairman Hatch. Senator Schumer?
STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE
STATE OF NEW YORK
Senator Schumer. Thank you, Mr. Chairman.
First, I want to make a couple of more comments just about
the procedures here, and then I will get into questions. I will
start with Professor Sutton.
But, first, I want to thank you, Mr. Chairman. You did
renotice, after I brought up the hearing, you have renoticed it
from Tuesday to Wednesday, so that will comply with the
Committee rule that we have one week's notice, and I want to
thank you for that as well.
Originally, we were going to have 5-minute periods, I was
told, and we asked you to move it up to 15, and 15 is adequate,
and we appreciate that.
What we are trying to do here is get a feeling that this is
real, that these are real. You know, for us, for many of us,
this is really significant, but we worry about the others.
One thing I would ask you, Mr. Chairman, could we get
notification by today as to which judges or which nominees we
are going to have before us next Wednesday?
Chairman Hatch. I think so. I have already told staff to
try and--our obligation is give notice of the hearing.
Senator Schumer. Right.
Chairman Hatch. But I would like to give you as much--I had
told Senator Leahy, at least two weeks ago, who was going to be
on this.
Senator Leahy. Maybe my memory--
Chairman Hatch. Senator Leahy's memory what?
Senator Leahy. Maybe my memory is--
Chairman Hatch. His memory, once again, is faulty?
[Laughter.]
Senator Leahy. --has slipped.
Chairman Hatch. Well, whatever. I did tell him.
Senator Leahy. I know that you want to give us enough time
to look at them because, to quote a distinguished Chairman of
this committee, ``The Chairman will schedule a hearing for a
nominee only after thorough review of a nominee's preliminary
information. Obviously, this is a long process, as it must be.
After all, these are lifetime appointments,'' so said Senator
Orrin Hatch, my dear friend and former chairman.
Chairman Hatch. Oh, my goodness.
[Laughter.]
Senator Leahy. You never know when that stuff is going to
come back to haunt you, Orrin.
Chairman Hatch. Well, let me--
Senator Schumer. I guess the point I want to make is having
three substantial, controversial nominees to the court, to
important Courts of Appeals is brand new. The notice, as I say,
has not been thorough, and we do not even have Committee rules
yet. We have not discussed what is happening with the ``blue
slip.''
We have not discussed any of the other kinds of rules that
this Committee has always prided itself on having, and then, to
boot, today there were so few questions asked by people on the
minority side, it just almost seemed like a rush to judgment.
Let us just get this--I mean, majority side. The minority side
we are going to ask plenty of questions. It is wishful thinking
that we were the majority side, at least for me--but no
questions asked, and it almost seems like, you know, this is a
done deal to too many people on this committee.
The White House says put them in, get them done as fast as
you can, as few questions as possible, and we will just move
them, and I worry about that. I worry about it from a
constitutional perspective because there should be real advise
and consent, whether you agree, whether you are the same party
or the different party, in terms of who is in the White House,
and I would just hope we could back to some of that. I think,
even during the worst of times, when we were in charge, we were
never accused of rushing through people and--
Chairman Hatch. I think that is a fair characterization
myself, but let me just say 630 days, it seems to me, is enough
notice, and it certainly is enough time to evaluate people.
Senator Schumer. Well, you know, you say that, but
officially we did not receive notice until last night, and--
Chairman Hatch. We will try to remedy that.
Senator Schumer. And there are reasons for that.
Chairman Hatch. We will try and remedy that.
Senator Schumer. And we ought to have them. I mean, let us
hope this is all on the level and certainly at least fair
process would help give it at least the appearance that that is
the case.
I now want to direct some of my questions at Professor
Sutton. Professor, you have probably been advised by those who
have prepped you for this confirmation that I have three
criteria I use when I weigh nominees, whether in helping choose
them in New York, which I used to do--maybe still will do, do a
little bit--but also in who I judge. It is excellence,
moderation, diversity.
Excellence, legal excellence. These are such vital
positions that you do not want some political hack or somebody
who is somebody's friend to occupy them. I have no doubt you
meet that criteria. You are a legally excellent mind.
The second criteria I have is moderation. I do not like
judges too far left or too far right. In fact, in my own
Judicial Review Committee, when people have come to me with
some very liberal judges, well-known liberals on the New York
bench, I have not chosen to select them because I think judges
who are too far left and too far right want to make law
themselves. They have such a passion for what is right and what
is wrong, that instead of interpreting the law, which is what
the Constitution says they should do, they end up making the
law.
And, in fact, a lot of the conservative critique of the
liberal courts of the sixties and seventies was shaped by that
notion, and I find it ironic that the conservative movement is
doing the same, exact thing now that they criticized people
for.
It is a little bit of a mirror image of telling us now we
ought to move judges on, say, the Court of Appeals, when we
were constantly told when President Clinton was President, we
do not need any more judges. The caseload is the same, and yet
all of a sudden we are pushing judges through, and that is,
again, what we have to live with here, but the lack of
consistency in all of this is mind-boggling, and again makes
you think that this is not on the level, which would be a shame
for the Constitution and for the judiciary. So that is my
second criteria.
My third one is diversity. I do not think the bench should
be white males. You do not meet the diversity criteria, but you
cannot judge it by one person, and that is not a problem for me
here, but the moderation is.
And, frankly, by your record, to me, you are hardly a
moderate. You have pointed views that are way beyond, I think,
what most people would consider the mainstream, and you have
helped shape and change the courts. Let me just go over a
little history.
I mean, over the past several years, the Rehnquist Supreme
Court has slowly and steadily affected a revolution, and they
have engaged, in my judgment, at least, in startling acts of
judicial activism, reaching out to strike down law after law
that Congress has passed to protect women and workers,
environment, the disabled, children and senior citizens.
And this court is leading the country down a dangerous
path, where it seems States' rights predominate over people's
rights. They call it federalism or they call it something else,
but it is really just that, and we almost want to go back,
whether it be the Eleventh Amendment or the Commerce Clause, to
the 1890's because there is such anger and hatred for the
Federal Government. So I worry about that.
And you, Mr. Sutton--Professor Sutton--you are a primary
engineer of the road that court is traveling. We all know that.
This is not just you happening to be plucked out as a 1 of
1,000 lawyers and say, please, represent us on this case. When
you look at cases that make up the Rehnquist Court's
revolution, Sandoval, Garrett, Kimel, City of Berne, have
particular meaning, and those are the cases that comprise the
most significant parts of your impressive resume.
I have been struck by the comments that you are nothing but
a, you did not say a country lawyer, but you might as well, a
lawyer just representing your clients; that you do not really
believe in the arguments you have made or your beliefs are
irrelevant, you were just doing your job, but I think anyone
who has reviewed your record can see that is not the case.
You were not just sort of like a corporate attorney who was
picked to work for one corporation and then another. You have
taken a leadership role in the Federalist Society, which has
pushed this line of reasoning and the States' rights agenda.
You have made public comments that you love the States' rights
movement. You advance your agenda with a genuine ardor and
passion, advocating positions that go even beyond where
Justices Scalia, Rehnquist and Thomas have been willing to go.
I am just going to read, and then ask be inserted in the
record, a number of quotes from you, at least they are all
foot-noted, and I would ask unanimous consent the whole
statement be added to the record with the footnotes.
Chairman Hatch. Without objection.
Senator Schumer. Okay, talking about this federalism, this
State's rights. ``It doesn't just get me invited to cocktail
parties. . .'' these are your quotes ``. . .but I love these
issues. I believe in this federalism stuff.''
Here is another one, ``First, the public has to understand
that the charges of judicial activism that have been raised,
particularly in the most recent term, are simply inaccurate.
The charge goes like this: How is it that justices who believe
in judicial restraint are now striking down all of these
Federal laws? The argument, however, rests on a false premise.
. .'' These are your words. These are not quoted in a case.
This is from an article that you wrote.
``In a federalism case. . .'' again, your words ``. .
.there is invariably a battle between the States and the
Federal Government over a legislative prerogative. The result
is a zero-sum game, in which one or the other law-making power
must fall.''
Here is another one. ``The public needs to understand that
federalism is ultimately a neutral principle.'' Many of us
would disagree with that. That is in the mind of the beholder,
but it is certainly a view of yours, not who you are
representing, but you.
``Federalism merely determines the allocation of power. It
says nothing about what particular policies should be adopted
by those who have power.''
And it goes on, and on, and on. You discussed the Morrison
case. ``Unexamined deference to VAWA--Violence Against Women
Act--findings would have created another problem as well. It
would give to any Congressional staffer with a laptop the
ultimate Marbury power to have final say over what amounts to
interstate commerce, and thus to what represents the limits on
Congress's Commerce Clause powers.''
Right now, I disagree with these, but that is not my point
here. My point is you are not simply a lawyer who was chosen to
represent cases. You have been a passionate advocate for this
point of view, and you state it not only when you represent a
client before a court, you state it in articles, you state it
in conversation, et cetera.
Let me just say to you that, and this is the same question
I asked Attorney General Ashcroft when he was here, although
that was different because he is in the same branch of
Government as the President, and we give the President a little
more deference in that regard than we do Article III. You are
passionate. You have strong beliefs that most objective
observers would say, whether you think they are right or wrong,
is way out beyond the mainstream. Many of the things you have
said, as I said, neither Scalia, nor Thomas, nor Rehnquist has
said in opinions.
And so how can we believe you, that when you have been such
an impassioned and zealous advocate for so long that you can
just turn it off, how do you abandon all that you have fought
for--you have been a seminal voice in all of this for so long--
given the fact that we all know that 100 lawyers looking at the
same fact case do not always come under 100 judges with the
same answer?
Mr. Sutton. Right.
Senator Schumer. Please.
Mr. Sutton. Thank you, Senator. You have raised several
issues, and I will do my best to get to as many of them as
possible.
First and foremost, someone who has the good fortune,
first, of being nominated, and then the good fortune of being
confirmed by the Senate, takes an oath, and when you take an
oath, the whole point at that stage in your career is that your
client is no longer your personal views, no longer a person for
whom you advocated, but your client is the rule of law.
As a Court of Appeals judge, your objective, of course, is
to do whatever the U.S. Supreme Court has required in that
area. If they haven't provided guidance, follow what your Court
of Appeals has required in that particular area, and I can
assure you that's exactly what I would do as a lower court
judge.
I would, respectfully, disagree with your comments, and I
understand--
Senator Schumer. Please. We should have an open and fair
debate here, not just go through the motions and, as Senator
Leahy said, rubber stamp whoever the administration puts
forward. I will not characterize interest groups the way my
good friend, the chairman, does, but it seems that almost any
time someone disagrees with what the nominee thinks, there are
certain editorial pages, certain groups that say, ``Oh, you
know, they have an agenda.'' I mean, we should have an open
discussion here. That is the whole point of advise and consent,
not simply to find out if someone is of good moral character.
Please.
Mr. Sutton. And I appreciate the opportunity to have the
honor of having this discussion with the committee, and with
you directly, and I know you have been an impassioned speaker
on these federalism decisions and critiquing them, and I do
want to turn to those, but before I do that, the one I guess I
could fairly call it a premise of your question was that one
can line up a series of cases, take five or six controversial
cases and say, ``Boy, anyone that could have advocated those
positions must have a viewpoint that is just inconsistent with
anything I think is good and right about what Federal judges do
and about what the Constitution means.''
I, respectfully, disagree that that can fairly be said
about me. I think there are many cases, representations I have
handled that I think you would applaud, and if you wouldn't
applaud, would at least respect my role as a lawyer.
I hope, in thinking about the federalism decisions, you
will keep in mind cases I did before I worked for the State,
whether it is writing a brief for the Center for the Prevention
of Hand Gun Violence in the Sixth Circuit as an amicus brief,
whether it's defending Ohio's hate crime statute on behalf of
several branches of the NAACP, and the Anti-Defamation League
and every other civil rights group affected by that law in
Ohio, whether it's the work I did as State solicitor.
Keep in mind, while the States have done unfortunate things
at times in our history, the States today are doing some good
things. At Ohio, I twice defended Ohio's set-aside statute. I
was, I think one can fairly say, very passionately involved in
defending Cheryl Fischer in trying to get into Case Western
Reserve with her disability of blindness.
Since leaving the Solicitor's Office, while out of
practice, I have continued to handle those kinds of
representations. I sought out and was hired to represent an
indigent inmate in a Civil Rights case in the U.S. Supreme
Court. That's one of the U.S. Supreme Court cases I did.
In terms of Sandoval, I've been on the other side of
Sandoval. I have done a case involving implied rate of actions
on behalf of Indian tribes for the National Congress of
American Indians, and I was approached by them and hired by
them to handle that case. That case is the mirror image of
Sandoval.
I have handled two death penalty cases, which of course are
about as much against States as one can ever be.
Now, when it comes to your perspective that when I have
spoken to the press and the articles you referred to or when I
have written articles--
Senator Schumer. Now, you do not express the sentiments of
the people you represented in some of those cases in your
private articles, only the ones on the other side.
Mr. Sutton. I don't think that is true, actually. If you
look at--
Senator Schumer. Okay. Well, you can submit to the record--
Mr. Sutton. The tribute I did to Justice Powell, your
second criterion, looking for moderates, I mean, if Justice
Powell is not a moderate, then maybe I am wrong, and maybe I am
not qualified, but I do think he was a moderate justice. He
hired me. I wouldn't be sitting here, but for Justice Powell
hiring me back in whatever it was, 1989-1990. I think my
tribute to him suggests that very point.
I wrote another article for the Federalist Society in the
Kiryas oe decision, criticizing the U.S. Supreme Court majority
for not allowing the Satmar Hasidim to develop a district. Why
did they want to develop that district? Precisely so
handicapped citizens in that district could go to their own
school and not have to go to the local public school, which was
the only way they could get disability services. People that
were not disabled in that district went to private hasidic
schools.
So I think if you did--
Senator Schumer. Let me say this, sir, just with the
Sandoval case, you could do 10,000 pro bono cases for
individuals and the Sandoval case takes away rights of
individuals to pursue the rights you were pursuing in those pro
bono cases in one fell swoop, and I do not think some cases
where you were pro bono undoes what Sandoval did. I mean, you
are saying treat each case equally. I cannot.
Mr. Sutton. I perfectly understand that point. On
Sandoval--
Senator Schumer. I mean, the Sandoval took away rights of
lots of individuals to be able to sue for just the things you
were representing the pro bono individuals to be able to do,
right?
Mr. Sutton. Sandoval, keep in mind is a case--I've never
written about it, I've never spoken about it--that's a case
where the client position of the State in that case was
developed long before I was involved. The Constitution--well,
it wasn't a constitutional case--the statutory interpretation
arguments developed long before I was involved.
When I was hired by that State to handle the case in the
U.S. Supreme Court, as a lawyer upholding my oath to represent
my client as best I possibly can, I had an obligation to make
those arguments, but of course Sandoval is a statutory case.
That can be corrected by this body tomorrow. I was simply
representing them, and I would point out the Navajo case, where
I represented these American Indian tribes, is the mirror
image. It's an implied right of action case, and those briefs I
think show anything but an hostility to implied rights of
action.
As a judge, the reason I want to be a judge, Senator, is
precisely so my client is a different client. The client is the
rule of law, and that's the great honor of it.
Senator Schumer. But your view of what the rule of law is,
based on these quotes, is far different than what most American
judges, lawyers, students of juris prudence believe it is.
Mr. Sutton. Well, if I could respond to that, a similar
question was asked earlier this morning, and the quote simply
indicates that, of course, I believe in Federalism as a
principle. Federalism is a principle Court of Appeals judges
have to follow in the same way they have to follow stare
decisis. The problem where people disagree quite reasonably is
the application of that principle in given cases.
Senator Schumer. Right. Well, let us talk about one given
case. I understand your point. I want to talk about Boerne, the
City of Berne. In that one, as you know, the Supreme Court held
5 to 4 that Congress had exceeded its power under Section 5 of
the Fourteenth Amendment when it passed the Religious Freedom
Restoration Act.
Senator DeWine. [Presiding] Senator Schumer, you are 5
minutes over your time, but you can continue a reasonable time.
Senator Schumer. Let me just ask this one, and then I would
ask for a second round because I have a bunch, and I very much
appreciate that, Senator.
Senator DeWine. Sure.
Senator Schumer. And I will try to sum it up quickly.
Anyway, you filed an amicus brief on behalf of the State of
Ohio, and you argued the case in the Supreme Court. In that
brief, you pushed an argument that went even further than the
five-Justice majority on the Court was willing to go. You
argued that Congress has no power, under Section of the
Fourteenth Amendment, to enact any law to enforce religious
freedom, free speech or any other provision of the Bill of
Rights. That strikes me as a pretty radical argument.
Now, I understand you have been saying today you were just
representing the State of Ohio, where my good friend is from.
First, it is true, of course, that many other States--it is not
inexorably that that is what Ohio had to believe--other States,
including my State of New York, came to the opposite conclusion
that you came to when they filed an amicus brief on the other
side. So it was hardly a neutral interpretation of law that all
States would agree with here. It is not so cut and dry, and it
is not so obvious where the States' interest should be.
But what I am wondering here is who decided it was in
Ohio's interest to advance such a radical proposition. Did the
Governor direct you to file the brief and go that far, did the
attorney general or did you decide to go on your own to take
that extra step that no law could be passed in this regard?
Mr. Sutton. Yes, Senator. I think there is a--I may be
misapprehending your question, but I am pretty sure I'm not--
Senator Schumer. I am asking you did the Governor or the
attorney general, say, make the argument that we should go
further or was that your argument?
Mr. Sutton. No one made the argument. That's the false
premise. The argument you're referring to was made by the
party, by the City of Berne, represented by another lawyer.
This is quite critical because not only--
Senator Schumer. You did not argue in that case that the
Congress has no power, under Section 5, to enact any law to
enforce religious freedom?
Mr. Sutton. In the oral argument itself, Justice Scalia
asked me the very question you're raising because he noted that
the city had said Section 5 of the Fourteenth Amendment only
allows Congress to protect equal protection rights, and it is
principally about race and voting. We did not make that
affirmative argument in our brief.
During the oral argument, I went second, after the City of
Berne lawyer. I specifically got up and said that is where we
disagree with the party. Section 5, by its terms, covers
everything in Section 1, and Section 1 includes the Due Process
Clause. The Due Process Clause includes, by incorporation, free
speech, free exercise of religion, all of these Bill of Rights
provisions that have been incorporated.
Justice Scalia looked at me incredulously, saying that
can't be right. And we said, no, by its terms, Section 5 covers
all of these rights. So we not only didn't make that argument,
we argued exactly the opposite that there was such a power. The
quest--
Senator Schumer. That was in the brief? I haven't seen the
oral argument, but the brief didn't say what you're saying to
me now, did it?
Mr. Sutton. Exactly. We didn't take a position on it, and
during the oral argument--well, we were in amicus--during the
oral argument, I specifically contradicted this point, even
though the party on our side of the case--
Senator Schumer. But here is what I want to ask you: When
you filed this brief, was it on direction from the attorney
general or from the Governor or one of the elected officials? I
do not know if the attorney general is elected in Ohio.
Senator DeWine. He is. She is.
Senator Schumer. Okay, she is.
Mr. Sutton. Yes.
Senator Schumer. Did they tell you to make this argument or
did you come up with it? Answer that yes or no if you could.
Mr. Sutton. The attorney general decides what arguments to
make, and the attorney general had the final decision on
whether that brief could be filed.
Senator Schumer. Did you suggest to him that the brief be
filed the way it was before he said, fine?
Mr. Sutton. She--
Senator Schumer. Who came up with--she, excuse me.
Mr. Sutton. Betty Montgomery.
Senator Schumer. Excuse me. Who came up with the idea to
file the brief, the amicus brief, and however far--we can
dispute how far it goes--
Mr. Sutton. Sure.
Senator Schumer. But who came up with that idea? Was it
their idea, and you just followed what they said or did you
come up with the idea and suggest it to them?
Mr. Sutton. Neither of us. Neither of us, Senator.
Senator Schumer. Well, tell me how it came about. It did
not just--it was not spontaneous generation.
[Laughter.]
Mr. Sutton. Exactly.
Senator DeWine. Senator, why do you not give him a chance
to answer.
Senator Schumer. I will.
Senator DeWine. You are 10 minutes over already.
Mr. Sutton. Senator, what happened in the case was Ohio,
like many other States, after RFRA was passed, had many
lawsuits filed against them by prison inmates claiming that
under RFRA they could have accommodations, and it led to lots
of litigation. Some of it I think you would agree is somewhat
frivolous--
Senator Schumer. No question.
Mr. Sutton. --and some of it with merit, but lots of inmate
litigation.
There's a Corrections Section of the AG's Office. I was not
involved in this decision, so I don't know if it was the
Correction official or Attorney General Montgomery. I suspect
that Attorney General Montgomery would have been involved. They
decided in those cases to raise the defense that RFRA could not
be used to bring these prisoner claims because it exceeded
Congress's power. I was not involved in that decision.
When the City of Berne case made its way through the
courts, by that time, the office and the State, the Correction
officers of the State, had an interest in this litigation, and
that's exactly what happened.
Senator Schumer. Let me, just I can come back to this, if I
am taking too much time. I just want to go over, I have the
brief here, and I wanted to go over a few of the points here,
but I will wait and come back.
Senator DeWine. No, if it is all in the same line of
questioning and you want to continue, go right ahead.
Senator Schumer. So here is the brief that you filed. This
is the brief for the amici States of Ohio and the others, and
it says, ``Betty Montgomery, Attorney General of Ohio; Jeffrey
S. Sutton, State Solicitor Counsel.''
This is on Page--well, this is a Westlaw, so I do not have
the page. But it says, ``Point No. 1B. The debate over the
Fourteenth Amendment confirmed that the words mean what they
say. When Congress had an opportunity to adapt a broader
version of Section 5, which was offered in February 1866, it
rejected the proposal to the amici States' knowledge. Moreover,
no participant in the debates embraced the interpretation of
the Fourteenth Amendment offered here; namely, that Section 1
incorporates most of the first eight amendments and that
Section 5 allows Congress to enforce both the meaning of the
amendments and any values underlying them.'' Does that not--
Mr. Sutton. That is exactly correct, Senator, and the
reason it's correct is the ``and.'' The ``and'' point we were
making in the brief was that no one in the Congress at that
point, in proposing the Fourteenth Amendment, said,
simultaneously, the Congress would have the final say over what
the U.S. Constitution means, which is to say overrule Marbury
v. Madison, and simultaneously say anything covered in Section
1, even incorporated rights in the other Bill of Rights, would
be included.
Senator Schumer. But what you say here would exactly
buttress--I mean, I will let you have the last word here--
exactly what I said; that there could be no, it is not just
some, but this is broad and sweeping, even with your ``and''
argument, that Congress would have no power under Section 5 to
enact any law to enforce religious freedom; is that not
correct?
Mr. Sutton. With all respect, Senator, I couldn't disagree
more, and I think it would have been poor advocacy, to say
nothing of wrong, to make that argument. But the proof is not
only the ``and'' that I referred to, but the proof is to read
the transcript. The transcript doesn't indicate who the justice
is. It was Justice Scalia. This was the exact point I made. I
was challenged very hard by him on it, and I pushed back on it,
and we won on that issue, on an issue I think you applaud,
based on your questions. We won on that point. That's good.
Senator Schumer. Okay, well, I am going to come back to it.
I am going to go read the brief, I mean, the oral argument, and
we will come back to it. We will have a second round, I
presume, Mr. Chairman; is that correct?
Senator DeWine. Correct.
Senator Schumer. Thank you. I appreciate the committee,
that I went on for a while.
Senator DeWine. I would, at this point, ask unanimous
consent that an article written by Jeffrey S. Sutton, entitled,
``Justice Powell's Path Worth Following,'' that appeared in the
Columbus Dispatch be submitted for the record made a part of
the record, without objection.
Senator Leahy. We have no objection.
Senator DeWine. Without objection.
At this point, Senator Cornyn--
Senator Schumer. Mr. Chairman?
Senator DeWine. Yes, Senator Schumer?
Senator Schumer. I just would ask unanimous consent. There
are a whole bunch of letters of opposition to the nomination.
Senator DeWine. They can be made a part of the record.
Senator Schumer. Without objection, I would ask that they
be made part of the record.
Senator DeWine. Absolutely.
Senator Schumer. Thanks.
Chairman Hatch. Senator Cornyn?
STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM THE STATE OF
TEXAS
Senator Cornyn. Thank you, Mr. Chairman.
Mr. Chairman, I am honored to be sitting here today. This
is my first hearing where the Presidential's judicial nominees
have come before the Committee and put their qualifications up
for evaluation by the Senate in its constitutional role of
advice and consent.
Since I am a new member of the committee, perhaps you will
indulge me for a moment just to talk a second about the timing,
the unfortunate timing sequence, since the President first
nominated these two men and Justice Cook. It was May 2001 that
the President first proposed these judicial nominees and, yes,
it has been an inordinate amount of time leading up to today's
hearing before they have had an opportunity to defend
themselves and to present their record and to answer questions
this Committee has about their qualifications to serve in the
important positions to which the President has chosen them.
I know that during the opening statements there were
statements made by Senator Leahy about the past, and I want to
tell Senator Leahy, and those on the other side of the aisle on
the committee, that I, as a new member of the committee, you
will perhaps allow me to say that I hope that the Committee can
have a fresh start.
I do not think it serves the interests of the American
people for us to point the finger across the aisle and say
because Republicans did not act on a timely basis on appointees
of President Clinton that perhaps the same ought to be done in
retribution when there is a Republican in the White House and
when Democrats are in the majority.
While I have reservations under the Separation of Powers
provision of our Constitution about the President's proposal
for a time table--I do not believe that should be imposed.
Indeed, it cannot be imposed by the Executive Branch on the
Legislative Branch--I do think that it would be worthwhile for
this Committee to consider, on a bipartisan basis, trying to
come up with some rules that would guide the Committee in terms
of the manner in which we consider the President's nominees,
regardless of who happens to be in power, a Republican
President or a Democrat President, so that we can have a timely
consideration of these nominees' qualifications and an up or
down vote by the members of this committee, and then if it
passes out of this committee, by the entire Senate.
I think we not only owe the men and women who are appointed
or nominated, excuse me, by the President the courtesy of that,
I believe we owe the American people and the people we serve
that same thing. Because, in fact, of course for all of the
vacancies that have existed as a result of the failure to act
on the President's judicial nominees, there are very real human
beings whose cases are not being heard in our courts. Of
course, as we all know, justice delayed is justice denied.
So I just want to say, here on my maiden voyage on this
committee, that I would hope that we would try to work in a
bipartisan way toward a fresh start and a time table that would
allow timely consideration of all of the President's nominees.
No one is going to say a Senator has to vote one way or
another. That is our prerogative as a member of the Senate, and
we will indeed be held accountable to our constituents who set
us here, but I think that the President is entitled to his
choices, subject to an up or down vote by the Senate, and that
should be done on a timely basis.
Senator Leahy. If the Senator would yield, without losing
any of his time on this, insofar as you mentioned me on this--
Senator Cornyn. I would be glad to turn it over to you in a
minute, but I have waited a long time to have my shot, so if
you will give me a chance just to say a couple of things, and
then I will be glad to turn it over.
Senator Leahy. Go right ahead.
Senator Cornyn. I also come to this job representing the
State of Texas in the United States Senate with the background
of having served in virtually all three branches of Government,
as a judge, a member of the Executive Branch as attorney
general and now in the Legislative Branch, albeit on the
Federal level.
Of course, I think a lot of the debate that we are hearing
today has to do with what is the appropriate role of not only
the Legislative Branch versus the Judicial Branch, but indeed
what is the proper role of a lawyer in our adversary system and
whether the positions that a lawyer advocates on behalf of a
client are somehow attributable to the personal beliefs and
convictions of that lawyer when they argue a point of law,
which they are obligated to do under the Code of Conduct, which
they may or may not agree with, but which they are duty-bound
to propose to the court and let the court make that decision.
And so I think the debate we are having today, in many
ways, is nothing new. It is a debate, and the subject matter
touched upon by the Founding Fathers, including, of course,
Alexander Hamilton in Federalist No. 78, when he talked about
the different roles of the branches of Government.
And so what I would like to maybe ask, and I just have a
very few questions for Justice Cook, and Mr. Roberts, and Mr.
Sutton, is, first of all, Mr. Roberts, I wonder if you would
please address the obligation of a lawyer, ethical obligation,
to advance a legal argument on behalf of a client, even though
a court may ultimately disagree with you or agree with you.
What is a lawyer's obligation, as you understand it, under the
Code of Legal Responsibility?
Mr. Roberts. I think the standard phase is ``zealous
advocacy'' on behalf of a client. You don't make any
conceivable argument. The argument has to have a reasonable
basis in law, but it certainly doesn't have to be a winner.
I've lost enough cases that I would hate to be held to that
standard.
But if it's an argument that has a reasonable basis in the
law, including arguments concerning the extension of precedent
and the reversal of precedent--I think Chairman Hatch quoted
the pertinent standard from the American Bar Association--the
lawyer is ethically bound to present that argument on behalf of
the client. And there is a longstanding tradition in our
country, dating back to one of the more famous episodes, of
course, being John Adams' representation of the British
soldiers involved in the Boston Massacre, that the positions a
lawyer presents on behalf of a client should not be ascribed to
that lawyer as his personal beliefs or his personal positions.
Senator Cornyn. Justice Cook, let me ask you, if you do
have, as a judge, and of course your responsibilities are
different under our adversary system from an advocate like Mr.
Roberts or Mr. Sutton may be, what do you do as a judge when
you may have personal feelings about an argument, but where the
legislature has spoken or where there is precedent by a higher
court on that very point? How do you address that as a judge?
Justice Cook. One of the more important things for a judge
to have in mind is the importance of or to note the humility of
function that is really asked of a judge. Judges need to
exercise restraint and to put aside any personal convictions or
preferences. The essential democracy of judging is that the
judge will be above the fray. The judge will consider the cases
impartially, and certainly objectively and conscientiously, and
that is the method that I have employed as a judge for the past
dozen years, and I know that to be the fairest way to judge.
Senator Cornyn. Justice Cook, let me ask you, have you ever
made a legal decision, in your capacity as a member of an
appellate court or the Ohio Supreme Court, that you knew was
going to be politically unpopular?
Justice Cook. Oh, yes, I have.
Senator Cornyn. And how do you address that, in terms of
what you view to be your obligation as a judge?
Justice Cook. It's absolutely, you know, sometimes it's
hard to swallow, but it certainly is not one of my concerns
that drives my function, my work. It's, as we say, it goes with
the territory, and sometimes you're called upon, in doing your
best work and your faithful application of the law, it will
produce what could be or what will be viewed as an unpopular
result, and certainly that's part of your duties.
Senator Cornyn. Well, having been in a similar position to
you when I served as a member of the Texas Supreme Court, do
you hope that the people evaluating your performance, whether
you are an elected judge or an appointed judge, will understand
that your judgment as a member of a court is not an expression
of political opinion?
Justice Cook. That's the hope. Some of the criticism that I
have seen launched with regard to this nomination process seems
to be that very thing to which you refer, Senator. It's a
result-oriented view of cases, which I hope would not be any
indication of my qualifications as jurist.
Senator Cornyn. And how do you feel about result-oriented
decision-making by a judge?
Justice Cook. Oh, I very much--I would never--I don't
participate in it, and I suppose we see it happen, but it's an
affront, really, to democracy and to the oath that we take to
judge cases, without regard to persons, is the oath we take in
Ohio, to administer justice without regard to persons.
Therefore, I would see it as an affront to that oath to look at
the results.
Senator Cornyn. Mr. Sutton, you, during some of the
questioning, I think you alluded to the notion that if a court
made a decision on a statutory basis, perhaps applying a
statute in a particular way or that the legislature disagreed
with, that the legislature would have an opportunity to come
back and correct that error.
I have read scholars talk about that process between the
legislature and the Judicial Branch as a conversation between
the branches of Government, and I wonder if you would tell me
your thoughts on that.
Mr. Sutton. Well, that's very well put, Senator. I'm not
sure I could put it any better, but I think you are right. On
statutory interpretation cases, particularly very important
Federal statutes that reach the U.S. Supreme Court, there is an
ongoing dialogue between one side of the street and the other,
across this very street, with the U.S. Supreme Court, and I
think that's appropriate.
You know, sometimes courts do get it wrong. Sometimes
courts aren't, they don't figure out exactly what Congress had
in mind, exactly what it wanted. And, happily, the way this
process works is the Congress can come back the very next day
and get it right. Usually, the U.S. Supreme Court does get it
right, and you don't need that, but that is an answer in all
situations involving statutory interpretation cases.
Senator Cornyn. I know that during the course of this
hearing and press accounts that I have read about the
qualifications and credentials of each of the three of you,
that there has been a suggestion made that each of you have
somehow participated in decisionmaking or advocacy, as the case
may be, outside the judicial mainstream.
But let me ask you this, Mr. Sutton, have you ever argued a
case that you've lost?
Mr. Sutton. Unfortunately, all too often, yes.
Senator Cornyn. Have you won more than you have lost?
Mr. Sutton. At the U.S. Supreme Court, I have been
fortunate. I have a 9 and 3 record there. But even then, I
would echo what Mr. Roberts said earlier. While the lawyer's
duty ethically is to make every reasonable argument to advance
your client's cause, sometimes that doesn't work, and there's
nothing you can do about that.
Senator Cornyn. Well, on those occasions when you have made
an argument to the United States Supreme Court and you have
lost, have you concluded that your argument was outside of the
legal mainstream? Is that the necessary conclusion that you
would draw?
Mr. Sutton. My first reaction is usually that they're the
ones outside the mainstream, but, happily, that lasts about an
hour, and I realize that their job is to figure out what the
right decision is here.
And, no, I don't think--I don't reach that conclusion. I
don't think it's the right one, and I think it's a very
dangerous one to the bar because there are a lot of clients,
particularly criminal defendants, who need lawyers to really
push hard on their behalf. The system doesn't work if you don't
have an adversarial process that is effective.
And I do think it would be quite hurtful to think that a
member of a bar, in advocating a case, whether on behalf of a
State or a criminal defendant, could be told that if they lost
that case or if an argument they made wasn't successful, they'd
have to hear about it if they ever tried to become a judge.
That strikes me as very dangerous.
Senator Cornyn. Mr. Roberts, if you have made an argument
that someone might characterize as outside of the mainstream of
the law, but let's say the United States Supreme Court happens
to agree with you and you win that case, would you consider
those two--the argument that you were outside the mainstream in
making the argument, but the fact that the Supreme Court agreed
with you, what conclusion would you draw about whether that is
outside the legal mainstream of American jurisprudence?
Mr. Roberts. Well, I would say that it is not. I mean, if
you are making an argument before the Supreme Court and you
prevail, you should be criticized if you, for whatever reason,
decline to make that argument. That's not to say that the
Supreme Court is above criticism and it's certainly appropriate
and healthy to scrutinize and, when appropriate, to criticize
the Supreme Court's decisions. But I don't think it's
appropriate to criticize a lawyer for making an argument that
the Supreme Court accepts. That's the lawyer's job, and he
wouldn't be doing his job if he hadn't made that argument.
Senator Cornyn. Well, let me ask, Mr. Roberts--and I will
ask the same question of Mr. Sutton because you are not
judges--
Senator DeWine. Senator, last question.
Senator Cornyn. You are not judges now, but advocates under
this adversary system we have been discussing. Are you willing
to commit to assuming a new role and a different role, and that
is as an impartial umpire on the law, legal arguments, and
leave your role as an advocate behind where you have
represented one particular view or another but now to take on
that disinterested, impartial, adjudicatory role?
Mr. Roberts. Yes, I am, Senator. There's no role for
advocacy with respect to personal beliefs or views on the part
of a judge. The judge is bound to follow the Supreme Court
precedent, whether he agrees with it or disagrees with it, and
bound to apply the rule of law in cases whether there's
applicable Supreme Court precedent or not. Personal views,
personal ideology, those have no role to play whatever.
