Senate Judiciary Committee Holds Confirmation Hearing on Pending Judicial Nominations

FDCH TRANSCRIPTS
Congressional Hearings
Jan. 29, 2003

Senate Judiciary Committee Holds Confirmation Hearing on Pending Judicial Nominations

SCHUMER:

Thank you, Mr. Chairman. First, I want to make a couple more comments just about the procedures here, and then I'll get into questions. I'll start with Professor Sutton.

But first, I want to thank you, Mr. Chairman. You did re-notice—after I brought up the hearing, you re-noticed it from Tuesday to Wednesday, so that'll comply with the committee rule that we have one week's notice, and I want to thank you for that. And, as well, originally, we were going to have five-minute periods, I was told, and we asked you to move it up to 15, and 15 is adequate, and we appreciate that.

You know, what we're 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're going to have before us next Wednesday?

BREAK IN TRANSCRIPT

SCHUMER:

I guess the point I want to make is that having three substantially controversial nominees to important courts of appeal is brand new. The notice, as I say, has not been thorough, and we don't even have committee rules yet. We don't. We haven't discussed what's happening with the blue slip. We haven't 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's just get this—I mean, majority side—minority side, we're going to ask plenty of questions. It's wishful thinking that we were the majority side, at least for me.

But no questions asked, and it almost seems like, you know, that it's 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'll 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're the same party or the different party, in terms of who's in the White House, and I would just hope we could go 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...

HATCH:

I think that's a fair characterization by itself. Let me just say 630 days, it seems to me, is enough notice, and it certainly is enough time to evaluate these people.

SCHUMER:

Well, you know, you say that, but, officially, we didn't receive notice until last night, and...

HATCH:

We will try to remedy that.

SCHUMER:

... and there are reasons for that, and we ought to have them. I mean, let's 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've 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 a little bit—but also in who I judge. It's excellence, moderation, diversity.

Excellence, legal excellence—these are such vital positions that you don't want some political hack or somebody who's somebody's friend to occupy them. I have no doubt you'll meet that criterion. You're a legally excellent mind.

The second criterion I have is moderation. I don't like judges too far left or too far right. And, 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've 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 '60s and '70s 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's a little bit of a mirror image of telling us that now we ought to move judges on, say, the Court of Appeals, when we were constantly told when President Clinton was president we don't need any more judges. The caseload is the same, and yet all of a sudden, we have—we're pushing judges through, and that's, again, what we have to live with here. But the lack of consistency in all of this is mind bogging 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's my second criterion.

And the third one is diversity. I don't think the judge should—that the bench should be white males. You don't meet the diversity criterion, but you can't judge it by one person, and that's not a problem for me here.

But the moderation is. And, frankly, by your record, to me, you're hardly a moderate. You have pointed views that are way beyond, I think, what most people would consider the mainstream, and you've helped shape and change the courts.

Let me just go over a little history. Over the past several years, the Rehnquist Supreme Court has slowly and steadily effected a revolution, and they've 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, the 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's really just that. We almost want to go back, where there would be the Eleventh Amendment or the commerce clause, to the 1890s, because there's such anger and hatred for the federal government. And so I worry about that.

And you, Professor Sutton, you're 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 one of a thousand 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 Burney (ph), have particular meaning, and those are the cases that comprise the most significant parts of your impressive resume.

SCHUMER:

I've been struck by the comments that you're nothing but a—you didn't say a country lawyer, but you might as well—a lawyer just representing your clients, that you don't really believe in the arguments you've made, or your beliefs were irrelevant and you were just doing your job.

But I think anyone who's reviewed your record can see that's not the case. You weren't just sort of like a corporate attorney who was picked to work for one corporation or then another. You've taken a leadership role in the federalist society which has pushed this line of reasoning and the states' rights agenda. You've 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 and Rehnquist and Thomas have been willing to go.

I'm just going to read, and then ask that they be inserted in the record, a number of quotes from you. At least they're all footnoted, and I would ask unanimous consent that the whole statement be added to the record with the footnotes.

HATCH:

Without objection.

SCHUMER:

"Talking about this federalism, this states' 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's 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 restraints are now striking down all 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 gain in which one or the other law-making power must fall."

Here's another one: "The public needs to understand that federalism is ultimately a neutral principle." Many of us would disagree with that. That's in the mind of the beholder, but it's certainly a view of yours, not who you're 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 discuss the Morrison case, quote, "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 marbery (ph) power to have final say over what amounts to interstate commerce and thus what represents the limits on Congress' commerce clause powers."

I'm not—right now, I disagree with these, but that's not my point here. My point is you're not simply a lawyer who is 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, but 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's in the same branch of government as the president, and we give the president a little more deference in that regard than we do with Article 3. You are passionate, you have strong beliefs that most objective observers would say—whether you think they're right or wrong—is way out beyond the mainstream. Many of the things you've said, as I said, neither Scalia nor Thomas nor Rehnquist has said in opinions.

