Senate Judiciary Committee Holds Confirmation Hearing on Pending Judicial Nominations

DURBIN:

Thank you, Mr. Chairman.

I want to thank the nominees who are here 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 is meant that this hearing has gone on much longer than usual, and it's likely to continue for some period of time.

I know the chairman of the committee. And we've worked together in past years. And I'm 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've listened to some of your early 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 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.

DURBIN:

Apparently there is a belief in the White House that even though it's a fairly automatic and mechanical process, they want to make sure that if they're going to err, they're 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 in its future. Would you concede that point?

SUTTON:

There's 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, that 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's 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 if they involve 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.

DURBIN:

I think it's an important one. Vast majority of bills and resolutions in the House and Senate never get any attention, nor should they. 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's been made over and over as to your values, who you are, what you're going to do in 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've never seen a hearing where we've had so many disabled Americans come forward, frankly, to protest your nomination. It tells me that they're concerned about you and what really is in your heart.

Now, in the past in our history it's seldom do people announce publicly that they're prejudiced. They don't say that. It's 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 state rights. You've 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've 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?

SUTTON:

Well, there's no doubt that restriction 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, would be the first point. The second point is what the court did—and I would point out that is not a case I have 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 union, the same way the U.S. Supreme Court has said the same thing about the United States 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.

But there's one point, though, that I—some of the charges are—they're, first of all, charges. And 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's 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, 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 statutes. So I do—I know it's very important in this process for you to raise those questions, and I assume you want me to answer them. And that's—but they're (inaudible)...

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 at the University of Alabama, when you knew that your success in that case would restrict the rights of disabled Americans, which you've conceded here, and you decided, not because you were assigned or required to, that you were going to go 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'll 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?

SUTTON:

Sure, the case was 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 had 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 a claim cannot be brought by a federal employee...

DURBIN:

(inaudible) solicitor general is not seeking appointment here today or our approval. It's you.

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, as in an exercise of vanity, 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 no doubt about that. And maybe that's what led me to take the case.

But, Senators, I've done several cases, in fact more cases, on the disability rights side of the equation.

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)

HATCH:

Let's—let's have order.

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 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've 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 Fischer case.

When that came up to the Ohio Supreme Court, I was given the opportunity to represent Cheryl Fischer, 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. I did everything I can 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 (ph) 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 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.

DURBIN:

Well, I'll concede that you have represented many different clients. But when it comes to the cases that you've been involved in that had the broadest impact on the greatest number of Americans and their rights, it is hard to find a case that really in your career that matches the Garrett case.

What was decided by the court by virtue of your argument has denied rights 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've tried 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're an officer of the Federalist Society—where is it that membership in the Federalist Society has become the secret handshake of the Bush nominees for the federal court?

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, whose whole purpose is to provide legal service to the indigent. That of course is a pro bono effort. It takes more time than anything I do for the Federalist Society.

And as to the rest of the your question, I don't know the answer. But I hope you...

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?

SUTTON:

Well, I have no idea of what their philosophy is. In fact my understanding is they don't take—

DURBIN:

Are you an officer? Are you not an officer?

SUTTON:

I'm an officer of the separation of powers working group, that's true. But that doesn't mean there is 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 Lawrence Tribe was in a Federalist Society publication.

My article about the City of Boerne decision was a point- counterpoint piece next to Judge McConnell's, Judge McConnell saying it was wrongly decided, my thing was rightly decided.

So I do think they tried hard to do that. I can understand someone having a different perspective on that.

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've been critical of the $145 billion tobacco judgment in Florida. Although you're an advocate of states' rights in some contexts, you don't seem to like what they've done to tobacco companies.

What is your view generally about the efficacy of tobacco litigation? And do you feel that's ever justifiable?

SUTTON:

Well, the—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.

DURBIN:

Did you say RJR and Lorillard are clients of the firm?

SUTTON:

No. RJR—all of the—the name of the case goes by Lorillard, but it had several tobacco companies in it.

DURBIN:

And RJR was your client.

SUTTON:

Exactly. Exactly.

And in terms of the case itself, 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.

DURBIN:

I understand that. And historically...

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 defense.

DURBIN:

I don't argue with that premise at all. Again, it's a question about that moment in time when the senior partner came in and said, "Jeff, want you to take up the cause of RJR. Somebody's trying to restrict their advertising that's appealing to children."

DURBIN:
And you said, "I'll take it." That's a tough call.
And lawyers in their profession make those difficult calls. But I'm 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.

HATCH:
Your time has been up.

DURBIN:

All right. Thank you very much, Mr. Chairman.

Thank you, Professor Sutton.

