Senate Judiciary Committee Holds Confirmation Hearing on Pending Judicial Nominations (cont)

SCHUMER:

In all due respect, Mr. Chairman.

HATCH:

The other two have been waiting almost two years. I think it's up to us to ask the questions here today and I'm providing the time to do so, and I'm also providing an additional time to ask written questions, a reasonable time, but not an unreasonable time. We're going to finish this today.

SCHUMER:

In all due respect, we're having a third hearing on Pickering. We're having a second hearing on Owens.

HATCH:

I don't know what I'm going to do about it.

SCHUMER:

The ones who we defeated, they get all the hearing time you want to change the record but we don't have a full opportunity with Mr. Roberts to the second most important court in the land, with Judge Cook in terms of a circuit, the Sixth Circuit.

HATCH:

But you do.

SCHUMER:

That we kept open for a long period of time.

HATCH:

I'm not prepared to leave.

SCHUMER:

It is not fair. Well, it is not fair.

HATCH:

When can you come back, Senator, for your further questions? I'll be happy to be here.

SCHUMER:

I can come back later this evening.

HATCH:

Great.

SCHUMER:

But I don't know if my colleagues can and I've never seen this kind of thing happen.

HATCH:

Well, it's going to happen.

SCHUMER:

We have never had three Court of Appeals judges on one panel. We knew that Professor Sutton in particular would take a great deal of questioning.

HATCH:

And he has.

SCHUMER:

And I don't think it's right. I don't think it's fair.

HATCH:

Senator, if you need more time take it right now. I'll be glad to give it to you but the point is I'm not going to mistreat these people either.

SCHUMER:

Well.

HATCH:

I mean, my gosh, they've been waiting for two years, Mr. Roberts 11 years. We've made them available. They've been here since 9:30 this morning and I think it's only fair that if you have questions you ask them.

SCHUMER:

OK.

HATCH:

Now you might have a schedule that's different. I can't help that.

SCHUMER:

Well.

HATCH:

I mean there's a lot of things I've had to forego today and some I've just had to do, but the fact of the matter is, is that that's what we have those hearings for.

SCHUMER:

I appeal the ruling of the chair and ask for a roll call.

HATCH:

Well, I reject the appeal.

SCHUMER:

I ask for a vote.

HATCH:

Well, this isn't a formal committee markup. You can bring it up tomorrow in a vote and I'll be happy to have you appeal the ruling of the chair and we'll vote on it tomorrow. I don't know what rule you're talking about.

SCHUMER:

I thought that, Mr. Chairman, when the chair rules this way you can appeal the ruling of the chair at a hearing as well as at a markup.

HATCH:

Not that I know of.

SCHUMER:

Well, could we ask counsel to rule on that?

HATCH:

Well.

SCHUMER:

Parliamentarian.

HATCH:

We'll check with the parliamentarian but I will defer that ruling in any event as chairman until tomorrow and we'll have the vote tomorrow, and if you win, I guess I'll have to come back. The fact of the matter is...

SCHUMER:

So, in other words, if you want to ask questions you can stay all night but you can defer a vote of the people who don't want to ask questions?

HATCH:

No, no Senator Schumer. There's a reasonable time that is given for hearings. I am prepared to sit here. I will give you more time right now. I will give you more time within a reasonable time after right now. But this is the time to ask your questions, and I would like you to do it.

If you don't want to that's your privilege. If you don't want to ask oral questions, then submit written questions and we'll have them answer them within reason. But these folks have been under the impression that this is their hearing and it is, and it's been a long, lengthy one, and I expect it's going to still be fairly lengthy. But I'll be happy to give you more time right now, Senator Schumer. I have no problem with that.

SCHUMER:

Mr. Chairman, this is one of the reasons that...

HATCH:

And I've already given you 21 minutes.

SCHUMER:

Oh, you've been generous each time I've been here.

HATCH:

Well, and I'll continue to be.

SCHUMER:

Let me say this. We don't even have rules in this committee yet. We haven't passed rules of how the committee works. We're already rushing to do three Court of Appeals justices at once, and I just don't think it's the fair way to run this committee.

HATCH:

Well, I apologize to you because I do think it's a fair way and I think it has to be done and I don't think we can keep delaying these people and putting it off. They're making themselves available. I'm giving you more time if you need it.