So how can we believe that you, when you've been such an impassioned and zealous advocate for so long, can just turn it off?
How do you abandon all that you have fought for—you've been a seminal voice in all of this for so long—given the fact that we all know that corporate lawyers, looking at the same fact case, don't always come under 100 judges with the same answer.

SUTTON:

May I?

SCHUMER:

Please.

SUTTON:

Thank you, Senator. You've raised several issues, and I'll 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, that 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, and 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...

SCHUMER:

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 won't 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, they have an agenda." I mean, we should have an open discussion here. That's the whole point of advise and consent, not simply to find out if someone's of good moral character.

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SCHUMER:

You don't express the sentiments of the people you represented in some of those cases in your private articles, only the ones on the other side.

SUTTON:

I don't think that's true. If you look at...

SCHUMER:

Well, you can submit to the record...

SUTTON:

Justice—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'm 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 whenever it was, 1989, 1990. And I think my tribute to him, you know, suggests that very point.

I wrote another article for the Federalist Society in the Curious Joel (ph) decision criticizing the U.S. Supreme Court majority for not allowing the Satmar Hesedam (ph) 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 Hassidic schools. So I think...

SCHUMER:

Well, 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 don't think some cases where you were pro bono undoes what Sandoval did. I mean, you're saying treat each case equally. I can't.

SUTTON:

I perfectly understand that point...

SCHUMER:

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?

SUTTON:

Sandoval, keep in mind, is a case—I've never written about it, 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 constitutional—well, it wasn't a constitutional case—the statutory interpretation argument was 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 possible 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 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.

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.

SUTTON:

Well, if I could respond to that, the question was—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 stereopsisis (ph). The problem where people disagree, quite reasonably, is the application of that principle in given cases.

SCHUMER:

Right. Well, let's talk about one given case. I understand your point. I want to talk about Burney (ph), the City of Burney (ph). In that one, as you know, the Supreme Court held 5-4 that Congress had exceeded its power under Section 5 of the 14th Amendment, when it passed the Religious Freedom Restoration Act.

HATCH:

Senator Schumer, you're five minutes over your time, but you can continue a reasonable...

SCHUMER:

Let me just ask this one, and then I'll ask for a second round...

HATCH:

Sure.

SCHUMER:

... because I have a bunch, and I very much appreciate that, Senator, and I'll 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 5 of the 14th 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've 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's not inexorably that that's what Ohio had to believe—other states, including my state of New York, came to the opposite conclusion that you came to and 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's not so cut and dried, and it's not so obvious where the states' interest should be.

But what I'm 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?

SUTTON:

Yes, Senator, I think there's a—I may be miscomprehending your question, but I'm pretty sure I'm...

SCHUMER:

I'm asking you did the governor or the attorney general say, "Make the argument that we should go further," or was that your argument?

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 Burney (ph), represented by another lawyer. This is quite critical, because...

SCHUMER:

You didn't argue in that case that the Congress has no power under Section 5 to enact any law to enforce religious freedom?

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 14th Amendment only allows Congress to correct equal protection rights and 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 Burney (ph) 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."

SUTTON:

So we not only didn't make that argument, but we argued exactly the opposite, that there was such a power. The question...

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?

SUTTON:

Exactly. It didn't—we didn't take a position on it, and during the oral argument—we were an amicus. During the oral argument, I specifically contradicted this point, even though the party on our side of the case...

SCHUMER:

But here's what I want to ask you. Did 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 don't know if the attorney general is elected in Ohio.

(UNKNOWN)

He is, or she is.

SCHUMER:

Did they tell you to make this argument, or did you come up with it? Just answer that yes or no, if you could.

SUTTON:

The attorney general decides what arguments to make, and the attorney general had the final decision on whether that brief could be filed...

SCHUMER:

Did you suggest to him that the brief be filed the way it was before he said fine? Who came up with...

SUTTON:

She—Montgomery.

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. 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?

SUTTON:

Neither of us, Senator.

SCHUMER:

Well, tell me how it came about.

SUTTON:

What happened was...

SCHUMER:

It wasn't spontaneous generation. We...

HATCH:

Senator, why don't you give him a chance to answer?

SCHUMER:

I will.

BREAK IN TRANSCRIPT

SCHUMER:

I can come back to this if I'm 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'll wait.

HATCH:

No, if it's on the same line of questioning, and you want to continue, go right ahead.

SCHUMER:

OK. 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." And this is on page—well, this is Westlaw, so I don't have the page. But it says, "Point Number 1-B. The debates over the 14th Amendment confirm 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 14th 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."