Senator Cornyn. Mr. Sutton?
Mr. Sutton. Yes, Senator, you know, where one stands on an
issue often depends on where one sits, and if one is fortunate
enough to be confirmed to be an Article III judge, you sit in a
position where the whole reason for being is to be fair, open-
minded, do everything you can to make sure you appreciate every
perspective that is brought before you, whether it's an amicus
brief or a party argument, then look for guidance from the U.S.
Supreme Court, if not controlling guidance, look for guidance
from your circuit, and do your best to get it right.
Senator Cornyn. Thank you, Mr. Chairman.
Senator DeWine. Senator Leahy wants a point of personal
privilege here.
Senator Leahy. Just following our usual practice, once
having been mentioned by another Senator on the other side, and
I realize he did not want to yield for a response at that time,
I would note, one, I absolutely agree that these judges should
be moved as rapidly as possible, and that is why in the 17
months that I was chairman, we moved more of President Bush's
judges than the Republicans had in 30 months with President
Clinton's. That was 100 judges. I mention that number because
even members of your party, both in the Senate and at the White
House, keep referring to it as being 20 or 25. They are
probably not aware--and I am sure the President wouldn't
intentionally mislead the public, but the staff probably gave
him the wrong numbers. It was 100.
Also, I would note that these three nominees, the
Republicans were in charge of the Senate for a number of weeks
after they were nominated. They did not call a hearing on them.
Senator DeWine. Senator Kohl?
STATEMENT OF HON. HERBERT KOHL, A U.S. SENATOR FROM THE STATE
OF WISCONSIN
Senator Cornyn. Mr. Chairman, may I just briefly respond? I
just want to make clear to Senator Leahy, I meant certainly no
disrespect or intent to--
Senator Leahy. None taken.
Senator Cornyn. --somehow mischaracterize the record. All I
was saying is that I hope the Committee would look forward
rather than backward, because I don't view that as being
conducive to doing the job that I feel like we are elected to
do, and that is to move these nominees on a timely basis, in
fairness to them and fairness to the people we represent.
And so I would hope that together working across the aisle
we could perhaps come up with some kind of framework that would
eliminate the need for the sort of finger-pointing and
recriminations that I think are unfortunate, because I don't
think anyone is without blame, is my only point. And I hope I
have made it clearly.
Senator Leahy. I felt no disrespect, and the Senator from
Texas has a distinguished record in public service in all the
branches, and I would be more than happy to work with him on
just the thing we both agree with.
Senator Cornyn. Thank you.
Senator DeWine. Senator Kohl?
Senator Kohl. Mr. Chairman, I appreciate the opportunity to
be here today. A vital element of our constitutional duty to
advise and consent to judicial nominees, nominees who, once
confirmed, will serve lifetime appointments, is an opportunity
to examine their records, their outlook, and judicial
philosophies at these confirmation hearings.
These hearings, as you know, are our only opportunity to
evaluate a nominee's qualifications before casting our final
vote. If confirmed, these hearings are likely to be the last
time any of these individuals ever speak in a public forum
regarding their views before assuming their lifetime
appointments to positions that may affect the liberties and
constitutional rights of every American.
And so I am somewhat disappointed that the majority has
scheduled today's hearings with three appellate court nominees.
To conduct confirmation hearings in such a manner is contrary,
I believe, to the interests of giving Senators as well as the
American people a fair opportunity to examine and evaluate the
qualifications, credentials, and judicial temperaments of these
nominees. I believe it is difficult to fulfill our obligations
to carefully consider the merits of these nominees in a hearing
that is somewhat crowded.
I have several questions. The first is for you, Mr. Sutton.
Throughout our Nation's history, citizens have relied on our
Federal courts to protect their civil liberties and
constitutional rights against the actions of States and local
governments in cases involving everything from employment
discrimination, school desegregation, and free speech. However,
you have spent much of your career arguing that individuals
have no right to seek redress in Federal court for civil rights
violations committed by State and local governments under the
doctrine of federalism.
So then why shouldn't we be concerned that your
interpretation of federalism will seriously harm the ability of
ordinary citizens seeking relief against violation of their
civil and constitutional rights in your court should you be
confirmed?
Mr. Sutton. Yes, Senator, thanks for an opportunity to
address that. I did--when I became involved in what we'll call
federalism cases or cases representing States, I did that
starting in 1995 when I was appointed to be the State Solicitor
of Ohio and was honored to have that job for three and a half
years, and I did what all State assistant AGs or State
Solicitors do and did my best as a lawyer, an advocate on
behalf of the State, to just defend the State in litigation. As
lawyers, obviously we weren't involved in the underlying policy
decisions that led to the litigation. It was just our job and
my job at the appellate courts to defend the State's position.
It is true during that time I did get involved in the City
of Boerne case, which is a federalism case, and I did work on
behalf of the States during that period of time. But it's well
to note that Ohio, like many other States, has passed a lot of
laws that are very protective of civil liberties, and I was
active in those cases. I helped defend Ohio's set-aside statute
from equal protection challenges twice. The only case I had
while I was working in that office--the only case I can ever
remember where I had an opportunity to represent either side
was the Cheryl Fisher case involving a blind woman who had been
denied admission to medical school. And I picked her side of
the case to work on it.
So I think the notion that because I've represented States,
either the State of Ohio or other States, in cases where an
individual disagreed with something a State was doing shows
some bias, I guess I'd respectfully disagree with, one, because
I was representing my client as best I could; but, two, even if
one were to assess a nominee based on their advocacy and the
client's positions they represented, there are many of them
that are on the other side of these issues that I think you'd
be very comfortable with and would have encouraged me.
So I do think that is an answer to the criticism that, if
confirmed, I wouldn't be able to judge these things, but I
think it's just the opposite. I would look at what the U.S.
Supreme Court has done. I'd follow it carefully. I'd look at
Sixth Circuit precedent, and if it's binding, we'd obviously
follow that.
Senator Kohl. Mr. Sutton, how do you respond to those who
argue that your record in private practice demonstrates certain
hostility to the civil rights of people who are disabled?
Mr. Sutton. Well, most of the representations I've done
involving, let's say, civil rights, on the pro-civil rights
part of the equation, were in private practice. I defended
Ohio's hate crime statute through an amicus brief and a pro
bono effort on behalf of the NAACP, the Anti-Defamation League,
and several other civil rights groups affected by hate crime
legislation. We were successful in upholding that.
I represented the Center for the Prevention of Handgun
Violence in defending against a constitutional challenge, a
Columbia assault weapon ordinance which was preventing assault
weapons in the Columbus region.
Since being State Solicitor, I've continued, I've
represented a prisoner inmate in a civil rights case at the
U.S. Supreme Court. I've defended two death penalty inmates.
And I'm a member of the Equal Justice Foundation. I was asked
to be a member of that foundation before I was nominated, and
the purpose of the Equal Justice Foundation, which, of course,
is a pro bono effort, is to provide legal services to all
manner of indigent claimants, first and foremost, the disabled,
but those based on race and many others. And that group has
done a lot of very good things in Ohio. They've led the effort
to, you know, eliminate--put curbside ramps in Ohio's cities
successfully under the ADA.
So I do understand--I do understand the question, and I
understand why someone could look at the Garrett case or the
Kimel case and say, Boy, you know, how could someone take that
case? And my answer, to the extent there's a sin here, it's
that I really wanted to develop a U.S. Supreme Court practice,
and I was very eager to do so. And it was easier to get those
cases on that side, having worked for the State before I went
back to private practice. But it didn't reflect any bias at
all. In fact, it's quite the opposite.
Senator Kohl. I appreciate your answer. I am not as fully
convinced as you would wish me to be with respect to your
predilection, but clearly you are trying to present your
position as well as you can, and I do respect that.
Mr. Sutton. Thank you.
Senator Kohl. Mr. Sutton--and I would like to also ask
opinions from the other two nominees--in the past few years
there has been a growth in the use of so-called protective
orders in product liability cases. We saw this, for example, in
the settlements arising from the Bridgestone-Firestone
lawsuits. Critics argue that those protective orders oftentimes
prevent the public from learning about the health and safety
hazard in the products that they use. In fact, the U.S.
District Court for the District of South Carolina recently
passed a local rule banning the use of sealed settlements
altogether.
So I would like to ask you, Mr. Sutton, and then the other
two nominees: Should a judge be required to balance the
public's right to know against a litigant's right to privacy
when the information sought to be sealed could keep secret a
public health and safety hazard? And what would e your views
regarding the new local rule of the District of South Carolina
on this issue, which is, as I said, banning the use of sealed
settlements altogether?
Mr. Sutton, you first.
Mr. Sutton. Yes, Senator. I have to conference this is not
an area in which I've practiced, and I can't think of a case
where I've actually had to deal with this issue. So as a Court
of Appeals judge, I would do what all Court of Appeals judges
are obligated to do and look very carefully at U.S. Supreme
Court precedent on these types of issues.
I suspect you're right that what U.S. Supreme Court
precedent requires is exactly the balance you're talking about,
a balance between the public's right to know and the privacy
rights of whatever that particular defendant might be. But I
can't say I know that for sure. What I can tell you is that I
would discern what that precedent requires. I'd look at what
Sixth Circuit precedent requires. I'd look very carefully and
open-mindedly at the arguments of either party on this kind of
issue. And I certainly appreciate the perspective you have on
it and do my best, having done all that, to decide it
correctly.
Senator Kohl. Are you aware of some of the secret
settlements that have, in effect, prevented vital information
from being passed on to people still using defective products
who were unaware of that because a secret settlement was made
in a court? You are aware that these things have happened?
Mr. Sutton. Not that aware, I have to tell you.
Senator Kohl. Really?
Mr. Sutton. Yes.
Senator Kohl. You don't know that at all?
Mr. Sutton. Well, I'm just saying I haven't worked in one
of these areas. I understand what you're saying. I've read news
reports along those lines.
Senator Kohl. Right.
Mr. Sutton. But I'm just making the point it's not
something I know very much about at all. In fact, it's the
opposite. I know very little about it, legally. And as a Court
of Appeal judge--
Senator Kohl. It is such an important issue, without trying
to be unduly difficult with you, that it would seem to me you
would have a pretty strong opinion on it, but I appreciate
that.
Mr. Roberts, how do you feel about the validity of
maintaining or throwing out secret settlements that are made
which prevent other people who may be using these defective
products from knowing that they are defective, like defective
tires, for example, defective medical devices, for example?
Mr. Roberts. It's not an area that I have litigated in
either. I certainly am aware of the cases as they've come up,
although I don't think it's an issue that the D.C. Circuit has
addressed. At least I'm not aware that it's done so. And I
hesitate to opine on it without having studied the law. I
certainly would obviously follow the Supreme Court precedent
and the precedent of the circuit if I were to be confirmed.
I suspect that you're correct that the applicable law would
involve some balancing. There are some interests in sealing
settlements in some cases, but I'd be very surprised if that
required or permitted sealing in a case where that actively
concealed a harmful condition on an ongoing basis that was
continuing to present a danger. But, again, I'm just surmising
at this point, and as a judge, I would apply the law in the
circuit or in the Supreme Court.
Senator Kohl. Okay. Ms. Cook?
Justice Cook. I agree with Messrs. Sutton and Roberts, and,
of course, balancing judges do--balancing is one of our
regularly engaged in endeavors. So this certainly sounds--the
issue would demand balancing if there is danger and harm to
others, potential danger. In the absence of disclosure, I
understand that balancing would be important.
Senator Kohl. I ask the question because there have been
over the years, and recent years, cases where judges have
approved these kinds of settlements between a company and a
litigant, and that precluded in many cases thousands and
thousands of people who were using defective products from
knowing that these products were defective.
Now, in this simplistic kind of a presentation that I am
trying to put before you, which is fairly black and white,
while I am not sure whether you are going to answer, I would
hope, as a judge--I would hope--that you would not allow any
settlement that endangered the health and safety of the users
of products to be made simply to benefit a corporation who
wanted to keep that knowledge from the users of that defective
product. Where you will come out on these issues in the event
you are confirmed, I don't know, but obviously you know where I
am coming from, and I think you know where most Americans would
be coming from.
Last question. One of my priorities on this Committee is my
role on the Antitrust Subcommittee. Strong antitrust
enforcement is essential to ensuring that competitive
flourishes throughout our country which benefits consumers
through lower prices and better-quality products and services.
Federal courts are essential to the firm enforcement of our
antitrust laws and to ensuring that anti-competitive conduct is
sanctioned.
Many antitrust questions are decided under what is known as
the rule of reason in which the harm caused by the business
conduct at issue is balanced against full competitive
justifications. This document gives a great deal of discretion
to the courts to determine whether or not the antitrust laws
have been violated.
What would be your approach to deciding antitrust issues
under the rule of reason? More generally, please give us your
views regarding the role of the judiciary with respect to the
enforcement of antitrust law.
Mr. Sutton?
Mr. Sutton. Yes, Senator. This, too, is a area where I have
not had an active litigation practice. In fact, just sitting
here, I can actually think of one case I've been involved in
when I was working for the State of Ohio. Ohio is one of the
States that sued Microsoft, so I have some familiarity with
that case and some peripheral involvement with that one.
But, clearly, in terms of your question, the Federal courts
have a critical role in enforcing the antitrust acts and
antitrust laws, and that's what the U.S. Supreme Court has
said, and I can't imagine a Court of Appeals judge not
following the precedents to that exact effect.
Senator Kohl. Mr. Roberts?
Mr. Roberts. As a private lawyer, I have actually
represented probably more plaintiffs and enforcement interests
in antitrust actions than defendants. I represented the State
Attorneys General in the Microsoft case and represented several
private plaintiffs in antitrust appeals as well, handled some
antitrust cases when I was in the Solicitor General's office.
I've also represented corporations accused of antitrust
violations, and I think that balanced perspective is something
that's valuable for a judge. I certainly think a lawyer coming
into court, if I were to be confirmed, representing a plaintiff
in an antitrust action should take some comfort in the fact
that I've done that. And a lawyer representing a defendant
should take some comfort in the fact that I have done that as
well and I have the perspective of the issue from both sides.
So, again, obviously as judge, I'd follow the binding
Supreme Court precedent and the precedent in my circuit. But I
would hope that in doing so, I would have some added
perspective from having been on both sides, both the plaintiff
side and the defendant side, in antitrust enforcement actions.
Senator Kohl. Thank you.
And, Ms. Cook?
Justice Cook. And as in all the issues that a judge must
consider, I think the importance would be the conscientious
weighing and balancing and understanding the rule of reason
within the confines of the existing law, and that certainly
other decisions in that area would inform the decision that I
might be called upon to make. So I would apply the structured,
principled, decisional process.
Senator Kohl. I thank you.
Thank you, Mr. Chairman.
Chairman Hatch. Well, thank you, Senator.
We will turn to Senator Sessions now. Senator Sessions, you
are up.
Senator Sessions. I would like to ask the three of you one
question. You have had great experience and you are lawyers of
integrity and ability. Do you believe that a conscientious
judge can read the Constitution, read statutes and prior case
authority, and render--and be able to interpret a statute? Do
you believe that you are capable of that? I would like to hear
your answer to that.
Mr. Sutton. Senator, you are looking at me, so I will take
that as I should start.
Senator Sessions. I will start with you first.
Mr. Sutton. Yes, thank you, Senator.
Senator Sessions. You were smiling. I thought--
Mr. Sutton. Yes. Absolutely, I do. There's no doubt there
are difficult cases. There are cases at the margin where text
gets difficult to interpret. But, yes, I do think what lawyers
do is at the end of the day what judges do, which is read
Constitutions, read statutes to determine what the Framers or
that legislative body meant. Those words have meaning. There
are statutes--rules of construction that give guidance to the
meaning of those words. And judges have an obligation to follow
those rules and to follow the text of the statute or in some
cases the text of the Constitution in cases before them. And,
happily, as a Court of Appeals judge, Court of Appeals judges
have a lot of guidance from the U.S. Supreme Court on those
very things, and a Court of Appeals judge would, of course,
follow that.
Senator Sessions. Mr. Roberts, do you agree?
Mr. Roberts. Yes, I do. In other words, I do think there is
a right answer in a case, and I think if judges do the work and
work hard at it, they're likely to come up with the right
answer. I think that's why, for example, in the D.C. Circuit,
97 percent of the panel decisions are unanimous, because they
are hard-working judges and they come up with the same answer
in a vast majority of the cases.
There are certainly going to be disagreements. That's why
we have Courts of Appeals, because we think district courts are
not always going to get it right. But I do think that there is
a right answer, and if the judge and lawyers would just work
hard enough, they'd come up with it.
Senator Sessions. Judge Cook, do you agree?
Justice Cook. Yes, I do. I think that judges search--I
think it's great when judges search for objectified meaning,
that is, the meaning that a reasonable person would gather from
the text that a judge is called upon to interpret. And
certainly I really think in good faith judges working
conscientiously can come to different conclusions sometimes,
but I really think that there are objective boundaries within
which most cases are really decided within those boundaries.
Senator Sessions. Well, I agree. I spent 15 years in
Federal court every day as a Federal prosecutor. If I had a
case that answered the question, almost invariably the judge
ruled that way. If the law was against me, you could expect a
judge to rule against me.
We have a theory afoot in America, sort of a post-modernism
illness, deconstructionism, critical legal studies that all law
is politics and that you are being asked about your political
views about matters, and that is being promoted to a large
degree, I think, by people who don't really understand that in
every court in America all over this country, day after day
after day, judges are reading statutes and rendering sound
rulings that never get appealed. If they do, they get affirmed
unanimously, as you mentioned, because I believe we can
ascertain the plain meaning of words and can render consistent
verdicts, and to me that is what justice is.
I am troubled by the idea that you would be brought up and
you would be challenged on your personal political views when I
know you as professionals know that it makes no difference what
your personal view is. If the Supreme Court has held otherwise
or a statute is the other way or the Constitution is the other
way, you will follow that. Am I correct in that?
Mr. Sutton. Absolutely, Senator. I mean, that is the whole
privilege of a being a judge, that your client is the rule of
law, and the only way the rule of law has meaning is if judges
determine the meaning of statutes and the Constitution based
first on what the words say and suggest, and then based on
other indicators of legislative or constitutional meaning. I
agree with you.
Senator Sessions. Mr. Roberts?
Mr. Roberts. Yes, you know, if it all came down to just
politics in the judicial branch, that would be very frustrating
for lawyers who worked very hard to try to advocate their
position and present the precedents and present the arguments.
They expect the judges to work justified. And if the judge is
going to rule one way or the other, regardless of the
arguments, well, he could save everybody a lot of work, but the
rule of law would suffer. And I know that's a particular
concern in the D.C. Circuit. I know one of the things that
frustrates very much the judges who are on that court, all of
whom are very hard-working, is when they announce a decision
and they're identified in the press as a Democratic appointee
or a Republican appointee. That makes such--gives so little
credit to the work that they put into the case, and they work
very hard and all of a sudden the report is, well, they just
decided that way because of politics. That is a disservice to
them. And I know as an advocate, I never liked it when I had a
political judge, when I was in front of a political judge,
because, again, you put a lot of work into presenting the case,
and you want to see that same work returned. And the theory is
that that will help everybody reach the right result, and I
think that's correct.
Senator Sessions. Judge Cook?
Justice Cook. Likewise, Senator, I can't tell you whose
quote this is, but I ascribe to the view that this quote is the
rule of--the rule of law should be a law of rules. And I think
that's somewhat the view you take, and certainly it is my
experience that the cases are decidable and usually are decided
based on rules.
Senator Sessions. I just think that is so important, and I
think it is dangerous for us to say we are going to determine
people's ideology and then we are going to vote to confirm them
or not. And to our friends in the disability movement, let me
say to you, as I read these cases, they have nothing whatsoever
to do with the policy of providing protections for people with
disability. It is a matter of constitutional questions such as
sovereign immunity.
I know that Senator Robert Byrd and other Senators in our
body defend tenaciously the prerogative of the United States
Senate. And if a coequal branch does not defend its
prerogatives, it will lose those privileges. And Attorneys
General are that way, aren't they, Mr. Sutton? I know Attorney
General Cornyn is here, but I was Attorney General, and I did
not feel that I would have done my job if on my watch the legal
prerogatives of the State of Alabama were eroded by my failure
to defend those rights.
You have worked for the State Attorney General's office.
Isn't that true of any Attorney General?
Mr. Sutton. I think it's true not only for State Attorney
Generals, it's true for the U.S. Solicitor General and the U.S.
Attorney General, that if--just as if a State is sued in any
case, their lawyers have an obligation to do their best to
represent the client. The lawyers aren't involved in the
underlying policy decision that leads to the dispute, that
leads to the lawsuit. The lawyers come in once that dispute
can't be resolved outside of court, and at that point, whether
it's a State AG or the United States Solicitor General, you
know, whether it's a claim of racial discrimination, disability
discrimination, those lawyers have in the past and do continue
to represent the governmental body which is publicly elected.
And that's, I think, an honor for people that have had the
chance to represent the people by working in an Attorney
General office, and I'm sure people that have worked in the
U.S. Solicitor General's office would say the same thing.
Senator Sessions. Even if the immediate, short-term effect
may be to undermine some social policy that is maybe popular at
the moment, or right, even, if it is not done in a proper legal
way or it is done in a way that undermines the long-term
prerogative of a State, you would expect a State to defend
against that, would you not?
Mr. Sutton. Well, I think every State has to make a
decision what it's going to do in a given case. But it is
true--and my understanding--I don't know all State
Constitutions, but I'm familiar with many of them--the State
Attorney Generals have--they don't have choices in these
matters, and that's particularly through in sovereign immunity
cases where at the end of the day there's a claim of--an
individual's claim, but there's also a claim for money. And the
AGs--it's the same with the U.S. Solicitor General. They don't
have the keys to the vault. The keys to the vault are with the
legislature and the executive branch. The lawyers have an
obligation to defend as long as the executive branch tells them
to defend.
Senator Sessions. As a former Attorney General and former
United States Attorney representing the United States in court,
I can tell you, an Attorney General that allows a State's
sovereign immunity to be eroded I think will have a difficult
time justifying that position. And so with regard to the
Alabama case, you not only filed a brief on behalf of the State
of Alabama, but you also gained support from a number of other
Attorneys General, including a Democratic Attorney General,
Mark Pryor, who is now a member of this Senate. Is that not
correct?
Mr. Sutton. I think that is true. There was an amicus brief
of States, and I'm fairly confident that Arkansas joined that
brief. In fact, I thought that brief was balanced, half
Democratic AGs and half Republican AGs, is my rough
recollection.
Senator Sessions. And they saw the issue not as a
disability issue, but as a question of State power and
sovereign immunity. Is that correct?
Mr. Sutton. That's my understanding. I haven't read that
brief in a while, but I think it did make the point that just
as the United States has a sovereign immunity power, so do the
States, at least as U.S. Supreme Court has construed it to
date.
Senator Sessions. Well, I think that is important for us to
think about. You have defended criminals, have you not, and
advocated any legal, justifiable position that they were
entitled to, you were prepared to defend?
Mr. Sutton. I know you're a former prosecutor, but, yes, I
have, on several occasions. And I think members of the bar--
these were pro bono efforts, and I think members of the bar not
only should but have a duty to do those kinds of
representations.
Senator Sessions. And so I don't think there is anything
wrong with you defending States who feel they are wronged and
their rights are not being upheld. And, in fact, that case you
took to the United States Supreme Court, the Supreme Court
agreed with you.
Mr. Sutton. It turns out they agreed with the University of
Alabama, yes, they did.
Senator Sessions. Well, in that case, you never argued
against the rights of the disabled but against the rights of
Congress to abrogate a State's constitutional right to
sovereign immunity. I mean, that was the question, was it not?
Mr. Sutton. That is the question, and it is an important
point because even after the Garrett case, every State in the
country is entitled to waive its immunity from ADA lawsuits for
money damages. In fact, many States do that to the extent their
legislature permits it. And just as Congress can do it when
Federal employees are sued for disability discrimination,
sometimes there's a waiver, sometimes there's not. But nothing
about either the brief we argued or the decision of the case
bars a State from waiving its immunity from suit in Federal
court. That could obviously happen.
Senator Sessions. And the U.S. Government can intervene and
sue a State for money damages for a disability violation, can
it not?
Mr. Sutton. That's also true.
Senator Sessions. And a private person can sue the State
for injunctive relief to get the State enjoined from unfairly
treating them due to a disability. Is that not correct?
Mr. Sutton. In fact, get their job back. Exactly, yes.
Senator Sessions. And private persons can sue under a
State's own laws to enforce money damages or other relief.
Mr. Sutton. That's true, yes.
Senator Sessions. So it was just this narrow point of
sovereign immunity in which the Congress up and took it upon
itself to limit the State's sovereign immunity that this case
turned on.
Mr. Sutton. That's true, and even then, Congress can still
do the same thing either by passing new legislation with
different fact-findings or by enacting spending clause
legislation. As I'm sure you know, Congress has already done
that under Section 504 of the Rehabilitation Act. In the
Garrett case, Ms. Garrett has a claim which is still pending
under that very law. So it was just about Section 5, and, of
course, it had nothing to do with the spending claus where
Congress has conspicuously broad powers.
Senator Sessions. Well, I just would say in conclusion how
much I appreciate the three of you. You are outstanding
nominees with terrific records, unsurpassed experience handling
some of our country's most difficult cases in ways that I think
have shown your mettle and your ability. I congratulate you on
the nominations to these important offices. I feel like that it
is good for us to go through this process so that we confront
the issue that just because a lawyer takes a position in a case
does not mean that they are against the policy involved in the
case. It does not mean if you defend a criminal that you are
for criminals or you are for law-breakers. It means that
criminals have certain rights, and the law has to be carried
out in certain proper ways. And I believe that is your record
in all of these cases, and I thank you for that, and I believe
the President has done an outstanding job in these nominations.
Thank you, Mr. Chairman.
Chairman Hatch. Well, thank you, Senator Sessions.
We will turn to Senator Durbin now.
STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR FROM THE
STATE OF ILLINOIS
Senator Durbin. Thank you, Mr. Chairman. I want to thank
the nominees who are before us today for your patience, and I
hope that you understand that it is an unusual circumstance
when we have three judges at this level being considered at the
same time this early in the session, particularly when there
are many questions to be asked of each of them. That has meant
that this hearing has gone on much longer than usual and is
likely to continue for some period of time.
I know the Chairman of the Committee and we have worked
together in past years, and I am sure we will in the future. I
just hope that the pace of the hearings is not such that this
will appear to be a receiving line at an Irish wedding in terms
of the nominees. I think we need to take time and deliberate,
to ask important questions so that the people of this country
know a little bit more about those who seek lifetime
appointments to the second highest court of the land.
I would like to ask my questions of Professor Sutton
because I have in this first round tried to focus on his
activity and his career, and I will return to the other
nominees in another round.
Professor Sutton, I have listened to some of your earlier
testimony before this committee. It is interesting as I reflect
on it. If you accept the premise that was recently stated by my
colleague from Alabama that this is a somewhat mechanical and
automatic process, that a judge who seeks the circuit court,
for example, simply to read past cases, apply them to current
cases, and move on, then it would strike me as odd that we
don't have more nominees who are Democrats before us from the
Bush White House.
Apparently there is a belief in the White House that even
though it is a fairly automatic and mechanical process, they
want to make sure that if they are going to err, they are going
to err on the side of people who have similar political views
to the President. That suggests to me that this is not an
automatic process. And I think--I hope--that you would concede
that many close cases give judges at every level a chance to
see a new facet of the law that hasn't been seen before, and
perhaps in seeing it and ruling on it, to change the course of
that law and its future.
Would you concede that point?
Mr. Sutton. There is no doubt even Court of Appeals judges
deal with difficult issues, but I do think a point that was
raised earlier is a good one, whether it's the Sixth Circuit,
other Courts of Appeals, or even the U.S. Supreme Court, a high
percentage of cases are either unanimous or fairly unanimous,
if it is at the U.S. Supreme Court, precisely because there
usually are right answers. But I couldn't agree with you more
that every now and then you do get very difficult cases. Of
course, the more difficult the case, and particularly that have
involved the constitutionality of a Federal law, the more
likely the U.S. Supreme Court would review it. But I think your
point is a very good and a fair one.
Senator Durbin. I think it is important when a vast
majority of bills and resolutions in the House and Senate never
get any attention, nor should they. But a handful of important
bills come before us, and we have to make a decision as to
whether they should be the law of the land. And that really
goes to the point that has been made over and over as to your
values, who you are, what you are going to do on those close
calls, when you have a case that truly is going to set a new
precedent, that is really going to open up the new line of
thinking.
And I think the fact that the reaction to your nomination
has been so heated is an indication that many people are
concerned, that when it comes down to those close cases, when
the issue before the court is an issue of civil rights or human
rights, the rights of minorities or women or the disabled in
America, that you have shown a pattern of conduct of
insensitivity by virtue of your advocacy in the past. I have
never seen a hearing where we have had so many disabled
Americans come forward, frankly, to protest your nomination. It
tells me that they are concerned about you and what really is
in your heart.
Now, in the past, in our history, seldom do people announce
publicly that they are prejudiced. They don't say that. It is
rare. The primacy of States' rights has historically been the
beard for discrimination in America. Only a few people are bold
enough to just state forthright that they oppose civil rights,
the rights of women, minorities, and the disabled.
Instead, most have argued that they were not opposed to
civil rights but only the power of the Federal Government to
protect them. History has not been kind to those who concealed
their sentiments in this legal distinction.
Mr. Sutton, Professor Sutton, your legal career has been
spent practicing time and again in the shadows of States'
rights. You have said in publications that have been quoted
over and over again how much you value federalism and this
whole issue where time and again you found yourself in key
cases, like Garrett, on the side of States' rights as opposed
to individual rights. You have become a predictable, reliable,
legal voice for entities seeking to limit the rights of
Americans in the name of States' rights.
Do you believe that the Garrett case, despite what Senator
Sessions has said, and its conclusion expanded or restricted
the rights of disabled Americans?
Mr. Sutton. Well, there's no doubt that it restricted in
the sense that in that particular case someone was seeking
relief and they didn't get it. But in that particular case, as
I think I pointed out earlier, Ms. Garrett's Section 504
Rehabilitation Act claim is still pending, so she still may get
relief. That would be the first point.
The second point is what the Court did--and I would point
out that is not a case I've spoken publicly about. That's not a
case I've written about. It was a case I was arguing on behalf
of a client. I think the State did deserve representation at
the U.S. Supreme Court. I think it would have been quite
unusual had they not had it. But even in that case, with all of
that, all it said was that the State at the end of the day was
in charge of deciding when they could waive their sovereign
immunity in the same way the U.S. Supreme Court has said the
same thing about the U.S. Government. It doesn't mean in future
cases claims can't be brought in Federal court if States waive
them, and many States have waived them.
If there's one point, though, that I--some of the charges
are--they're hurtful charges, and, you know, you asked about my
values, and I think that is a fair question. It's an important
question, and I do want to respond to that. There is no doubt
this country's history when it comes to States' rights is
despicable. There's no room for argument about that, and I
think you know that's exactly how I feel. The worst violations,
the most egregious violations when it comes to States' rights,
of course, came in the area of race discrimination. And there,
you know, if people are going to look at my advocacy, I hope
they would appreciate that on a pro bono basis before I was
State Solicitor, I defended Ohio's hate crime statute on behalf
of every civil rights group with an interest in that type of
legislation. I know the Federal Government is thinking of doing
the same thing, on behalf of local chapters of the NAACP, the
Columbus Urban League, several others. And while State
Solicitor, I helped defend Ohio's set-aside statute.
So I do--I know it's very important, this process, for you
to raise those questions, and I assume you want me to answer
them, and that's how I'm responding--
Senator Durbin. But there had to be this moment of truth
for you as an attorney when you were asked to represent the
Board of Trustees of the University of Alabama, when you knew
that your success in that case would restrict the rights of
disabled Americans, which you have conceded here, and you
decided, not because you were assigned or required to, that you
were going to forward in that role of advocate.
Now, there are many other examples that are exceptions to
this rule, but the one that troubles the people who have
gathered here in the disability community is that, conscious of
what you were seeking you went forward and said, ``I will be
the advocate of the cause that will restrict the rights of
disabled Americans.''
Did that ever give you pause as to whether or not that was
the just thing to do?
Mr. Sutton. Sure, the case is an excruciatingly difficult
case, and it did give me pause. But, first of all, I did not
pursue the case. I was approached by the State and was hired by
the State, and I did have the option, you're right, I have the
option of saying no. But, remember, that's the exact same
choice that the U.S. Solicitor General's office has been faced
in 88 cases where they have said there's not--a claim cannot be
brought by a Federal employee--
Senator Durbin. The Solicitor General is not seeking
appointment here today, our approval. It is you.
Mr. Sutton. No, I'm not saying--I'm not making that point.
I'm making the point that this is the job of an advocate, and
the job of an advocate is not to decide in an exercise of
vanity what is--what would I do, what could I do? It was long
too late for that. I was not involved in the underlying
decisions of the University of Alabama in terms of what to do
with Ms. Garrett. I wasn't involved in the development of their
constitutional arguments in the District Court and in the Court
of Appeals. I became involved when they asked me to represent
them in the U.S. Supreme Court, and I think if I have a sin
here, the sin was that I did want to develop a U.S. Supreme
Court practice. There's on doubt about that, and maybe that's
what led me to take the case. But, Senator, I've done several
cases, in fact, more cases on the disability rights side of the
equation.
Senator Durbin. Do you think there would have been a time
when you would have had that chance to argue before the Supreme
Court and would have said to yourself, rather than get another
notch in my gun to go up to the Supreme Court, I just don't
want to be identified with a case that restricts human rights,
civil rights, the rights of the disabled?
[Applause.]
Chairman Hatch. Let's have order.
Mr. Sutton. Senator, I respectfully--and, you know, this is
a difficult place to make this point in this forum, but I
couldn't disagree with you more. I think it is exceedingly
wrong to ascribe the views of a lawyer--the client to the
lawyer. That's exactly what the ABA code says. It's exactly
what would prevent any criminal defense lawyer--I mean, I've
represented two capital inmates. It doesn't mean I agree with
their underlying acts or what happened. They deserved a
representation. I provided that representation.
The one case--and this is, I think, the fair response to
your question and your concern. I've only had one case that I
can think of where I was given an opportunity to represent
either side of a civil rights case. That's the Cheryl Fisher
case. When that came up to the Ohio Supreme Court, I was given
the opportunity to represent Cheryl Fisher, help her get into
Case Western University as a blind medical student, or
represent the side of the State universities who wanted to deny
her that right. I recommended to the Attorney General--it was
her choice, of course--that the State Solicitor ought to argue
that case, and I thought she had the better side of the
argument, and I did everyone I could--or could to make that
argument.
I've represented the National Coalition for Students with
Disability in applying Federal law, the motor-voter law so that
students with disabilities have access to the right to the
vote.
In a case pending in the Ohio Supreme Court, the Gobo case,
I inserted an argument not made below that an application of
Ohio insurance law would violate the ADA.
My father, you know, ran a school for cerebral palsy
children. I mean, I wouldn't say this is a perspective that is
lost on me. But I did feel at that time my higher obligation
was to the client and that they did deserve a right to
representation before the court.
Senator Durbin. Well, I will concede that you have
represented many different clients, but when it comes to the
cases that you have been involved in that have had the broadest
impact on the greatest number of Americans and their rights, it
is hard to find a case really in your career that matches the
Garrett case. What was decided by the Court by virtue of your
argument has denied rights to disabled people across America.
It has restricted their rights to recover under the law. And as
Senator Schumer said earlier, you can represent a lot of
individual defendants before you make up for the loss of rights
to a class of individuals, disabled individuals, because of
that decision.