SCHUMER:

Mr. Chairman, in all due respect, this is a lifetime appointment, a very important court...

HATCH:

Well, it doesn't have to be a lifetime hearing, I'll tell you that.

SCHUMER:

And if nominees are not willing to wait an extra day or two to be questioned openly and fairly, I wonder about that.

BREAK IN TRANSCRIPT

SCHUMER:

Thank you. So one of the things, just more questioning of Professor Sutton, that I appreciate here is that you haven't done what some of our witnesses have done in the case of hear no evil, see no evil, do no evil. You haven't said, you haven't shied away from being critical of all Supreme Court jurisprudence. We've had other nominees who have refused to criticize any Supreme Court case ever. I asked Mr. Estrada name a past case but he kept saying, he kept saying well, he might come before them in the future. He doesn't want to, so name a past case he was critical of and he didn't want to even do that. So you're not—I think you've won some points from some of my colleagues I've talked to by not being so sphinx-like.

But you did mention for instance, earlier in our dialogue, that you disagreed with the (inaudible) Joel (ph) case where you were critical of the Supreme Court's decision not to take cert. Could you point to one other Supreme Court case you're critical of?

SUTTON:

(inaudible) Joel just to be clear, I wasn't critical of the not to take cert, critical of the outcome in the case and specifically the decision not to allow handicapped individuals to obtain an education in a setting where they could be with other members of their religious sect.

SCHUMER:

How about another case you're critical of?

SUTTON:

Well, earlier in the day, it came up that there was a discussion about the ADA and specifically the question was raised by Senator Feinstein about whether, what my reaction was to the horrendous and egregious history of forced sterilization of those with mental disabilities. And I made the point that there was a rather embarrassing U.S. Supreme Court case by the name of Buck (ph) remarkably written by Justice Holmes, remarkably, because he was otherwise a fairly distinguished jurist and I made the point that in the Garrett (ph) brief that has received some criticism and I understand your perspective and other members of the committee's perspective on the position my client in that case. But even in that particular case, where the Buck case remarkably still on the books, of the state of Alabama agreed to take the position in the courts to say well, we don't think that's correctly decided. And you know, it's a sad, sad chapter. Happily, it would be very difficult to overrule Buck now because every...

SCHUMER:

(inaudible) You were representing Alabama.

SUTTON:

Exactly. And all those laws are...

SCHUMER:

(inaudible) could be a decided case did you disagree with, that you weren't representing anybody, that you as a...

SUTTON:

Well, I didn't represent anybody in Buck. Buck's a 1927 decision.

SCHUMER:

I see.

SUTTON:

It's an infamous decision of the U.S. Supreme Court. It's been criticized in every quarter that's ever...

SCHUMER:

And you represented Alabama later on when they challenged Buck or no?

SUTTON:

No, I'm making, I didn't do a good job explaining that. I was making the point that in the Garrett brief, which is the case about the ADA...

SCHUMER:

Oh, I see.

SUTTON:

We acknowledged this—it's called the eugenics movement and that it was very unfortunate, sad chapter in American history. Happily it's a closed chapter in American history and if it weren't closed the ADA would require it.

SCHUMER:
How about any others?

SUTTON:

I can't think of any others offhand. I didn't come...

SCHUMER:

Koramatsu (ph)?

SUTTON:

Well, I mean anyone who's read Koramatsu would obviously be very uncomfortable with the results. I've made another point in the very brief I'm talking about.

SCHUMER:

I'm just trying to get an idea of your thinking when you're not representing a client and I don't want to get you into the issue of prospective cases so I'm just asking some cases that you disagreed with. I mean I'm sure you disagreed with Plessy v. Ferguson, right?

SUTTON:

Right. The point I wanted to make though and it's actually the same point we made in the Garrett brief, that you know, while it's easy today to look back on a case like Buck, look back on a case like Koramatsu and say boy, you know, how could that have happened? Time has a way of making yesterday's progressive look like today's Neanderthal. I mean there's just no doubt that that's true. The thing I'm a little reluctant to do is to second guess courts in saying boy, had I been the judge on that particular case back in that period of time, I would never have fallen into that trap. I think that's Monday morning quarterbacking and unfair.

