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Originally printed in the Philadelphia Inquirer http://www.philly.com/mld/inquirer/news/editorial/5369887.htm Disabling rights for us all By Rachel Simon So you don't have a disability, and you're not, like me, related to someone who does. You might think that the nomination of Jeffrey Sutton to the Sixth Circuit Court of Appeals doesn't mean a fig to you. You'll never get in a car accident that leaves you with traumatic brain injury, or give birth to a child without sight. And laws prohibiting race, gender and religious discrimination are not something you have needed to use. But Sutton - and the reason people like me are fiercely opposed to his nomination - should mean a huge amount to you. He's a portent of things to come should the Bush administration continue its trend of nominating federal judges with a states'-rights agenda - especially Circuit Court judges, who are seen as being prime candidates for the Supreme Court. Jeffrey Sutton is the country's most prominent crusader for federalism, a growing movement in which states are increasingly asserting their sovereign immunity from lawsuits based on federal laws. As Ohio state solicitor and partner at a major law firm, Sutton successfully used federalist arguments to restrict Congress' authority to enact civil-rights laws, including the Americans With Disabilities Act. The way those of us in the disabilities community see it, Sutton's zeal for states' rights is systematically dismantling the ADA and other civil rights laws. As a result of his arguments in Garrett v. Alabama, decided by the Supreme Court in 2001, folks with disabilities can no longer sue state employers under the ADA. So Patricia Garrett, a former director of nursing at the University of Alabama-Birmingham Medical Center who was demoted because she had breast cancer, cannot take the hospital to court under the ADA. This ruling curtailed the intent of the ADA, and limited the options for redress available to people who, historically, have already been denied most options to begin with. Sutton's arguments in other ADA cases would have limited people's rights even further, had the courts accepted them. How unfortunate for Garrett, you might say. But you're not planning to get cancer. And maybe it doesn't matter to you that, if Sutton were a federal judge, people like my sister, who has mental retardation, could be excluded from any state-run programs or services, including health care, education, public transit, and public buildings - and might not be able to sue to contest such egregious discrimination. Maybe you're not particularly interested in Sutton's other federalism cases either, the ones that had nothing to do with disability. Like the one he was hired to take for Florida, which resulted in part of the Age Discrimination in Employment Act being declared unconstitutional. Or the one in which a Virginia Tech student who was raped was not allowed to pursue her claims under the Violence Against Women Act. Or the one in which Alabama successfully argued that racial and ethnic minorities had no right to challenge disparate-impact discrimination. But maybe, by just getting Sutton on your radar screen, you see that states' rights is a perilous road. If states are not held responsible for laws passed by Congress, then each state essentially makes its own rules. Sutton might have argued or filed amicus briefs in the vast majority of recent Supreme Court cases that have curtailed individuals' abilities to enforce their civil rights. But he is not the only federalist being considered for a federal judgeship. Bill Pryor, the Alabama attorney general who champions states' rights, is being considered for nomination, too. Look out. If you rely in any way on your state - you're employed by your state, receive state-administered health care, attend a state university, or send your child to public school - and you happen to live in a state that doesn't wish to comply with federal laws, your remedies might be drastically curtailed. The federal government may still be able to initiate a suit on your behalf, but such enforcement is rare. You better start packing your boxes now. A federal judgeship is a lifetime appointment. For Sutton, that means this position, and his agenda, could last several generations. After all, he is 42. The same age as my sister. He could have a profoundly influential career ahead of him. And people like my sister could, because of his career, have options that end right now. -------------------------------------------------------------------------------- Rachel Simon is the author of "Riding The Bus With My Sister."