May I ask another question? As we try to monitor the legal
DNA of President Bush's nominees, we find repeatedly the
Federalist Society chromosome. And I would like to ask you as
an officer of the Federalist Society--and I know every time I
raise this at a hearing, the right-wing press screams bloody
murder that this is dirty politics. But you have represented
that you are an officer of the Federalist Society. Why is it
that membership in the Federalist Society has become the secret
handshake of the Bush nominees for the Federal court?
Mr. Sutton. Well, I don't know that that's true. I don't
have any idea whether it is true. The one point I would make is
while I am a member of the Federalist Society, I'm also a
member of the Equal Justice Foundation. And I hope--in thinking
about my nomination, I know how important it is to realize who
this person is and what kind of judge they would be.
You will keep in mind that while I have been a member of
the Federalist Society, I was asked separately to join the
Equal Justice Foundation, which--whose whole purpose is to
provide legal service to the indigent. That, of course, is a
pro bono effort, takes more time than anything I do for the
Federalist Society, and as to the rest of your question, I
don't know the answer.
Senator Durbin. Let me just ask you your impression. What
in your mind is the Federalist Society philosophy that draws so
many Bush nominees to the Federal bench to its membership?
Mr. Sutton. Well, I have no idea of what their philosophy
is. In fact, my understanding is they don't take--
Senator Durbin. Are you an officer? Are you not an officer?
Mr. Sutton. I'm an officer of the Separation of Powers
Working Group. That's true. But that doesn't mean there's a
philosophy. In fact, my understanding of the Society is they
don't take positions on cases.
The one point I would make is my understanding of the
purpose of the Federalist Society and the reason I was
attracted to joining it was that they've tried to sponsor
forums to discuss important legal issues. And most of my
involvement has been in the Columbus chapter to that end. And I
think the Federalist Society has done a very good job having
presentations that involve speakers on both sides of the issue.
In fact, most of the criticism I have heard of the federalism
decisions all came from Federalist Society publications. First
time I saw anyone criticize Seminole Tribe was in a Federalist
Society publication. My article about the City of Berne
decision was a point-counterpoint piece next to Judge
McConnell's, Judge McConnell saying it was wrongly decided, my
saying it was rightly decided.
So I do think they've tried hard to do that. I can
understand someone having a different perspective on that.
Senator Durbin. Let me ask you about your representation of
tobacco companies in your private practice. You represented
Lorillard Tobacco in challenging a Massachusetts regulation
regarding the sale and promotion of tobacco products. In that
case, you argued these regulations violated the Free Speech
Clause of the First Amendment. In addition, you have been
critical of the $145 billion tobacco judgment in Florida.
Although you are an advocate of States' rights in some
contexts, you don't seem to like what they have done to tobacco
companies.
What is your view generally about the efficacy of tobacco
litigation, and do you feel that is ever justifiable?
Mr. Sutton. Well, RJR is a Jones Day client, and that's how
I became involved in that case. I was not involved in that case
in the lower courts. I became involved in it when they tried to
seek certiorari before the U.S. Supreme Court, and at the time
I had a U.S. Supreme Court practice and I was asked by the firm
to become involved in the case. And I did. I mean, it was a
firm client, and I think it would have been a rather unusual
decision on my part to not represent them, be unwilling to
represent a client of the firm.
Senator Durbin. Did you say RJR and Lorillard are clients
of the firm?
Mr. Sutton. No. RJR--all of the--the name of the case goes
by Lorillard, but it had several tobacco companies in it.
Senator Durbin. And RJR was your client.
Mr. Sutton. Exactly. Exactly. And in terms of the case
itself, you know, under the Free Speech Clause, that was the
main issue in the case. It's no surprise in most of the biggest
U.S. Supreme Court cases, the free speech argument is not on
behalf of a popular client. I mean, that's often--or, for that
matter, popular speech. That's exactly the way it traditionally
goes, and I think if you looked at the 20 biggest free speech
cases in the country, I suspect you'd disagree with the
underlying speech in every single one of them, and I--
Senator Durbin. I understand that, and historically--
Mr. Sutton. But it's a constitutional right, and even
though they may be--you know, it's a company with which people
can disagree with the work they're doing, their products are
legal. They've not been outlawed. And I think they do have a
right to raise a constitutional offense.
Senator Durbin. I don't argue with that premise at all.
Again, it is a question about that moment in time when the
senior partner came in and said, ``Jeff, I want you to take up
the cause of RJR, somebody's trying to restrict their
advertising that's appealing to children,'' and you said,
``I'll take it.'' That is a tough call, and lawyers in their
profession make those difficult calls. But I am, again, trying
to find out what is driving you and motivating you in terms of
your legal values, and as you said, it was one of the clients
of the firm.
I don't know how much time I have left here.
Chairman Hatch. Your time has been up.
Senator Durbin. All right. Thank you very much, Mr.
Chairman. Thank you, Professor Sutton.
Chairman Hatch. Well, we will begin our second round then.
Senator DeWine. I haven't gone.
Chairman Hatch. Well, could I ask one question before you
do? Then I will turn to you.
Senator DeWine. But I haven't done anything on the first
round.
Chairman Hatch. Okay. I didn't know whether you--
Senator DeWine. No, we haven't completed the first round.
Senator Leahy. I thought you did a second round.
Senator DeWine. No, I haven't done a second--I haven't done
a first round.
Chairman Hatch. Well, let's turn to Senator DeWine.
Senator DeWine. You can go ahead, Mr. Chairman.
Chairman Hatch. No, no. You go ahead. That is okay.
Senator DeWine. Mr. Sutton, good afternoon. I know it has
been a long day already for all of you, and we appreciate you
all hanging with us.
Chairman Hatch. Excuse me just one second. If you need a
break, just raise your hand and I will be glad to--
Mr. Sutton. I am proving I am older than I look. I am
getting there. But I will go another half-hour.
Chairman Hatch. Why don't we go another half-hour and then
we will--let's go another 15 minutes with Senator DeWine, and
then we will--
Senator DeWine. We will see who has the guts to raise their
hand, right?
Chairman Hatch. We will break for 5 minutes and then come
back.
Senator DeWine. The good news for all of you, it is a
lifetime appointment.
Senator Leahy. They probably feel like today has been a
lifetime.
Senator DeWine. Probably. That is right.
[Laughter.]
Senator DeWine. Absolutely.
Mr. Sutton, I don't pretend to be a legal scholar, but I
did have the opportunity to look at a lot of the cases that
have gotten the bulk of the publicity in regard to the cases
that you have argued before the Supreme Court. And I was here
in the Congress when we passed the ADA, and I must be candid
and tell you that I think if I was on the Supreme Court, I
would have decided these cases differently. I don't agree with
the decisions. I don't agree with the bulk of the decisions
that you argued in front of the Supreme Court, at least on the
controversial ones. But I am not sure how relevant that is. In
fact, I don't think it is relevant at all.
I want to follow up with a line of questioning from my good
friend Senator Durbin, and I wish he was here. I know he had to
go to another meeting. But I think we go down and start down a
very dangerous path when we probe deeply into the clients and
the causes that nominees have either advocated or represented.
I think it is legitimate. I think we can look at them. But I
think when we start down that path, it is rather dangerous.
It is dangerous if we conclude that a person cannot go on
the Federal bench because of certain clients that they have
represented or because of certain positions they may have taken
in arguing a case before the Supreme Court of the United States
or any other court.
If we follow that position, there would be many principled
lawyers in our history who never would have served on the
Federal bench. But, more importantly, if this Committee would
be saying that and if this Senate would be saying that, I think
it would have a chilling effect on the practice of law as we
know it in this country.
How many young lawyers would say to themselves, ``I can't
take this case, I can't represent this client, I can't advocate
this position because, you know, someday I may want to serve as
a judge, someday I may want to be on the Federal bench''? And
all the young lawyers, I think, at one point in time think that
they would like to be a judge. Some of them get over it. But
many of them feel that way at some point.
So I think it is a mistake. I don't fault any of my
colleagues for engaging in that conversation and that give and
take and trying to find out what is in Mr. Sutton's or Mr.
Roberts' or Justice Cook's heart and soul. I think that is
legitimate. But if we extend it to the natural consequence of
that discussion and really say, no, we can't put that person on
the bench because they advocated that position, I think that is
a very, very serious mistake. And whether it is--if we look
back in history and whether it is John Adams and the Boston
Massacre or whether Thurgood Marshall representing rapists, or
whoever, whatever the case might be, and we can go back in
history, I think it would be a very, very serious mistake. And
if we applied that law, we would have been denied some very
great people on the Federal bench and in politics and in
Government. And I think it would have been a mistake.
I think ultimately, Mr. Sutton, and all of you, the
question is: Will you follow the law? Will you follow the
Constitution? And will you follow the precedent? I assume from
each one of you the answer is yes. Mr. Roberts?
Mr. Roberts. Yes, Senator.
Senator DeWine. Justice Cook?
Justice Cook. Yes, indeed.
Senator DeWine. Mr. Sutton?
Mr. Sutton. Yes, Senator.
Senator DeWine. Mr. Sutton, let me read you the entire
section of the 1998 Legal Times article that was quoted to you.
It is only a part of the article, but I think it was excerpted
a little bit, and I want to read it to you.
``Sutton says he and his staff are always on the lookout
for cases coming before the Court that raise issues of
federalism or will affect local and State government
interests.''
What position did you hold at that point in time? And who
was your staff? What were you talking about?
Mr. Sutton. Yes, Senator, I was the State Solicitor at that
point.
Senator DeWine. At that time you were State Solicitor.
Mr. Sutton. I was State Solicitor.
Senator DeWine. Why were you looking for these cases?
Mr. Sutton. Because Betty Montgomery, the Attorney General,
correctly realized--I think she had some vision in this area--
that just because a case comes from another State, another set
of courts, and goes to the U.S. Supreme Court, it doesn't mean
it's not going to affect them. In fact, it's just the opposite.
You could have a case coming from Arkansas, Alabama,
California, and once the U.S. Supreme Court decides that issue
of Federal statutory law, U.S. constitutional law, that
decision's binding on every State, including Ohio.
What the article was pointing out and what Betty Montgomery
asked me to do and we did do was to look for cases principally
in her area of interest. Her area of interest was, of course,
criminal law. She's a former prosecutor. And we must have
sought out and written--you know, I don't want to exaggerate.
I'm sure it's several dozen, if not considerably more, briefs
in U.S. Supreme Court cases generally advancing her perspective
on criminal law issues, which was her interest and what she
asked us to do, and those were the types of cases--in fact, I
think the article was about one of those cases. It was not
about, you know, a Section 5 case. It was about the City of
West Covina versus Perkins, which involved the Due Process
Clause and the return of property that was seized in a Fourth
Amendment seizure and the procedural protections individuals
have and their rights in getting it back.
Senator DeWine. Mr. Sutton, I would like to clarify one
point. We have had a little discussion about this, and your
nameplate says ``Professor Jeffrey Sutton.'' I think you are
listed that way maybe because the Committee put it down that
way because you are an adjunct professor. This is a little
different than a full-time professor. I just state that because
the articles you have written were written by you really,
though, in your role as a lawyer, not as an academic. Is that
correct?
Mr. Sutton. Absolutely. In fact, the first articles
mentioned were articles written while I was State Solicitor,
and, of course, pursuing the job I was asked to do,
representing the State. I think one or two of them were written
after I was State Solicitor, but the commentary was principally
about cases I argued. And, of course, a lawyer would have an
ethical obligation not to say publicly that his or her client
in a given case had urged a position that was ultimately
incorrectly decided by the U.S. Supreme Court. I mean, in those
cases, my clients happened to win, and it would have been not
only unusual, but I think ethically barred for me to publicly
say the U.S. Supreme Court was wrong in those decisions. And I
was--if one reads those articles, one would see pretty quickly
that they were simply recycling the briefs that I had written
in those very cases. In fact, I hate to say it, word for word.
I don't think one can plagiarize oneself, but if one can, I've
just made an awful admission. But that's what you would see if
you read those articles and compared them to the brief.
Senator DeWine. I want to go back to the City of Boerne
case and the discussion that you had with Senator Schumer a few
minutes ago. In that exchange, he asked you about a supposed
position that you took during oral argument, and I would like
to clarify it.
As I understand it, you argued that Congress does have the
authority to enforce the Bill of Rights using Section 5 of the
14th Amendment as those rights are incorporated in Section 1 of
the 14th Amendment. So as I understand it, you argued that
Federal authority was broader and that the Federal Government
has the authority to protect more rights than some of the other
parties in the case did.
So in that case, with regard to your position, Senator
Schumer's concerns were unfounded.
Mr. Sutton. I think that's right, Senator. It was a very
important issue in City of Boerne because until that decision,
the U.S. Supreme Court had not clarified that critical point.
If one looked at all of the Section 5 laws that have been
reviewed for 100-plus years by the U.S. Supreme Court, you
would have seen that they all involved, at least the ones that
were upheld, racial discrimination remediation or voting rights
remediation. They hadn't extended to the other Bill of Rights
protections, whether it's free speech, criminal rights
protections, or in the case of City of Boerne, free exercise of
religion.
And the State was in a difficult position in that case
because the party in the case, the City of Berne, had taken the
position, because no case had held otherwise, that Section 5
only allowed Congress to correct race discrimination and voting
rights discrimination. And we were in a difficult position.
Usually an amicus tends to agree with the party that you're
supporting. But at the same time, you know, not that reasonable
minds couldn't disagree with this point--and Justice Scalia
ultimately gave me a very hard time on this--but took the view
that by its terms, the Constitution said Section 5 enforces the
provisions of Section 1. Section 1 says due process. The U.S.
Supreme Court had construed the Due Process Clause to
incorporate many if not all of--well, most of the provisions of
the Bill of Rights. And so we made that argument, and Justice
Scalia gave me a very difficult time. I mean, if you've ever
seen him ask a question, my knees clearly quivered. But, I
mean, my backbone did stiffen on this point, and we said that's
wrong, Justice Scalia, by its terms and, you know, as a
textualist, you have to--you should agree with this. By its
terms, it covers all rights protected by Section 1.
So while, you know, there's part of that outcome of that
case that one could be unhappy with and certainly reasonable
minds could disagree with, we feel good about that part. The
Court did agree with us on this.
Senator DeWine. Good.
Justice Cook, you have been making appellate court
decisions now for well over a decade. Obviously in that time,
you have developed a style and a way of making decisions and an
approach to that job. Tell us how you approach the job, how you
do that, and how you would approach the job as a circuit court
judge. There has got to be a technique, there has got to be a
way of doing it.
Justice Cook. Right.
Senator DeWine. Everyone has got their own style. How would
you do it? How do you do it now?
Justice Cook. My process is structured, and I hope you
would find it principled, and it's the process I think most
appellate judges engage in. It's first a review of the record
of proceedings, a reading, a thorough reading and studying of
the contesting briefs, then a review of the existing law, and
then the application of logic, sometimes custom, and generally
rules. And this is done--you know, I'll give some credit to my
counsel because every judge has talented law clerks, and in my
chambers--actually some of my clerks are still here, I think.
In my chambers, my clerks do serve as my counsel. And so I
think that that process generally and with the inclusion of
bright young minds to challenge any decisions that I come to, I
think we achieve the impartiality and really the objective
approach that fairness dictates, and any good jurist engages in
pretty much that same decisional process, I would say, Senator.
Senator DeWine. Do you go through a few drafts?
Justice Cook. Oh, yeah. And then we exchange the drafts
among the members of the court, and in that process, we're also
able to learn, you know, if any other member of the court
writes a concurrence or a dissent that helps in our
decisionmaking to double-check our reasoning, to double-check
our research. And so it is a--it's a process--it's a learning
process at its base. And that's what we--that's our job.
Senator DeWine. Good. Thank you very much.
Thank you, Mr. Chairman.
Chairman Hatch. Well, thank you, Senator.
Let's take a 5-minute break, and we will come right back.
[Recess from 3:48 p.m. to 4:02 p.m.]
Chairman Hatch. We will start the second round of
questions, and maybe I can start it off or, Senator Leahy, if
you would prefer?
Senator Leahy. No, go ahead.
Chairman Hatch. Well, I will start it off, and we will turn
to Senator Leahy as soon as I am through. Hopefully this is all
the round we need, but I want my colleagues to feel like they
have been treated fairly and want them to be able to ask what
questions they have in mind. But there has to be a reasonable
time, and we will call this at a reasonable time. This is their
chance to question the three of you, and we will just have to
see what happens.
Let me just go back to you, Mr. Sutton. As a matter of
fact, I understand that you came to represent the University of
Alabama in the Garrett case because the Alabama Attorney
General's office called you up and asked you to take the case.
Is that right?
Mr. Sutton. That's correct.
Chairman Hatch. Okay. So you were asked by the Attorney
General of the State of Alabama.
What if it had been the other way around? I mean, what
would you have done if Mrs. Garrett or the United States had
called you up and asked you to represent their side in the
Garrett case? Would you have done it?
Mr. Sutton. Yes, Your Honor, absolutely. And I would have
been very eager to represent that side of the case, either for
Ms. Garrett or if I had been fortunate enough to be in the
Solicitor General's office.
Chairman Hatch. So when you represented your clients, you
were doing what attorneys do, represent clients.
Mr. Sutton. Yes, I was.
Chairman Hatch. I have to admit, I am absolutely nonplussed
that some of my colleagues seem to think that you should only
represent the people who agree with them. Now, I don't know any
attorney who does that who is worth his salt, if he really has
any real broad experience. You are not going to please
everybody by the people you represent, but to ascribe to you
the negative aspects of your clients I think is the height of
sophistry. And it is really bothering me that on this
committee, with the sophistication of this committee, that we
have had those types of indications.
Let me just ask you this. Now, I get so sick and tired of
the Federalist Society, they beat up on the Federalist Society.
I happen to be a member. I am on the board of advisors. I know
what they do. I know what they don't do.
Now, since your membership on the Federalist Society has
been raised here today and since various groups such as the
People for the American Way and NARAL, the National Abortion
Rights Action League, have also expressed concern over your
involvement with that group, just let me ask you a few
questions about it.
You are indeed a member of the Federalist Society, are you
not?
Mr. Sutton. Yes, I am.
Chairman Hatch. Okay. Well, I am, too. And I happen to
think that it is one of the best organizations in the whole
country, and I have found, frankly, that the Federalist Society
encourages open and honest discussion from all points of view,
from a variety of perspectives on a multitude of current
issues. Have you found the same thing?
Mr. Sutton. I have, Your Honor. On the cases I argued on
behalf of several clients, I've seen as much criticism of those
cases in Federalist Society publications as I've seen anywhere.
Chairman Hatch. I have never known the Federalist Society
to take a position on any issue. Do you know whether they have?
Mr. Sutton. I'm not aware of that, no.
Chairman Hatch. Well, I don't think--I've never seen it. So
I get a little tired of this beating up on the Federalist
Society as though there is some sort of a secret society. It is
the most open society in our country right now from a legal
standpoint. In fact, Federalist Society events are known for
their intellectual vigor and open debate. Do you differ with
that statement?
Mr. Sutton. I don't, to the extent I've been to them, yes.
Chairman Hatch. Leading liberal academics and Government
officials regularly participate in the organization's events.
Isn't that correct?
Mr. Sutton. That is correct.
Chairman Hatch. From all points of view.
Mr. Sutton. That's very correct.
Chairman Hatch. From the right to the left. Right?
Mr. Sutton. Yes, exactly.
Chairman Hatch. Regular participants include Walter
Dellinger. Walter Dellinger was President Clinton's Acting
Solicitor General. Very, very intelligent, interesting, and
good man, but very liberal.
Stephen Reinhardt--you have got to be pretty liberal to be
to the left of Reinhardt, from the Ninth Circuit Court of
Appeals. But one of the really brilliant people in our society.
He really believes in what he does, even though I think many
justly criticize some of his activist approaches.
How about Nadine Strossen? She is the president of the
ACLU. She is no shrinking violet, yet she participates in the
seminars and the conferences.
Professor Laurence Tribe of Harvard. Now, no one would say
that Laurence Tribe is an insidious conservative.
How about Cass Sunstein of the University of Chicago? A
regular. They, I think, enjoy these give-and-take sessions, and
they should.
Do these sound like a gang of right-wing participants to
you?
Mr. Sutton. No.
Chairman Hatch. For some reason, I knew that is what your
answer was going to be.
Senator Leahy. I had even figured that out.
Chairman Hatch. Even Leahy figured that out.
[Laughter.]
Chairman Hatch. That is great. I am so happy for that.
Senator Leahy. I am glad to see you so supportive of Walter
Dellinger insofar as when you were chairman, we couldn't get
him through the committee. That is why he was Acting Solicitor
General.
[Laughter/applause.]
Chairman Hatch. Well, I have to say that I do have a lot of
respect for Walter Dellinger. I do. I even have respect for
you, Senator Leahy, quite a bit. And I have earned it over the
years, I tell you.
Mr. Roberts, one of my Democratic colleagues has criticized
you, albeit rather regularly, for cases that you worked on in
your official capacity as Principal Deputy Solicitor General at
the U.S. Department of Justice. The positions you took in these
cases represented the position of the U.S. Government, right?
Mr. Roberts. Correct.
Chairman Hatch. The U.S. Government was your client, right?
Mr. Roberts. That's right.
Chairman Hatch. You didn't necessarily choose these cases,
right?
Mr. Roberts. No.
Chairman Hatch. You had supervisors who worked with you?
Mr. Roberts. Yes.
Chairman Hatch. Suggestions were made to you?
Mr. Roberts. Yes.
Chairman Hatch. And you followed those suggestions?
Mr. Roberts. Yes, and quite often, of course, we were in a
defensive position defending Federal agencies that were sued in
court.
Chairman Hatch. Sure. And am I correct that the
Government's position in these cases was often arrived at as a
result of collaborative process in which many different persons
aired and debated different views?
Mr. Roberts. It's a very broad collaborative process. I
don't think everyone's familiar with it. But when a case
reaches the Supreme Court that might affect the Federal
Government, or in which a Federal agency has been a party, you
canvass the whole scope of the Federal Government. And in a
typical case, you will get responses from ten different
agencies, sometimes all over the map, sometimes, you know,
consistent in a position. A number of different divisions
within the department, different offices, all weighing in on
what the position of the United States should be.
Chairman Hatch. Well, and as a lawyer in the Solicitor
General's office, you were duty-bound to represent the official
position of the United States even if it conflicted with your
own personal beliefs, right?
Mr. Roberts. Certainly.
Chairman Hatch. That is what attorneys do.
Mr. Roberts. Not only in the public sector, but I think in
the private sector as well, that that's the highest tradition
of the American bar.
Chairman Hatch. Well, I have to again caution my Democratic
colleagues about the danger in inferring a Government lawyer's
personal views from the position he or she takes as an attorney
for the United States. I think that Walter Dellinger, who as we
all know served as Solicitor General during the Clinton
administration, said it best. He said that it is ``very risky''
to judge judicial nominees by the positions they have taken as
Government lawyers and that such judgments may lead to a
rejection of ``the most qualified of the nominees, those who,
like Mr. Roberts, have been out and have had a major lifetime
of accomplishment.'' One of the leading Democrat legal thinkers
in the country.
Now, specifically with regard to Mr. Roberts, Mr. Dellinger
said this: ``The kind of arguments that John Roberts was making
in the position of Deputy Solicitor General were the type of
arguments a professional lawyer is expected to make when his
client, the Chief Executive of which is the President of the
United States, has run on those positions.''
Now, Mr. Roberts, I want the persons who have made
predictions about how you would rule as a judge to listen to
some of the things your colleagues, the persons who know you
best, have said about you.
Shortly after your nomination in 2001, the Committee
received a letter from 13 of your former colleagues at the
Solicitor General's office. Now, I want to read a portion of
this letter because I think it will help my colleagues in
evaluating your nomination.
The letters says, ``Although we are diverse political
parties and persuasions, each of us is firmly convinced that
Mr. Roberts would be a truly superb addition to the Federal
Court of Appeals. Mr. Roberts was attentive and respectful of
all views, and he represented the United States zealously but
fairly. He had the deepest respect for legal principles and
legal precedent, instincts that will serve him well as a Court
of Appeals judge.''
``In recent days, the suggestion has surfaced in press
accounts that Mr. Roberts''--meaning you--``may be expected to
vote along the lines intimated in briefs you filed while in the
Office of Solicitor General.'' In fact, this is their quote.
Let me just quote it. And these are your colleagues from
diverse political views--Democrats, Republicans, maybe some who
aren't either. They say, ``In recent days, the suggestion has
surfaced in press accounts that Mr. Roberts may be expected to
vote in particular cases along the lines intimated in briefs he
filed while in the Office of Solicitor General. As lawyers who
served in that office, we emphatically dispute that assumption.
Perhaps uniquely in our society, lawyers are called upon to
advance legal arguments for clients with whom they may in their
private capacity disagree. It is not unusual for an individual
lawyer to disagree with a client while at the same time
fulfilling the ethical duty to provide zealous representation
within the bounds of law, and Government lawyers, including
those who serve in the Solicitor General's office, are no
different. They, too, have clients. Federal agencies and
officers with a broad and diverse array of policies and
interests. Moreover, the Solicitor General, unlike a private
lawyer, does not have the option of declining a representation
and telling a Federal agency to find another lawyer.''
Then they go on again: ``We hope the foregoing is of
assistance to the Committee in its consideration of Mr.
Roberts' nomination. He is a superbly qualified nominee.''
I will submit a copy of that letter for the record, along
with copies of several other letters echoing support for your
nomination.
Now, the resounding theme of these letters is that you will
be a fair and impartial judge whose deepest respect for law and
the principle of stare decisis combined with your brilliance
will make you one of the greatest Federal judges ever
confirmed.
Now, people who know you, that is the way they feel,
regardless of their political beliefs or their ideological
beliefs, that you are a great lawyer, as are the other two on
this panel.
I have had Supreme Court Justices say you are one of the
two greatest appellate lawyers living today, to me personally.
Now, they don't do that, you know, very easily. And I think
everybody who knows you knows that that is how good you are.
This is not your first appointment to the courts, is it?
Mr. Roberts. No, Mr. Chairman, it's not.
Chairman Hatch. When were you nominated before and by whom?
Mr. Roberts. I was nominated 11 years ago last Monday to
the same court by the first President Bush.
Chairman Hatch. So basically it has taken you 11 years to
get to this particular position.
Mr. Roberts. Well, I like to think I haven't been just
treading water in the meantime, but it has been 11 years.
Chairman Hatch. There has been an expiration of 11 years
since your first American people, and then you have had to be--
you were appointed on May 9th of 2001.
Mr. Roberts. This current round, yes.
Chairman Hatch. And this is the third time you have been
reappointed this January by current President Bush.
Mr. Roberts. Correct.
Chairman Hatch. Well, I will reserve the balance of my
time, but I just wanted to get those points out because for the
life of me I can't understand why anybody who loves the law and
who respects great lawyers would not want any of the three of
you to serve in our Federal courts. I know one thing: I would
sure want to be able to argue cases in front of you. I know one
thing: I know I would be treated fairly. And you and I both
know another thing: When we tried cases, I didn't want a judge
on my side. I didn't want him against me. I wanted him or--I
wanted the judge, regardless of who it was, to be fair, down
the middle, to apply the law. If they did, I was going to win
that case. I could lose the case by the judge favoring me just
because a jury would get mad. Or I could lose the case by a
judge not favoring me just because the judge was so respected.
We want judges who are going to be down the middle, who are
going to--that doesn't mean you have to be down the middle in
ideology and everything else. Just on the law, they are going
to be down the middle and do what is right and honest and
legally sound. Well, I have every confidence that the three of
you, each of you, will be exactly that type of a judge. And I
commend you for these nominations, for your nominations, and I
look forward to seeing you confirmed, and I hope we can do that
relatively soon.
Senator Leahy? I will reserve my other 5 minutes.
Senator Leahy. Thank you, Mr. Chairman.
I don't know where this pesky idea of the Federalist
Society came from, probably because one of the nominees
testifies here under oath that he was told if he wanted to be a
Federal judge appointed in the Bush administration, he should
join the Federalist Society. I mean, that may have stuck in
people's minds. I don't know. You know how those little things
are.
Chairman Hatch. I doubt anybody of any intelligent mind
would worry about that.
Senator Leahy. Well, I would hope you wouldn't suggestion
that President Bush's nominee who we confirmed as a Federal
judge would be lying under oath.
Chairman Hatch. Of course not.
Senator Leahy. Okay. Am I down to only 4 minutes that
quickly?
Chairman Hatch. No, no. That was my 5 minutes.
Senator Leahy. Goodness gracious. Man, I never should have
let you have that big gavel.
The Federalist Society's membership certainly hasn't
stopped people. Paul Cassell was confirmed to the Utah District
Court. Karen Caldwell, Edith Brown Clement, Harris Hartz, Lance
Africk, Morrison Cohen England. They are all Federalist
members, all confirmed. Michael McConnell to the Tenth Circuit,
John Rogers to the Sixth Circuit, both members. Ken Jordan,
Arthur Schwab and Larry Block. I mean, I could go on and on. In
fact, it seems a lot of more were there. So maybe it is
coincidence, the statement of one, who says that they had to
join to be made a judge, or maybe it is a coincidence so many
have gone through. But be that as it may, it hasn't been held
against them. Certainly I would not do as some of my colleagues
have on the other side, vote against a nominee, as they have of
a Clinton nominee, because she had dared in her private
practice to represent a labor union. They voted against her
because of that, and having listened to your testimony, all of
you, and Chairman Hatch's testimony, that clients take their--
or lawyers take their clients and represent them, although I
would note just so that it doesn't seem totally one-sided, we
had one vote against for defending labor unions, we had another
one for taking a couple pro bono cases for the ACLU and so on.
Chairman Hatch. Was that Marsha Berzon who now sits on the
Ninth Circuit Court of Appeals?
Senator Leahy. That is right. You were not the one that
voted against her.
Chairman Hatch. I know. Neither were most everybody else. I
am condemning both sides if they are going to do that type of
reasoning.
Senator Leahy. So we won't go through a number of the ones
who were never given a hearing because their clients weren't
liked. But let's talk about stare decisis, and I am sure that
every one of you would, of course, agree that you would follow
stare decisis. I have never known a judicial nominee to say
otherwise, and even including some who, after getting on the
bench, were reversed because they did not follow stare decisis.
But it is a hornbook law that you have to.
Now, Professor Sutton, in a Federalist Society paper in
1994--and I realize they don't take any positions in the
Federalist Society, but you praised the analysis in Justice
Clarence Thomas' concurring opinion in Holder v. Hall, a case
that considered Section 2 of the Voting Rights Act. And you
specifically praised Justice Thomas for providing persuasive
and important reasons to reconsider and overrule prior Court
precedent broadly interpreting the Voting Rights Act. And you
told the Federalist Society that Justice Thomas' approach goes
a long way to developing a conservative theory for doing an
unconservative thing, overruling precedent.
Why wouldn't this just be conservative judicial activism?
And I know you were expecting the question, so I would like to
hear your answer.
Mr. Sutton. No, I wasn't expecting the question. Why
wouldn't it in Justice Thomas' position be conservative
judicial activism? Is that the question?
Senator Leahy. Yes.
Mr. Sutton. Well, I think the point the article made was
that the Section 2 cases had led to a very difficult set of
interpretations for the Court in the voting rights arena, and
it's important to remember that in that Holder v. Hall case,
Justice Thomas' vote was a concurrence, the majority. I don't
know exactly what the vote was, but I think it was pretty
overwhelming, ultimately said that you couldn't bring this type
of vote dilution claim under Section 2.
Justice Thomas took the view that while that was an
application of several cases of the Court, including a case
called Allen, I think from the 1960's, that the Allen case and
the case after it hadn't been correctly decided, and that the
Court shouldn't have gone down this road trying to determine as
a matter of political theory what size a voting group should
be--a county, a city, number of members.
The opinion Justice Thomas relied upon was Justice Harlan's
opinion in that. I don't remember if he was concurring or
dissenting. Justice Harlan, of course, is one of the Court's
moderates, or at least he's perceived as a moderate, not unlike
Justice Powell. So I don't think the perspective Justice Thomas
had on the case was, you know, out of the mainstream. He was
following Justice Harlan. But I guess more importantly, as a
Court of Appeals judge, one would not have any option of doing
anything of the kind. I mean, whatever the Court does with--
Senator Leahy. Well, not exactly. Within your circuit,
within your circuit you could overrule stare decisis.
Mr. Sutton. Oh, not--I understand what you're saying. In
other words, circuit precedent.
Senator Leahy. Yes, you would not have to follow--I mean,
you are presumed that you will follow it, but you are not
required to follow the precedents of your own circuit, and
circuits do change--not often, but circuits either reverse
themselves or circuit judges dissent from positions. It is not
unheard of for a circuit to reverse itself in a subsequent
case.
Mr. Sutton. That's true, although in a panel decision, a
three-judge panel doesn't have that option.
Senator Leahy. I agree.
Mr. Sutton. So if the panel, no matter what the prior
precedent, no matter how much a judge disagreed with it, they
have to follow it. And then and only then if the--
Senator Leahy. It goes up en banc.
Mr. Sutton. --the losing party chooses to ask the entire
court, however many members, to decide whether they should
review that prior precedent. But, of course, that's not one
judge's vote. That's a majority vote of the entire circuit.
Senator Leahy. That is true.
Mr. Sutton. And I guess the thing that Justice Thomas, I
thought, was trying to do was determine what is the hardest
thing in this area, neutral principles for not following a
precedent. And to me that was admirable. But the risk, great
risk when it comes to stare decisis is that it becomes result-
oriented, that someone is simply deciding they personally
didn't like something and so they vote to overrule. The very
point of the article or this section of the article--this was
the same article, I should point out, that was criticizing the
Court for a ruling that heard disability rights. But in this
part of the article, I was simply making the point that neutral
principles for determining when stare decisis ought to apply
and shouldn't apply are to be applauded. A good idea.
What you said actually there about Judge Thomas is, on the
one hand, adherence to precedent is an ostensibly conservative
notion. One consistent with protective reliance interests, in
particular, and furthering judiciary restraint in general. But
on the other hand, it cannot be that all liberal victories
become insulated by stare decisis, while all conservative ones
remain open to question, and I worry that what you are doing is
suggesting a blueprint for overturning court decisions that
maybe some of your friends do not like on civil rights, but
here you are a strong adherent, which is a conservative
principle to stare decisis or am I reading too much into your
comments?
Mr. Sutton. Well, I think perhaps a little bit, Senator.
The point I think I was making was one I would assume everyone
would agree with. It would not be a very coherent or fair
principle of stare decisis that said we only stick with certain
types of precedential rulings and not with others and simply
making the point it is a conservative doctrine to stick with
stare decisis, but it wouldn't be a legitimate application of
stare decisis to not apply it neutrally to all precedents that,
in the U.S. Supreme Court, has many cases that have given
instruction not just to the Justices, but to the lower courts
as to when one would decide.
I mean, the Buck case that we talked about earlier, forced
sterilization of the handicapped, I mean, if ever there were a
case calling for an overruling, it would be that case, and
there are principles to look at, whether the underlying
reasoning makes sense.
Senator Leahy. I understand, but we are also not going to
have too many Dred Scott or Plessy v. Ferguson or cases like
that. What we are going to find are some very specific cases
following Congressional action within the last 5 years/10 years
or a year. What I am trying to determine is your full sense of
stare decisis.
Let me tell you why some of this comes up. Have you read
the book or are aware of the book Judge Noonan wrote, Narrowing
the Nation's Power?
Mr. Sutton. I have read the book.
Senator Leahy. It is a short, but really powerful, book. I
picked it up 1 day flying back here from Vermont, and I started
reading it on the plane, and I was still reading it at 2
o'clock in the morning. I felt like I was back in law school
cramming, but I found it difficult to put down.
He was talking about a number of the reasons why States, in
effect, do not enjoy the sovereign immunity that what I
consider a very activist Supreme Court has been giving them in
the last few years, and I was persuaded by the conclusion that
the best reason that States should not enjoy immunity from suit
is that such treatment is simply unjust and why should a State
not pay its just debts?