SCHUMER:

Well, that's a different issue. It's a different issue to say at the time I would have ruled differently than times have changed and things have changed and I would now disagree with that holding, right?

SUTTON:

That's true, although I must say, you know, unfortunately as a court of appeals judge, I can't imagine it coming up with these particular cases. But a court of appeals judge is obligated to follow U.S. Supreme Court precedence for better or worse and that's—and I of course would do that for better or worse.

SCHUMER:

But you would dis—OK, any others you'd want to mention?

SUTTON:

No.

SCHUMER:

Is it that you can't think of any or you don't want to mention it? Well, I'm going to submit that question in writing, OK. I'm going to ask you just so you can think about it for a while, of cases that you already decided Supreme Court cases that you might disagree with and I'll assume if you don't submit any, that you agree with every one of them that's been decided already.

SUTTON:

That's a big task, but thank you for the opportunity to put it in writing.

SCHUMER:

Well, just give a few, that's all. I'm not asking you to go through every Supreme Court case. I am asking that we try to stop this sort of sphinx-like behavior we've had with witnesses who don't say anything about anything. I'm not saying you've done that. You've done more than some. I think that's a good question to ask.

SUTTON:

I understand.

SCHUMER:

(inaudible) getting their thinking. OK, next question is, I want to talk a little bit about Sandoval (ph) because this one I think had really far reaching opinions, far reaching effect and I believe that you, more than most lawyers, have been quite successful in persuading the Supreme Court to adopt your ideas. Five justices on the court have basically bought into the states' rights jurisprudence that you've been one of the leading advocates of and creators of really. The ripple effect of that jurisprudence in my judgment has been very powerful.

And perhaps the most striking example is Sandoval, where the court was dealing with Title VI of the Civil Rights Act of 1964 which prohibits discrimination based on race, color or national origin in Federally funded programs. The Sandoval decision reversed an understanding of law that had been in place for nearly three decades and it limited private citizens' power to enforce rights protected by Federal laws.

The ruling makes it nearly impossible to challenge a range of state practices with an unjustified disparate impact such as for instance, disproportionate toxic dumping in minority neighborhoods or the use of educationally unjustified testing of tracking procedures that harm minority students, the failure to apply appropriate language services in health facilities.

But I believe your arguments in Sandoval went even further than the court went. You argued that neither private citizens, nor Federal, nor the Federal government has the power to enforce disparate impact regulations. If the court had adopted your position in my judgment, it would have gutted the laws and regulations that protect millions of Americans. You would rendered enforcement of these laws entirely effective. That's why I said earlier this afternoon that you could do a thousand pro bono cases and it wouldn't undo the damage in my judgment that Sandoval has done to individual rights and to the ability of this country to be as colorblind as we possibly can.

SCHUMER:

So I'm for one grateful that the court refused to go as far as you argued that they ought to go, but I worry about what would happen if you were wearing the judicial robes and had the power to make your ideas law, into law, and I worry about frankly, what Professor Jeffrey Sutton's America would look like if you had the power conferred by a lifetime seat on the Federal bench.

I worry that in that America, poor parents couldn't go to court to ensure that their children get basic medical care. I worry that disabled children couldn't go before a judge and ask that she or he enforce the rights of equal educational opportunities. I worry that in that America senior citizens wouldn't have the right to go to court and seek protection from employment discrimination. Women would have no power to go to court to find gender discrimination. I fear that in the America that you see from your reasoning and your jurisprudence, states have rights, but people really don't, because your argument in Sandoval went really far, again, way beyond what even most would concede is a rather conservative court, conservative majority went with.

So I'd just like to know how you allay my concerns about that. I mean the courts have been a place that individuals seek justice and I think one of the great things about our jurisprudence over 200 years is they've enabled more and more individuals to seek that type of justice when it's either state governments or some other entity stopping them from gaining that justice.

We have a philosophy that seems to be governing here that government regulation is bad. And if the government isn't going to protect people, then you at least want to see individuals be able to protect themselves through the rights that have been granted through our judicial process over centuries. So how would you allay my concerns about that, individuals particularly at a time when government is doing less to protect them, don't have the basic ability as a result of your arguments if it were to become law, your arguments in Sandoval to seek justice, seek, well in this case, to seek freedom from discrimination?