U.S. SENATOR RICHARD J. DURBIN (D-IL):

Justice Cook, let me—I don't want you to feel that you've been neglected here and that Professor Sutton has been hogging all the time.

COOK:

I said oh yes, I was feeling that.

DURBIN:

Yes, I know you were (inaudible). But I understand you're the most frequent dissenter on the Supreme Court of Ohio. You have well over 300 dissents in your eight years on the court.

I'm told you once joked that the female justices on your court have three names, Alice Robie Resnick, Evelyn Lundberg Stratton, and Deborah Cook dissenting. Should I have a concern about your judicial temperament, an 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'd 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?

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—for the benefit of other side who offer 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 lives 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.

DURBIN:

You may think the Democratic Senator would take comfort in the fact that often when you've dissented the Republican majority in your own court though has been quite critical of your view of law. In Bunger v. Lawson, the majority called your interpretation of the law nonsensical. They said it leaves an untenable position. It's 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 and your argument, which has not been raised by the commission, the bureau, the claimant's employer, any of this (inaudible) is entirely without merit.

In Ohio Academy v. Sheward (ph) the majority held that tort reform law is 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 to join 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, disassociate themselves from a decision in which one of them concurred, suggested we create a new theory of standing, minimizing the magnitude and scope of the legislation, and the importance of separation of powers, accused us of language unbecoming a judicial opinion, questioned our faith in our courts of record, all in an obvious effort to distort our opinion into a form susceptible to (inaudible) criticism and protect this legislation (inaudible), meaningful and inclusive judicial review."

I don't know about Ohio, but in Vermont that would go beyond understated New England criticism. It's pretty strong criticism and I read this because I worry one, as I said will polarize 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've heard

DURBIN:

Thank you very much. I'd like to ask this question of the three of you. It's an observation which was made several years ago relative to the issue of racial profiling. I know if I ask you what your position is on racial profiling what you'd say, what we'd all say. We're opposed to it. It's not just. It's not fair. We certainly don't 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'm 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'd 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 and in general terms and in specific terms, the whole question of minimum mandatory sentencing and Justice Cook, you've been on the Supreme Court in Ohio. I'd like to hear your reaction.

COOK:

I've not heard those statistics but that's—I suppose like anyone that's 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, be the probable cause and the suppression issues and to see if there's anything in the work that we're doing that would contribute to those statistics if indeed that folks by their race are being targeted for law enforcement without justification. I think that's 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 and 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.

DURBIN:

Mr. Roberts.

ROBERTS:

I think that sort of statistical disparity ought to spark further inquiry. I mean it sort of points out we have a potential problem here and I think you want to find out what's 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's 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, 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 the group rather than an individual. So it's—that type of disparity I think is one that ought to concern people and spark interest and cause people to look and see what's behind the numbers and why that's the case.

DURBIN:

Professor Sutton, would you like to comment?

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 just 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 does 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.

DURBIN:

I mentioned minimum mandatory sentences and there's a lot to be said and Senator Sessions for example has some views on it. We have—may differ a little bit. But I wonder, I'll just tell you my experience. In going to a women, a Federal women's prison in Pekin (ph), Illinois and looking at the prison population. It is an eye opener. You will find in that prison women who are generally in their 40s and 50s 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. That person being no threat, really no threat to society. Professor Sutton, what do you think of minimum mandatory sentencing?

SUTTON:

Well, I think that 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's Federal or state law and the prison population that as you suggest may involve a lot of people that don't belong in prison anymore. 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.

DURBIN:

Mr. Roberts.

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 constant, a lot of people are pleading to different offensive and so when you look at someone's record and you say, well, you've never done this before. It turns out he in fact has 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 codefendants. I just think the policy consequences are often pretty far downstream and as Mr. Sutton mentioned, we're beginning to see some of those play out and some people, some legislatures are revisiting the question.

DURBIN:

Justice Cook, instead of asking you that question, I'm going to run out of time and I'd 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 as fresh out of law school and our little firm in a downstate town in Illinois represented a railroad and we had a Federal judge in our home town 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 on us 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's 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 the letters that we've received and you've 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 the exceptions to that rule, but clearly there are a lot of cases we have gathered here which prove the case. I'd like to give you a chance and you've probably had that chance before, but at this moment, to express your defense of your record as the dissenting justice on the Ohio supreme court.

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 and 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 custom, 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 it's just not the case. I follow the statutes in Ohio and in honesty anybody who thoroughly reviews the record would find that the statutes in Ohio in the general assembly in Ohio is 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 web sites and I just think, 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. And I hope that a thorough review of the record would actually show you that that's the case.

DURBIN:

Thank you very much. Thank you Mr. Chairman.

HATCH:

Thank you Senator Durbin. Senator Leahy.