Why should it not compensate victims for the harm it
wrongly causes or why should States be subject to Federal
patent law, and Federal copyright law, and Federal prohibitions
of discrimination from unemployment, but not be accountable if
it invades somebody else's patent or copyrights or accountable
for discriminatory acts as an employer?
Has the Supreme Court, in these areas--copyright, patent
law and others--have they been, as someone said, a very
activist court are you are very comfortable with the decisions
they have made?
Mr. Sutton. Well, I can't say I read Judge Noonan's book as
quickly as you did, but I--
Senator Leahy. No, no, no. I read it until 2 o'clock in the
morning. That doesn't mean that I would want to do my third-
year law exam on the book, but these are some of the things
that I got out of it.
Mr. Sutton. No, I did read the book. I enjoyed the book. I
think he makes a forceful case for that position, and I
actually think that's the most difficult position the court has
taken in all of these we'll call them ``federalism'' cases.
Senator Leahy. Are you comfortable with that direction of
the Supreme Court?
Mr. Sutton. Well, the point I was going to make was I
wasn't involved. That's the Seminole Tribe case that makes that
ruling, that made that decision that the Eleventh Amendment
does apply to States and that the only way Congress can alter
that immunity is through Section 5 legislation or Spending
Clause legislation.
So I was not involved in arguing Seminole Tribe. The cases
I have done have been principally--
Senator Leahy. Are you comfortable with the decisions the
Supreme Court has followed?
Mr. Sutton. Well, I'm comfortable that I would follow them
as a Court of Appeals judge. Would I have done that as Court of
Appeals judge had that case faced me? Would I have done that in
any other position? I don't know. I've never been in the
position where I had a chance to do what a good judge should do
and ask yourself, okay, what does one side have to say about
this? What precedent do they think supports them? What would
another side say?
I guess the one part of the decisions that, you know, it's
the one part that Judge Noonan doesn't deal with is his point
that the doctrine that the king can do no wrong is a bad
doctrine I think everyone would agree, and that's exactly why
most democratically elected legislatures have allowed suits
against States and the Federal Government.
The one point I would make, to be consistent with him, and
he doesn't make it, is that if you're going to say the king can
do no wrong, and there's no such thing as sovereign immunity
because the term doesn't appear in the U.S. Constitution, it
seems to me appropriate that that be true with the U.S.
Government because it doesn't apply there either.
I think that's what the court has done. Now, maybe the U.S.
Supreme Court is wrong in these cases, but I think they have
seen some symmetry in money damages cases being brought against
elected Congress, elected State--
Senator Leahy. But you understand some of the concerns that
many of us up here are suggesting, that the States are suddenly
being protected from taking responsibility for discrimination,
for example, that they or their agencies decide to do or
violating other people's copyrights that they or their agencies
do, that they are protected, and--I mean, I have to ask myself
were not the Civil War amendments, including the Fourteenth,
designed as an expansion of Federal power and actually an
intrusion into State sovereignty?
Mr. Sutton. Oh, absolutely, and that is exactly why the
City of Boerne decision and these other cases allow individuals
to bring money damages, actions, against States under the
Fourteenth Amendment because of Section 5 legislation. So I
agree entirely with that.
Senator Leahy. Well, then, if that is the case, we have
also a problem, and I realize you did not decide the cases, but
here in the Congress we might have weeks or months of
hearings--so they have the ADA, and RFRA, and ADEA bringing in
evidence, not only in hearings here in Washington, but field
hearings around the country, and isn't Congress in a better
position to determine facts relevant to the exercise of its
Section 5 authority after all of those hearings than the court
is after an hour's hearing over in the marble hall across the
street?
Mr. Sutton. Absolutely, and the U.S. Supreme Court has said
that you're in a better position to make those findings, you're
better equipped to gather that kind of evidence. The thing that
I think the U.S. Supreme Court has found to be tricky in this
area, and I think this is another area Judge Noonan criticized,
and reasonable minds can differ on this point, is the question
of is it complete deference or virtually complete deference to
Congressional fact findings?
And I think the point the U.S. Supreme Court has made--and
on this point I don't think there is disagreement--I think all
nine Justices, not applying in a given case--but I think all
nine Justices would agree that one can't decide that a
Congressional fact finding is binding on the determination of
the validity of Section 5 law because that would be to delegate
the ultimate Marbury power to this branch of Government.
So I think that principle is a difficult one.
Senator Leahy. On that on the general principle, I would
agree with you, but I believe we also have a court that is
totally ignoring the legislative record or saying that it is
virtually irrelevant. That is what I mean by a very, very
activist Supreme Court.
Mr. Sutton. Well, the part that I certainly sympathize, if
not empathize, with you on is these decisions are recent
rulings. City of Berne is 1997 or so, and many of these laws
that were reviewed were enacted before the City of Berne
decision. Now, the City of Berne relies on many existing
precedents, but it had not dealt with nonvoting rights,
nondiscrimination cases--the court had not--and so I certainly
understand your position, and I think that's what Judge Noonan
was saying. It doesn't seem fair to suddenly judge these laws
based on a standard that was developed after the law. I think
you're right to be skeptical of that.
Senator Leahy. If I look at Justice Breyer's dissent in
Garrett things like that, I find it very compelling.
But my time is up, Mr. Chairman, and I will wait for my
next round.
Chairman Hatch. Senator Schumer, we will turn to you.
Senator Schumer. Thank you, Mr. Chairman. I want to thank
everybody. I know it has been a long day, but I think it is an
important day as well. So I am going to ask a few more
questions of Professor Sutton.
Now, a few years back, as you well know, the court, the
Supreme Court invalidated part of the Violence Against Women
Act, holding that Congress did not adequately establish that
Violence Against Women had an impact on interstate commerce,
and the decision was criticized by many as an incredible
incident of judicial activism.
Justice Breyer, one of the four who dissented, wrote,
``Since judges cannot change the world, it means that within
the bounds of the rational, Congress, not the courts, must
remain primarily responsible for striking the appropriate
State-Federal balance.''
That, to me, sounds right. It seems to me that is exactly
what the Founders intended. ``For better or worse, we are
charged with making policy, and the judiciary's role, while
just as important, is quite different. And yet it appears to me
that with increasing frequency the courts have tried to become
policymaking bodies, supplanting court-made judgments for ours,
the unelected branch of government. The Founding Fathers set
them up to interpret, not make, the laws for a reason, and it
is not good for our government, and it is not good for our
country.''
Now, I want to read back to you a quote I read earlier,
something you said regarding Morrison, which was the case in
which the court invalidated part of the Violence Against Women
Act. You said, ``Unexamined deference to the VAWA fact-findings
would have created another problem as well. It would give to
any Congressional staffer with a laptop the ultimate Marbury
power, to have the final say over what amounts to interstate
commerce and, thus, to what represents the limits on Congress's
Commerce Clause powers.''
I have to tell you I am troubled by that statement, very
troubled. Senator Biden and I can both tell you a little bit
about the record Congress created on VAWA because he was the
author in the Senate, and I pushed it in the House.
It is not as if we had our counsel sit down at their
computers with a couple of beers and make up some Congressional
findings. It is not as if we called our legislative directors
and said, ``Hey, could you make up some stuff about how when
violent acts are perpetrated against women, it affects their
ability to participate in interstate commerce.''
You seem almost contemptuous of the legislative process in
your comments. I think you can make a pretty compelling case,
without actual studies and testimony, simply by using logic
that violence against women has a real effect on interstate
commerce, but that is not just what we did.
In passing many of the laws the court has struck down, but
in particular in passing VAWA, because I was involved minute-
to-minute, and you can imagine, when I read something like this
and see the court saying we did not have a basis for making the
law, how infuriating it is, because they were not there, we
were. We took testimony from citizens, from academics, from
State lawmakers, from State attorneys general and an array of
other interested parties. It took us years to formulate it, to
change it, to test it, to see where it was right and where it
was wrong in the legislative process. We solicited input and
received a green light from States on the question of whether
there was a need for the national legislature to act.
The VAWA findings, as I presume you know, were voluminous.
I am not sure what more the five Justices on the Supreme Court
thought we needed to do.
So I wanted to ask you this: Why did you think that the
findings underlying VAWA were not enough? What more did
Congress need to do to make the record that violence against
women has an impact on interstate commerce? And if the courts
should not give unexamined deference to Congress's findings,
what should the standard be?
Mr. Sutton. Thank you, Senator. I do appreciate having a
chance to talk about that case and that brief.
The first point I would make, which I hope you'll respect
my making it, is it wasn't a brief on my behalf, that was a
brief on behalf of a client, and I was doing my best to
represent them. I can assure you I would have been happy to
represent the other side in that case, and as a Court of
Appeals judge, I would, of course, follow the U.S. Supreme
Court, whether it's the Morrison case, as is, or the case is
reversed.
Now, in terms of that statement, I agree with your
criticism of it, in part, and then I disagree with it, in part.
The part with which I agree is the line is too rhetorical. I
don't think it actually did advance my client's cause, and I
regret that. I do think it's a little too rhetorical for good
advocacy.
The part with which I disagree, in terms of it being a
reasonable position for the State in that case to argue was
this underlying issue I was just discussing with Senator Leahy,
and that's the issue of the court has said, and they said it
again in Morrison, and they've said it forever, that of course
there's a great presumption of constitutionality to Federal
statutes and even more to the fact-finding capacity of this
body when it comes to determining whether there's a social
problem, whether that problem relates to interstate commerce,
whether that problems relates to underlying constitutional
violations or discrimination, and I think the court has
correctly said that throughout.
I think the part I slightly disagree with the suggestion of
your question, though, is that it is somehow wrong to suggest
that there's some limit to that deference; that the deference,
in other words, is complete.
I think of, in the Morrison case, Justice Souter's, he was
the primary dissenter, and Justice Breyer joined this part of
his dissent, I can't tell you the footnote number, but there is
a footnote, where Chief Justice Rhenquist, who wrote the
majority opinion, and Justice Souter are discussing this
deference point. And Justice Souter concedes that the U.S.
Supreme Court does have a role, all nine members are agreeing
they do have a role in ensuring that the evidence that this
body gathered did, in fact, concern interstate commerce.
And so I think that principle is not only within the
mainstream, I'm not aware of a single Justice that has agreed
with it. And then I think what you're stuck with in Morrison is
a terribly chAllenging, excruciatingly difficult application of
that principle--
Senator Schumer. Can I just--I want to let you finish. But
did you disagree that the evidence we found was dispositive--
you may disagree with it--but was directed at interstate
commerce? We did not say count the number of trees in Montana
and that justifies--I mean, it was all directed at interstate
commerce. We made a case about interstate commerce.
Mr. Sutton. I couldn't agree more that that's what you were
trying to do. I agree.
Senator Schumer. Well, then continue. You just said that
there are limits, but here there is no dispute that we
addressed the issue of interstate commerce. So explain the
ruling to me. Explain what you think here.
Did you disagree with how we did it? Did we not do it
enough? Or is it really that somehow, and this would be
different I think than the holding in Morrison, that you just
did not think this affected interstate commerce, period, and it
did not matter if we found that it did. Your view would
supplant ours.
Mr. Sutton. When writing this brief for this client, again,
as an advocate, the issue for me wasn't agreeing or
disagreeing. That wasn't why I was hired, to tell them--
Senator Schumer. I want to know what you think.
Mr. Sutton. Well, that was not an exercise I went through,
and I have no idea, Senator, what I would have done had that
been a case, I had been a Court of Appeals judge on--
Senator Schumer. But do you think we tried to address
interstate commerce when we made the findings in terms of VAWA
or not?
Mr. Sutton. Oh, of course, you were--I repeat what I said
earlier. You were trying to reach--you were trying to establish
a factual record that established that the terrible results of
gender-related crimes, gender violence-related crimes, have
impacts on interstate commerce, and nothing in that brief said
Congress wasn't trying to do that.
What the brief made the appoint, again, on behalf of a
client, was that the theory of the Congress's views that it was
related to interstate commerce was a theory that would apply to
the regulation of all matters--family law matters, all criminal
law issues. And while someone could disagree with that, and in
fact I'm sure reasonable minds would disagree with it, I can't
imagine not making that argument as an advocate on behalf of
that client. I mean, the client was entitled to the best
representation--
Senator Schumer. Sir, in all due respect, aside from
advocating for the client, which you are seeming, you know, you
sort of--you are saying all of this work I did, and everyone,
you know, it is almost like we are in 1984 here because your
views on federalism are not just advocating for clients. You
have become a leading--you write articles. The things you
advocate, the pro bono cases are not in keeping with what your
general activities and beliefs are, many of them. This is.
I want to read from an article you wrote, not advocating
for a client, advocating for yourself. This is from the Review
of Federalism and Separation of Powers Law, and let me read it
because it says the exact, same thing, and these are your
views, signed by you, and I think you are hiding behind the
client thing, and we're not having a real debate on the issues
here.
[Applause.]
Senator Schumer. Please, that is not fair, because everyone
knows how you feel on this, and you know how you feel on this.
That does not mean, as a judge, maybe you could not change, but
these are not just views you advocated for a client. These are
deeply held views by you, I would believe from looking at the
whole record, and it would be awfully hard to disprove it.
Here is what you wrote: ``The necessary stacking of one
inference on top of another required to connect an interstate
rape to an act of interstate commerce had no fathomable limit
the court held. Once accepted, only the most unimaginative
lawyer would lack the resources to contend that all manner of
in-state activities will have the rippling affects that
ultimately affect commerce. Such an approach would have a
disfiguring effect on the constitutional balance between States
and national Government, and would indeed make the Tenth
Amendment but a truism, and would ultimately make irrelevant
every other delegation of power to act under Article 1.''
``Unexamined deference to the VAWA fact-findings would have
created another problem as well.'' And here is the regretful
phrase. ``It would give to any Congressional staffer with a
laptop the ultimate Marbury power, to have a final say over
what amounts to interstate commerce.''
You may have said that in the brief, I do not know, but you
said it separately under your own pen, under your own article.
So you cannot say, well, you were saying that just on behalf of
a client. Those, at one point, I do not know if they still are,
are your views. Are they still?
Mr. Sutton. Well, Senator, I do think a lawyer who is
representing a client does have a prerogative to write an
article--this actually was not an article about this case. It
was an article about several decisions--saying that the court
got it right when it ruled on behalf of your client. Obviously,
the opposite was not true. I did not have the alternative to
say publicly that the court got it wrong, after arguing on
behalf of the State in that particular case. I mean, my ethical
duty would have precluded that.
But I want to go back to what I was trying to say earlier.
No one disagrees, on the Supreme Court anyway--
Senator Schumer. So, wait, can I just, again, because there
is a lot of sophistry here, do you believe that unexamined
deference to VAWA would give any Congressional staffer with a
laptop the ultimate Marbury power? Do you, Jeffrey Sutton--
Mr. Sutton. I have no--
Senator Schumer. --not as a lawyer representing someone,
but as a professor, as somebody who has written articles, as
somebody who is well-known to have a strong view on these
issues?
Mr. Sutton. Well, as I said earlier, I have no idea what I
would do as a judge because I have no idea what a judge--
Senator Schumer. I did not ask that.
Mr. Sutton. You asked what I believe, and I am telling
you--
Senator Schumer. I did not ask what you would do as a
judge. I asked what you, as Professor Jeffrey Sutton, not
representing a client, do you believe this phrase or not? You
know, I have written things that I have changed my mind later.
So I am not--
Mr. Sutton. I think it is very consistent with something I
said earlier today--I am not sure you were here at the time--
is, yes, I do believe in the principle of federalism in the
sense that there is a principle that says, on a separation of
powers basis, there are checks and balances, horizontally,
among the Federal branches of Government, this body, the U.S.
Supreme Court and the President, and vertically between the
national Government and the States. That's a principle that's
imbedded in the Constitution, and there are countless U.S.
Supreme Court cases that recognize it.
And the statement you have just quoted makes the point, and
this is what I perceive the court is trying to do, and maybe
one could disagree that this is what they did, but is making
the point that as long as that court has the Marbury power, and
perhaps people could disagree with it, but as long as they have
that power, they have not just the power, but a duty to review
even the most exhaustive fact-findings of this body.
And the reason I am not comfortable telling you my view on
whether those findings related to interstate commerce or not is
I just am not familiar enough to say that. That's just not
something I could tell you.
Senator Schumer. Could you say that again. I did not--you
are not familiar enough with what?
Mr. Sutton. With all of the issues in the case to make that
point. I was hired by a client to make one side of the
argument. I have never had the opportunity to sit back and say
objectively, ``What would you do, Jeff, with this particular
issue?''
Senator Schumer. You wrote this in an article, professing a
viewpoint, your viewpoint.
Mr. Sutton. And I'm just telling you that that stands for
the principle that the national Government, as broad as its
powers are, they do have limitations. And I would say, but the
broader point, Senator, is had I been asked by the other side
in that case to argue that case, I can assure you I would have
done it--
Senator Schumer. That is not what I am asking, and please
do not keep bringing that up. We know that you are a very
successful, persuasive advocate, and we know you have advocated
in different positions. You wrote an article where you said the
exact, same thing as in the brief. You first told me it is just
because you were advocating for a client. Now, I have an
article here where you wrote it again. You did not say, ``As I
argued in or as was argued in''; you professed the belief as
yours, and now you are not giving me an answer, whether you
believed it at the time and still believe it now.
Mr. Sutton. But I do think I did answer it.
Senator Schumer. I did not ask you what you would do as a
judge. I know, as a judge, you would have to examine both
sides. I understand that. My knowledge is not as great as
yours, in terms of juris prudence, but I know that much, but I
also know that I feel very strongly that it is my obligation
and your responsibility to let people know your views because
they will influence how you are as a judge.
I know that there are a lot of people who say, ``Oh, no,
every judge will make the same decision, but then we would have
all 9-nothing decisions, and every one of the circuits would be
the same.'' And in terms of studies, those appointed by
Democratic Presidents and those appointed by Republican
Presidents would come out the same, not the same way, but in
the same percentage way, and we all know that is not true.
If I have tried to do anything in the last year, it is to
break through this shibboleth that philosophy does not matter.
And by the way, if philosophy did not matter, the White House
would send us a far broader panoply of judges, in terms of
their views, than they do, without any question.
And so we should be discussing this. We should be
discussing this issue honestly, not hiding behind
representation, not hiding and saying, ``Well, I do not know
what I think.'' Most of us on this panel, I believe, know you
know what you think on this, but you refuse to discuss it, even
though you wrote an article saying it.
Mr. Sutton. Well, again, first of all, Senator, I respect
your views on this, and I have been paying attention to them
the last couple of years, and I certainly understand the
seriousness of the issue. I guess I feel I disagree with what
you are saying, in terms of my refusing to answer the question
about this article.
I did write the article. It was obviously a recycling of
the brief, as proved by the fact it quotes the exact language
of the brief. I do think there is a lawyer's prerogative--
Senator Schumer. You quoted it as your own, not
representing a client.
Mr. Sutton. Exactly, and I am making the point the lawyer
has a prerogative, having argued a case, to say that the court
got it right. That is exactly what I did, and I cannot tell you
that that is the right decision. How could I possibly say that
to you, given how much respect I have for the role of a Court
of Appeals judge and what their job is when it comes to
deciding what they would do with a given case?
And I think it would be just the opposite of what that
judge's role is to say, ``Oh, I could tell you what I would do
with that kind of a case.'' I couldn't tell you that.
Senator Schumer. Could I ask you to do this within the
week? Could I ask you to review the Congress's findings in VAWA
and tell us whether you agree--you, personally, not
representing anyone--whether you agree with the majority or
minority's findings or someplace in between?
Chairman Hatch. Well, let me just interrupt. Look, I also
was a prime sponsor in the Senate. It was the Biden-Hatch bill.
Those materials are so voluminous. Now, come on, let us quit
asking what he is going to do as a judge or what he believes.
Let us talk in terms of--
Senator Schumer. Well, Mr. Chairman, in all due respect, of
course, I want to know what he is going to do as a judge. So
does everybody.
Chairman Hatch. Well, I agree with that.
Senator Schumer. It is not some kind of mathematical
formula that every judge, just depending on their intellectual
power--
Chairman Hatch. But you seem to want a foregone conclusion
from him.
Senator Schumer. No, I do not. I want to get--
Chairman Hatch. And he is not willing to give that to you.
Senator Schumer. I want to know his views, not what his
client's views are and not how persuasive an advocate he is.
Chairman Hatch. Oh, but he is making the point that his
views are irrelevant when he becomes a judge.
Senator Schumer. And I do not think anyone really believes
that or--
Chairman Hatch. That may be, but that is what--
[Applause.]
Senator Schumer. --or what he--
Chairman Hatch. Now, let us understand something. I am
going to clear this room--
Senator Schumer. Please.
Chairman Hatch. Something that I have made possible for
everybody if we continue to have these outbursts. First of all,
it is not fair to anybody.
Senator Schumer. Right.
Chairman Hatch. It is not fair to the witness, it is not
fair to the Senators up here. We are supposed to have some
decorum here, and I expect this proceeding to be treated with
dignity. Now, let us just remember that. I respect all of you,
but I want no more outbursts.
Senator Schumer. And I would say, in all due respect, it
does not help my case when you applaud.
Chairman Hatch. That is right.
Senator Leahy. If I might on that, Mr. Chairman. I have
served as Chairman of numerous committees and subcommittees, as
have you--
Chairman Hatch. Right.
Senator Leahy. And we must have decorum. I know the
feelings are very strong here. I agree with the feelings of
many who have expressed it here, but we also have three
witnesses who are answering questions under oath, Senators who
are working to ask them, and the only way we are going to do
this is through decorum. So I will support the Chairman in
maintaining the decorum, and especially, as I have said before,
I appreciate the Chairman taking the recommendation of myself
and others to move down here so that everybody could be
accommodated.
Senator Schumer. Mr. Chairman, you have been very generous
in time, and I would still ask, if he decides he wishes to, to
ask Professor Sutton to let me know his views on whether the
majority was correct in finding that Congress, in its findings,
did not really justify a reach into interstate commerce in
Morrison. You do not have to do that now. I will ask you to do
it in a written question.
Senator Schumer. Before I conclude, Mr. Chairman, I have
some more questions, and I know it has been a long day, and I
do want to thank you, Mr. Sutton. My questions are strong, but
they are not personal, and they are heartfelt, as your answers
are, and I respect that.
Mr. Sutton. I believe that.
Senator Schumer. And I just, Mr. Chairman, I have other--I
have to go to two other places. I have more questions of Mr.
Sutton, and I have not even begun to ask questions of either
Mr. Roberts or Judge Cook, and so I would simply ask that we at
least come back at another point in time and be able to ask--I
think it would not be fair to us if we did not get a chance to
ask Mr. Roberts and Judge Cook questions at another time.
Chairman Hatch. Well, unfortunately, I cannot do that. In
other words, this is the hearing. And, frankly, we will keep
the record open for questions, and Senator Leahy has already
asked that we make sure we get a transcript of the record so
that more questions can be asked, but, no, we are going to
finish the hearing today.
Now, I hope that we can accommodate you to come back and
ask any further questions you would like--
Senator Schumer. I am going to appeal the ruling of the
chair. I do not think it is fair. These questions are not
frivolous--
Chairman Hatch. No, they are not.
Senator Schumer. And I would appeal the ruling of the chair
and ask for a roll call vote that we finish with Professor
Sutton today, as long as it takes, but we come back and ask
both Mr. Roberts and Judge Cook questions next week.
Chairman Hatch. It is not fair to them. I am prepared to
sit here as long as it takes, within reason. I mean, I think
there is a point where you have to call an end to the hearing,
but this is today's hearing. These people have sat here
patiently now--for how many hours, is it? Since 9:30 this
morning--and we are going to finish this today.
And I notice that Mr. Sutton's three kids, they are the
best kids I have ever seen in a--they have not raised a fuss
here at all. I just want to compliment your wife and you for
the wonderful children you have.
Senator Schumer. In all due--
Chairman Hatch. I want to be fair, but on the other hand,
Mr. Roberts has been waiting 11 years.
Senator Schumer. In all due respect, Mr. Chairman--
Chairman Hatch. The other two have been waiting almost 2
years--
Senator Schumer. We are having--
Chairman Hatch. I think it is up to us to ask the questions
here today, and I am providing the time to do so, and I am also
providing an additional time to ask written questions, a
reasonable time, but not an unreasonable time. We are going to
finish this today.
Senator Schumer. In all due respect, we are having a third
hearing on Pickering, we are having a second hearing on Owens.
The ones who we defeated--
Chairman Hatch. I do not know what I am going to do on
those.
Senator Schumer. --they get all the hearing time you want
to change the record, but we do not have a full opportunity
with Mr. Roberts, to the second most important court in the
land, with Judge Cook, in terms of a Circuit, the Sixth
Circuit--
Chairman Hatch. But you do.
Senator Schumer. --which has been kept open for a long
period of time.
Chairman Hatch. I am not prepared to leave.
Senator Schumer. It is not fair--well, it is not fair--
Chairman Hatch. When can you come back, Senator, for your
further questions. I will be happy to be here.
Senator Schumer. I can come back later this evening, but I
do not know if my colleagues can, and I have never seen this
kind of thing happen. We have never had three Court of
Appeals--
Chairman Hatch. Well, it is going to happen here.
Senator Schumer. --judges on one panel. We knew that
Professor Sutton, in particular, would take a great deal of
questioning--
Chairman Hatch. And he has.
Senator Schumer. And I do not think it is right. I do not
think it is fair, and I think if the public--
Chairman Hatch. Senator, if you need more time, take it
right now. I will be glad to give it to you, but the point is I
am not going to mistreat these people either. I mean, my gosh,
they have been waiting for 2 years, Mr. Roberts 11 years. We
have made them available. They have been here since 9:30 this
morning, and I think it is only fair that if you have
questions, you ask them.
Senator Schumer. Okay.
Chairman Hatch. Now, you might have a schedule that is
different. I cannot help that. I mean, there are a lot of
things I have had to forego today and some I have just had to
do, but the fact of the matter is that that is what we have
these hearings for.
Senator Schumer. I appeal the ruling of the chair and ask
for a vote.
Chairman Hatch. Well, I reject the appeal.
Senator Schumer. I ask for a vote.
Chairman Hatch. Well, this is not a formal Committee
markup. You can bring it up tomorrow in a vote, and I will be
happy to have you appeal the ruling of the chair, and we will
vote on it tomorrow.
Senator Schumer. I thought that, Mr. Chairman, when the
chair rules this way, you can appeal--
Chairman Hatch. Tell me what rule you are talking about.
Senator Schumer. --the ruling of a chair at a hearing, as
well as at a markup.
Chairman Hatch. Not that I know of.
Senator Schumer. Well, could we ask counsel to rule on
that? Parliamentarian?
Chairman Hatch. We will check with the parliamentarian, but
I will defer that ruling, in any event, as chairman, until
tomorrow, and we will have the vote tomorrow, and if you win, I
guess we will have to come back. But the fact of to matter is--
Senator Schumer. So, in other words, if you want to ask
questions, you can stay all night, but you can defer a vote of
people who do not want to ask questions?
Chairman Hatch. No, Senator Schumer. There is a reasonable
time that is given for hearings.
Senator Schumer. This is just not right.
Chairman Hatch. I am prepared to sit here. I will give you
more time right now. I will give you more time, within a
reasonable time, after right now, but this is the time to ask
your questions, and I would like you to do it. If you do not
want to, that is your privilege. If you do not want to ask oral
questions, then submit written questions, and we will have them
answer them within reason.
But these folks have been under the impression that this is
their hearing, and it is, and it has been a long, lengthy one,
and I expect it is going to still be fairly lengthy, but I will
be happy to give you more time right now, Senator Schumer. I
have no problem with that.
Senator Schumer. Mr. Chairman, this is one of the reasons
that--
Chairman Hatch. And I have already given you 21 minutes.
Senator Schumer. You have been generous each time I have
been here, but let me say this--
Chairman Hatch. Well, and I will continue to be.
Senator Schumer. Let me say this. We do not even have rules
in this Committee yet. We have not passed rules of how the
Committee works. We are already rushing to do three Court of
Appeals justices at once, and I just do not think it is the
fair way to run this committee.
Chairman Hatch. Well, I apologize to you because I do think
it is a fair way, and I think it has to be done, and I do not
think we can keep delaying these people and putting it off.
They are making themselves available. I am giving you more time
if you need it.
Senator Schumer. Mr. Chairman, in all due respect, this is
a lifetime appointment, a very important court--
Chairman Hatch. Well, it does not have to be a lifetime
hearing, I will tell you that.
Senator Schumer. And if people, and if nominees are not
willing to wait an extra day or two to be questioned openly and
fairly, I wonder about that.
Chairman Hatch. I am not willing to put them through that.
We are here, let us have the hearing, and let us finish.
Senator Leahy. Mr. Chairman?
Chairman Hatch. Yes, Senator Leahy?
Senator Leahy. Several of us have spoken prior to this
hearing of concern of having three controversial Court of
Appeals judges on the same day, rather than having day-by-day
or however you might want to do it.
You have spoken of Mr. Roberts being waiting for 11 years.
Looking at Mr. Roberts, he must have been about 20 years old at
the time he was first nominated, but you also recall that Mr.
Roberts was with a number of people who were nominated within
the so-called Strom Thurmond rule, which means that most
nominations, after a certain period of time in a presidential
election year, are not heard, unless it is an extraordinary
circumstance.
And you also recall, and I was here at the time, that there
was no really great push by the White House or other Republican
leadership to make an exception for Mr. Roberts, partly because
they were convinced that President Bush was going to get
reelected easily, and they would bring him up the following
January.
I see Mr. Roberts smiling. He probably heard some of that
at the time. I am not putting you on the spot. But just so
everybody understands that the Strom Thurmond rule, which has
been followed in this for the nearly 30 years I have been here,
is that the President, Republican or Democrat, except for
extraordinary circumstances, and we have made some exceptions,
does not get a nominee through after about July or so of a
presidential election year.
Senator Biden did put through a number for President Bush
that year, but they were the ones that the White House really
pushed very hard for. Professor Sutton, Mr. Roberts and Judge
Cook were first nominated while you were Chairman of this
Committee and were there for a couple months before the control
of the Senate, and nobody brought them up at that time.
So this is not a case, I mean, I just want to get all of
the facts on the table, another day or so to be able to
complete an adequate hearing and have an adequate hearing
record for the Senate does not do the nominees bad nor does it
hurt the Senate.
Chairman Hatch. Well, I have been prepared to finish the
hearing today. I am prepared to do it. I am prepared to give
you more time, Senator Schumer, and I would be glad to do it
out of order or any way you would like to have it, but we are
going to finish the hearing tonight and go from there, and I
think it is only fair to the nominees. I think it is fair to
Senators. We have to adjust our schedules to be able to be here
and participate. It certainly would be fair to the chairman,
too, who has had a whole raft of things I have had to ignore
all day long, some of them very, very important as well.
Senator Leahy. Even I have had important things.
Chairman Hatch. And even the Ranking Member has had to do
that. So I apologize. I would hate to have you feel badly about
it, but that is the way it is going to be.
Senator Feingold?
Senator Feingold. Thank you, Mr. Chairman.
Obviously, I have been following this discussion, and I
just have to add, before I start my round, that this highlights
exactly the problem that we pointed out at the outset of the
hearing. This is not, 1 day, long enough to question three
controversial nominees, and obviously we should not forget that
we have three District Court nominees on the agenda.
Chairman Hatch. Senator, would you yield for just a second?
I feel badly about this, but I have asked for a little bit
of leeway by my colleagues because I think it is time that we
bite the bullet and do what is right with regard to at least
these three nominees. I have been listening to my colleagues
all day. I do not think it has been an unfair thing. I have
certainly made myself available. We have certainly allowed all
of the questions. We are prepared to sit for longer, within a
reasonable time, but I do think there has to be some
consideration to the people who are nominated, too.
It has now been 630 days since they were nominated, and in
the case of Mr. Roberts, 11 years, and three times. Now, I
think there comes a time when we have got to put partisan
politics aside, and I have not seen a glove laid on these
people all day long, for all of the desire to question them.
And I have seen tremendous answers, and tremendous abilities
displayed here, and there comes a time when we have got to say,
hey, look, it is the end of the hearing.
Senator Feingold. Mr. Chairman--
Chairman Hatch. I think today is the day, and I have made
that clear from the beginning. I have asked for some help from
the minority, I have asked for some leeway here, and I hope
that you will give it. If you do not, we are going to end this
today.
Senator Feingold. Mr. Chairman, I regret--
Senator Sessions. Mr. Chairman, I would like--
Senator Feingold. Mr. Chairman, I believe I have the floor.
Senator Sessions. Mr. Chairman, I would like to raise a
question. I thought it might have been my time next. Senator
Schumer had 20 minutes. I kept my time within my limit. Others,
on the other side, have gone over. I think you have bent over
backwards beyond belief to be fair, but if Senator Feingold is
ready to go now, I will wait. But I just think that you have
been as fair as can possibly be, and if you want to let the
other side have their say right now, I am willing to yield.
Chairman Hatch. Our side has been willing to defer so that
the Democrats' side can ask the questions that they want to. I
want to be fair. Everybody knows that I am, and, frankly, that
is why we have a hearing. Usually, these hearings go for about
two hours, and we have been here since 9:30. It is now 5:30
almost.
Go ahead, Senator. I am sorry to interrupt you.
Senator Feingold. Mr. Chairman, I regret the fact that
these three nominees have to sit all day through this, but, you
know, frankly, the problem is, and I have been on this
Committee only for 8 years--that does not compare to you, Mr.
Chairman--but I have never seen this done. I have never seen,
and the idea that the hearings on Court of Appeals judges are
only two hours? That is not the case. That is not what I have
witnessed here.
The serious hearings about very important appointments like
this take much longer. They usually take all day, and frankly
Mr. Sutton should have been the one for all day today, and I do
not think people have been dilatory. These questions are
reasonable--
Chairman Hatch. If the Senator--
Senator Feingold. And I will just say one more time, you
know, I do have tremendous respect for you. I think you are
very--
Chairman Hatch. I appreciate that.
Senator Feingold. --but this procedure today really does
trouble me.
Chairman Hatch. If the Senator would yield, I remember a
time--and now I have been on this committee, this is my 27th
year--I remember a time when Senator Biden had three on 1 day,
and I do not remember any griping about it because we want to
fill these benches. These are emergency positions. And,
frankly, I am willing to be here, and I think it is incumbent
upon our colleagues to be here and ask their questions, and
like I say, my side is deferring so that you can.
Senator Feingold. Mr. Chairman, I--
Chairman Hatch. Now, look, let me say one other thing. I
really respect you. You have always been honest. You have
always been straightforward. You are very intelligent. You are
a great lawyer, and I respect your feelings, but respect mine,
too. I am just trying to do my job--
Senator Feingold. I do, and I hope--
Chairman Hatch. --as a chairman. I am trying to fill these
courts, and I have not seen anything wrong here today. These
three nominees have been excellent. But in any event, you have
to make up your own mind, but there has to be a time when you
bring these things to a conclusion. Today is the day we bring
this hearing to conclusion, and everybody knew that before we
started.
And if people just want to ask questions of Mr. Sutton,
although we have had questions of all three, then that is your
privilege, but my gosh, I am providing means whereby you can
ask questions of others. Please start his clock over because I
have used his time.
Senator Leahy. Mr. Chairman, could I make a suggestion
before you start the clock?
Chairman Hatch. Yes.
Senator Leahy. Usually, you and I have been able to find a
rational way out of such impasses. Could I suggest that we, and
with the members who are here, could we recess for about 5
minutes and we talk privately? You lose nothing by that, nor do
we.
Chairman Hatch. No, that is fine.
Senator Leahy. It has been a long day. It is going to be a
long evening. Why do we not just talk privately out of the
hearing of the room. I mean, you are the chairman, it is
whatever you want, but I would suggest we do that. You and I
have almost always been able to work things out.
Chairman Hatch. I think that is reasonable request. We will
recess for 5 minutes, and then we will resume, but we are going
to finish this today.