SUTTON:

I know we would discuss this a little earlier and I appreciate your perspective on this and I think I'm gaining a greater appreciation as time goes on and I think it's obviously a very important perspective on this. I would like to say something. I hope this doesn't irritate you, but I would like to point out that again this is not a case I've written about. This was a case where I was an advocate and I really do feel strongly. I mean maybe I'm misguided in this, but do feel strongly that I had an obligation to make all reasonable arguments that I thought would advance my client's cause. I don't think the Sandoval decision or brief in any way indicates what I would do as a court of appeals judge and...

SCHUMER:

Did your clients in that case urge you to take the argument that individuals, to take that extra step in the argument that said individuals couldn't sue or did you suggest it to your clients? I mean where does the—Sandoval was a state case basically. You went further.

BREAK IN TRANSCRIPT

SCHUMER:

I'm not following you. What I was focusing on is that the brief went beyond what the Federal government can do and talked about individual citizens rights to deal with disparate impact, not the disparate impact itself, not the argument the regulations—I don't know why...

SUTTON:

If your question had said that we challenged the validity of the regulation and we didn't challenge the validity of the regulations and the Federal government can enforce them against individuals, in terms of the brief arguing that private individuals could not sue for disparate impact under...

SCHUMER:

You've just argued that they could not sue for disparate impact or did you argue that they couldn't sue for a broader range of issues under Title VI? I don't know the answer to it. I'm just asking.

SUTTON:

Well, the only thing in the case was the regulations because under the—this part of the brief I don't recall, but I'd be surprised if we didn't concede this point, our client didn't concede this point, that the point was, there's a case called Canon (ph) which deals with Title IX and Canon says that there is an implied right of action for claims—there is an implied right of action for claims for intentional discrimination. So we would have conceded that point.

I think what you might be—the reason you might be asking this question and I—someone could disagree with this, is the notion that there's a case called Penhearst (ph) and a case called South Dakota v. Dole which say before spending clause legislation or other legislation is going to create cause of action against states, you need a clear statement and that the argument in Sandoval, someone might have construed to mean even Canon wasn't rightly decided. And that's a pretty good objection. That's of course exactly what the Supreme Court said. That's exactly what the Federal government argued in opposition and it didn't prevail.

SCHUMER:

What you're saying here is in Sandoval, your arguments were simply related to the disparate impact regulations, not a general view that individuals didn't have the right to sue.

SUTTON:

No, yes, no, it was all—the disparate impact regulations were all that were at issue. I'm sorry if I didn't get to that more quickly.

SCHUMER:

Let me—OK. I just wanted to go back to City of Bernie (ph) again. I don't even know where it is. Where is the city of Bernie?

SUTTON:

It's in Texas.

SCHUMER:

Texas. What I asked you there is and we didn't get a clear answer. Did you—I just want to get an answer, the underlying question, all right, which is, did you, the attorney general or the governor decide what position to take in that case? I mean you were trying to think back, but maybe you've had a chance to think about it.

SUTTON:

Well, when you say position, the decision whether to file an amicus brief in the U.S. Supreme Court in the City of Bernie?

SCHUMER:

And the arguments that were made.

SUTTON:

Well, I guess in the first part of it, clearly it's the attorney general in Ohio (inaudible) appointed position, one reports to the attorney general. The attorney general's an elected office holder in Ohio and very...

SCHUMER:

So did they contact you and say we want to argue this case or did you contact them initially to file the brief?

SUTTON:

Well, the point I was making was the attorney general or people in her corrections staff had already decided to challenge...

SCHUMER:

I didn't ask you that. I asked you did they contact you initially? Did they reach out to you or did you call them up and say, hey, this would be a good idea and I want to help you with this?

SUTTON:

In terms of our involvement in the City of Bernie itself, I understand. I think my recollection's correct. I think the state of Ohio filed an amicus brief on behalf of states, both at the cert stage, which is to say, encouraging the court to take the case. I think the city had lost at the fifth circuit if my memory's correct and then filed a brief at the merit stage. So the important point would have been the cert stage because once you file an amicus brief for states at the cert stage, generally you'll follow...