SUTTON:

That's 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 14th Amendment said simultaneously that Congress would have the final say over what the U.S. Constitution means, which is to say overrule Marberry v. Madison, and simultaneously say anything covered in Section 1, even incorporated rights in the other Bill of Rights, would be included.

SCHUMER:

But what you say here would exactly buttress—I mean, I'll let you have the last word here—exactly what I said, that there could be no—it's not just some—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. Isn't that correct?

SUTTON:

With all respect, Senator, I couldn't disagree more, and I think it would have been poor advocacy to say nothing was wrong to make that argument. But the proof is not only the "and" that I referred to, but the proof is to read—is the transcript. The transcript doesn't indicate who the justice is. It's 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.

SCHUMER:

Well, I'm going to come back to it. I'm going to go read the brief—I mean, the oral argument, and we'll come back to it.

We will have a second round, I presume, Mr. Chairman. Is that correct?

HATCH:

Sure.

SCHUMER:

Thank you. I appreciate the committee—that I went on for a while.

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U.S. SENATOR CHARLES E. SCHUMER (D-NY):

Thank you, Mr. Chairman, and I want to thank everybody. I know it's been a long day but I think it's an important day as well, so
I'm 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 can not 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's exactly what the founders intended. For better or worse, we're 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 hours.

They're the un-elected branch of government. The founding fathers set them up to interpret, not make the laws, for a reason and it's not good for our government and it's 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' commerce clause powers."

I have to tell you I'm 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's not as if we had our counsel sit down at their computers with a couple of beers and make up some congressional findings.

It's 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, you know, 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's 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, you can imagine when I read something like this and see the court saying we didn't have a basis for making the law how infuriating it is because they weren't there. We were and 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'm 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' findings, what should the standard be?

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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 didn't 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.

SUTTON:

I couldn't agree more that that's what you were trying to do. I agree.

SCHUMER:

Well, then continue. You just said that there are limits but here there's no dispute that we addressed the issue of interstate commerce.

SUTTON:

I'm—I'm...

SCHUMER:

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? Was it or is it really that somehow, and this would be different I think than the holding in Morrison, that you just didn't think this affected interstate commerce period and it didn't matter if we found that it did? Your view would supplant ours.

SUTTON:

When writing this brief for this client, again as an advocate, I didn't—the issue for me wasn't agreeing or disagreeing. That wasn't why I was hired to tell them.

SCHUMER:

I want to know what you think.

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.

SCHUMER:

But do you think we tried to address interstate commerce when we made the findings in terms of VAWA or not?

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 point, again on behalf of a client, was that the theory of the Congress' 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, 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.

SCHUMER:

Sir, in all due respect, aside from advocating for the client, what you're seeming, you know, you're sort of you're saying all this work I did and everyone you know, it's almost like we're in 1984 here because your views on federalism are not just advocating for clients. You've 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, most, 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're hiding behind the client thing and we're not having a real debate on the issue here.

(APPLAUSE)

Please, that's not fair because everyone knows how you feel on this and you know how you feel on this. That doesn't mean as a judge maybe you couldn't 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's what you wrote. "The necessary stacking of one inference on top of another required to connect an interstate rate to an active 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 effects 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's 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 don't know, but you said it separately under your own ten, under your own articles, so you can't say well you were saying that just on behalf of a client. Those at one point, I don't know if they still are, are your views. Are they still?

SUTTON:

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 (inaudible).

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...

SCHUMER:

So wait, can I just again because there's 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?

SUTTON:

I have not...

SCHUMER:

Not as a representative, 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?

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...

SCHUMER:

(inaudible).

SUTTON:

Well, you asked what I believed and I'm telling you.

SCHUMER:

I didn't ask what you'd do as a judge. I asked what you as Professor Jeffrey Sutton not representing a client, do you believe this phrase or not, this—I mean, you know, I've written things. I've changed my mind later.

SUTTON:

Right.

SCHUMER:

So, I'm not...

SUTTON:

Actually, I think it's very consistent with something I said earlier today. I'm not sure if you were here at the time. Yes, I do believe in the principle of federalism in the sense that there is a principal that says on a separation of powers basis.

SUTTON:

There are checks and balances, horizontally among the federal branch of the government, this body, the U.S. Supreme Court and the president and vertically between the national government and the states. That's a principal that's embedded in the constitution and there are countless U.S. Supreme Court cases that recognize it.

And, the statement that you have just quoted makes the point, and this is what I perceive the court is trying to do. Now 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'm 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.

SCHUMER:

Would you say that again? You're not familiar enough with what?

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've never had the opportunity to sit back and say objectively what would you do, Jeff, with this particular issue.

SCHUMER:

You wrote this in an article professing a viewpoint, your viewpoint.

SUTTON:

And I'm just telling you 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.