[Recess from 5:10 p.m. to 5:27 p.m.]
Chairman Hatch. We will turn to Senator Feingold.
Senator Feingold. Mr. Chairman, again, I very much enjoy
working with you--
Chairman Hatch. And vice versa.
Senator Feingold. --but the record does need to reflect my
concern, and the concern of many members, that this process
today really was not a fair process, although you are generally
very fair in your leadership of this committee.
I just want the record to reflect that many of us believe
that these nominees are controversial, and to be sure that
there is not a precedent for the future, based on the claim
that Senator Biden had done this in the past, the fact is when
Senator Biden had there Court of Appeals nominees at the same
hearing, they were as a courtesy to the previous Bush
administration, and they were noncontroversial. So let the
record reflect that this should not be a precedent for future
attempts to have three significant, controversial Court of
Appeals nominations--
Chairman Hatch. Would the Senator yield?
Senator Feingold. --put forward at the same time. I think
it is a very bad process and precedent for this committee.
Chairman Hatch. Would the Senator yield on that point? I
agree that it is extraordinary to have three Circuit Court
nominees. It has been done before. Senator Biden did it, and I
think it is not a precedent and we--we should avoid. But it has
caused a great deal of concern among my colleagues, and I will
certainly try to be more considerate in the future, but I would
like to finish this tonight if we can, and I believe we can. In
fact, we are going to.
I appreciate my fair colleague. You have always been fair.
You have always been decent to me, and I think you are being
decent again. We, respectfully, disagree on this, but I will
try to take your feelings very deeply into consideration in the
future.
Senator Feingold. Thank you, Mr. Chairman.
I will go to Mr. Sutton again.
In response to my earlier question about the Swank case,
you told me that you had not really made a direct argument that
the migratory bird rule violated the Constitution--
Mr. Sutton. No, I don't think I did. I said we made a
constitutional avoidance argument and then raised the
constitutional issues that would be implicated if the court
couldn't deal with this on statutory construction grounds.
Senator Feingold. Right. You said you had only made an
argument you called constitutional avoidance, and we have
actually looked up the amicus brief here filed on behalf of the
State of Alabama. The entire second half of the brief, six
pages out of a total of ten pages of argument, is an argument
with the following heading: ``The Regulation Exceeds Congress's
Commerce Clause Powers.'' In other words, you made a
constitutional argument, not simply a statutory interpretation
argument based on the doctrine of constitutional avoidance; is
that correct?
Mr. Sutton. It is correct, Senator, but maybe my earlier
testimony was misapprehended or maybe I misspoke. I am sure the
odds are better that I misspoke.
One can't make a constitutional avoidance argument without
making a constitutional argument. I mean, in other words, if
one said to a court that you want to construe a statute in this
way to avoid a constitutional issue, I can't imagine a lawyer
not then arguing the constitutional issue--
Senator Feingold. I do not think that is the point that I
am trying to raise. I appreciate that.
I do understand that yours was the only amicus brief that
took this position, so I want to get directly to the
constitutional issue. I wanted to give you an opportunity to
supplement your answer to my earlier question, and so let me
add the following direct question before you respond.
Do you personally believe the assertion in the State of
Alabama's amicus brief that the migratory bird rule exceeds
Congress's Commerce Clause power? Do you personally believe it
does?
Mr. Sutton. I have no idea. I, obviously, was not involved
in the underlying litigation that generated the Swank case that
ultimately went to the U.S. Supreme Court. I wasn't involved in
it in the lower courts, and I simply had a client who was
interested in making that argument, and I helped them make that
argument.
I was never--I can't imagine working for a client and
assuming my job was to tell them, first, what the right answer
was and then acting as their lawyer. The way I saw my job, and
still see my job as a lawyer, is if a client asks me to do
something, find all reasonable arguments that can be made to
support their position. I have done that, you should know this
is not the only environmental case.
I have helped environmental cases on the other side of the
issue. There's a case that came out of Ohio, the Sierra Club
case, which dealt with logging in the timberlands, and while I
didn't argue the case for the lawyer--I wasn't even a lawyer in
the case--I did help the lawyer who argued on behalf of the
Sierra Club in that case in getting ready for the U.S. Supreme
Court and participated in the moot court with him.
So this is another situation where I have been on both
sides of these issues as a lawyer. It wasn't a question of
personal views. I didn't decide, in the Sierra Club case, this
is something I'm going to do because I have personal views.
This is something I'm going to do to help someone arguing a
case, and likewise with the Swank case.
Senator Feingold. Let me move on to a different area then.
You filed an amicus brief on behalf of Los Angeles County
and the California State Association of Counties in the
Buckhannon Board and Care Home, Inc. v. West Virginia
Department of Health and Human Resources. Do you recall that
case?
Mr. Sutton. I do.
Senator Feingold. As you will recall, the Buckhannon
facility sued the State, alleging a violation of the Fair
Housing Amendments Act and the Americans with Disabilities Act
after being forced to close for not meeting a self-preservation
requirement of its residents as defined in State law.
In response to the suit, but before the court ruled, the
State legislature eliminated the self-preservation requirement.
That gave Buckhannon all of the relief it sought.
The District Court dismissed the case as moot, but then
ruled that Buckhannon could not be considered a prevailing
party in the case, and therefore could not recover its
attorney's fees.
The Fourth Circuit, contrary to the rulings of every other
circuit that had addressed the issue, affirmed.
The Supreme Court ruled 5 to 4 that ``under the various
attorneys' fees statutes plaintiffs may recover attorneys' fees
from defendants only if they have been awarded relief by a
court, not if they prevailed through a voluntary change in the
defendant's behavior or a private settlement.''
So this is a narrow interpretation of a definition of
prevailing party, which I think has potentially disastrous
implications for people whose civil rights have been violated,
but who cannot afford to hire a lawyer.
In calculating whether to take a case, an attorney for a
plaintiff will have to consider not only the chances of losing,
but the chances of winning too easily. Even if a plaintiff
secures a complete victory by getting a defendant to admit to
wrongdoing or prompting a change in a statute, the attorney who
labored for years to bring about such a victory would not be
paid at all.
In the amicus you filed in Buckhannon, you argued, in your
words, that ```as a matter of mundane litigation realities,' a
narrow definition of prevailing party would prevent parties
from commencing `time-consuming' satellite litigation over fee
awards.''
I want you to know that I agree that litigation over fees
is something to be minimized, but I would argue that a much
more important interest to be furthered is the ability of
aggrieved parties to find attorneys who will take their cases.
The court's interpretation of prevailing party potentially
prevents people from seeking protection guaranteed to them
under existing civil rights laws, and the mundane litigation
realities might actually point in the other direction.
The decision could, in fact, force attorneys to drag out
lawsuits, to keep going to make sure that they get a judicial
order, rather than accepting a nonjudicial settlement that give
their clients everything they seek.
So let me ask you do you believe that a person who has a
legitimate claim of civil rights violation should be able to
seek redress in court?
Mr. Sutton. Of course.
Senator Feingold. Do you believe that people with civil
rights claims should have the ability to secure adequate
counsel to pursue those claims?
Mr. Sutton. Of course.
Senator Feingold. Is that not why Congress enacted statutes
giving successful plaintiffs the rights to collect attorneys'
fees?
Mr. Sutton. I think that is, I think it is 42 U.S.C.
Section 1988, and I think that is the purpose of it. I agree
with you.
Senator Feingold. Then, how will a person with a legitimate
claim be able to get adequate counsel in a case that could take
months or even years to resolve, when defendants can avoid the
possibility of paying attorneys' fees by simply offering the
plaintiff everything they want before trial?
In other words, explain to me how the Buckhannon decision,
which you argued for in your amicus brief, can be squared with
a desire to encourage the enforcement of the civil rights laws
and other statutes in which Congress has made a judgment that
attorneys' fees should be available?
Mr. Sutton. Yes. Well, first of all, I think this is an
important issue, and I would like to think the brief I wrote on
behalf of a client, Los Angeles County is a longstanding Jones
Day client. They obviously get sued a lot, so that's why we
wrote the brief on their behalf.
And, you know, as a board member of the Equal Justice
Foundation, whose, you know, 90 percent of their revenue comes
from attorneys' fees, I can tell you that I am sensitive to
this issue and hope that--I think the legislation you have
proposed to correct the Buckhannon decision is correct--is
successful because it will certainly help EJF when it comes to
raising funds.
The issue in that case was a statutory one of whether the
term ``prevailing,'' and prevailing was the key word, and the
difficulty which led the Fourth Circuit to rule one way and the
other Courts of Appeal to rule the other way, was whether
someone had prevailed when, in fact, there wasn't a court
judgment indicating this, but simply a change in conduct.
I fully appreciate your point, which is, my lord, if that's
the rule, then a litigant, a recalcitrant State or city,
engaging in civil rights violations, can simply stop their
conduct, after litigating for many years, change their rule,
and now have the case dismissed, but not owe any attorneys' fee
awards. Precisely because I appreciated the very point you
raised, at the end of the brief that we offer for Los Angeles
County, we dealt with this issue, and the way--
Senator Feingold. Well, then why in your Buckhannon brief
you asserted that ``precedent confirms'' your interpretation of
the attorneys' fees statute, yet you failed to bring to the
attention of the court the decisions of nine Court of Appeals
that contradicted your position?
Mr. Sutton. Well--
Senator Feingold. Did you not have an obligation to make
the court aware of these decisions, especially in light of the
fact that you have indicated that you believe that the law
should allow a litigant to be able to settle a case at an
appropriate time and still get attorneys' fees?
Mr. Sutton. It's very rare in U.S. Supreme Court briefs
that I have relied on Court of Appeals' decisions, in general,
so I would say that's just typical of me and cuts across cases
and issues.
But the point I wanted to address, which you have raised,
and I think it's a critical one, is what about the recalcitrant
city or State that suddenly stops their conduct? Are they now
scott free from liability, attorney fee liability, and I think
your concern is a valid one.
And we indicated in the brief, we raised this very point--I
think it is in the last couple pages of the brief--and said
that's not necessarily true. We made the point, a concession
for a county which is sued all of the time, that if there's a
case--gosh, it's a Justice Ginsburg decision, it may be
Laidlaw. We cite in the back of our brief. I think it's--that
makes the point that just because a litigant, a city or State,
stops their conduct, that doesn't necessarily moot the case
because of the possibility they may do it again or, as you're
suggesting, the possibility they're just trying to hide from
attorney fees.
So I'd like to think--I obviously had a client's
perspective to represent. I did my best to represent it, but I
felt like we were actually trying to address that very
important consideration in the brief, and I do think it was
within the mainstream to argue the point, on behalf of them as
a client, and as you well know, this ambiguity can quickly be
clarified by legislation.
Senator Feingold. I thank you, Mr. Sutton. I thank you, Mr.
Chairman.
Chairman Hatch. Are you through? Do you need more time,
Senator Feingold?
Senator Feingold. No.
Chairman Hatch. Thank you.
Senator Leahy?
Senator Leahy. Professor Sutton, I would suggest, I would
urge you to go back and reread Judge Noonan's book. I have no
question that with your mental ability, you probably can recite
most of it verbatim, but I think that, again, I cannot tell you
how much many of us are concerned that we have a very activist
Supreme Court that has determined that the Congress is
basically irrelevant, and our feelings are basically
irrelevant.
And you are going to have a number of cases that are going
to come to you on the first impression if you are confirmed to
this position. Well, obviously, I cannot tell you how one would
rule, but I would like you to at least consider that.
Mr. Sutton. Can I respond to that?
Senator Leahy. Oh, of course.
Mr. Sutton. I can assure you, over the last 2 years, I have
thought a lot about the very perspective all of you have. This
is obviously not a Democratic-Republican issue, this is an
institutional issue. And, you know, when one is criticized, as
I have been, for advocating those cases, I really have thought
about the other perspective, and I do think there are very
reasoned criticisms of those decisions, but I do think they're
difficult decisions. They always are when the court is asked to
referee boundary disputes between branches of Government.
So I can assure you that if I were fortunate enough to be
confirmed, I really would consider the perspective this body
has when it comes to passing laws in the first instance, when
it comes to gathering evidence, establishing whether there is a
policy issue to be addressed or when it comes to determining
whether there are underlying constitutional issues that need to
be remedied.
Senator Leahy. Thank you, Mr. Chairman. At this time I have
other questions, but Senator Durbin has been in and out of the
Intelligence Committee and I would rather--I am going to be
here, anyway, and I am just wondering if Senator Durbin--
Chairman Hatch. We will be happy to turn to Senator Durbin.
Go ahead.
Senator Durbin. No.
Senator Leahy. Then I guess I will go.
Justice Cook, let me talk to you--I don't want you to feel
that you have been neglected here and that Professor Sutton has
been hogging all the time, but--
Justice Cook. I was feeling that.
Senator Leahy. What?
Justice Cook. Oh, yes, I was feeling that.
Senator Leahy. Yes, I know you would much rather we were
asking you the questions, but I understand you are the most
frequent dissenter on the Supreme Court of Ohio. You had well
over 300 dissents in your 8 years on the court. I am told you
once joked that the female Justices on your court had three
names; Alice Robey Resnick, Evelyn Lundberg Stratton, and
Deborah Cook Dissenting.
Should I have a concern about your judicial temperament and
inability to reach consensus if you have that many dissents?
And I ask the question not in a frivolous fashion, because the
Sixth Circuit is a fairly polarized court and, if anything, we
would like to see the Sixth Circuit help the people within its
circuit to reach more consensus opinions and not polarized.
Should I be worrying about your judicial temperament?
Justice Cook. I should think not, Senator. Dissenting is
really--as I said before in answer to some other question, it
really is a learning process. Many times I am somehow
designated to write the dissent for other members of the court
and, therefore, my numbers look rather high. But dissents are
offered as a--for the benefit of the other side who offered the
first opinion. It's a method to reach consensus sometimes, and
in our court it's actually a matter of logistics. The members
of the court live in various parts of the State, so consensus
is the first objective and, unfortunately, it's not always
reached. But certainly that's the first goal. But I don't
really think you can take anything from the fact that I write
dissents other than I am attempting to do a precise reading of
the law.
Senator Leahy. Well, you may think that a Democratic
Senator would take comfort in the fact that often you have
dissented. The Republican majority in your own court, though,
has been quite critical of your view of the law. In Bunger v.
Lawson, the majority called your interpretation of the law
``nonsensical.'' They said that it leads to untenable
positions, unfair to employees. They said your opinion would be
``an absurd interpretation that seems borrowed from the pages
of Catch-22.'' In Russell v. Industrial Commission of Ohio,
they stated your dissent lacked statutory support for its
position, that you were unable to cite even the slightest
dictum from any case to support your view, that your argument,
which has not been raised by the commission, the bureau, or the
claimant's employer in any of their supporting amici is
entirely without merit. In Ohio Academy v. Sheward, the
majority held that a tort reform law was unconstitutional
because it severely limited an injured party's ability to
recover from wrongdoers, no matter the type of injury. And then
they responded to a dissent you joined, stating that, ``The
dissenting judges mischaracterized our findings, misconstrued
prior decisions of this court, selectively extrapolated
portions of the legislation at issue, while ignoring its
overall tenor and content, disassociated themselves from a
decision in which one of them concurred, suggested we had
created a new theory of standing, minimizing the magnitude and
scope of the legislation and the importance of separation of
powers, accused of us language unbecoming a judicial opinion,
and questioned our faith in our courts of record, all in an
obvious effort to distort our opinion into a form susceptible
to competent criticism and protect this legislation from any
timely, meaningful, and inclusive judicial review.''
Now, I don't know about Ohio, but in Vermont, that would go
beyond understated New England criticism. That is pretty strong
criticism. And I read this because I worry, one, as I said, a
polarized Sixth Circuit, whether you would be not one to help
bring people together but one to further polarize it; that you
overwhelmingly favor employers in complaints brought by
workers--in fact, I haven't found a case where you dissented in
favor of an injured employee in a claim brought against his or
her employer.
So I raise this, Justice Cook. These are all things you
have heard. I mean, you have read the opinions. Please help us
here. Why such strong words by the majority, many of them
Republicans, for your dissents?
Justice Cook. The court is nominally 5-2 Republican, but as
you will note from some of the newspaper stories, there are a
number of Republicans on the court who are labeled--as everyone
is labeled, they are labeled as liberal, and I am so-called
conservative. So I am not sure we can draw too much from a
conservative--
Senator Leahy. Is this a liberal vendetta against you?
Justice Cook. No, not at all. I think it was--you know, I'm
sorry for the tone. It does appear to be a tone a little beyond
what we expect. But it was a reasonable difference. In Sheward,
in fact, that's the case where you find that language. I'm
not--I think it might be stirred somewhat by the fact that this
case was very unusual. In fact, it was exceedingly
unprecedented and really an untenable procedural posture by
which the case came to us. It wasn't an individual bringing a
case to right a wrong or to achieve a remedy. In fact, it was
an organization, the Ohio Academy of Trial Lawyers, so that's
where the standing issue came in. That's not typically what we
see. And beyond that, the case was brought as an effort to get
a writ, to ask the court to issue a writ to tell the judges in
the State to not enforce this newly enacted legislation on tort
reform. And my dissent, frankly, was only on the issues of
standing and the procedural posture that simply wasn't tenable.
And, nevertheless, the court did issue writs, a writ, even
though the standard for issuing a writ couldn't possibly have
been met in this case. So I'm--
Senator Leahy. But they were--
Justice Cook. I can't really defend the language in the
majority.
Senator Leahy. But they were pretty strong in more than one
case. I mean, they were pretty strong in their criticism of
your dissent, and when you have had well over 300 dissents in 8
years, you know, I assume that you can pick and choose where
they are critical. But in the areas that I have read, the
criticism seems to go way beyond the collegiality one normally
sees in a court. And the numbers of your dissent, of course, go
way beyond anybody else in the court.
It is one thing to joke that your name is Deborah Cook
Dissenting, but, again, in a polarized Sixth Circuit it creates
a problem to me. I am concerned that as an appellate judge you
have repeatedly voted to overturn a jury's determination that
the employees before them were victims of discrimination.
Now, I have tried an awful lot of jury cases. I know all
the effort that goes into getting a jury verdict, and I know
the courts are very reluctant to overturn a jury verdict. They
have only got a cold record. They haven't seen the witnesses.
They haven't heard them. But I think your dissent in Glenner v.
St. Cobain, that is troubling. Four women sued their employer
for gender discrimination. They received a jury verdict. It was
overturned by the appellate court. And then a majority of
Supreme Court of Ohio ruled that the appellate court erred in
overturning the jury verdict. None of the proper legal
standards--they could not uphold the appellate court's unless
reasonable minds could come to only one conclusion, the
employer was not liable.
Justice Cook. I think that's the case--if I may, Senator.
Senator Leahy. Sure.
Justice Cook. I believe that's the case where the Court of
Appeals initially ruled that the verdict should be overturned
on insufficiency and, in fact, wrote a 97-page, very detailed
opinion. And when the case reached our court, it actually was a
very short decision that said there was some evidence. And it
seemed to me in my--and I voiced this in my dissent--that the
court had really not applied any analytical rigor nor applied
the standards set forth in Civil Rule 50 for a directed
verdict. And that was the basis for that dissent.
And I don't--I think collegiality is very important on the
court. I have had a very good reputation for improving the
collegiality at the Court of Appeals where I formerly served.
Senator Leahy. But collegiality aside, Justice Cook, it
seems that time and time again if somebody has sued an employer
and have gotten a jury verdict, you seem very comfortable in
overturning that jury verdict.
Now, I have seen runaway juries where the appellate court
should overturn it, but it is rare. It is extraordinarily rare.
You seem to find them a lot. But I think in most States that is
pretty rare that a jury that was the finder of fact gets
overturned.
Justice Cook. I don't know--if we went through all the
cases, I don't know that we'd find that it is done a lot. I
know a case that's been cited is the Burns case. But that was a
majority opinion that overturned that verdict in an employment
case.
Senator Leahy. The Reeves case, the Burns case, the St.
Cobain case.
Justice Cook. I can tell you, Senator, I've been on the
receiving end of that, and I know it's no fun. I actually made
some law in Ohio on discrimination representing a woman in an
age discrimination case, Jean Barker, and it is the Jean Barker
case that is cited as authority in the Burns decision. I, as I
say, didn't write that decision, but Jean Barker had--we had a
verdict at the trial level, and it was overturned by the
Supreme Court. So it's precedent that pops up in some of these
cases.
So I certainly don't take it lightly, and verdicts are not
to be overturned unless there is--in some of these cases, it's
insufficiency of the evidence. We all know the standards where
a verdict can be overturned, and it's not done without the
right facts or the absence of facts that warrant reversing a
decision. But in a lot of these cases, I think you'll find that
if I were the dissenter, I wasn't writing just for myself, and,
moreover, quite often you'll find that it's the Court of
Appeals, a unanimous Court of Appeals that felt likewise. So
I'm not sure I can easily be said to have missed the boat
inasmuch as sometimes at least three other judges and perhaps
as many as five agreed--six agreed.
Senator Leahy. Justice Cook, my time is up, and we will
come back, but I did not want you to feel neglected and feel
that--
Justice Cook. I appreciate that.
Senator Leahy. --Professor Sutton was hogging all the
questions.
Chairman Hatch. How considerate of you, Senator.
Senator Leahy. I try.
Chairman Hatch. Senator De Wine for just a few minutes.
Senator DeWine. Justice Cook, Senator Leahy has indicated
that you seem to always rule in favor of the employer. I have
got at least 23 cases here where you have ruled in favor of the
employee in employment cases: Ahern v. Technical Construction,
Browder v. Morris Construction, Boyd v. Chippewa Local School
District, Connolly v. Brown, Douglas v. Administration--I will
go on and on. I would submit these for the record, Mr.
Chairman.
Chairman Hatch. Without objection, we will put those in the
record.
Senator DeWine. Justice Cook, I want to discuss with you
for a moment Senator Leahy's comments about you being labeled
``a dissenter,'' and you certainly have dissented in a number
of cases. But let's first start with the cases that--the five
cases that were appealed from the Ohio Supreme Court to the
United States Supreme Court. One of the cases was simply a
unanimous Ohio Supreme Court decision which was, in fact,
affirmed by the U.S. Supreme Court. But in the other four
cases, you disagreed with the majority of your colleagues. You
dissented. You dissented. Your colleagues were on the other
side.
In each one of those cases, the United States Supreme Court
said you, Justice Cook, were right and your colleagues were
wrong. Is that correct?
Justice Cook. Yes, it is.
Senator DeWine. So being a dissenter in that case may not
have been right, but at least it is what the United States
Supreme Court thought was right.
Justice Cook. That's right. That was good enough for me.
Senator DeWine. So being a dissenter is not always the
worst thing in the world.
In the State of Ohio, Mr. Chairman and members of the
committee, we do have, right or wrong--right or wrong, we do
have what at least the Ohio newspapers--and as I said earlier
this morning, and it seems like it has been a long, long time
ago--I guess it was a long time ago--what the Ohio newspapers
have labeled to be a very activist Ohio Supreme Court. And
whether you think that is a good idea or not a good idea is not
what we are debating today. But the Ohio newspapers, which run
the gamut of the political spectrum--and I can say this as
someone who has run for political office in Ohio for a long,
long time. We have everything from the liberal to the
conservative in the State of Ohio as far as the newspapers. But
each newspaper, major newspaper in the State of Ohio has
labeled the Ohio Supreme Court as being a very, very activist
Supreme Court.
I will not take the time of the Committee at this point to
read the different editorials that make this point, but I am
going to hand out to the different members of the Committee and
also ask the Chairman to make a part of the record this
document.
Chairman Hatch. Without objection.
Senator DeWine. Which basically talks--these are different
quotes from different editorials--which talks about how active
the Supreme Court is.
And I would tell the members of the Committee that it is on
a bipartisan basis that it is active. This activist--very
sweeping activist opinions. And I am just going to read a
couple of the--take just a moment to read a couple of the
comments from the newspapers.
This is from the Toledo Blade. ``The Ohio Supreme Court
simply is not well regarded around the country, and it's the
meddling tendencies of this four-judge super-legislature that
deserves most of the blame. The people of Ohio elect a
legislature and a Governor to make laws and govern, but their
intent has been thwarted by this activist court.''
Senator Biden. Excuse me, Senator. I didn't hear what he is
quoting from.
Senator DeWine. This is a Toledo Blade editorial.
Senator Biden. Okay. Thank you.
Senator DeWine. The point is that I think you will find,
again, whatever way you come down on these issues, that
disputes on the court and the disagreement that Senator Leahy
was quoting from in these cases pretty much comes down to where
Justice Cook was dissenting based on her strict interpretation
of the law versus the court's more activist interpretation of
the law.
I will reserve the balance of my time, Mr. Chairman.
Chairman Hatch. Thank you.
Senator Biden has not had his first round, so if it is all
right with everybody, we will turn to him.
Senator Biden. Thank you, Mr. Chairman. I apologize to the
Committee and the witnesses. This has been a pretty busy day,
and I have been spending my whole day dealing with issues
relating to Iraq. And I have a lot of questions. I hope we are
going to have a chance to have this panel over because I for
one have--not a lot. I have about a half-hour's, an hour's
worth of questions that I am, because of the schedule today,
not able to do and--
Chairman Hatch. We are happy to give you the time now,
Senator Biden. You are a former chairman.
Senator Biden. Well, let me--I won't take that time now
because in large part I can't. I have another commitment
relating to the Foreign Relations Committee I have to do at
6:18. But let me start off by just asking one or two questions
in a few minutes here.
Professor Sutton, I am a little concerned with the nature
and the way in which the Supreme Court necessarily has cut back
significantly the number of cases it reviews to about 80 cases
a year, and that most of the significant cases, whether we are
talking about the decisions relating to Roe v. Wade or any
other case, there is enough ambiguity and significantly less
review that the Circuit Court of Appeals in every circuit has a
significant impact beyond what they had 20 years ago in making
law.
And so I have a number of questions for you, Professor,
relating to your notion of the role of the court and your
assertion, I am told--and correct me if I am wrong--that you
have indicated, and I quote, that ``federalism is a zero-sum
situation in which either the State or the Federal lawmaking
prerogative must fall.''
That is a constitutional view that I have an overwhelming
disagreement with, and I suffer from the fact that I spent a
lot of time teaching this separation of powers doctrine, and I
think it is not inconsistent with where the majority of the
Supreme Court has gone, but I think it is fundamentally flawed
constitutional methodology.
That is not to say that it is not intellectually
defensible. It is to say that I have fundamental disagreement
with it. And I want to be straight up with you. I know this is
not for the Supreme Court, but based on what I have read,
assuming it is consistent with what you would respond to, if
you were a nominee for the Supreme Court I would not--even
though you are intellectually and morally and in every way
capable of sitting on the Court, I would do all in my power to
keep you off the Court because it appears as though we have
such a fundamentally divergent view of the Tenth Amendment, the
11th Amendment, and the role of federalism that I just want to
be up front with you about that.
And so for me, I will not get an opportunity to go into any
great detail tonight, obviously, but I have some questions I
would like you to respond to.
Let me begin by suggesting that--and I do not ask this out
of parochial interest, although I have great pride in being the
person who drafted the Violence Against Women Act. But I would
like to understand your reasoning beyond the fact that you were
an advocate here, if there is a reason beyond your advocacy
representing a client.
You filed a brief in the Supreme Court on behalf of the
State of Alabama arguing against the constitutionality of the
Federal civil remedy of victim sexual assault and violence.
Now, this is not a question of whether or not you are confirmed
or not confirmed by the court, whether your view prevailed or
not. It is a question of my trying to figure out how you
approach these issues.
Among other things, your brief in Morrison stated that
gender-based violence does not substantially affect interstate
commerce. Now, prior to the Violence Against Women Act, I
literally held nine hearings and received testimony from over
100 witnesses, at the end of which, that long and thorough
exploration, the Congress concluded--not just me--that gender-
based violent crimes in fear of these--I must leave in one
minute? Wonderful. I am going to have to submit this question
to you in writing, but the bottom line is, what I am trying to
get a sense of is how you approach what you consider to be the
prerogatives of the Congress, Section 5 of the 14th Amendment,
the significant change in the way in which this Court, which I
think is a bright Court but is the most activist court in the
history of the United States of America, no court has overruled
as many national pieces of legislation, including the New Deal
era, as this Court has. And I want you to know that, to be
blunt with you, I come from sort of the Souter school of--in
his dissents in the Florida Pre-Paid cases and their progeny,
where Souter said, ``The fact of such a substantial effect is
not the issue for the courts in the first instance, but for the
Congress whose institutional capacity for gathering evidence
and taking testimony far exceeds ours.''
Going on, Souter says, ``I'm left wondering. Where does the
Court's decision leave Congress' former plenary power to remove
serious obstructions to interstate commerce by whatever source?
It is reminiscent of the Lochner era when they said, By the
way, you have those labor standards having to do with mining.
Mining is not interstate commerce. Then they came along and
said production is not interstate commerce. Then they said
manufacturing is not interstate commerce. Until midway in the
New Deal, with the end of the Lochner era, they said, Whoa,
whoa, whoa, wait a minute, wait a minute.''
What I am really trying to get at--and I will submit these
questions in writing--is: At what point does the Court decide
to become the Federal traffic cop? At what point does the
Court's authority to intervene in what I believe
constitutionally has been left to the Congress under the
Constitution to make judgments about? And you seem to have an
incredibly restrictive view of the Congress' prerogatives. This
is not Lopez where the Court did not have sufficient findings--
where the Court did not find sufficient findings. Even this
Court said there is no question that there was an extensive
record. But we--as they did in Alton Railroad years earlier,
said, ``But we don't think that's sufficient.'' And I wondered
who the hell the Court is to make that judgment that we don't
think the remedy you chose is effective.
That is a very rapid attempt to summarize my concern so
that you have a context in which to understand the questions,
why I am asking the questions straightforwardly.
Mr. Sutton. No, I appreciate that. I appreciate your being
straightforward. There is no doubt the criticism you just
levied against the Morrison decision is the strongest
criticism, and it was clearly the most difficult part of the
case for the Court and exactly where the 5-4 line was. And that
line was how much deference to give to these findings. And, you
know, you were kind enough to mention--I was involved in that
case on behalf of a client. I was working as an advocate, and I
was doing my best by them. And, you know, what I would have
done in that case, God only knows.
The one thing I would say, though, about your concern about
Court of Appeals judges, I agree with you. I wish the U.S.
Supreme Court would take more cases. It's made my U.S. Supreme
Court practice very difficult to sustain. They take so few
cases. But I'm not aware of too many--in fact, none--Court of
Appeals decisions that struck a Federal law--in other words,
your handwork--that weren't eventually, and usually quite
promptly, reviewed by the U.S. Supreme Court.
Senator Biden. I think that is true. Most have been. But
there are cases--and I am compiling this. I think we will be
able to show there are roughly--there are over 200 cases the
Circuit Court of Appeals has found enough leeway in the
existing law where they have changed basic law without any
review by the Supreme Court because the Supreme Court never
took the cases.
I have had my staff in the process of preparing that for
some time now, which is, quite frankly, unrelated to you or any
one of you, beginning to make me review my standard for review
of nominees. I have a very different standard for 30 years
reviewing Supreme Court nominees because they are not bound by
stare decisis than I do reviewing district and circuit court
judges. But I am moving to the view that there should be, in
effect, to steal a phrase from the Court, ``an intermediate
standard'' for Circuit Court of Appeal judges because they have
become so much more significant in being the final arbiters--
they are not legally. The Court, the Supreme Court is. But
because of the review process, they have become the final
arbiters in areas where I used to be able to say I know the
Court will review this, if you are bound by stare decisis, you
will--and I trust your judicial temperament that you mean that,
then, in fact, I will take a chance on you even though I
fundamentally disagree with your constitutional methodology
because you will abide by the decisions. But there are enough
discrepancies or differences or holes in the reasoning--I mean,
look at all the cases that have flown--and this is not my major
concern. But look at all the cases that have been the progeny
of Roe v. Wade. They are very, very, very complicated, whether
it is Casey or whether it is the issue of parental
notification--all these issues.
And in the past, I never doubted that the Court would
review those, but now what is happening is the Court is in the
position where it does not review a significant portion of the
Circuit Court of Appeals decisions that change State law or
uphold State law that are never reviewed. And that is the only
generic point I wish to make with you.
One of the questions is going to be: You as an advocate--I
assume it is your answer, but I would appreciate an honest
answer if it is not. You argued in your brief that even the
Congress did not show that sexual violence, violence against
women, had no impact on interstate commerce. Whether or not we
get into the question of what constitutes commerce, that it had
no impact by the old standard of what constituted commerce, as
I read your brief.
Mr. Sutton. Well, maybe I am not understanding the
question, but the point I think we were trying to make was in
all of the Commerce Clause cases, high-watermark cases, Wickard
v. Filburn, Jones v. Laughlin, Lopez even, there has been a
consensus that the Court does have a role in determining
whether something does impact--
Senator Biden. Is interstate commerce.
Mr. Sutton. --interstate commerce. And I thought that was--
it was meant to be the main theme of the brief, that the Court
did have a role here, whether it decides to uphold Bower or
not.
Senator Biden. But did not you argue that it does have a
role in making a judgment whether it impacts, but in order for
you to reach the conclusion that it did not impact interstate
commerce, you had to fundamentally disregard the 100 hours of
hearings that the Congress held and concluded that it did.
Correct?
Mr. Sutton. I can certainly understand someone taking that
view, but I would say it is correct that it might--
Senator Biden. Is there any other view to take?
Mr. Sutton. My client, the client is the one that took that
position, and I did everything I could to advocate that
position. And I do understand--
Senator Biden. Do you believe that? Do you believe that? I
am not suggesting it was inappropriate for you to--for example,
if you were teaching it, would you teach that the Congress--the
facts presented in the case in the Congressional Record did not
warrant the Court's concurrence because, as my good friend
Justice Scalia says, everybody knows they never read this stuff
and they never write this stuff, those Senators. It is done by
staff. So, dismissively, it is taken out of the record. I mean,
is that a view you share?
Mr. Sutton. No, it is not a view I share. I guess the point
I would make is that there was a voluminous record, no doubt
about it, in the VAWA. And, of course, there was just one
provision of that law at issue. The rest of it was not even--
Senator Biden. I know that.
Mr. Sutton. --much less attacked. And I think the issue in
the case, a difficult one, is whether there are sufficient
amount of findings that no matter how much they are, no matter
how much better equipped this body is to make these findings
than the Court is, whether there's still a role and a
responsibility of the Court to examine them to determine
whether they do constitute under the Constitution interstate
commerce.
What would I have done? I have no idea as a Court of
Appeals judge. I just--I'm sorry, I can't tell you that--
Senator Biden. No, I'm not asking--
Mr. Sutton. --I have not looked at the issue--
Senator Biden. --you what you would have done. But I do
want to explore these issues with you, and I have questions as
well for the other nominees. Like I said, I hope we have more
time.
I understand my name was invoked when someone raised the
issue of whether or not we had three--not unqualified but
controversial nominees, all in one hearing, and that Biden did
it. The three that Biden put together had a vote of, I think,
98-0. So they were not controversial.
I thank you all. I apologize for--
Chairman Hatch. I stand corrected.
Senator Biden. Thank you, Mr. Chairman.
Chairman Hatch. Senator Kennedy?
Senator Kennedy. Thank you, Mr. Chairman, and I thank our
witnesses. It has been a long day for all of you, and we
appreciate your patience, your good will.
I regret that I was unable to be here earlier today. This
afternoon I attended a memorial for a former Congressman, Wayne
Owens, who was a Congressman from the State of Utah. And I had
thought that perhaps we could have had a brief recess where
several of us who knew Wayne Owens and had a lot of respect for
him--he actually worked for me, worked for my brother Bob--had
a chance to go there. So unlike most of the other hearings
where members are able to stay and go through it, we come in
here not sure whether some of these areas have been covered in
the past or not. But, nonetheless, I will move ahead and we
will do the best we can.