SCHUMER:

Your involvement didn't come in until the highest level, right?

SUTTON:

Exactly.

SCHUMER:

And I'm just asking you, I'm not asking you how Ohio came up with its position. I'm asking did you—initially there had to be some hook up between Professor Sutton and the state of Ohio at this level.

SUTTON:

Right.

SCHUMER:

Did you contact them and say, I'd like to be involved in this, I'm an expert or did they contact you?

SUTTON:

I honestly don't remember. If I were to guess what would have happened, because I

SCHUMER:

You remember or you don't remember.

SUTTON:

Well, I don't, but if I could take an educated guess, because I think it's mostly likely the case. The educated guess is that what would have happened is, as I said before, the corrections lawyers were challenging (inaudible) the lower courts. The corrections lawyers like all lawyers in the AG office work together on consumer affairs, environmental, they coordinate work and they tell each other what they're doing. And my suspicion is that what happened is that the corrections officials in our office would have known about the City of Bernie litigation. Why, because they were challenging the same law in their cases and again, educated guess is they came to me saying, Jeff, this is something we ought to try to get involved in.

SCHUMER:

How many of the cases were you argued on the significant cases I mentioned four or five before. Are there any where you reached out to the client and said, I'd like to make this argument? I'd like to get involved as opposed to them asking you?

SUTTON:

Right, well, the one that I know I reached out in, is the Dale Becker (ph) case and Dale Becker was the prisoner rights case where an inmate in Ohio filed a pro se cert petition. The reason I know I reached out for that one is because when the U.S. Supreme Court granted cert petition, when the U.S. Supreme Court granted a cert petition for a pro se inmate, for obvious reasons that inmate is not going to be able to argue the case in the U.S. Supreme Court.

SCHUMER:

You have to give me the whole—so in that one you reached out.

SUTTON:

I did.

SCHUMER:

I'm going to ask you to respond in writing. Did you reach out and make the initial contact in Sand—you don't have to answer me now. I'll do it in writing. But I'd like in Sandoval, Garrett, Kimel (ph) and I asked about City of Bernie already.

SUTTON:

OK.

SCHUMER:

Because in each of these cases your argument is you were just following what the client wanted. Well, it would be a little different if you reached out to them and said hey, this is a good argument. Let's make it. That would be before representing the client.

Let me give you one other follow up question. I want to follow up here on something Senator Durbin asked. You said you decided to take the Garrett because you wanted to argue before the Supreme Court. That was in reference to what Senator Durbin had asked you. Is there any case you would refuse to take because the potential client's desired outcome was too wrong or too offensive to you?

BREAK IN TRANSCRIPT

SCHUMER:

OK, this is for Mr. Roberts and I'm sure sorry, it's a long day for you and I'm sorry that you've had to sit here through all of this. I know Senator Hatch has argued we're inconveniencing you and I apologize for that. I do think—I mean I've made my point clear, that I wish we had had better time, more time, not at 9 o'clock to question you and I don't think asking people to come back for such an important appointment is anything undue. Judges ask you to come back and argue cases all the time and that's less significant than this and every lawyer has sat around and waited in the court for the calendar to clear.

So, but here we are and I've made my argument and not succeeded so let's—let me ask each of these questions, one question to each of you. You've come very highly recommended. You're obviously one of the great legal minds in a city full of great legal minds and for me, with your situation, just as with Professor Sutton, excellence is not the issue. But I do want to ask you something about these state rights issues we've been discussing all day. And as with Professor Sutton, I'm not going to ask you questions based on briefs you wrote for your clients. I want to ask you about some of the things you've said in your personal capacity.

I want to read to you an excerpt from an interview you did with Nina Totenberg, I guess well known to this committee before I got on it, discussing several states' rights cases from the 1999 Supreme Court term. I think we have a fair excerpt from that interview but I'll give you a full chance to explain your thoughts if it's out of context at all. But here is what was said.

Quote, Mr. Roberts, well, I think the three decisions taken as a group are a big deal. You'll probably (inaudible) you know it better than I do, that's for sure. It's a healthy reminder that we're a country that was formed by states and that we still live under a Federal system. It's the United States of America and what these cases say is just because Congress has the power to tell individuals and companies that this is what you're going to do and if you don't do it, people can sue you, that doesn't mean they can treat the states the same way. But the states, as co-equal sovereigns, have their own sovereign powers and that includes, as everyone at the time of the constitutional convention understood sovereign immunity.