SCHUMER:

That's not what I'm asking and please don't keep bringing that up. We know that you're a very successful, persuasive advocate, and we know you've advocated in different positions. You wrote an article where you said the exact same thing as in brief. You first told me it's just because you were advocating for a client. Now, I have an article here where you wrote it again.

You didn't say, as I argued in, or as was argued in. You professed the belief as yours and now you're saying, you're not giving me an answer whether you believed it at the time and still believe it now.

SUTTON:

But I do think I did answer.

SCHUMER:

I didn't ask you what you'd do as a judge. I know as a judge you would have to examine both sides. I understand that. My knowledge isn't as great as yours in terms of jurisprudence but I know that much.

SUTTON:

I'm sorry.

SCHUMER:

But I also know that I feel very strongly that it's 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 9-0 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's not true.

And, if I've tried to do anything in the last year it's to break through this (inaudible) that philosophy doesn't matter. And, by the way, if philosophy didn't 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 don't 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.

SUTTON:

Well, again, first of all Senator I respect your views on this and I've 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're 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...

SCHUMER:

Quoted it as your own, not representing a client.

SUTTON:

Exactly and I'm making the point, a lawyer has a prerogative having argued a case to say that the court got it right. That's exactly what I did and I can't tell you that that's 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'd do with that kind of a case. I couldn't tell you that.

SCHUMER:

Could I ask you to do this within the week? Could I ask you to review the Congress' 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?

HATCH:

Well, let me just interrupt. I also was a prime sponsor in the Senate. It was the Biden-Hatch Bill. Those materials are so voluminous. No, come on let's quit asking what he is going to do as a judge or what he believes. Let's talk in terms of...

SCHUMER:

Well, Mr. Chairman, in all due respect of course I want to know what he's going to do as a judge. So does everybody.

HATCH:

OK, well I agree with that.

SCHUMER:

It's not some kind of mathematical formula that every judge, just depending on their intellectual power of...

HATCH:

But you're seeming to want a foregone conclusion from him.

SCHUMER:

No, I don't. I want...

HATCH:

And he's not willing to give that to you.

SCHUMER:

I want to know his views, not what his client's views are, and not how persuasive an advocate he is.

HATCH:

But he's making the point that his views are irrelevant when he becomes a judge.

SCHUMER:

And I don't think anyone really believes that.

HATCH:

That may be but that's what...

SCHUMER:

Or (inaudible)...

(APPLAUSE)

HATCH:

Now, let's understand something.

SCHUMER:

Right.

HATCH:

I'm going to clear this room.

SCHUMER:

Please.

HATCH:

Something that I've made possible for everybody if we continue to have these outbursts. First of all, it's not fair to anybody. It's not fair to the witness. It's not fair to the Senators up here. We're supposed to have some decorum here and I expect this proceeding to be treated with dignity. Now, let's just remember that. I respect all of you but I want no more outbursts.

SCHUMER:

And I'd say in all due respect it doesn't help my case when you... If I might on that, Mr. Chairman, I've served as chairman of numerous committees and subcommittees as have you.

HATCH:

Right.

LEAHY:

And we must have decorum. I know that 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're going to do this is through decorum. So, I will support the chairman and maintain the decorum, and especially as
I said before, I appreciate the chairman taking the recommendation of myself and others to move down here so that everybody could be accommodated.

HATCH:

Thank you, I appreciate that.

SCHUMER:

Mr. Chairman, my time, you've 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 didn't really justify a reach into interstate commerce in Morrison. You don't have to do that now. I'll ask you to do it in a written question.

Before I conclude, Mr. Chairman, I have some more questions and I know it's been a long day, and I do want to thank you Mr. Sutton. My questions are strong but they're not personal and they're heartfelt as your answers are and I respect that.

SUTTON:

I can believe that.

SCHUMER:

And I guess, Mr. Chairman, I have to go to two other places. I have more questions of Mr. Sutton and I haven't even begun to ask questions of either Mr. Roberts or Judge Cook (ph). 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 didn't get a chance to ask Mr. Roberts and Judge Cook questions at another time.

HATCH:

Well, unfortunately I can't do that. In other words, this is the hearing and frankly we'll 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 could be asked. But no, we're going to finish the hearing today. Now, I hope that we can accommodate you to come back and ask any further questions you'd like.

SCHUMER:

You know, Mr... I'm going to appeal the ruling of the chair. I don't think it's fair. These questions are not frivolous.

HATCH:

No, they're not.

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.

HATCH:

Not fair to them. I'm prepared to sit here as long as it takes within reason. I mean I think there's a point where you have to call the end of 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're going to finish this today.

And I notice that Mr. Sutton's three kids, they're the best kids I've ever seen and they haven't raised a fuss here at all. I just want to compliment your wife and you for the wonderful children you have. But I want to be fair but, on the other hand, Mr. Roberts has been waiting 11 years.