I must say I just again want to register with the Chairman
at the opening of the session, if this is the way the Committee
is going to be conducted, I am not sure that this accelerates
the good will of the Committee or the action of the Committee
in the long term, or even in the short term. But that is an
issue for another time.
Justice Cook, I want to come back to this issue in terms of
your dissents and who you have been finding for. I picked up a
little bit of the comments that my friend Senator DeWine raised
in the response to Senator Leahy's questions, but I would like
to come back to this issue with you, if I could, please.
There is at least an argument that is made that your
decisions come down in protecting the more powerful against the
weak, that you have worked hard to make it more difficult, for
example, for those that are injured in the workplace to get
rightful compensation. You have made it more difficult for
victims of discrimination to get justice. You have made it
easier for large corporations to avoid paying for the harms
that their defective products have caused.
I know these are not new to you, but I want to hear from
you. In fact, some have said that your views have marginalized
you, even on a conservative court; that you authored at least
313 dissents, many of them lone dissents. This number is
extraordinary, is, in fact, more than any other Justice on your
court. Even with all of these dissents, you have never
dissented from any decision of the court that was favorable to
the employer. You stand up for big business all the time. You
have never stood up for the rights of the individual. To the
contrary, you have dissented 23 times in cases in which the
court rules in favor of the employee. That is 79 percent of the
time. You have only voted for an employee six times, and in
five of those cases, the court was unanimous. In the other
case, the court voted 6-1 in favor of the employee.
All of this is why your rating by the Ohio Chamber of
Commerce is not surprising. They say you rank first in voting
for the employer in employment cases. You also rank first in
voting with the defendant in product liability cases. You even
scored a perfect 100 percent in insurance cases, and issues
affecting the environment, voting with the corporate defendant
100 percent of the time.
Now, all of us are aware about these percentages, and I
wanted to give you an opportunity to respond to those and to
the other observations that I made about your holdings.
It seems that you are in dissent so often because you are
consistently and militantly pro-business, anti-worker, anti-
civil rights, and I want to hear from you what conclusions you
think we ought to draw from those percentages and from that
record about how balanced you can be and how either workers or
those people, again, who are left behind, those that care about
the environment, other issues that are in conflict between
employer and employee, how they could look to you in your court
and feel they are going to get a fair shake.
Justice Cook. Thanks, Senator. I'll address that.
First of all, I think to say--as you acknowledge, these
percentages are nothing I can ever check or know how they
arrive at those, so I sure don't vouch for those sort of
things. But if you will, you know, I tried to just gather
cases. I think Senator DeWine put out a listing of the cases
that show that, frankly, I'm not a reliable vote for anyone,
but that my decisionmaking--and I hope you will find this if
you actually read the cases and read the dissents, you will
find, I hope, that it's a matter more of my precise reading of
the law, looking for the actual text of the statute, and when
the cases--the results of the cases go against an employee or,
you know, in the general civil rights kind of ideas, I frankly
don't think I deserve any blame for the legislation that I am
asked to construe or interpret.
And so as in many of the cases, there is the Doe case,
which involved allowing insurance for negligent hiring in
molestation cases. In Haines v. City of Franklin, there was an
edge drop off a road, and though the majority of the case
thought that the city was immune and not liable for damages in
that case, I dissented and said indeed the city was because the
city created a nuisance.
In Richie Produce, I upheld a minority business set-aside.
In Nakoff v. Fairview General Hospital, it was a tragic case of
medical malpractice where an individual came in with a fracture
of the leg. In the setting of that leg, the circulation was cut
off, which ultimately resulted in amputation. I upheld the
verdict of $2.4 million.
In the Buckeye Hope case, I dissented from the court's
decision that a referendum could deny minority housing in a
city in Ohio. Ultimately the court reconsidered that case and
my dissent then became part of the majority.
In Valish v. Copley Board of Education, I upheld a verdict
for a teacher--or a parent who came on school property. Again,
the majority found that that individual--that the school was
immune under our sovereign immunity law, and I ruled the other
way.
In Rice v. Certainteed, it is a case about whether or not
punitive damages can be awarded in discrimination cases, and in
that case I interpreted the language of the statute. The word
``damages'' I found was not limited by context or any modifiers
and, therefore, allowed--ruled that that word included the
whole panoply of pecuniary remedies.
In Wallace v. Ohio Department, Gibson v. Metalgold, I
have--I don't want to bore the committee, but I have more,
Senator.
Senator Kennedy. Well, the reason I raise this, you
mentioned some, and I will review those cases. I was thinking
of some of those, I guess Bunger v. Lawson, and in that case
the court, as I understand it, called Cook's interpretation of
the law ``nonsensical,'' said that it leads to an untenable
position, unfair to employees, adopting the lower court's
interpretation or taking the position adopted by Justice Cook
in her dissent would be, as the majority clearly stated, ``an
absurd interpretation that seems to borrow from the pages of
Catch-22.''
Justice Cook. And, actually, Senator, in that case it was
interpreting the statute in the usual mode, but what the
majority really was concerned about was that the law in Ohio is
pretty plainly expressed that someone who is injured in the
course of employment, the compensability can be narrower than
the immunity. Employers are immune from suit, and, therefore,
there are occasions where someone can be injured but not--their
injury is not compensable. And that's exactly how the law is
written, and that is my job, to read it precisely.
Senator Kennedy. In the Russell v. Industrial Commission,
the court stated that your dissent lacks statutory support for
its position and has been unable to cite even the slightest
dictum from any case to support its review.
Justice Cook. Well, like so many dissents--
Senator Kennedy. No, I didn't have an opportunity to give
these cases to you before, so I--
Justice Cook. I know that case.
Senator Kennedy. --would be glad to let you give whatever
response or the time to do it because it's--
Justice Cook. In that case, there was, number one, a
statutory--a new enactment, so a statutory change in the
language. My dissent was joined by the chief justice, and so I
think it's well-reasoned. I think it's based on the statutory
text.
Senator Kennedy. Well, now, in the Russell case, as I
understand, you argued that the workmen's compensation benefits
should terminate without a hearing as soon as the non-attending
physician says the benefits should stop. You argued that, in
spite of the statutory language, that couldn't be more clear.
It says that benefits--this is what the statutory language
says: ``Payments shall be for a duration based upon the medical
reports of the attending physician. If the employer disputes
the attending physician's report, payments may be terminated
only upon application and hearing by a district hearing
officer.''
Justice Cook. That's right.
Senator Kennedy. And you interpret that statute entirely
differently. You argue that the compensation should be
terminated without a hearing as soon as the non-attending
physician said the benefits should stop. Now--
Justice Cook. Actually--
Senator Kennedy. --as I understand it, if the employer
disputes the attending physician, payment may be terminated
only, as I said, upon the hearing officer. The majority stated
your dissent lacks statutory support, unable to cite even the
dictum for the case.
Justice Cook. Right, and we really disagreed in that case
as people in good faith can always disagree about the meaning
of words. But in that case, the majority and the dissent
disagreed about which statute to read. So I was construing--my
dissent construed an analogous statute and a parallel statute
that had to be read in conjunction with the one that the
majority was relying upon.
Senator Kennedy. I am not an expert on the Ohio law, but it
seems that the citation is fairly clear, that ``Payment shall
be for a duration based on the medical reports of the attending
physician.''
Chairman Hatch. That's right, and--
Senator Kennedy. ``If the employer disputes the physician,
payments may be terminated only upon application and hearing by
a district hearing officer.'' And you made the judgment that it
could be terminated without a hearing.
Justice Cook. The issue--
Senator Kennedy. And you have another statute.
Justice Cook. Yes. The issue really surrounded--
Senator Kennedy. Could you reference that, the other
statute?
Justice Cook. Yes, I will.
Senator Kennedy. The concern is about in light of the
persistent dissents and your consistent siding with the large
corporations against the individuals and departures from the
clear language of the law, how are we going to be assured that
you won't overreach in order to reach a conservative result.
Now, let me give you another example. As you know, one of
the real best weapons that we have in the struggle to improve
the lives of those who are left behind in our society is
education. And when we educate our children well, we give them
an opportunity to take part in the American dream. You,
however, have taken the Ohio Constitution's provisions
guaranteeing a thorough and efficient public education and
voted to basically interpret it out of existence. This is the
DeRolph v. Ohio case.
You were confronted with overwhelming evidence that State
funding of public schools was woefully inadequate. In fact,
much of the evidence in that case showed that children were
attending schools that were in dangerous repair, with poor
sanitation, few if any resources for education. The majority of
the court followed Ohio Supreme Court precedent that said where
a school district is starved for funds or lacks teachers,
buildings, or equipment, the right to an education is violated.
It found that the woefully underfunding of such an important
State function as education violated the Ohio Constitution. You
dissented.
You would have denied the children of Ohio the right to a
thorough and efficient State education. In fact, your dissent
was harshly criticized, and particularly said that if your
position had prevailed, it would have turned 200 years of the
constitutional jurisprudence on its head.
I understand in your personal life you acknowledge that
education is important, but we are talking about this
particular case. How do you explain your decision on this issue
that is so important and is an issue that is common to my State
and States across the country and in which there is such a
challenge in order to try to provide some quality of funding
for children? And Ohio has such a very strong statute, I find
it very difficult to understand your dissent.
Justice Cook. Senator, my dissent was, first of all,
grounded on--no member of the court, and there were three
members--or two other members of the court who joined me in
dissent about the constitutional bases that the majority was
using to order a coequal branch of government to enact new
funding statutes. So, actually, I never did in any way vote to
reduce educational spending or in any way voted to say that the
sorry state of some schools in Ohio was okay.
The Court has an assigned limited role, and I exercised my
role appropriately, I think, in saying that the phrase that the
Court was hanging its hat on did not justify its ordering a co-
equal branch to enact new funding laws because the Department
of Education had certified that every county in the State had
met the minimum standards for providing and education, so my
view was beyond the minimums. It was the General Assembly's
role to decide what level of funding should be allocated to
schools versus every other required funding--every other aspect
of State Government that required funding was a policy decision
to be made by the Legislative Branch.
But I must say that that case had a--has a fairly sorry
history. It lasted some 6 years and the Court never, though it
had some, I think, very well intentioned--it was a well-
intentioned effort, but it actually--the Court never was able
to continue to order the General Assembly to do more and do
more, and frankly, it finally just--the case faded away.
Senator Kennedy. Well, that is a sad conclusion that has
happened in some States. States have different, in their
Constitutions, guards or different--ours, Massachusetts, John
Adams drafted our Constitution in Massachusetts and made it
very specific with regards actually to--on the responsibility
of the State in education.
It is interesting that every State Constitution has a
guarantee on education. They are interpreted in different ways.
But let me come back to the Ohio. The Ohio Constitution
requires a thorough and efficient education. These words have
meaning. They can be interpreted, enforced by a Court willing
to take its responsibility seriously. In fact, a number of
States have found that similar clauses in their constitution's
enforceable. Your unwillingness to interpret, enforce this
clause of the constitution I find disturbing. I understand you
believe the clause is too vague for judicial enforcement. In
your dissent you compared it to another provision of the Ohio
Constitution that says that all citizens possess inalienable
rights to life, liberty, property, happiness and safety, but
even that clause has much the same language of the Fifth and
14th Amendments of the Constitution clauses, which have been
analyzed, enforced for many years. And I am just wondering how
much assurance that we can have here that you are going to
interpret these statutes in ways that we are intended to, and
that reasonable people would feel that they should be intended.
Justice Cook. That would be my goal, Senator, that would be
my effort.
Senator Kennedy. If I could, Mr. Chairman, I have one
additional area.
Chairman Hatch. That would be fine, Senator Kennedy. We
will give you the additional time.
Senator Kennedy. Thank you.
Much of the last 2 years have been spent recovering from
corporate malfeasance that has hurt our economy--I am talking
about our country--and undermined the public's trust in big
business. The laws play an important role in restoring the
confidence of the American people for preventing this abuse in
the future. Unfortunately, in looking over your record--and I
want to give you a chance to respond--one could conclude that
you have consistently voted to shield corporations from the
legal consequences of their actions. In the Davis v. Wal-Mart,
Mrs. Davis alleged that Wal-Mart instructed its employees to
lie to her after her husband was killed while working for Wal-
Mart. Wal-Mart allegedly told its employees to lie about the
way in which Mr. Davis had been killed, in order to encourage
Mrs. Davis to settle out of court. The majority understandably
found this sort of deception reprehensible and allowed Mrs.
Davis to sue Wal-Mart. You would have prevented her from doing
that, thereby allowing Wal-Mart to reap from the benefit of the
lies, and encouraging other corporations to do the same thing.
Justice Cook. My decision in that case does not suggest
that I too don't find that behavior reprehensible. My dissent
actually was based on a fundamental principle of jurisprudence,
and that is res judicata, and it was based on really well-
settled law, that that--the fact that Mrs. Davis sued Wal-Mart,
got a judgment for negligence, and then years later came back
with a spoliation case, I found--my view was that it was res
judicata, and in favor of finality of judgments, as we all
know. That's why that principle is there and why it's accorded
importance by judges.
Senator Kennedy. But the majority did not find that.
Justice Cook. No, they did not.
Senator Kennedy. They reached a different conclusion.
Justice Cook. Yes, that is right.
Senator Kennedy. In Norgard v. Brush Wellman, the defendant
corporation withheld information concerning how much it was
exposing its employees to beryllium, including withholding the
fact that it knew its air samplings were flawed and that it had
ventilation problems. And it gave the plaintiffs in this case a
skin disorder, so severe he had ulcers. He suffered for a
protracted period of dizziness, coughing and had difficulty
breathing. The company just told him not to worry and continued
to withhold the information about the problems with beryllium.
The majority found that the employee's time to file a suit
started running from the time he found out about the
information his employer had been withholding. But you would
have allowed the corporation again to reap the benefits by
barring this suit. What can we draw from that?
Justice Cook. I hope that the only thing that you'll draw
from that is that I look at the law on statute of limitations
and the particular--my decision was simply a statute of
limitations decision.
Senator Kennedy. Well, when? That is the--
Justice Cook. May I finish? And as a lawyer, Senator, and
so many people n the Committee are, this individual had
knowledge of his injury and the expected cause, but didn't file
suit until some 5 years later when the statute of limitations
in Ohio is 2 years. So I just viewed, and perhaps I was the one
who was mistaken, but I viewed the majority decision as
contorting the law of statute of limitations beyond the scope
of its justification there.
Senator Kennedy. Well, you are right, the majority differed
with you. The corporation withheld information concerning how
much was exposed to the employees. And so since the defendant
did not know about this, effectively, by the time they found
out and brought the case, you ruled that they really did not
have--the statute had run on it, and they were denied any
opportunity. This is enormously important. We have a lot of
workers, miners. We have a lot of occupational health and
safety issues involving lung damage, and increasingly so with
regards to the dangers of toxic substances that are being used
in industry all of the time on this. It is a very serious
matter I know for great numbers of workers.
Justice Cook. I think so too, Senator.
Senator Kennedy. I am concerned that if the employer is
denying them the information about the dangers of this, and
then they only find out about it later, to have their
opportunity to get some kind of remedy of this is being denied
to them, I mean I have difficulty understanding how you reached
the conclusion that the statute ran.
Justice Cook. Actually, the plaintiff admits that he knew
that he was sick and that he knew it probably was the beryllium
from the plant. I mean he was inhaling gross amounts of this,
and of course it is a horrible scenario. But it wasn't my
personal view about whether this individual deserved to
recover. It was simply an application of the well-settled law
that it is not all the elements of a claim, which is what the
majority held here, until this individual knew all the elements
of their claim, they couldn't bring the case. But indeed, this
gentleman unfortunately both knew that he had an injury, and he
knew the likely cause. It was later when he saw a website some
5 years later, that he chose to bring the action, and my
considered judgment and I think reasoned judgment, was that
that was beyond the discovery rule and the particular statute
of limitations here.
On the other hand I can tell you of another case on the
discovery rule involving NCR, where I wrote the majority
opinion that extended the discovery rule in that case, and it
was I think the first time in the country. So there are always
occasions where cases are decided differently based on the
facts presented. And if you're a jurist who attends to the law
and tries to be diligent and conscientious about that, I think
that you'll find the decisions--I can't do anything about which
person wins and loses because I must be impartial.
Senator Kennedy. Well, I agree that that has to be the
desired standard. The majority of course found that the
employee's time to file suit started running from the time he
found out the information his company had been withholding, and
that the company doctors were misleading the worker. So you
were in the dissent in making the judgment. And the matters,
there is a pattern. My time is just expiring. I mentioned
several of these cases. There are many others, and when it
comes out to the bottom line it has virtually 100 percent on
the one side. I agree that figures are not always necessarily
absolutely accurate, but what we have is a pretty significant
pattern on here, where in these cases involving workers, in the
cases that I have mentioned here, others, that your dissents
always seem to be at the expense of individuals, workers, in
these cases workers rights, and it is troubling. My time is up.
I want to thank you, and I want to say, Ms. Cook, that if
you want to provide other kinds of cases that show a different
side, I would welcome them. I always try, if I am going to ask
a nominee about cases, to indicate what they are going to be
beforehand. I did not have the chance just because of the way
this was sort of, we are working on this. So if there are other
cases that support yours, I am more than glad to take a look at
them.
Justice Cook. Thank you.
Senator Kennedy. Thank you.
Chairman Hatch. Thank you, Senator Kennedy.
Here is what we are going to do. Senator Schumer wants to
ask some questions, and he will be here at 8 o'clock. So we are
going to--I apologize to you that this is taking so long, but I
do want to get this completed today because--for a variety of
reasons, but especially for you. And I want you to be treated
fairly, and this Committee I think is attempting to do that.
But what we are going to do is we are going to discontinue
this part of the hearing till 8 o'clock. That will give you a
chance--by the way, I have ordered some food if you can stick
around. I would like to chat with you for a minute. And what we
would like to do at this point is to proceed to the three
District Court nominees and see if we can resolve them at this
point, and then we will resolve you after 8 o'clock.
Senator Kennedy. Mr. Chairman, just again, how we proceed
is not up to all of you. You have been gallant witnesses today.
Mr. Roberts, I have not had a chance to question you. We have
others, I guess Senator Schumer and others. I will submit
questions to you. I appreciate your patience, all of our
nominees, their patience with us. It has been a long day for
you and these are complicated and very important issues, and I
thank them.
Chairman Hatch. Thank you, Senator Kennedy, for your kind
remarks.
And, Senator Sessions?
Senator Sessions. I just wanted to say I think you have
been generous. And I notice you did something very unusual in
having 15 minute rounds. I am not sure we have ever done that
before.
Senator Leahy. We have done it a lot.
Senator Sessions. Senator Kennedy, I just notice he was 13
minutes past his 15, which is all right. You have been generous
on that. And I would just say this, that when President
Clinton's nominees were coming by and there was a hearing set,
if I had other committees or other responsibilities, I knew I
had to either be there or not. I did not come in and expect the
Committee to adjust itself totally to my schedule. But you have
been generous and fair, I believe, and I wanted to say that for
the record.
Chairman Hatch. Well, thank you, Senator. Let us take 5
minutes--
Senator Leahy. Mr. Chairman?
Chairman Hatch. Excuse me. I am sorry, Senator Leahy.
Senator Leahy. Mr. Chairman, you and I discussed this
procedure, and I think it is a wise way to do it. We have some
other letters, I know Mr. Sutton will be happy to know,
regarding him, and we will put those in the record.
Chairman Hatch. Without objection, we will put those in the
record.
Senator Leahy. I would also note, Mr. Chairman, that you
have been very fair on the clock. I think that the Senator from
Alabama and others would agree that President Bush's nominees,
during the time I was Chairman, that if any one of them had any
questions at any time, on either side of the aisle, they got
whatever time they wanted or time to introduce or anything
else, and several times rearrange a schedule so that the home
State Senators could introduce President Bush's nominees.
Senator Sessions. I think that is a lot of truth, and
sometimes we just had to resort to written questions because
they work too.
Chairman Hatch. There were many times we did written
questions because of the time constraints. We have tried to be
fair here and I think we have been. And you folks have been
more than stalwart in being with us this long, and you are
going to have to be here a little longer. I apologize to you,
but this is an important hearing, and my colleagues have felt
like all three of your are, quote, ``controversial,'' unquote.
I do not agree with that assessment, but some feel that way and
they have a right to feel that way if they want to. So what we
are going to do is we will recess for just 5 minutes. I want
everybody back in 5 minutes, and we will start with the three
District Court nominees, and we want you here promptly at 8.
Senator Leahy. The Court of Appeals nominees can take off
if they want, right?
Chairman Hatch. Yes, until 8 o'clock, but I would like to
see the three of you just for a minute in this 5-minute period.
Thank you.
[Recess from 6:48 p.m. to 6:57 p.m.]
Chairman Hatch. We are going to reconvene. If I could have
you stand and hold up your right hands. Do you solemnly swear
to tell the truth, the whole truth and nothing but the truth,
so help you God?
Judge Adams. I do.
Mr. Junell. I do.
Judge Otero. I do.
Chairman Hatch. Thank you. I would like to welcome to the
Committee our three District nominees, Judge John Adams, who
has been nominated for the Northern District of Ohio; Robert
Junell, who has been nominated for the Western District of
Texas; and Judge James Otero, who has been nominated for the
Central District of California.
It has been a long day so far, and you have been very, very
patient, and I am very appreciative of you. So in the interest
of time, I am going to enter my statement in the record and as
soon as Senator Leahy gets here, we will have him give any
statement he cares to give. Until then maybe I can start with
questions.
Well, first of all, let me show a little more courtesy than
that. We will go with Judge Adams and then Judge Otero, and
then Mr. Junell. If you would care to make a statement and
introduce anybody who is here from your family. They are
probably all gone by now, and perhaps before we begin, I would
like to turn to Senator DeWine to introduce Judge Adams.
PRESETATION OF JOHN ADAMS, NOMINEE TO BE DISTRICT JUDGE FOR THE
NORTHERN DISTRICT OF OHIO BY HON. MIKE DEWINE, A U.S. SENATOR
FROM THE STATE OF OHIO
Senator DeWine. Thank you very much. I deferred this
morning, Mr. Chairman, introducing Judge Adams, and it is my
pleasure to introduce really another fine Ohio nominee
appearing before the Committee today, Judge John Adams.
Judge Adams, we welcome you to the committee, and we thank
all of our nominees for their patience. I know it has been a
very, very long day.
And Judge Adams from Akron has been nominated to be a U.S.
District Judge for the Northern District of Ohio. He currently
serves as a Judge on the Court of Common Please in Summit
County. I am pleased to welcome Judge Adams, his former law
partner, Philip Kaufman, to the Committee as well. Judge Adams
is a 1978 graduate of Bowling Green State University, where he
earned a Bachelor of Science degree in education. In 1983 he
received his law degree from the University of Akron School of
Law. While a student at Akron, Judge Adams clerked for Judge
Spicer with the Summit County Court of Common Please. Following
this position Judge Adams spent 5 years in private practice,
and during this time also served as Assistant Summit County
Prosecutor. In 1989 Judge Adams returned to private practice as
an associate and then a partner at the firm of Kaufman and
Kaufman in Akron.
Since 1999 Judge Adams has served as a judge on the Court
of Common Pleas for Summit County. In this position Judge Adams
has demonstrated that he is an intelligent, hard-working and
dedicated jurist. He is well respected, both inside the
courtroom and out, and exhibits an excellent judicial
temperament. He has shown that he has what it takes to be an
excellent District Court Judge.
In endorsing his reelection effort just this last November,
the Akron Beacon Journal stated that Judge Adams, and I quote,
``has the potential to be a distinguished Federal Judge,
building on the record of fairness and thoughtfulness that has
marked his 3 years on the county bench.'' I agree completely,
Mr. Chairman, with that sentiment.
While Judge Adams' professional accomplishments are
impressive by any measure, I would also like to take this
opportunity to highlight his involvement in the Akron
community. Judge Adams has been a lifelong member of the NAACP.
He has also been active in the Summit County Mental Health
Association and the Summit County Civil Justice Commission.
In summary, Mr. Chairman, I urge my colleagues on the
Committee to join me in support of this fine nominee as Senator
from the State of Ohio. Thank you, Chairman.
Chairman Hatch. Well, thank you, Senator DeWine.
And that is high praise, Judge Adams.
We will turn to Senator Cornyn for his comments about Mr.
Junell.
PRESENTATION OF ROBERT JUNELL, NOMINEE TO BE DISTRICT JUDGE FOR
THE WESTERN DISTRICT OF TEXAS BY HON. JOHN CORNYN, A U.S.
SENATOR FROM THE STATE OF TEXAS
Senator Cornyn. Mr. Chairman, I just want to add my brief
comments to those made by Senator Hutchison this morning in
introducing Mr. Rob Junell, nominee for the United States
District Court for the Western District of Texas. Senator
Hutchison talked primarily about Mr. Junell's legislative
accomplishments and his personal background.
But just for the committee's information I first met Mr.
Junell about 20 years ago when I was a young lawyer and he and
I happened to be on the opposite side of a lawsuit. You learn a
lot about the character and the competence of your adversary in
those circumstances, and I wanted the Committee to know and the
record to reflect the high regard in which I personally hold
Mr. Junell as a lawyer, as a person, and a person who has
devoted many years of his life to public service already, and
who I know will do an outstanding job on the Federal Bench.
And also his wife, Beverly, who is here with him today. It
seems like, Mr. Junell, you were introduced a long time ago,
but just for a refresher and to add my comments and
congratulations to you.
Thank you, Mr. Chairman, for that opportunity.
Chairman Hatch. Thank you, Senator.
We will begin with Judge Adams, and then Judge Otero, and
then Mr. Junell. And if you have any statements to make, we
would be happy to take them, and if you would, introduce anyone
who is accompanying you here.
STATEMENT OF JOHN ADAMS, NOMINEE TO BE DISTRICT JUDGE FOR THE
NORTHERN DISTRICT OF OHIO
Judge Adams. Senator, first of all, I would like to thank
the Committee for allowing us this hearing this late day. I
know it has been a long day for you. We greatly appreciate it.
I greatly appreciate the courtesy in being permitted to be
heard today.
I want to acknowledge my former law partner who is here
today, Mr. Philip Kaufman, as Senator DeWine has acknowledged
him.
I additionally would like to acknowledge my father who
could not be here today due to his age, somewhat age and
somewhat unwillingness to travel here today, and acknowledge
the memory of my mother who passed away some time ago and could
not be here. I am sure she would be quite proud. And once
again, thank you, Senator, for your courtesy.
Chairman Hatch. Well, thank you, Judge. Appreciate it.
Judge Otero?
STATEMENT OF S. JAMES OTERO, NOMINEE TO BE DISTRICT JUDGE FOR
THE CENTRAL DISTRICT OF CALIFORNIA
Judge Otero. Thank you, Senator. I just want to thank the
Committee for having me here. I am very honored. I would like
to thank Senator Leahy and Senator Feinstein for the gracious
statements made earlier today, and also to Senator Boxer for
her written statement provided to the committee.
I would like to thank my family who is back there for being
here, and also my parents who could not be here today because
of health concerns.
Chairman Hatch. Introduce your family to us.
Judge Otero. My wife Jill is here.
Chairman Hatch. Jill.
Judge Otero. And my daughter Lauren.
Chairman Hatch. Lauren.
Judge Otero. And my son, Evan.
Chairman Hatch. Evan. Happy to have you with us as well.
Judge Otero. Thank you.
Chairman Hatch. Thank you, sir.
Mr. Junell?
STATEMENT OF ROBERT JUNELL, NOMINEE TO BE DISTRICT JUDGE FOR
THE WESTERN DISTRICT OF TEXAS
Mr. Junell. Thank you, Mr. Chairman. It is indeed an honor
to be here today. I want to thank both you and Senator Leahy
for allowing us to be here for this hearing, and I want to
thank Senator Hutchison and Senator Cornyn, the two Senators
for Texas that said such nice things.
My wife Beverly is here with a crutch from knee surgery.
She hurt the other one, Senator, at Snowbird about 10 years ago
in your state.
Chairman Hatch. Oh, my goodness. That is not good.
Mr. Junell. And this time it was in New Mexico, so she
recently had surgery.
Senator Leahy. Should have skied in Vermont.
[Laughter.]
Chairman Hatch. No, no, that is worse there. It is just
plain ice there. We at least have powder snow.
Mr. Junell. My son, Ryan, who is in California, could not
be with us. My daughter Keith is the Peace Corps in Bolivia,
and my son Clay is a student at Angelo State University in San
Angelo.
Chairman Hatch. Well, we are honored to have all of you
with us, and we again apologize for this taking so long, but it
is the nature of this place. Every once in a while it does take
a little bit of time, so please forgive us.
I think we will begin with Senator Leahy. He has been so
patient all day, I am going to turn to him first, and then
whatever questions he does not ask, maybe the rest of us can.
Senator Leahy. Thank you, Mr. Chairman. I will try to be
brief. The level of controversy is a lot different here.
Judge Adams, you have been actively involved in partisan
politics on behalf of your fellow Republicans. You served as an
elected official. You have contributed to Republican campaigns.
You have volunteered on campaigns. You have run for city
council. All of which is perfectly appropriate, but when you go
to the Federal Bench, you have no problem with the fact that
partisan activity then is--it is gone; is that correct?
Judge Adams. Absolutely, Senator, and I think as a common
police court judge my record will establish that that has
certainly been the case while on the bench.
Senator Leahy. Thank you. And you assure us that if
somebody walked into your court, if you are confirmed, that
they would not have to worry about whether they were the right
political party or the wrong political party; they would just
have to worry that Judge Adams reads the law correctly?
Judge Adams. Absolutely, Senator. You can rest assured in
that regard, please.
Senator Leahy. In private practice you specialized in
estate planning and trust and probate law. You had a special
emphasis on providing service to senior citizens and people
with mental and physical disabilities, and I commend you for
that. What do you bring from that, the work you did with people
with disabilities? What do you bring from that as you go into a
Federal Bench?
Judge Adams. Well, I think I bring a couple things that
I've learned from my representation of seniors and folks with
disabilities. I've learned how important it is to listen. I
think as a judge, one of the most important things that we
overlook is how important it is to take time to listen to the
litigants, the parties, their attorneys. Sometimes I think we,
the judges, overstate our own importance, and I think I have
learned a great deal in representing seniors, and in my life I
always enjoy listening to their life experiences, and I think I
have learned a lot from them, I have gleaned a lot from them
and from their life experiences. And it has given me balance in
my life, in my views from the bench.
Senator Leahy. Thank you. And I think you are right. It is
very easy for a judge who sits there, it is ``all rise'' and
all that kind of thing. I think the judges who are best is,
when they hear the ``all rise'' they almost have to stop
themselves to see who it is they are doing that for, and not
take it for granted. And the judges that keep themselves fairly
grounded in their community end up being the best judges. I
mean there are a lot of things you have to give up as a judge.
I mean I love politics and I am sure you do too, giving up some
of those things. You have to be careful of your associations.
Like any member of the bar, a lot of your friends are going to
be lawyers. You have to pick and choose there. But you are not
really in a monastery. I mean you are still a human being, and
the most important thing is that the people who are in front of
the bench are also human beings, and so I appreciate that.
Judge Otero, you have served as a judge for the last 14
years. Correct me if I am wrong in any of this. First in the
Los Angeles Municipal Court and then on the Los Angeles
Superior Court. Is that correct?
Judge Otero. Yes, Senator.
Senator Leahy. I spent some years ago in the Superior Court
when I was a prosecutor. One of my fellow board members in the
National DAs was the District Attorney of Los Angeles, and the
times we have meetings out there I go into some of those courts
and realize that Los Angeles is larger than my jurisdiction in
Vermont or what was my jurisdiction. I do get out there now and
then. I have a son, a former Marine, and his wife, who live in
Los Angeles, in the Los Filas area, and I do not think there is
just about any kind of case anybody is ever going to see that
has not been in the Los Angeles Superior Court at one time or
another.
Judge Otero. That's correct. We may be the largest court
system in the United States, if not the world.
Senator Leahy. I think it is an extraordinary court system.
I know a lot of the people I see who come here from other
countries to study our judicial system, that is one of the
places they want to go to, and you probably have seen a lot of
foreign representatives who come to your court to see it.
Judge Otero. From China recently and from Japan also.
Senator Leahy. One thing that we talk about is the
impartiality of our Federal Judiciary. One thing I think might
interest you is when the Soviet Union broke up, a group of
Soviet, or now Russian, lawmakers came here to meet with me,
with Senator Hatch, others, and I remember one question one of
them asked almost incredulously. He said, ``We have heard in
the United States there have been times when the Government has
been sued and the Government actually lost. I mean did you not
quickly replace the judge?''
[Laughter.]
Senator Leahy. And we had to explain to him, no, we have a
certain independence here, and yes, the Government does lose on
occasions. And I think this was probably as big an eye opener
as ever. I have always encouraged these people to go out to Los
Angeles and watch your court system.
Now, a number of issues of the death penalty have come up.
Justice O'Connor said there were serious questions about
whether the death penalty is fairly administered. She added,
``The system may well be allowing some innocent defendants to
be executed.'' Now, you have presided over a capital murder
case. One case you presided over, People v. Chauncey Beasley,
Delano Cleveland and Rashish Sheron. The jury returned a guilty
verdict against the three defendants, recommended death. And
you had the sentencing hearing. You sentenced two of the
defendants to death. You rejected the jury's recommendation of
death for the third defendant. You sentenced him to life
without possibility of parole. And I am not asking you what is
your reasoning in that case, but you have obviously had to look
at the question of the death penalty. Do you think there are
changes that are warranted in the way the death penalty is
administered? None of us have questioned that it is
constitutional. The Supreme Court has held so. But are there
changes that should be made in capital cases, or are they all,
in your experience, always fairly handled?
Judge Otero. I would hesitate to comment about the
particular case because it's before the California Supreme
Court.
Senator Leahy. I do not want you to comment about that one,
but I mention it only because obviously it has focused your
attention here.
Judge Otero. I think as judges we have to be very concerned
about the rights of defendants, especially in capital cases. I
think the entire issue is probably better handled by the
legislature. As judges it is our duty to follow the law and
interpret the law to the best of our abilities. In California
we have a system that allows the trial judge to conduct an
independent review of the aggravating and mitigating factors,
to sit as a 13th juror on the penalty phase, and I think that's
a very good system.
Senator Leahy. Do you feel that it is an absolute, that
especially in a capital case, that a judge should make sure
that there is adequate counsel, and I mean real counsel for the
defense?
Judge Otero. Oh, absolutely, absolutely, Senator.
Senator Leahy. We can assume the State will always have the
best in a capital case and that if there is evidence available,
incriminating of exculpatory, that it be available to both
sides.
Judge Otero. Absolutely. One of the fundamentals of our
system is to make sure that all evidence is turned over to both
sides.
Senator Leahy. The reason I say that, there have been some
states and some jurisdictions that has not happened, or where
the least competent counsel has been appointed at a small flat
fee in a capital case, and that is where we have problems. You
have probably found, as has been my experience and I think
Senator Hatch's experience and Senator DeWine's, in trying
cases you actually have a far easier time of it if you have
good counsel on both sides.
Judge Otero. Good lawyers make for a better trial judge,
absolutely.
Senator Leahy. Mr. Junell, we are chatting earlier, and I
repeated the call I received from Congressman Stenholm, who
assured me that in his estimation you would be a fair judge of
the matter of who was before you. I want to ask for a moment
about your work as a State legislator in a claim that a
whistleblower named George Green. In August of 1989 he was an
employee of the Texas Department of Human Services, and he
reported what he thought was corruption among his superiors and
others. The State of Texas responded by investigating him and
firing him. Then they indicted him, and the indictment was, the
charge eventually dropped. He sued under the Texas
Whistleblower Statute. The jury awarded him $13.6 million. In
February 1994 the Texas Supreme Court affirmed that judgment,
saying the State did not have immunity because of the Texas
Whistleblower law. Under State Law, to collect the award Mr.