You went on to say regarding the Congress' exercise of the spending clause power, well, quote, these are all quotes, well, so much of what we, what our restrictions are based on, the spending power. You know, even for private citizens, if you accept Federal money, you're covered by Title IX and Title VI and the basic principle is, if you pay the piper, you get to call the tune. And I think the Federal government could say, if we're giving you money and it's related to the area in which we're trying to get you to waive sovereign immunity, we can require you to consent to suit as a condition of getting those funds.

The example you gave is a good one. This is you still speaking. If they get Federal funds for your probation department, they can say, we're not going to give you those unless you waive sovereign immunity. And that's quite common. The Federal government for example has sovereign immunity as well. It has waived it. Then Nina Totenberg says and supposing the Federal government said, if you accept any Federal money, states, you have to abide by the Federal provisions that we enact for everybody.

Mr. Roberts, I think that would go too far. The jargon is that the waiver has to be germane to what funds, to what the funds are for. You may remember a while back the Federal government said, if we give you highway funds, you've got to raise your drinking age to 21, because we think that, we think having these teenagers, teenage drinkers causes accidents. The court held that that was germane to that purpose, but there has to be a connection. It can't just be if you take a penny of Federal funds, you've got to waive your sovereign immunity across the board. It's the end of the quote.

What I'm trying to figure out here is where all of this appears in the constitution. For the life of me, I can't figure it out. I keep going back to this document and looking for the words like sovereign immunity and congruent and proportional and germane to the purpose and I don't see any of it. We keep hearing that the justices who are advocating these things are strict constructionists, but as far as I can tell, they mostly strictly construe the law in favor of states and big businesses against the interests of average people.

Can you help me understand this? It appears from this interview you agree with the court's jurisprudence in this area, the court's majority, the majority of recent jurisprudence here. Do you and if so, why when the plain language of the constitution is either silent or to the contrary?

ROBERTS:

If I'm remembering the radio show, I think it was sort of a wrap up of the Supreme Court's term and I think she may have had other people on as well. They're talking about what's significant and I thought that the Supreme Court's immunity cases involving the states were indeed significant. That was I think the question before you got to the part you were quoting, is this a big deal? And I thought it was and I said that and then part of the rejoinder was, well, can't we use the spending power to get around this? In other words if we're serious about it, let's use the spending power.

And what I was articulating there was what I understood the stage of the law to be, which is, as a general matter, the answer is yes. South Dakota v. Dole, the highway funds case. But again, I'm stating what I understood the law to be that there is this so called germaneness requirement. That's what the Supreme Court's...

SCHUMER:

Where did it come from? Where in the constitution did it come from? Let us say the Federal government made a more sweeping law and said, if you accept any Federal money, not just highway money, you have to have a 21-year old drinking age. Now that may be very broad power of the Federal government, but I'd like to know where in the constitution I solicit or derive, it says that the Federal government can't do that.

ROBERTS:

I don't know what the Supreme Court precedence hold. My familiarity with the requirement really was with the South Dakota case where they articulated it and they explained over for example, over the dissent of Justice Brennan and Justice O'Connor, that this requirement was met. I haven't gone back and read the trial case. I don't know the answer, what the analysis was. I was just articulating what I understood the law to be for the purposes of the interview.

SCHUMER:

But do you have any further thoughts on—to me it's an important question. You know the laws much better than I do, but it would seem to me when you're making such a—you're making a dramatic change. We've had basically relates to expanded Federal government power versus reducing Federal government power and that's been the trend in this court and there's got to be a basis for it.

ROBERTS:

Well, Senator, I was listening as you were (inaudible) with some trepidation when someone says, this is what you said. You're waiting for—not only the nongrammatical part but the part that sounds ludicrous and I have to say...

SCHUMER:

...when I'm used to nongrammatical parts.

ROBERTS:

I have to say, I didn't hear anything I would say, gosh, you know, I wish I hadn't said that. I think it is the case that we do have a Federal system that states have powers and responsibilities and the Federal government does as well. Certainly under the supremacy clause the legislation that you enact is the supreme law of the land, consistent with the constitution.

