Sutton Nomination

Submitted by admin [1] on Wed, 01/01/2003 - 04:00

I entered the room for the Jeffrey Sutton hearing in our Nation’s Capitol on Wednesday morning, January 29, 2003 with skepticism and left with a renewed sense of our Nation’s government and my individual rights as a person with a “disability.”

President Bush appointed Sutton to the Sixth Circuit Appeals Court judgeship on May 9, 2001. This is just one step away from the Supreme Court. The United States Senate Judiciary Committee passed Jeffrey Sutton‘s nomination on February 13, 2003. Sutton’s nomination is now on the Senate floor for a final vote.
A community mobilizes

His nomination has prompted outrage in the disability community. Sutton, a states’ rights ideologue, has aggressively fought against the ADA, Olmstead and many other civil rights protections that protect Americans with disabilities.

The NAD is not opposing Sutton because he happened to represent clients we disagree with. We are opposing Sutton because of his outspoken activism against Federal civil rights protections for people with disabilities and other minorities has left him unfit to be an impartial judge. His commitment is to ideology not to justice.

The National Association of the Deaf (NAD) has been very active in working with other disability organizations on the preservation of the Americans with Disabilities Act (ADA).

Over a week prior to the hearing, NAD Law and Advocacy Center (LAC) Director, Kelby Brick wrote an Eye on Washington, an advocacy ezine focused on deaf and hard of hearing issues in our nation’s capitol, on January 24, 2003 calling for action against the Sutton nomination. Brick encouraged community members to sign a petition and encourage our representatives in the government to oppose Sutton.
Sutton Hearing

Joe Saintini who runs his own ezine followed Brick’s Eye on Washington lead and alerted his friends, including me, about this important issue. He then asked whether or not the NAD would attend the hearing. After raising the issue with Brick, we agreed that I should attend the hearing-- he had a prior obligation to go to the White House to participate in a meeting on business compliance with the Americans with Disabilities Act (ADA).

I harbored a few doubts about the Sutton opposition. I was cynical of the claims that I read. There was, in my opinion, very little concrete evidence to successfully sway me into mainstream opinion. Sutton was being characterized as a person who would rip away the cherished rights of Americans with disabilities. “Who would want to do that to an underprivileged group of people who have been harshly persecuted throughout America’s history?” I asked myself.
The Interrogation

At the Sutton hearing, I saw some of the most powerful people in the nation: Judiciary Committee Chair Orrin Hatch (R-UT), Ranking Member Ted Kennedy (D-MA), and Senators Saxby Chambliss (R-GA), John Cornyn (R-TX), John Edwards (D-NC), Russell Feingold (D-WI), Dianne Feinstein (D-CA), Charles Schumer (D-NY), Jeff Sessions (R-AL) and other members of the Judiciary Committee.

Three Bush nominees were being questioned that day, but everyone’s attention was focused on the controversial Sutton nomination. He was attacked mercilessly and did a dreadful job defending himself. My perspective of the Sutton nomination changed within several hours

From opening remarks, I learned about Jeffery Sutton’s impressive record and background. As an attorney, he has been part of many important landmark cases and at one time concurrently brought four cases before the Supreme Court and won all of them. That is a rare feat by a lawyer.

Overall, he brought 12 cases to the US Supreme Court with a 9-2 record and one still pending. He graduated first in his law school at Ohio State University. Sutton served two clerkships in the United States Supreme Court with now-retired Justice Powell and Justice Scalia. The American Lawyer named him one of the top 45 lawyers under the age of 45. Sutton’s father ran a school for people with cerebral palsy.

Despite his impressive credentials, he did not have the composure I expected of a distinguished lawyer. Senator Kennedy expressed grave concerns about Sutton's ambitions to undermine the ADA, a law that he said he and Senator Hatch had worked on for a long time. Kennedy somberly referred to specific cases, asking Sutton to verify his statements and his positions. Sutton ducked each barb, claiming that he was merely an advocate on the behalf of the clients.

Sutton defended himself well in one instance during Kennedy’s questioning-- he claimed that he had two clients approach him simultaneously in only one case in his lifetime. In that case, he chose to represent the interests of a blind person, who was denied admission to Case Western Reserve Medical School on the basis of her disability. However, it appeared that he was using the case as a token to excuse his more damaging actions in other cases.

Senator Hatch, a prominent Republican and the Chairman of the Judicial Committee, then followed. He started questioning Sutton. It was a surprise; the Chairman of the Judicial Committee was questioning Sutton?

Hatch explained how Sutton's victories damaged laws that he and others had worked so hard to enact. These laws included the Religious Freedom Act and the ADA. Hatch invited Sutton to explain that he understood the difference between advocacy and judicial decision-making. Sutton gave his canned answer that he was representing clients’ interests.

When Senator Leahy questioned Sutton. It was a tap dance to nail down a fundamental question: Sutton's views on disabilities. Sutton proficiently evaded each question with the same mantra, “I don't know, it depends on my client.”

Leahy: "Which do you prefer, States’ rights or national standards?”

Sutton: “I have no idea, and it would depend on the client of the day.”

Leahy: “Which side do you come down on?”

Sutton: “As a Court of Appeals Judge I would obviously follow that U.S. Supreme Court precedent."

Leahy finally cornered Sutton when he told him that if he became a judge -- he would have to make decisions. In the absence of any precedent, what decisions would Sutton make on cases involving, say human cloning?

Sutton gave an exasperated defense that he would follow Supreme Court precedent, successfully evading Leahy’s question again.
The fight continues

Americans with disabilities are still at the mercy of their representatives in the U.S. Senate. Disability leaders were still petrified. Sutton's nomination still looms - our work is far from done.
This enlightenment removed my prior doubts, Sutton did not seem sincere in his denials that he hopes to undermine, and even remove, the ADA. The argument is simply this: he believes that state rights are sufficient; the federal government need not impose these rights because state governments protect those rights. This is an unsatisfactory solution - our rights must be protected at all levels, at the federal level and in the federal courts and at the lower levels in state and local governments.
It can happen

How do you think deaf and hard of hearing people across the country would respond if it were decided that we should be institutionalized?

Don't laugh - it nearly occurred, to a degree, in Georgia with the now famous Olmstead case. Sutton defended the state of Georgia against a lawsuit that alleged that the state was slow to deinstitutionalize people with mental disabilities. The case went to the Supreme Court. A conservative Supreme Court shot down Georgia’s defense. The court decided that is wrong to take the fundamental right to freedom away from mentally disabled people. Even President George W. Bush was troubled by the Olmstead case. The White House set forth the Olmstead Initiative; an effort to de-institutionalize mentally disabled people across the country.

These rights can be taken from us. Take for example the recent Majchoa case settled by the NAD Law and Advocacy Center. A doctor's office refused to provide interpreters for the deaf father of a hearing child during a doctor's visit. Had the doctor been in the same shoes as the father, would he have chosen to send his child to a doctor, who cannot communicate with him? Would Sutton have ruled against the Majchoas?

With this in mind, I sincerely felt an urge to stop Sutton. We never think about our privileges and rights until they are threatened or taken away. To prevent this from happening, we must be proactive, not reactive.

Sutton appears to be a man who has the potential to decide cases that will undermine the ADA in historical landmark. While we cannot say for certain what Sutton will actually do, it is highly likely that Sutton will undermine disability rights. Once he's in, we will not be able to remove him. This appointment is for life.