Green was required to get his claim approved by the State
legislature. He tried to do that. You were Chairman of the
Texas House Appropriations Committee. You refused to approve
the full amount, which had grown to around 19 million with
interest, and offered him 25 percent or 25 cents on the dollar.
You were quoted as saying that the State of Texas does not owe
him this money; under the law of sovereign immunity we do not
have to pay. The Texas legislature eventually gave him a
substantial portion of that.
I raise this because this Committee has heard from people
like Sharon Watkins, who are out to expose many of the misdeeds
at Enron, or we have read of hers. FBI Special Agent Colleen
Rowley brought public attention to some of the shortcomings in
the Department of Justice prior to 9-11. Senator Grassley and I
have worked--it has been very much of a bipartisan thing--on
whistleblowers. A lot of people risk everything to point out
waste or corruption and so on. So one, why did you want to deny
Mr. Green his full award? Do you think that deterred other
whistleblowers?
Mr. Junell. No, Senator, and I appreciate you asking that
question. No, it didn't. Texas law at that time, if the State
of Texas ran over somebody in a truck out on the highway, the
amount of damages that could be recovered for someone who
either perished or who was made a quadriplegic is $250,000. In
the case of the Whistleblower Act, which was passed before I
came to the legislature, there was not a cap on the damages,
but it did require a review by the legislature, somewhat like
this process of presidential appointees being reviewed with the
advice and consent of the Senate and of this committee.
Senator Leahy. Well, we are written into the Constitution,
the U.S. Constitution.
Mr. Junell. We are written into statute in the same manner.
We are written into statute that all awards of that nature, if
there was not a permission to sue prior to the time the suit
was brought, had to come to the legislature to apply for the
money. We held hearings on Mr. Green's case. I don't want to--
spent a lot of time reading trial testimony and reviewing all
of his case. Ultimately participated in amount. And senator, I
don't remember the amount that it was ultimately settled for.
It was in the millions of dollars though. The legislature,
either that session or the next session revised the statute to
put the cap the same that we have on our Tort Claim Act as
well.
Senator Leahy. So now he could only recover a quarter of a
million?
Mr. Junell. Yes, sir, but I can tell you that we have
active--not only at the State level, but at the county level
and at the city level. Any political subdivision is covered by
that, and it has not deterred anyone to my knowledge. I have
never heard that, anyone being deterred of reporting wrongdoing
in Government.
Senator Leahy. Well, there you had a specific statute to
review. A trial judge can review a question of damages that a
jury awards. Is that something a trial judge should eagerly
jump in to do, or should they be reluctant to overturn or
change a jury verdict?
Mr. Junell. I think they should be very reluctant to
overturn a jury verdict.
Senator Leahy. I do too. If I have other questions, I will
submit them for the record. You have been patient. Your
families have been patient. Senator Hatch has the patience of
Job sometimes.
Chairman Hatch. Sometimes, that is for sure, and today is
one of them is all I can say.
But you have had patience, and we have been very grateful
to have you here. I know all three of you. I know how good you
are. I know your reputations. I have no real desire to put you
through any more questions. All I can say is that I would--just
one little thought.
Mr. Junell, I understand that you are quite well read and
that you have excellent taste in books. I would just like to
know the last book that you have read.
Mr. Junell. You know, one of my favorite books, Mr.
Chairman, is A Square Peg.
Senator Leahy. Oh my God.
[Laughter.]
Senator Leahy. Hold that man over.
[Laughter.]
Chairman Hatch. I think everybody should read that,
including Senator Leahy.
Senator Leahy. I am halfway through it.
Mr. Junell. I understand they are going to make a movie, by
the way. Tom Cruise is looking to play--
Chairman Hatch. I see. I should be so lucky. Well, thank
you.
Senator Leahy. I would have been able to finish the book
today if you had not kept us here so long, Mr. Chairman.
[Laughter.]
Senator Leahy. That is one of my greatest disappointments.
Chairman Hatch. I have a feeling I am going to support you,
Mr. Junell. I am going to support all three of you, and we are
grateful that you are willing to take these jobs. We know that
it is really a sacrifice for people like yourselves to take
these jobs, but yet they are extremely important for our
society. Without these Federal District Court Judges, our
society would not exist nearly as well as it does.
Let me just say that the one thing that I caution you on,
as an attorney trying a lot in Federal Courts, there seems to
be a little syndrome that happens sometimes when Federal
District Judges and Circuit Judges--well, frankly, all the way
to the top. Once they are on the Court for just a little while,
they seem to begin to think they have elements of deity, and we
just want to make sure that you three do not get that attitude.
Just remember--and do not try cases for the other attorneys.
When a young attorney is there and he or she might not
understand the evidence as well, you can help them, but do not
try their cases for them. And be patient, and do not let being
a Federal Judge go to your head. That is one bit of caution
that I will tell you. And I have seen it happen in so many
cases, even with really dear friends of mine, where they just--
and part of it is because you have to make decisions all the
time, and you have to sometimes draw a line, and sometimes you
get so that you get used to that. But I think it is very
important that you help everybody concerned and do justice in
the Courts. And I have a great feeling that all three of you
will.
So with that, we--
Senator Leahy. I may note for the record, this deification
never happens to the 100 members of the U.S. Senate, you
understand.
Chairman Hatch. That is right. What we are going to do is
we will probably put you on the next markup Thursday after this
one, and hopefully you--now anybody on the Committee has a
right to put people over or put any item on the markup agenda
over for a week. It is an automatic right on the committee, and
it is a very important rule. But hopefully no one will put you
over for a week. But with that, if they do put you over for a
week, in about two weeks we hopefully will have you out of
committee. Then we have to get you on the floor, and we will
work on that as well. So we will do our very best to push this
process along. And I intend to do that when there is a Democrat
President as well. I tried to do it, and I think we did do it
to a large degree with President Clinton. It was not perfect,
but we did move a lot of judges for him. He became second only
to Reagan, the all-time champion, and only five less than
Reagan, but nevertheless, I wish we could have done better.
And both Senator Leahy and I are committed to try to change
this atmosphere to where we can, whoever is President will be
given tremendous consideration on his or her selection of
judges.
So with that, we are grateful for your patience. Because of
it you really have not had to spend an awful lot of time with
us, and that is a great blessing. Think about it. And with
that, we will--
Senator Leahy. Mr. Chairman, excuse me. And I have heard of
absolutely no objection on our side of the aisle to these
three, so I suspect you are going to be able to keep to that
schedule without people putting them over.
Chairman Hatch. We are going to try, and then we will try
to get you up on the floor immediately thereafter.
I just want to thank Senator DeWine for his leadership on
this committee, and he has not asked any questions any more
than the rest of us, and frankly, he plays a great role on this
committee, and Mr. Adams, you are lucky to have him as your
Senator, as well as Senator Voinovich.
[The biographical information of Judge Adams, Mr. Junell,
and Judge Otero, follow.]
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With that, we are going to recess until 8 o'clock. I do
have pizza back here for everybody who is concerned, so please
drop in and have some if you can. With that, we will recess
till 8 o'clock.
[Recess from 7:20 p.m. to 8:02 p.m.]
Chairman Hatch. Okay, it is 8 o'clock. We are ready to go
again, and hopefully we will not be too long, but whatever time
it takes, I want to be fair to the other side, and I know this
is an ordeal for the three of you to be here this long. You
have been here almost 12 hours--10.5 hours--but we will,
hopefully, finish within the near future. We will do our best.
Senator Leahy, do you have any more questions you want to
ask?
Senator Leahy. Mr. Chairman, I understand Senator Durbin
was here just a moment ago, and I just do not want to start
into his time.
Chairman Hatch. All right.
Senator Leahy. Dick, why do you not come up here.
Chairman Hatch. Yes, Dick. We will turn to Senator Durbin
now for any questions he might have.
Senator Durbin. Thank you very much.
I would like to ask this question of the three of you. It
is an observation which was made several years ago, relative to
the issue of racial profiling. I know if I asked you what your
position is on racial profiling what you would say, what we
would all say. We are opposed to it. It is not just, it is not
fair. We certainly do not want it in America.
But I came across some statistics which trouble me, and I
have asked virtually every nominee at all sorts of levels,
Department of Justice and Judiciary, for a reaction and what
they think we should do about the following. I want to make
sure I get these numbers right as I give them to you. I am just
trying to remember them off the top of my head.
But we have a situation in America today where 12 percent
of our population are African-Americans. The Drug Enforcement
Administration believes that 11 percent of the drug users in
America are African-American, but 35 percent of those arrested
for drug violations are African-American, 53 percent of those
convicted in State Courts for drug felonies are African-
American, and 58 percent of those currently incarcerated in
State prison for drug felony are African-Americans.
I would like your reaction to that. You are asking for a
major position in the administration of justice, and if we are
honest about our opposition to racial profiling, what do these
numbers mean in terms of our system of justice, in general
terms, and in specific terms, the whole question of minimum
mandatory sentencing.
Justice Cook, you have been on the Supreme Court in Ohio. I
would like to hear your reaction.
Justice Cook. I have not heard those statistics, but I
suppose, like anyone, that is disturbing, and what it tells me
is that what I already knew, primarily, is that we have to be
vigilant in reviewing cases for the typical issues that would
go with profiling would be the probable cause, and the
suppression issues, and to see if there is anything in the work
that we are doing that would contribute to those statistics if,
indeed, the folks, by their race, are being targeted for law
enforcement and without justification. I think that is the only
role that I play in that problem with the Supreme Court, but
certainly even just as a citizen, I think anybody would be
upset to hear those numbers, and to be concerned if there is
something that we could be doing.
As I say, I only know that I can be looking carefully at my
cases which I actually hope that I already do, but that is, I
guess I find those numbers a lot higher than I would have
thought.
Senator Durbin. Mr. Roberts?
Mr. Roberts. I think that sort of statistical disparity
ought to spark further inquiry. I mean, it sort of points out
we may have a potential problem here, and I think you want to
find out what is behind the numbers because any statistical
grouping that shows that kind of disparity would suggest that
there may be a problem not treating people as individuals, and
that is sort of at the core of our constitutional liberties,
that we don't group people according to characteristics and
say, well, you share this characteristic, and so you must be
like this, this and this. We treat people as individuals.
No matter how compelling the statistical evidence may be,
it shows that whatever group it is, and 99-whatever percent
here is, that's not what due process means, that's not what
liberty means, that's not what the various protections of the
Bill of Rights mean; that you're part of a group that more
often than not is subject to this or does this, and therefore
we're going to treat you as a member of a group, rather than an
individual.
So that type of disparity, I think, is one that ought to
concern people, and spark interest, and call people to look to
see what's behind the numbers and why that's the case.
Senator Durbin. Professor Sutton, would you like to
comment?
Mr. Sutton. Well, I agree with all of those comments. They
are disturbing statistics, and they do deserve inquiry to find
out what's behind them, and I do think it's a very important
subject for inquiry. From my own personal experience, my uncle
is Lebanese and lives in this country, and his kids, of course,
are part Lebanese, and the issue of racial profiling is not
lost on them. I know it doesn't relate directly to the issue
you raised, but it does relate to the underlying point of
potentially making assessments about someone based solely on
their background and their appearance, and that deserves a lot
of inquiry.
Senator Durbin. I mentioned minimum mandatory sentences,
and there is a lot to be said, and Senator Sessions, for
example, has some views on it. We may differ a little bit, but
I wonder, I will just tell you my experience in going to a
Federal women's prison in Pekin, Illinois, and looking at the
prison population, it is an eye-opener.
You will find in that prison women who are generally in
their forties and fifties, sitting around knitting afghans,
serving 12- to 20-year mandatory sentences because they were
ratted out by boyfriends who were trying to find some way to
reduce their own culpability for drug crimes.
And when you talk to judges about this, they say, ``Why do
you do this to us? Why do you put us in this position, where
the prosecutor, doing their job, ends up with charging a crime
that puts a person in prison at the expense of taxpayers for an
incredible period of time, and that person being no threat,
really no threat to society?''
Professor Sutton, what do you think of mandatory minimum
sentencing?
Mr. Sutton. Well, I think, for quite a few reasons, States,
among others, are reconsidering them because of the problem of
overflows in prisons and State budgets that are preventing the
very thing that you're suggesting is happening, of some form of
mandatory minimum, whether it is Federal or State law, and a
prison population that, as you suggest, may involve a lot of
people that do not belong in prison any more.
I think from the perspective of a judge, it's not as easy
to solve that problem as one might like. I do think there's a
lot that the legislature, whether it's the national
legislature, Congress or State legislatures, but I do agree
with you that it's hard to imagine anything worse than someone
in prison who really doesn't belong there, could be serving
society well, contributing to society, and yet still in prison.
That's quite sad.
Senator Durbin. Mr. Roberts?
Mr. Roberts. I guess my first comment would be it strikes
me, as a general matter, a quintessential legislative policy
judgment, what the sentence for a crime is going to be and
whether a judge is going to have discretion in sentencing or
whether there's going to be a mandatory minimum. I know there
are constitutional issues at the margin, and those have been
addressed, in some cases, but it's a policy judgment.
I guess my own reading in the area has led me to think that
it's one of those areas where the consequences of the policy
judgments are not always apparent. For example, I do know that
in many areas, it has had an enormous impact on prosecutorial
decisions. It gives great leverage, and you find one concept
that a lot of people are pleading to different offenses. And so
when you look at someone's record, and you say, ``Well, he's
never done this before,'' it turns out he's, in fact, been
arrested for it probably four times, but he's not prosecuted
because it's easy for the prosecutor to leverage the mandatory
minimum to a different plea.
And the situation you discussed as well, where you have co-
defendants, I just think the policy consequences are often
pretty far downstream. As Mr. Sutton mentioned, we're beginning
to see some of those play out, and some people, some
legislatures are revisiting the question.
Senator Durbin. Justice Cook, instead of asking you that
question, I'm going to run out of time. I would like to direct
one question to you, as I did to Professor Sutton, that really
goes to the heart of many of the objections to your nomination.
When I was a practicing attorney fresh out of law school,
and our little firm in a down-State town in Illinois
represented a railroad, and we had a Federal judge in our
hometown who was a railroad dream come true. We would go into
his courtroom, he would suck on lemon drops, stare at the
ceiling, and rule in our favor on everything. This was perfect,
and we made sure that we removed everything to Federal court,
and we did a great job representing our railroad.
So there are some judges who come to this with certain
feelings and certain inclinations, which become very obvious in
the way they do their business every single day.
When I take a look at Professor Sutton and the disability
community coming out today, I take a look at letters that we
have received, and you have seen them, from women's groups and
employee-sponsored groups who, in looking at the totality of
your record, think they have detected a disturbing trend, that
when it comes to cases that compensate people injured or cases
involving employee discrimination, that more often than not,
you will be staring at the ceiling and ruling against them.
Now, my friend, Senator DeWine, has pointed out exceptions
to that rule, but clearly there are a lot of cases we have
gathered here which prove the case. I would like to give you a
chance, and you have probably had that chance before, but at
this moment to express your defense of your record on the
dissenting justice on the Ohio Supreme Court.
Justice Cook. My defense, Senator, is that I--it's a simple
defense, and it's an honest one. I take each case and look at
the factors that I need to review. I said, obviously, I look at
the record, I look at the briefs, study them, I look at the
law, and particularly the text, and using logic, and rules, and
customs, I come to the conclusion that the law dictates. I rule
as the law is, and I think sometimes that is viewed as I'm
ruling how I would like to rule or how I would like the law to
be, and that's just not the case. I follow the statutes in
Ohio.
In honesty, anybody who thoroughly reviews the record would
find that the statutes in Ohio, and the general assembly in
Ohio, it's a conservative legislature, and I follow the law
that they set forth. And I don't know about any patterns. I
know that I've read those websites, and you know I just sink
because I think I can tell you chapter and verse about each and
every one of those cases, and it's some principle of law that
dictated where I went, not any antipathy for any party nor any
favoring.
I hope that a thorough review of the record would actually
show you that that's the case.
Senator Durbin. Thank you very much.
Thank you, Mr. Chairman.
Chairman Hatch. Thank you, Senator Durbin.
Senator Leahy?
Senator Leahy. Mr. Roberts, we had, last year we had White
House Counsel Fred Fielding testify here, and he said he hoped
that the administration had not nominated any liberals to the
court. I assured him I suspected that he would not have to stay
awake nights worrying about that.
I was wondering, when you worked in President Reagan's
White House on judicial selection, did you ever ask potential
nominees about his or her views on any issues such as political
or ideological views?
Mr. Roberts. No, Senator, not at all.
If I remember--I'm trying to remember specific questions--
one thing we tried to do was pose hypotheticals, the purpose of
which was to put a situation where the legal answer was A, but
what this candidate might think we would regard as the
politically more appealing result was B, and if that candidate
said B, that would raise concerns with us because we think
somebody wouldn't follow the law, but would instead follow
politics.
Sometimes we would tend to, at least I did when I would sit
down with the folks, focus on particular things in their
resume. If they had written an article or a book, we'd say,
``Tell us about that. What's that about?'' really just to see
how their way of reasoning went, but I, at least, never asked
about particular cases or issues that might come before the
court.
Senator Leahy. Did you have many candidates give you the
political versus the legal answer?
Mr. Roberts. Some, yes.
Senator Leahy. Did they make it through?
Mr. Roberts. No. I don't know of a single case where they
did. You know, it wasn't--you know, a number of people would
do--I, obviously, was fairly junior, and I don't know that my
views were regarded as determinative, but we would meet and
discuss it, and we would say this is what he did, and he said
he'd do this, and you know that would raise concerns because,
at least in that situation, we weren't looking for people who
were going to follow politics; we were looking for judges who
were going to follow the rule of law.
Senator Leahy. Even if the political result might be
something that the Reagan White House might have liked.
Mr. Roberts. Well, that's what we tried to come up with in
the hypothetical so that they would think--
Senator Leahy. It is a good way to do it.
Mr. Roberts. Oh, you know, they want me to say this--
Senator Leahy. That is an impressive way of doing it.
Mr. Roberts. Well, I don't know how effective it was, but
it was I think effective in weeding some people out.
Senator Leahy. I may--that is very interesting.
When you returned to private practice, you took on the
United Mine Workers v. Bagwell case. That is where, if I recall
it right, the union had contempt fines for over $60 million/$64
million, something like that, for strike activities. You were
on the side opposed to them, opposed to the union.
I have been told that your fellow D.C. Circuit nominee,
your former colleague in the Solicitor General's Office, Miguel
Estrada, sought out the opportunity for the Justice Department
to intervene on the same side as yours. As I recall, and
correct me if I am wrong on these facts, the Supreme Court
ruled against your side and said that fines of that magnitude
could not constitutionally be imposed by a judge without a jury
trial.
Was that sort of the crux of their--
Mr. Roberts. My recollection of that case--I recall cases I
won a lot more clearly than cases that I lost, but if I'm
remembering it--
Senator Leahy. We all do that.
[Laughter.]
Mr. Roberts. If I'm remembering it correctly, I think the
fundamental issue was whether the contempt citations in that
case were properly characterized as civil contempt or should be
regarded as criminal contempt, which would carry with it the
additional protections, and the court, I think we were arguing
for civil, and the court ruled in favor of criminal.
Senator Leahy. The $64 million was they better get a jury
in there to--
Mr. Roberts. Well, it was a type of civil contempt sanction
judges often impose, which was, you know, it's going to be
$1,000 or whatever the number--
Senator Leahy. X number of dollars per day.
Mr. Roberts. --$10,000 a day until you come into
compliance, and it added up.
Senator Leahy. Yes.
Mr. Roberts. And I was defending, I believe, at that time--
I don't remember exactly what the office was, but whoever it
was that was enforcing the contempt for the court.
Senator Leahy. You were on the Bagwell side?
Mr. Roberts. I was trying to remember what his office was.
I think he was appointed to enforce the contempt citation that
the court issued.
Senator Leahy. What was Mr. Estrada's involvement?
Mr. Roberts. If I recall, he was in the Solicitor General's
office at the time, and the question--they were participating
as an amicus, I think, in the case along with the Deputy
Solicitor General Paul Bender. I remember Mr. Bender argued for
the Federal Government.
Senator Leahy. And did you feel he was active in getting
the Government to get involved on your side of the case?
Mr. Roberts. Well, I don't remember any meetings. I
certainly would have--I don't actually remember. I would have
contacted the Justice Department and said this is something you
should be--for the legal principle, you should be arguing on
our side. But I don't remember any particular involvement by
Mr. Estrada.
Senator Leahy. And you have told NPR you support and
originalist approach to constitutional interpretation, saying
the reason that that is the way it was in 1789 is not a bad one
when you are talking about construing the Constitution. Of
course, the Constitution in 1789 did not have the Bill of
Rights. To get it ratified--you couldn't have gotten it
ratified, States wouldn't have ratified it without that. It
allowed African-Americans to be enslaved back then. We had the
Civil War amendments, like the 14th, which limited State power
to make or enforce laws to deny equal protection to people.
So the originalist concept can't be an exact one, can it?
Mr. Roberts. No, and I don't remember exactly what the
issue was that they were discussing at that point, and I--
Senator Leahy. First, just tell me what your philosophy is
on that.
Mr. Roberts. Well, I think I'd have to say that I don't
have an overarching, uniform philosophy. To take a very simple
example to make the point, I think we're all literal
textualists when it comes to a provision of the Constitution
that says it takes a two-thirds vote to do something. You don't
look at what was the intent behind that, and, you know, given
that intent, one-half ought to be enough.
On the other hand, there are certain areas where literalism
along those lines obviously doesn't work. If you are dealing
with the Fourth Amendment, is something an unreasonable search
and seizure, the text is only going to get you so far. And in
those situations--
Senator Leahy. There weren't too many wiretaps in 1789.
Mr. Roberts. Exactly. And even basic concepts like
commerce, didn't have to deal with air travel and things of
that sort. That doesn't mean they're not covered by the
Commerce Clause. Our Constitution is flexible enough to
accommodate technological changes of that sort. And I think in
some areas--for example, the Supreme Court's jurisprudence on
the jury trial right, I argued a case in favor of the jury
trial right in the Supreme Court, and I learned more history
than I thought I'd ever see again after being a history major
in college, because what the Supreme Court has said is you look
at what happened at common law at the point in time when the
Seventh Amendment was adopted. And if it was on the equity
side, you don't get the jury. If it was on the law side, you
do. So you read a lot of old history. That doesn't mean that
that same approach is going to make sense when you're dealing
with other provisions of the Constitution.
So I think I'd have to say that I don't have an
overarching, guiding way of reading the Constitution. I think
different approaches are appropriate in different types of
constitutional provisions.
Senator Leahy. Mr. Chairman, again, as you know, I am very
concerned, having three nominees of this nature, that is,
controversial, however defined, all at once. We saw what
happened with three District Court judges. It took us about 20
minutes to hear them where there was no controversy. By having
the three on a day when there are other things going on for all
of us, I think it has created a problem. Obviously we are going
to want time to get the transcript and to submit written
questions. I assume you have no objection to that.
Chairman Hatch. Well, we will have--
Senator Leahy. We will get the transcript overnight.
Chairman Hatch. If we can have the transcript by 4 o'clock
tomorrow, I would feel good about it.
Senator Leahy. And we get, what, a week then to--
Chairman Hatch. Well, noon if you can do it, but I don't
want you to kill yourself. Four o'clock is fine. And then, see,
that would be Thursday, and we would have Friday, Monday--
Senator Leahy. Tuesday, Wednesday--
Chairman Hatch. I think if we could have--
Senator Leahy. I think because there are so many extremely
important ones in here, we ought to have time at least to get
the questions out. I am going to urge our side not to be
dilatory in any way. I don't think anybody will. But we really
should--
Chairman Hatch. If we can have the transcript by tomorrow
at 4:00, then that would give the rest of the day and Friday
and Monday, and if we can have the questions in by Tuesday at 5
o'clock, then I would hope you could get them answered and
right back, because I would like to put you on the markup next
Thursday after tomorrow.
Now, it is very likely that somebody on the Committee would
put all three of you over--it might be me--to give even
additional time to our colleagues. But that is what I have in
mind, and I think it is fair. I hope it will work well for you.
And we have been chatting about the reasonable time here, and
we will work on that basis.
Senator Leahy. Thank you, Mr. Chairman.
Mr. Sutton, earlier today you said that if you were
confirmed as a judge, you would try to see the world through
other people's eyes, try and imagine what it would be like to
be on the other side of the case that came before you. So
imagine you are Pat Garrett or J. Daniel Kimel, Gina Brancalla,
a West Side mother, any disabled person, senior citizen, woman,
or low-income child. They are coming in knowing that you have
been involved in court decisions which denied--I think they
would feel--individual remedies for their claims. Can they or
their counterparts walk into a court with not Professor Jeffrey
Sutton arguing the case as a litigant but Judge Jeffrey Sutton
sitting on a three-judge panel or en banc, can they look at you
and say--are they going to say, ``I'm dead,'' or are they going
to say, ``I've got a chance''?
Mr. Sutton. Well, I can promise you that if I were
fortunate enough to be confirmed, I would do everything I could
to become the kind of judge that I want to become, and that's a
judge that is not thought of as a Republican appointee, a
Democratic appointee, someone who worked for a State
government, someone who worked in private practice in this or
that side of the case. That's the whole objective. That's
exactly why one would want to seek the honor of this particular
position.
I would hope if someone chose to look at some of my
representations that they perhaps didn't care for that they
would look at the rest of my representations. And I think if
they looked at all of them, by the time they walked into my
courtroom, even, if I were lucky enough to be confirmed, the
very first day, I think if they looked at all of those, looked
at all of the briefs I've worked on, looked at all of my
associations, my role in the Equal Justice Foundation, I'm
quite confident that they would be comfortable. And I can
assure you that this is exactly the task I would want to take
on.
As an appellate advocate, it is true, you've got a client
to represent and you're obligated to further their interests in
every way you can. But even while you're beholden to them and
to seeking relief for that particular side of the case, one
cannot be an effective advocate if one is a true believer.
Those are the worst advocates. The best advocates--and I'm not
saying I'm one. I've just tried to be like the best advocates
or the advocates that in arguing a case to the court can show
that they do appreciate both sides of the case, do appreciate
the way nine different Justices might look at an issue. And
while I'm sure I've failed at times, I've really worked hard in
the cases I've done at the U.S. Supreme Court and in other
courts to do that very thing.
So I actually think in some ways appellate advocacy has
been helpful training for this very type of job and learning
how to see the world through other people's perspectives.
Senator Leahy. Well, if somebody is coming in there seeking
compensation under a law that Congress has passed that allows
compensation if their rights are violated, assuming all the
things the jury agrees and so on, are they going to have to
worry based on things you have said, positions you have
advocated for, and so on, that they are going to have somebody
who is going to have a view that Congress didn't have that
authority in the first place?
Mr. Sutton. Absolutely not, and, you know, maybe 1 day if
I'm lucky enough to get to the Court of Appeals, I'll prove it
and we'll see a dissenting opinion from something I've written
and the dissenting opinion cites an article or brief I've
advocated. I hope I'll be able to prove that 1 day.
Senator Leahy. Thank you.
Mr. Chairman, I understand that Mr. Schumer is coming down
the hall.
Chairman Hatch. We will be glad to wait until he gets here.
Senator Leahy. I now submit my other questions for the
record, and I appreciate not only the witnesses' time but their
families' patience throughout this, and that little jolt of
nutritional pizza provided by the chairman, if there is even
time we needed something to clog our arteries, it is tonight.
[Laughter.]
Chairman Hatch. That wasn't what I had in mind, but now
that you mention it.
Senator Leahy. And I noticed you ate an equal amount, and
so I knew it was safe.
Senator Sessions. Mr. Chairman, we will have to get Senator
Durbin and Senator Leahy on our bill to reform the minimum
mandatory sentences for crack cocaine and provide some better
balance that we have worked on that would reduce in a number of
ways the severity of the penalties and balance some other
equities in that matter. I hope that pretty soon we will bring
it up and get some cosponsors. If not, we will have a vote on
it, I hope.
Senator Leahy. I have no question that the disparity
between crack and powder cocaine is unjustified. I might be
thinking of moving in a slightly different direction than where
the Senator from Alabama is.
I would note--and Professor Sutton noted this. If you pick
up the Wall Street Journal or the New York Times or even your
local papers, and you see article after article about State
after State facing real budgetary problems where it was easy to
be tough on crime and just have mandatory minimums, suddenly
have prisons they can't afford, a prison population they cannot
afford, and I voted for some of these mandatory minimums. And I
think now in retrospect we hampered the judges too much and
perhaps the States too much. And when you get somebody that
goes in there at high school age, then they get out 15 years
later, saying now go get gainfully employed, you know that is
not going to happen.
Senator Sessions. It is time to do something about it and
express concern. We have got good legislation, I think, that is
significant--
Senator Leahy. I think what you do is raise the floor more
than lower the top.
Senator Sessions. No, we have a concern that the powder
cocaine yuppies are not getting enough sentence, so they have a
modest increase in powder and a significant decrease in crack
sentences, some other equities that deal with the girlfriend
situation, as Senator Durbin mentioned. And all in all, it has
received very good reviews and quite consistent with what the
Sentencing Commission has asked us to do.
So I think Senator Hatch and I have stepped up to the
plate. People have been talking about it. It is a problem. The
Federal sentences, as you mentioned, Mr. Roberts, are set by
this Congress, and there is no need for the Senators up here to
blame you about Federal sentences. We mandate them. And if they
are not precisely correct, we ought to alter them and amend
them and fix them. And I think it is time to get moving on it.
Every year that goes by--
Senator Leahy. Actually, I tend to agree, and I will look
at your legislation.
Senator Sessions. I think you will like it.
Senator Leahy. We should also look at some point--and this
is going to be something where it will work only if Democrats
and Republicans work together. At some point we have got to
look at a basic overhaul. We have federalized far too many
crimes. We ought to trust our local and State police--
Senator Sessions. Well, you want to federalize violence
against women. You want to federalize taking guns on State
school grounds--
Senator Leahy. We federalize--
Senator Sessions. --our witnesses who file legal briefs
that question some of that.
Senator Leahy. We federalize carjacking. We federalize so
many things. We don't really need to. Actually, you would like
the gun laws we have in Vermont. Anybody, unless they have a
felony background, can carry a loaded concealed weapon in
Vermont with no permit required. Very high incidence of gun
ownership. You don't need to register it or anything else. You
need no permit to own or carry a weapon, concealed or
otherwise. We also have the lowest crime rate in the country.
Maybe it is because they figure that everybody is armed.
Chairman Hatch. I think that has something to do with it.
You know, don't you just love this? I mean, this
philosophical--
Senator Leahy. We also have--something else we have. We
have the second lowest death rate from drunk drivers in
Vermont. The lowest is in Utah. But then they don't drink.
And--
Chairman Hatch. Once again, one of our quirks.
Senator Leahy. And I will take some credit for that, for
having established the toughest drunk-driving program in the
State when I was a prosecutor.
Okay, we have filibustered long enough, Schumer. It is good
for you to get back here.
[Laughter.]
Chairman Hatch. We are happy to have you.
Senator Leahy. We are glad to have you here at 8 o'clock,
just as you said.
Chairman Hatch. We are happy to have Senator Schumer here.
Before I turn the microphone over to him, let me just put
into the record a letter from Russell J. Redenbaugh, who
himself is blind--and he is a member of the United States
Commission on Civil Rights--re: the nomination of Jeff Sutton.
This is today's date.
``Dear Senator Hatch: As a three-term member of the United
States Civil Rights Commission and the Commission's first and
only representative of disabled Americans, I am writing to
express my strong support for the nomination of Jeff Sutton to
serve on the United States Court of Appeals for the Sixth
Circuit. I am familiar with Mr. Sutton's accomplishments in
many of the landmark cases he has argued in the highest courts.
I agree with some outcomes. I disagree with others. But it is
clear to me that those of us who are disabled in America and
those of us who seek to protect equal opportunity and equal
access for all Americans will be well served by having in the
Federal judiciary someone who is so intellectually active on
the issues that concern disabled Americans.''
``I am also impressed by Jeff Sutton's personal background
which shows heartfelt sympathy for ordinary people and the
disabled in particular. The interests of the disabled are not
easily pursued by partisan tactics and loud noise. The issues
are complex. We are not benefited by the mere continuation of
past policies or the fighting of old battles. I am well
satisfied that Jeff Sutton will make a fine judge and that he
will bring to the job of judge the fine mind he has applied as
an advocate and a compassionate heart that is so evident.
Sincerely, Russell J. Redenbaugh.''
I just thought I would put that in the record.
We will turn now to my dear friend and colleague from New
York, Senator Schumer.
Senator Schumer. Thank you, Mr. Chairman. I know the
Committee has been here for such a long time, and I apologize
for being later than the 8 o'clock that I had expected to be
here. Hopefully we won't have to have meetings like this on
into the night into the future, and that is our hope, our
sincere hope that we can work together on those issues to
prevent this from happening again.
Senator Sessions. With all due respect, if the Senator had
been here this morning and had his questions, we wouldn't be
into the night.
Senator Schumer. That is not true.
Senator Leahy. He was here this morning.
Senator Schumer. I asked questions--
Senator Sessions. We have been here all day.
Chairman Hatch. Enough is enough. We are going to go with
Senator Schumer right now.
Senator Schumer. You weren't here to hear my brilliant
questioning this morning.
Senator Sessions. I heard one round.
Chairman Hatch. Senator Schumer--
Senator Schumer. Then you forget very fast.
Chairman Hatch. Senator Schumer, the time is yours.
Senator Schumer. Thank you.
So one of the things--more questions for Professor Sutton--
that I appreciate here is that you haven't done what some of
our other witnesses have done in the case of hear no evil, see
no evil, do no evil. You haven't said--you haven't shied away
from being critical of all Supreme Court jurisprudence. We have
had other nominees who have refused to criticize any Supreme
Court case ever. I asked Mr. Estrada: Name a past case--because
he kept saying, well, it might come before him in the future,
he doesn't want to judge. So name a past case he was critical
of, and he didn't want to even do that. So you are not--I think
you have won some points from some of my colleagues I have
talked to by not being so Sphinx-like.
But you did mention, for instance, earlier in our dialogue
that you disagreed with the Kiryas Joel case where you were
critical of the Supreme Court's decision not to take cert.
Could you point to one other Supreme Court case you are
critical of?
Mr. Sutton. With Kiryas Joel, just to be clear, I wasn't
critical of not to take cert, critical of the outcome in the
case and specifically the decision not to allow handicapped
individuals to obtain an education in a setting where they
could be with other members of their religious sect.
Senator Schumer. Right. How about another case you are
critical of?
Mr. Sutton. Well, earlier in the day, it came up that--
there was a discussion about the ADA, and specifically the
question was raised by Senator Feinstein about whether--what my
reaction was to the horrendous and egregious history of forced
sterilization of those with mental disabilities. And I made the
point that there was a rather embarrassing U.S. Supreme Court
case by the name if Buck, remarkably, written by Justice
Holmes--remarkably, because he was otherwise a fairly
distinguished jurist. And I made the point that in the Garrett
brief that has received some criticism--and I understand your
perspective and other members of the committee's perspectives
on the position of my client in that case. But even in that
particular case, where the Buck case, remarkably, is still on
the books, the State of Alabama agreed to take the position in
the Court to say we don't think that is correctly decided. And,
you know, it's a sad, sad chapter.
Happily--it would be very difficult to overrule Buck now
because every--all those laws--
Senator Schumer. And you were representing--I am sorry. You
were representing Alabama in that situation?
Mr. Sutton. Exactly. And all of those laws are now off the
books.
Senator Schumer. How about a case--and it could be a
decided case--that you disagree with that you weren't
representing anybody, that you as a professor--
Mr. Sutton. I didn't represent anybody in Buck. Buck is a
1927 decision.
Senator Schumer. I see.
