Press Room

back to table of contents

News Release        July 11, 2001 As Hearings on Judicial Nominees Begin, Senate Panel Reserves Fireworks for Fall By ROBERT S. GREENBERGER Staff Reporter of THE WALL STREET JOURNAL WASHINGTON -- The Democratic-led Senate Judiciary Committee is set to hold its first hearing Wednesday on President Bush's judicial nominees, but don't expect controversy. That will come later. Purposely missing from Wednesday's roster of three nominees are the most conservative, and most controversial, of the Republican president's picks. Democrats aren't in any hurry; besides, they will have more time after Congress's August break for the likely fights. That is when they will review Jeffrey Sutton, Mr. Bush's nominee for a U.S. Court of Appeals seat. Since May, Mr. Sutton's nomination has set off alarms among a range of advocacy groups, especially those for the disabled. The Ohio lawyer argued successfully in a Supreme Court case last year that Congress exceeded its authority by permitting state workers to sue their states under the Americans with Disabilities Act. In letters to President Bush and lawmakers, the group ADA Watch said Mr. Sutton's nomination broke faith with "the legacy of the man who signed the ADA into law" -- Mr. Bush's father. This sort of passion usually is reserved for Supreme Court nominees, not appellate-court candidates. Nominations such as Mr. Sutton's will test Senate Democrats' vow to block Mr. Bush from seeding the courts with like-minded conservatives who are deferential to the states' powers. Democrats, still seething over last year's Supreme Court decision concerning the disputed presidential election, are adamant that he has no mandate to reshape the nation's courts. Moreover, with the Supreme Court taking fewer appeals than past courts, the 13 appellate courts often are the last word on a legal issue. Mr. Sutton isn't the only appellate-court nominee under fire. The hit list for Democrats and liberal advocacy groups also includes conservatives Miguel Estrada and John Roberts, both nominated for seats on the appeals court for the District of Columbia, considered a launching pad for future Supreme Court justices. Another target is Terrence Boyle, a district judge in North Carolina and protégé of his state's arch-conservative Sen. Jesse Helms, who often blocked President Clinton's nominees. Democratic staffers on the Judiciary Committee say they have received the most criticism about Mr. Sutton, who is nominated to the Court of Appeals for the Sixth Circuit in Cincinnati. It hears cases from Kentucky, Michigan, Ohio and Tennessee. "Jeff Sutton makes, unfortunately, the perfect kind of poster child for what Democrats see as prototypical George W. Bush judges," says Glenn Lammi, a Sutton supporter, who is chief counsel for the conservative Washington Legal Foundation. Mr. Sutton, 40 years old, is widely acknowledged to be an extremely capable attorney. He has rich experience as the Ohio attorney general's top appellate lawyer. In private practice, he has an 8-1 win record in cases he has argued before the Supreme Court. That same record is drawing fire from the groups gearing up to oppose his nomination. In addition to the disability-rights case, the critics fault Mr. Sutton for arguing before the nation's high court that Congress overreached in awarding federal protection to a small refuge for migratory birds and in saying the Age Discrimination in Employment Act may be used by individuals to sue states. In the latter case, he wrote: "The only real evidence is of states over-protecting the constitutional rights of the elderly, not undermining them." California Lawmaker Asks Bush Not to Nominate Him for Judgeship (May 26) Republicans Pass Olson Nomination Before Democrats Take Over (May 24) Bush May Nominate Cox, a Conservative From California, for Appellate-Court Post (May 16) Bush's Judicial Nominations Signal the Beginning of Battle for Courts (May 10) Charles Schumer, a New York Democrat on the judiciary panel, says such ideology "should be part of the mix" in evaluating nominees such as Mr. Sutton. "George Bush was first to invoke ideology," the senator says, "when he said his favorite justices were Clarence Thomas and Antonin Scalia," the Supreme Court's most conservative members. Political payback also seems to be playing a part in Mr. Sutton's troubles. In a recent letter to the Detroit Free Press, Democratic Sen. Carl Levin of Michigan complained that during the Clinton administration, two home-state nominees he sponsored for the appeals court languished without confirmation hearings when Republicans ran the Senate. "I would be reluctant to allow other nominations" for the Sixth Circuit to proceed until the two Clinton nominees are considered for two of the six vacant slots, Mr. Levin said. Supporters are mobilizing on Mr. Sutton's behalf. Reacting to the disability groups' opposition, they note that his father ran a school in New Jersey during the 1970s for children with cerebral palsy. They are making available a letter from a blind woman whom Mr. Sutton defended in a civil-rights lawsuit against Case Western Reserve University in Cleveland. She claimed she was rejected from medical school because of her disability. "I recall with much pride just how committed Jeff was to my cause," Cheryl Fischer wrote to GOP Sen. Mike DeWine of Ohio. Mr. Sutton's critics in turn point to a Michigan case in which he said poor people don't have the right to sue state officials to provide them with certain health benefits. He wrote that the "plaintiffs have no private right of action to enforce the Medicaid Act, and their suit should be dismissed." The district-court case, which could jeopardize certain health benefits for millions of poor people, is on appeal. As it happens, Mr. Bush's Justice Department is on the other side of the argument in that case. In a brief, it argued that "the district court was mistaken in its belief that the United States has no power to sue a state to enforce the conditions of a federal grant." The separate disabilities case that Mr. Sutton argued successfully in the Supreme Court was brought against an Alabama state agency and the University of Alabama. He acknowledged in his arguments that the federal law "advances a commendable objective." But its provisions permitting lawsuits against states, he said, would impose a "re-allocation of the Federal-state balance that in the end would pose more threats to the cause of liberty than it would cure." Jim Ward, coordinator of ADA Watch, however, says that Alabama's disabilities law illustrates the "patchwork of inconsistent coverage" under state laws. An administration official notes that in the end the Supreme Court agreed with most of the arguments advanced by Mr. Sutton; it did so, however, by 5-4 margins. The official adds that Mr. Sutton's views that have antagonized interest groups "aren't about disability rights. They are about federalism" -- and reflect President Bush's views. Write to Robert S. Greenberger at bob.greenberger@wsj.com