Mr. Sutton. It's an infamous decisions of the U.S. Supreme
Court. It's been criticized in every court it's ever been--
Senator Schumer. But you represented Alabama later on when
they challenged Buck, or on?
Mr. Sutton. No. I'm making--I didn't do a good job
explaining that. I was making the point that in the Garrett
brief, which is the case about the ADA--
Senator Schumer. Oh, I see.
Mr. Sutton. --we acknowledged this--it's called the
eugenics movement.
Senator Schumer. Right.
Mr. Sutton. That it was a very unfortunate, sad chapter in
American history. Happily, it's a closed chapter in American
history, and if it weren't closed, the ADA would require it to
be closed.
Senator Schumer. Any others?
Mr. Sutton. I can't think of any others offhand. I didn't
come to the--
Senator Schumer. How about Korematsu?
Mr. Sutton. Well, I mean, anyone who's read Korematsu would
obviously be very uncomfortable with the result. I made another
point in the very brief I'm talking about--
Senator Schumer. I am just trying to get an idea of your
thinking when you're not representing a client, and I don't
want to get you into the issue of prospective cases, so I am
just asking some cases that you disagree with--
Mr. Sutton. Yeah.
Senator Schumer. I mean, I am sure you would disagree with
Plessy v. Ferguson, right?
Mr. Sutton. Right. But the point I wanted to make, though--
and it's actually the same point we made in the Garrett brief--
you know, while it's easy today to look back on a case like
Buck, look back on a case like Korematsu, and say, boy, you
know, how could that have happened? You know, time has a way of
making, you know, yesterday's progressives look like today's
Neanderthals. I mean, there's just no doubt that that's true.
The thing I'm a little reluctant to do is to second-guess
courts in saying, boy, you know, had I been a judge on that
particular case back in that period of time, I would never have
fAllen into that trap. I think that's Monday morning
quarterbacking and unfair.
Senator Schumer. Well, that is a different issue. It is a
different issue to say at the time I would have ruled
differently, then times have changed and things have changed,
and I would now disagree with that holding, right?
Mr. Sutton. That's true, although I must say, you know,
unfortunately as a Court of Appeals judge I can't imagine it
coming up with these particular cases. But, you know, a Court
of Appeals judge is obligated to follow U.S. Supreme Court
precedent, for better or worse, and I, of course, would do
that, for better or worse.
Senator Schumer. But you would--okay. Any others you want
to mention?
Mr. Sutton. No.
Senator Schumer. Is it that you can't think of any or you
don't want to mention it? Well, I am going to submit that
question in writing. Okay. I am going to ask you, just so you
can think about it for a while, about cases that you--already
decided Supreme Court cases that you might disagree with, and I
will assume if you don't submit any that you agree with every
one of them that has been decided already.
Mr. Sutton. Well, that is a big task, but thank you for the
opportunity to put it in writing.
Senator Schumer. Okay. Well, just give me a few. That is
all. I am not asking you to go through every Supreme Court
case. I am asking that we try to stop the sort of Sphinx-like
behavior we have had with witnesses who don't say anything
about anything. I am not saying you have done that. You have
done more than some. I think that is a good question to ask.
Mr. Sutton. I understand.
Senator Schumer. As a way of getting to your thinking.
Okay. The next question is--I want to talk a little bit about
Sandoval because this one I think had really far-reaching
opinions--a far-reaching effect. And I believe that you more
than most lawyers have been quite successful in persuading this
Supreme Court to adopt your ideas. Five Justices on the Court
have basically bought into the States' rights jurisprudence
that you have been one of the leading advocates of and creators
of, really. The ripple effect of that jurisprudence in my
judgment has been very powerful. And perhaps the most striking
example is Sandoval where the Court was dealing with Title VI
of the Civil Rights Act of 1964, which prohibits discrimination
based on race, color, or national origin in federally funded
programs.
The Sandoval decision reversed an understanding of law that
had been in place for nearly three decades, and it limited
private citizens' power to enforce rights protected by Federal
laws. The ruling makes it nearly impossible to challenge a
range of State practices with an unjustified disparate impact,
such as, for instance, disproportionate toxic dumping in
minority neighborhoods, or the use of educationally unjustified
testing or tracking procedures that harm minority students, the
failure to apply appropriate language services in health
facilities.
But I believe your arguments in Sandoval went even further
than the Court went. You argued that neither private citizens
nor the Federal Government has the power to enforce disparate
impact regulations.
If the Court had adopted your position, in my judgment, it
would have gutted the laws and regulations that protect
millions of Americans. You would have rendered enforcement of
these laws entirely effective. That is why I said earlier this
afternoon that you could do a thousand pro bono cases, and it
wouldn't undo the damage, in my judgment, that Sandoval has
done to individual rights and to the ability of this country to
be as colorblind as we possibly can.
So I for one am grateful that the Court refused to go as
far as you argued that they ought to go, but I worry about what
would happen if you were wearing the judicial robes and had the
power to make your ideas law, into law. And I worry about,
frankly, what Professor Jeffrey Sutton's America would look
like if you had the power conferred by a lifetime seat on the
Federal bench. I worry that in that America, poor parents
couldn't go to court to ensure that their children get basic
medical care. I worry that disabled children couldn't go before
a judge and ask that she or he enforce the rights of equal
educational opportunities. I worry that in that America, senior
citizens wouldn't have the right to go to court and seek
protection from employment discrimination. Women would have no
power to go to court to fight gender discrimination.
I fear that in the America that you see from your reasoning
and your jurisprudence that States have rights but people
really don't because your argument in Sandoval went really far,
again, way beyond what even most would concede as a rather
conservative Court, conservative majority went with.
So I would just like to know how you allay my concerns
about that. I mean, the courts have been a place that
individuals seek justice, and I think one of the great things
about our jurisprudence over 200 years is they have enabled
more and more individuals to seek that type of justice when it
is either State government or some other entity stopping them
from gaining that justice.
We have a philosophy that seems to be governing here that
Government regulation is bad, and if the Government isn't going
to protect people, then you at least want to see individuals be
able to protect themselves through the rights that have been
granted through our judicial process over centuries.
So how would you allay my concerns about that, that
individuals, particularly at a time when Government is doing
less to protect them, don't have the basic ability as a result
of your arguments, you know, if it were to become law, your
arguments in Sandoval to seek justice, to seek--well, in this
case, to seek freedom from discrimination?
Mr. Sutton. Senator, I know we discussed this a little
earlier, and I appreciate your perspective on this, and I think
I'm gaining a greater appreciation as time goes on. And I think
it's obviously a very important perspective on this.
I would like to say something--and I hope this doesn't
irritate you, but I would like to point out that, again, this
is not a case I've written about. This was a case where I was
an advocate, and I really do feel strongly--I mean, maybe I'm
misguided in this, but I do feel strongly that I had an
obligation to make all reasonable arguments that I thought
would advance my client's cause. I don't think the Sandoval
decision or brief in any way indicates what I would do as a
Court of Appeals judge, and all--
Senator Schumer. Did your client in that case urge you to
take the argument that individual--you know, to take that extra
step in the argument that said individuals couldn't sue? Or did
you suggest it to your client? I mean, where did the--Sandoval
was a State case, basically, and you went further--
Mr. Sutton. Senator, this may show that I'm not as
sensitive as I should be, but I actually thought I was
advocating the moderate position, and let me explain what I
mean by that. You said that we challenged the validity of the
regs and that we said the Federal Government could not enforce
the disparate impact regulations against States that had
violated the rights of individuals within that State. There was
a big debate about whether to challenge the regs. We could have
challenged the regs.
As the opinion for the Court indicates, we did not
challenge the validity of the regs. I think the reason someone
might say that we did--I mean, but the opinion of the Court
makes it quite clear. They say the validity of the regs is not
in front of us because the State has not challenged them. So
even though we could have challenged them, gone that extra
step, we did not challenge them.
But you might say, okay, so why is there anything in the
brief at all about the regs? Well, the part of Sandoval that
was difficult was the fact that Section 601--that's Title VI--
Section 601 was a provision that the U.S. Supreme Court in
Bakke, you know, the affirmative action case, where Justice
Powell, Justice Brennan, Justice Marshall--and I'm not sure
about this, but I think it was also Justice Blackmun and
Justice White. But I know it was Justice Brennan, Justice
Marshall, and Justice Powell concluded that Section 601 did not
allow for claims for disparate impact, but only for claims for
intentional discrimination.
You might, as you're hearing me say that, well, that seems
a little counterintuitive. Why in the world were Justice
Marshall and Justice Brennan saying 601 didn't reach disparate
impact--
Senator Schumer. Right.
Mr. Sutton. --discrimination, which seems like an awfully
good idea and something in other cases they might have
supported. Well, I don't know why they didn't do that,
obviously. One can speculate--and the speculation makes a
little sense to me--and this gets to the whole complexity of
disparate impact litigations. An interpretation of the Civil
Rights Act, Section 601, that allowed that kind of disparate
impact claim could have doomed the Bakke affirmative action
position that Justice Powell, Justice Brennan, Justice Marshall
carved out because of the very obvious point that affirmative
action could have disparate impacts on other people based on
race.
I don't know. Who knows why they did that? But the fact of
the matter is those Justices--
Senator Schumer. I am not following you. What I was
focusing on is that the brief went beyond what the Federal
Government can do and talked about individual citizens' rights
to deal with disparate impact, not the disparate impact itself,
not the argument the regulations--I don't know why--
Mr. Sutton. Your question has said that we challenged the
validity of the regulations, and we didn't challenge the
validity of the regulations, and the Federal Government can
enforce them against individuals.
In terms of the brief arguing that private individuals
could not sue for disparate impact under--
Senator Schumer. Did you just argue that they could not sue
for disparate impact, or did you argue that they couldn't sue
for a broader range of issues under Title VI? I don't know the
answer. I am just asking.
Mr. Sutton. Well, the only thing in the case was the
regulations, because under the titles--this part of the brief I
don't recall, but I'd be surprised if I didn't--we didn't
concede this point, our client didn't concede this point. The
point was there's a case called Canon which deals with Title
IX, and Canon says that there is an implied right of action for
claims--there is an implied right of action for claims for
intentional discrimination, so we would have conceded that
point.
I think what you might be--the reason you might be asking
this question--and, you know, someone could disagree with
this--is the notion that--there's a case called Penhurst and a
case called South Dakota v. Dole, which say before spending
clause legislation or other legislation is going to create a
cause of action against States, you need a clear statement, and
that the argument in Sandoval someone might have construed to
mean even Canon wasn't rightly decided. And that's a pretty
good objection. That's, of course, exactly what the Supreme
Court said. That's exactly what the Federal Government argued
in opposition, and it didn't prevail.
Senator Schumer. But what you are saying here is in
Sandoval your arguments were simply related to the disparate
impact regulations, not a general view that individuals didn't
have the right to sue?
Mr. Sutton. No--yeah--no, the disparate impact regulations
were all that were at issue. I'm sorry if I didn't get to that
more quickly.
Senator Schumer. Okay. I just wanted to go back to City of
Berne again. I don't even know where it is. Where is the City
of Berne?
Mr. Sutton. It's in Texas.
Senator Schumer. Texas. All right. What I asked you there
is--and we didn't get a clear answer. I just want to get an
answer to the underlying question, all right? Which is: Did
you, the Attorney General, or the Governor decide what position
to take in that case? I mean, you were trying to think back,
but maybe you have had a chance to think about it.
Mr. Sutton. When you say ``position,'' the decision whether
to file an amicus brief in the U.S. Supreme Court in City of
Berne?
Senator Schumer. And the arguments that were made.
Mr. Sutton. I guess on the first part of it, clearly it's
the Attorney General in Ohio. The State Solicitor job is an
appointed position. One reports to the Attorney General. The
Attorney General is an elected office holder in Ohio and--
Senator Schumer. So did they contact you and say, ``We want
to argue this case''? Or did you contact them initially to file
the brief?
Mr. Sutton. Well, the point I was making was the Attorney
General or people in her corrections staff had already decided
to challenge RFRA--
Senator Schumer. I didn't ask you that. I asked you: Did
they contact you initially? Did they reach out to you? Or did
you call them up and say, ``Hey, this would be a good idea and
I want to help you with this''?
Mr. Sutton. In terms of our involvement in City of Berne
itself, I understand. I think my recollection's correct. I
think the State of Ohio filed an amicus brief on behalf of
States, both at the cert stage, which is to say encouraging the
Court to take the case--I think the city had lost at the Fifth
Circuit, if my memory's correct--and then filed a brief at the
merit stage. So the important point would have been the cert
stage, because once you've filed an amicus brief for States at
the cert stage, generally you'll follow--
Senator Schumer. Your involvement didn't come in until the
highest level, right?
Mr. Sutton. Exactly. We--
Senator Schumer. And I am just asking you--I am not asking
you how Ohio came up with its position. I am asking did you--
initially there would have to be some hook-up between--
Mr. Sutton. Yes.
Senator Schumer. --Professor Sutton and the State of Ohio
at this level.
Mr. Sutton. Right.
Senator Schumer. Did you contact them and say, ``I'd like
to be involved in this, I'm an expert''? Or did they contact
you?
Mr. Sutton. I honestly don't remember. If I were to guess
what would have happened, because I--
Senator Schumer. If you don't remember, you don't remember.
Mr. Sutton. Well, I don't, but if I could take an educated
guess, because I think it's most likely the case. The educated
guess is that what would have happened is--as I said before,
the corrections lawyers were challenges RFRA in the lower
courts. The corrections lawyers, like all lawyers in the AG
offices, work together on consumer affairs, environmental--they
coordinate work and they tell each other what they're doing.
And my suspicion is that what happened is that corrections
officials in our office would have known about the City of
Berne litigation. Why? Because they were challenging the same
law in their cases. And my, again, educated guess is they came
to me saying, ``Jeff, this is something we ought to try to get
involved in.'' The thing--
Senator Schumer. Okay. How many of the cases where you
argued on these significant cases--I mentioned four or five
before. Are there any where you reached out to the client and
said, ``I'd like to make this argument, I'd like to get
involved'' as opposed to them asking you?
Mr. Sutton. Right. Well, the one that I know I reached out
in is the Dale Becker case, and Dale Becker was the prisoner
rights case where an inmate in Ohio filed a pro se cert
petition. The reason I know I reached out for that one is
because when the U.S. Supreme Court grants a cert petition--
Senator Schumer. Go ahead. I am listening.
Mr. Sutton. When the U.S. Supreme Court grants a cert
petition for a pro se inmate, for obvious reasons that inmate
is not going to be able to argue the case in the U.S. Supreme
Court.
Senator Schumer. You don't have to give me the whole--so in
that one you reached out.
Mr. Sutton. I did.
Senator Schumer. I am going to ask you to respond in
writing. Did you reach out and make the initial contact in--you
don't have to answer me now. I will do it in writing. But I
would like in Sandoval, Garrett, Kimel, and I asked you about
City of Berne already. Okay? Because in each of these cases,
your argument is you were just following what the client
wanted. Well, it would be a little different if you reached out
to them and said, ``Hey, this is a good argument, let's make
it.'' That would be before representing the client.
Let me give you one other follow-up question. I want to
follow up here on something Senator Durbin asked. You said you
decided to take the Garrett case because you wanted to argue
before the Supreme Court. That was in reference to what Senator
Durbin had asked you. Is there any case you would refuse to
take because the potential client's desired outcome was too
wrong or too offensive to you?
Mr. Sutton. Well, that's a difficult question. I would say
the Garrett case, I want to make sure I'm correct on that, I
mean, I was trying to develop a U.S. Supreme Court practice,
and it's obviously an honor to be asked to argue a case in the
U.S. Supreme Court, and it's just an easy opportunity to
accept, and that's certainly what I did. And I was happy to be
litigating there.
Chairman Hatch. Would the Senator yield on that point?
Senator Schumer. Please.
Chairman Hatch. I have a letter from Bill Pryor, attorney
general of the State of Alabama.
``Dear Chairman Hatch, I am writing to correct the record
concerning Jeffrey Sutton, nominee to the Court of Appeals for
the Sixth Circuit. I understand that it has been reported that
Mr. Sutton aggressively pursued the opportunity to work on
Garrett v. Alabama, a case in which the State of Alabama
defended itself against a lawsuit brought under the Americans
with Disabilities Act.''
``I am the person who hired Mr. Sutton to represent Alabama
before the Supreme Court of the United States, and I did so
solely on the basis that I hold his legal abilities n the
highest esteem. Mr. Sutton never solicited this representation.
I sought his representation for the State of Alabama. I hope
this clears up any confusion in this matter.''
I thought that would be something that would help here at
this point for both Senator Schumer and you.
Senator Schumer. Did somebody reach out to him since
Senator Durbin asked the question; is that--
Chairman Hatch. Excuse me. I am not sure what you are
saying. He said that--
Senator Schumer. That letter is pretty timely, in terms of
Senator Durbin's question. Did we get that letter this
afternoon?
Chairman Hatch. No, it is dated January 23rd.
Senator Schumer. Thanks.
Mr. Chairman, I have some more questions for Mr. Sutton.
The hour is late. I am going to submit them in writing.
Chairman Hatch. I appreciate that.
Senator Schumer. Because I will not have any other chance
to question either Judge Cook or Mr. Roberts, I would like to
ask each of them one question tonight.
Chairman Hatch. Sure. Now, we have reserved this time for
you, and we are grateful that you came back to do this.
Senator Schumer. Well, thank you. I will do it again if you
would like to be more grateful to me.
Chairman Hatch. I think once is enough.
[Laughter.]
Chairman Hatch. You are just so accommodating.
Senator Leahy. There is only so much gratitude to go
around.
[Laughter.]
Senator Schumer. This is for Mr. Roberts. It is a long day
for you, and I am sorry that you have had to sit here through
all of this. I know Senator Hatch has argued we are
inconveniencing you, and I apologize for that.
I do think, I mean, I have made my point clear that I wish
we had had better time, more time, not at 9 o'clock, to
question you, and I do not think asking people to come back for
such an important appointment is anything undue. Judges ask you
to come back and argue cases all of the time, and that is less
significant than this, and every lawyer has sat around and
waited in the court for the calendar to clear.
But here we are, and I have made my argument and not
succeeded, so let me ask each of these questions--one question
to each of you.
You have come very highly recommended. You are obviously
one of the great legal minds in a city full of great legal
minds, and for me, with your situation, just as with Professor
Sutton's excellence is not the issue. But I do want to ask you
something about these State rights issues we have been
discussing all day.
As with Professor Sutton, I am not going to ask you
questions based on briefs you wrote for your clients. I want to
ask you about some of the things you have said in your personal
capacity. I want to read to you an excerpt from an interview
you did with Nina Totenberg, I guess well-known to this
Committee before I got on it, discussing several States' rights
cases from the 1999 Supreme Court term.
I think we have a fair excerpt from that interview, but I
will give you a full chance to explain your thoughts, if it is
out of context at all, but here is what was said, quote, Mr.
Roberts: ``Well, I think the three decisions taken as a group
are a big deal.'' I do not know what--you will probably
remember this better than--you know it better than I do, that
is for sure.
``It's a healthy reminder that we're a country that was
formed by States and that we still live under a Federal system.
It's the United States of America, and what these cases say is
just because Congress has the power to tell individuals and
companies that this is what you're going to do, and if you
don't do it, people can sue you, that doesn't mean they can
treat the states the same way; that the States, as co-equal
sovereigns, have their own sovereign powers, and that includes,
as everyone at the time of the Constitutional Convention
understood, sovereign immunity.''
You went on to say, regarding the Congress's exercise of
the Spending Clause power--these are all quotes--``Well, so
much of what we, what our restrictions are based on, the
spending power. You know, even for private citizens, if you
accept Federal money, you're covered by Title IX and Title VI,
and the basic principle is if you pay the piper, you get to
call the tune. And I think the Federal Government could say, if
we're giving you money, and it's related to the area in which
we're trying to get you to waive sovereign immunity, we can
require you to consent to suit as a condition of getting those
funds.''
The example you gave is a good one. This is you still
speaking. ``If they get Federal funds for your Probation
Department, they can say, `We're not going to give you those
unless you waive sovereign immunity,' and that's quite common.
The Federal Government, for example, has sovereign as well. It
has waived it.''
Then, Nina Totenberg says, ``And supposing the Federal
Government said, `If you accept any Federal money--States--you
have to abide by the Federal provisions that we, we enact for
everybody'?''
Mr. Roberts, ``I think that would go too far. The jargon is
that the waiver has to be germane to what the funds are for.
You may remember a while back the Federal Government said, if
we give you highway funds, you've got to raise your drinking
age to 21 because we think having these teenage drinkers causes
accidents. The court held that that was germane to that
purpose, but there has to be a connection. It can't just be if
you take a penny of Federal funds, you've got to waive your
sovereign immunity across the board.'' That is the end of the
quote.
What I am trying to figure out here is where all of this
appears in the Constitution. For the life of me, I cannot
figure it out. I keep going back to this document and looking
for the words like ``sovereign immunity'' and ``congruent, and
proportional and germane to the purpose,'' and I do not see any
of it.
We keep hearing that the Justices who are advocating these
things are strict constructionists, but as far as I can tell,
they mostly strictly construe the law in favor of States and
big businesses against the interests of average people.
Can you help me understand this? It appears from this
interview, you agree with the court's jurisprudence in this
area, the majority's recent jurisprudence here. Do you? And, if
so, why, when the plain language of the Constitution is either
silent or to the contrary?
Mr. Roberts. If I'm remembering the radio show, I think it
was sort of a wrap-up of the Supreme Court's term, and I think
she may have had other people on as well, and they're talking
about what's significant. And I thought that the Supreme
Court's immunity cases involving the States were indeed
significant. That was I think the question before it got to the
part you were quoting--is this a big deal? And I thought it
was, and I said that.
And then part of the rejoinder was, well, can't we use the
spending power to get around this? In other words, if we're
serious about it, let's use the spending power. And what I was
articulating there was what I understood the state of the law
to be which was, as a general matter, the answer is, yes. South
Dakota v. Dole was the highway funds case, but that, again, I'm
stating what I understood the law to be, that there is this so-
called germaneness requirement.
Senator Schumer. Right.
Mr. Roberts. So that's what the Supreme Court's
precedence--
Senator Schumer. Where did it come from? Where in the
Constitution did it come from? Let us say the Federal
Government made a more sweeping law and said, ``If you accept
any Federal money, not just highway money, you have to have a
21-year-old drinking age''? Now, that may be very broad power
of the Federal Government, but I would like to know where in
the Constitution, explicit or derived, it says that the Federal
Government cannot do that?
Mr. Roberts. I don't know what the Supreme Court's
precedence hold. My familiarity with the requirement really was
the South Dakota case, where they articulated it, and they
explained over, for example, over the dissent of Justice
Brennan and Justice O'Connor, that this requirement was met. I
haven't gone back and read the prior case. I don't know the
answer, what the analysis was.
I was just articulating what I understood the law to be for
the purposes of the interview.
Senator Schumer. Do you have any further thoughts on, I
mean, it is an important question. You know the laws much
better than I do, but it would seem to me, when you are making
such a, you know, you are making a dramatic change, we have
had, basically relates to expanded Federal Government power
versus reducing Federal Government power, and that has been the
trend in this court, and there has got to be a basis for it.
Mr. Roberts. Well, Senator, I was listening, as you always
are, with some trepidation when someone says this is what you
said. You're waiting for not only the nongrammatical part, but
the part that sounds ludicrous, and I have to say--
Senator Schumer. I am from Brooklyn. I am used to
nongrammatical parts. Do not worry.
Mr. Roberts. I have to say I didn't hear anything that I
would say, gosh, you know, I wish I hadn't said that.
Senator Schumer. I wasn't trying to--
Mr. Roberts. I think it is the case that we do have a
Federal system, that States have powers and responsibilities,
and the Federal Government does as well. Certainly, under the
Supremacy Clause, the legislation that you enact is the supreme
law of the land, consistent with the Constitution. I appreciate
the concern about the sovereign immunity cases. You are quite
right. There is no sovereign immunity clause in the
Constitution.
On the other hand, the court's cases have been fairly
consistent that the Federal Government enjoys sovereign
immunity. This body has done much over the years to waive
that--the Federal Tort Claims Act, a whole variety of things.
But that basic recognition of Federal sovereign immunity has
always held firm, and I think it is hard to explain to State
Government why do they have it and we don't, and if we had it
at the time of the founding, when did we give it up?
The Supreme Court has given some answers. Well, part of it
you gave up in the Fourteenth Amendment, in Section 5.
But I do appreciate that it is a difficult area because
you're not dealing with a textual provision in the
Constitution.
Senator Schumer. Do either of the other two witnesses want
to comment on that?
Justice Cook. Not I.
[Laughter.]
Senator Schumer. Not on Mr. Roberts' grammar, but rather
just on the general question I asked. Where does all of this
spring?
Mr. Sutton. I don't know why I'm reengaging.
[Laughter.]
Chairman Hatch. I do not know why either.
[Laughter.]
Mr. Sutton. I'm a fool. But the one point I just wanted to
make, there's no spending clause either, for what it's worth.
This comes from Article I, Section 8, and it says, ``Congress
can provide for the general welfare.'' And the court, sensibly,
A, textually, but sensibly has said, hey, if it's Congress's
money, they can tell the States how they want it spent, and if
they want to attach conditions, they can.
Senator Schumer. So where does this one come from?
Mr. Sutton. That's my point. There isn't a spending clause.
Senator Schumer. I understand, but you just said it sprung
from, you know, the clause to protect for the general welfare,
right?
Mr. Sutton. Exactly. I'm just saying there isn't a spending
clause, so there's not a textual basis for it. I'm just making
the point that the Supreme Court decisions sensibly have said,
if Congress raises money to provide for the general welfare,
they can attach conditions as to how it's spent.
Senator Schumer. Only certain conditions.
Mr. Sutton. Well, that's what South Dakota v. Dole--
Senator Schumer. This is what Mr. Roberts was talking about
in his interview. He was saying there has to be germaneness,
there has to be proportionality.
Mr. Sutton. I don't think he was saying proportionality. I
think the germaneness--
Senator Schumer. He did not say proportionality. I stand
corrected. He was saying--I am going to try to correct the
grammar here, although I do not know where you made such
egregious mistakes.
But, anyway--
Senator Leahy. While you are doing that, I just would note
for the record that Professor Sutton did not serve in the
military, otherwise he would know better than to volunteer at
this point.
[Laughter.]
Mr. Sutton. I deserved that.
Senator Schumer. It was brave. Do you have anything you
would like to say, Judge Cook, on this?
Justice Cook. I don't, sir.
[Laughter.]
Senator Schumer. Just let me say that I was trying to be
Dean Martin to your Jerry Lewis on that one.
[Laughter.]
Senator Schumer. Let me ask you a question, okay?
Senator Sessions. Senator Schumer, on that subject,
Blackstone's Commentaries says that ``no suit or action can be
brought against the king, even in civil matters, because no
court can have jurisdiction over him.'' Then it goes on, ``For
the same reason, no action lies under a Republican form of
Government against the State or Nation, unless the legislature
have authorized it, a principle recognized in the jurisprudence
of the United States and of individual States.''
So that was the classic principle--
Senator Schumer. But sovereign immunity is not--
Senator Sessions. And as attorney general, I mean, I have
relied on it. Every attorney general relies on it. It is not
explicitly stated in the Constitution directly, but there is a
sense in which if the State can be sued or the Federal
Government can be sued, it can be destroyed. So there is some--
Senator Schumer. I understand, but that is where we pass
from strict constructionism to judicial activism in a certain
way, and--
Senator Sessions. I do not think the Constitution ever
covered everything. This was existing principle at the time.
Senator Schumer. Look, I have made that argument for a long
time, as you know.
Let me go to Justice Cook.
Chairman Hatch. One last question for Justice Cook.
Senator Schumer. It is a very long one--no, it is not.
[Laughter.]
Senator Schumer. Justice Cook, it is my understanding that
you previously discussed the decision in Davis v. Wal-Mart with
Senator Kennedy. I would like to return to the case. I am
troubled by your dissent.
In that case, a widow, whose husband had been killed on the
job, settled a lawsuit against the employer. She then attempted
to file a second lawsuit, after learning that the employer had
instructed employees to lie about how her husband had been
killed. The employer apparently did this in order to wrangle a
settlement out of her.
Your colleagues found that this evidence was not only
enough to permit the suit to go forward, but that it actually
might support punitive damages. Punitive damages are usually
reserved for cases where the wrongdoing is blatant. It seems
kind of blatant here.
It is my understanding that you explained to Senator
Kennedy that your dissent in this case was based on your view
that res judicata prevented the widow from filing the suit; is
that correct?
Justice Cook. Only because she had previously litigated
this matter. She filed a negligence--
Senator Schumer. Well, of course.
Justice Cook. Yes. So she had a negligence action that was
concluded.
Senator Schumer. Right.
Justice Cook. And that this claim was sufficiently related
and could have been brought and wasn't.
Senator Schumer. So you are relying on res judicata.
Justice Cook. That's right.
Senator Schumer. Once an issue is decided, it is final, and
to reach the conclusion that the widow could not refile her
suit, even after she learned after the company's quite horrible
deception.
Another fundamental principle, however, of our legal system
is that juries find facts based on the evidence presented, and
judges and appellate courts give a great deal of deference to
those jury determinations. It is my understanding that to
overturn a jury verdict, an appellate court must find that the
jury's decision was ``against the manifest weight of the
evidence.'' That is, as we all know, a rather high standard.
In Burns v. LCI Communications, a jury found that employees
had suffered age discrimination, and the evidence at trial
included statements by the employer that it ``wanted to bring
in young, aggressive staff members and change out the old
folks,'' and that he did not ``want old marathoners in my sales
organization. I want young sprinters.'' This man was not in
charge of the Senate.
[Laughter.]
Senator Schumer. Despite this evidence, which was enough to
convince a jury of age discrimination, you voted to overturn
the jury's verdict for the employees. It appears that you
substituted your views for those of the jury who actually heard
the testimony and saw the evidence of discrimination.
I find it troubling that legal principles constrain you in
this case, where you are vindicating an employer, how do you
explain the deference to legal principles in the one case,
Davis v. Wal-Mart, you denied the widow's right to her day in
court, but your willingness to disregard other important legal
principles when a jury has found evidence of discrimination?
Justice Cook. In the Burns case that you talked about, the
verdict was overturned by the Court of Appeals unanimously and
then five of the seven members of the Ohio Supreme Court agreed
that the plaintiff had not shown that she had been
discriminated against. So we weren't--they agreed that there--
there was a disagreement among us, but at least all five
members agreed that she had not shown discrimination.
And the facts you're mentioning--you know, the sprinters,
et cetera--I have not a great recollection of it, but I think
the point was that those comments were made years before, so
the plaintiff's effort, which garnered a verdict did not--used
evidence that was not related to her. A good majority of the
Supreme Court agreed that actually discrimination had not been
shown, even though when you cite it, it all sounds pretty
awful. But the three judges of the Court of Appeals and five at
the Supreme Court agreed.
Senator Schumer. In Burns.
Justice Cook. Yes.
Senator Schumer. Just explain the first case, your ruling
in--
Justice Cook. Wal-Mart?
Senator Schumer. Wal-Mart, yes.
Justice Cook. I am getting tired. In Wal-Mart, I think we
just talked about res judicata was the basis for my dissent,
and that's a dissent in Wal-Mart, I think.
It was the second matter, after the negligence claim, the
widow had the information. She said that she then learned later
that the employer had withheld.
Senator Schumer. After the second, she did not get the
information until--
Justice Cook. No, the record actually showed that she had
that information--
Senator Schumer. Had it.
Justice Cook. And then didn't bring it. I mean, had it
within time to bring it as part of the original negligence
claim--
Senator Schumer. I see.
Justice Cook. --and failed to do so, and so we determined
that it was waived.
Senator Schumer. Why did she do that?
Justice Cook. I'm not--
Senator Schumer. You do not remember.
Justice Cook. I don't remember.
Senator Schumer. I do not quite--you know it better than
me, again, but I think the second case, the Burns case, at
least from what my cursory knowledge is a little different. So
I am going to just ask, Mr. Chairman, in the interest of time,
that I submit some questions about these two issues, and maybe
some others, to Judge Cook in writing.
Chairman Hatch. Thank you, Senator. I would like Senators
to submit as many questions as they--submit their questions
now. We will have the transcript by tomorrow at 4:00 and any
additional questions, have them submitted by 5 o'clock on
Tuesday, and then I would like your answers back by Wednesday
evening, because I intend to put you on the markup for the
Thursday from tomorrow.
Senator Schumer. Mr. Chairman?
Chairman Hatch. Yes?
Senator Schumer. Could we have a--I mean, I have a bunch of
questions.
Chairman Hatch. We have already agreed on this.
Senator Schumer. We need to--
Chairman Hatch. It amounts to a week, really. I mean, we
are--and nobody is going to press you on this. If we have to
put them over for a week, we will do so, but that is what we
are going to do.
I just have to say you have been very patient today, and
this has been a tough day for you. I apologize that it has
taken so long. You have been here really for 12 hours, really
the equivalent of 2 days. You have been patient with us, and we
appreciate it, and hopefully we can move ahead with your
nominations and do so in an expeditious, yet fair to all sides,
fashion.
I just caution you, when you get these questions, answer
them as quickly as you can, but I am hopeful that you will have
all of these questions answered by next Wednesday night.
Now, Senator Leahy?
Senator Leahy. First, I want to reiterate, I appreciate you
moving down here to accommodate especially the disabled people
earlier, and I appreciate you accepting our recommendation for
that.
I would also note that you have been very fair with the
clock on giving Senators on both sides whatever amount of time
they needed. I would hope, and I understand the pressures the
Chairman was under from his side of the aisle on this, but I
would hope that this would not be necessary to have--I do not
mind having hearings every day if you want--but not to have
three nominees, where there will be three extensive questions
on like this at the same time.
Again, we saw what happened with the three District Court
judges, there were not extensive questions, and we finished
that in 45 minutes or so.
Again, I appreciate, having been there, I appreciate the
pressures the Chairman is under, under this, but I would hope
that those pressures would lessen as the year goes on and that
we might work out something because I think it is important
when all Senators who are going to have to vote initially in
the Committee can actually have the time to be here to hear the
candidates.
Chairman Hatch. Well, thank you, Senator, and we will
certainly take that into heavy consideration; in fact, I
already have. Next week's hearing will involve only one Circuit
Court of Appeals nominee, and I do not know how many District
Court. We will decide that. I think three or four District
Court nominees.
I just want to thank everybody for their cooperation, the
distinguished Senator from New York. I know he has been upset
at me, but I care a great deal for him, and he is one of the
most astute people on this panel, and I just appreciate his
forbearance with me.
Senator Schumer. Mr. Chairman, I am not upset at you. I
mean, I am just upset at the situation.
Chairman Hatch. I understand, and we are going to--
Senator Schumer. It does not do justice to the importance
of what we are doing here.
Chairman Hatch. Well, I appreciate that.
With that, I just want to compliment each of you. I do not
know when we have had a panel that has been as articulate on
some of these constitutional issues as the three of you have
been.
Mr. Sutton, you have borne the brunt of most of the
questions today. I know that you are probably worn out, but you
have done a terrific job, in my opinion, and deserve a lot of
credit for your astuteness. I think everybody here acknowledges
you are a fine lawyer, if not one of the best, in the whole
country.
And, Mr. Roberts, no question about your abilities, and I
think everybody here has basically acknowledged that today as
one of the great appellate advocates in our country. Both of
you are among the greatest appellate advocates we have in this
country.
Justice Cook, it is very apparent that you are a very good
person, that you understand what the role of a judge really is,
and we expect you to abide by that understanding as you serve
on the Federal court.
[The biographical information of Justice Cook, Mr. Roberts,
and Mr. Sutton follow.]
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Chairman Hatch. So, with that, we will recess until further
notice, and thank you all for being here, and I will move us as
fast as I can on these nominations.
Thanks so much.
[Whereupon, at 9:28 p.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
[Additional material is being retained in the Committee
files.]
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