I appreciate the concern about the sovereign immunity cases. You're quite right. There is no sovereign immunity clause in the constitution. On the other hand, the court's cases have been fairly consistent that the Federal government enjoys sovereign immunity. This body has done much over the years to waive that, Federal tort claims act, a variety of things. But that basic recognition of Federal sovereign immunity has always held firm. And I think it is hard for to explain to state government, why do they have it and we don't. And if we had it at the time of the founding, when did we give it up? And the Supreme Court has given some answers. Well, part of it you gave up in the 14th amendment in Section 5. But I do appreciate that it is a difficult area, because you're not dealing with the textual provision in the constitution.

SCHUMER:

Any other, either of the other two witnesses want to comment on that? Not on Mr. Robert grammar, but rather just on the general question I asked. Where (inaudible)

SUTTON? :

I don't know why I'm reengaging.

SCHUMER:

I don't know why either.

SUTTON:

I'm a fool. But the one point I just wanted to make. There's no spending clause either for what it's worth. This comes from Article I, Section 8 and it says Congress can provide for the general welfare and the court sensibly, atexturally (ph) but sensibly has said, hey, if it's Congress' money, they can tell the states how they want it spent and if they want to attach conditions, they can. So...

SCHUMER:

Well, where does this one come from?

SUTTON:

That's my point. There isn't a spending clause.

SCHUMER:

(inaudible) but you said it sprung from the clause to protect for the general welfare, right?

SUTTON:

Exactly. No, I'm just saying there isn't a spending clause so there's not a textual basis for it, just making the point that the Supreme Court decision sensibly has said, if Congress raises money to provide for the general welfare, they can attach conditions to how it's spent.

SCHUMER:

Only certain conditions.

SUTTON:

Well, that's what South Dakota...

SCHUMER:

Jeffrey Roberts was talking about in his interview. He was saying there has to be garmaneness. There has to be proportionality.

SUTTON:

I don't think he was saying proportionality. I think germaneness.

SCHUMER:

He didn't say proportionality. I stand corrected. He was saying, let me try to correct the grammar here, although I don't know where you would make such egregious mistakes. But anyway...

UNKNOWN:

I would just note for the record that Professor Sutton did not serve in the military. Otherwise he'd no better than to volunteer at this point.

SUTTON:

I deserve that.

SCHUMER:

It was brave. Do you have anything you'd like to say, Judge Cook on this?

COOK:

I don't.

SCHUMER:

Just let me say that I was trying to be Dean Martin to your Jerry Lewis on that one. Let me ask you a question. OK.

SESSIONS:

Senator Schumer on that subject, Blackstone Commentaries says that no suit or action can be brought against the king even in civil matters because no court can have jurisdiction over him. Then it goes on, for the same reason, no action lies under a republican form of government against the state or nation unless the legislature have authorized it, a principle recognized in the jurisprudence of the United States and of individual states. So that was the classic...

SCHUMER:

Sovereign immunity.

SESSION:

Attorney general. I mean I've relied on every attorney general who relies on it. It's not explicitly stated in the constitution directly but there is a sense in which if the state can be sued or the Federal government can be sued, it can be destroyed. So you have to

SCHUMER:

I understand but that's where we pass from strict constructionism to judicial activism in a certain way and...

SESSION:

I don't think the constitution ever covered everything and this was existing principle at the time.

SCHUMER:

Look, I've made that argument for a long time as you know. Let me go to Justice Cook.

HATCH:

One last question...

SCHUMER:

Justice Cook, it's a very long one (inaudible) OK, Justice Cook, it's my understanding that you previously discussed a decision in Davis v. Wal-Mart with Senator Kennedy. I'd like to return to the case. I'm troubled by your dissent. In that case, a widow, whose husband had been killed on the job, settled a lawsuit against the employer. She then attempted to file a second lawsuit after learning that the employer had instructed employees to lie about how her husband had been killed. The employer apparently did this in order to wrangle a settlement out of her. Your colleagues found that this evidence was not only enough to permit the suit to go forward, but that it actually might support punitive damages. Punitive damages are usually reserved for cases where the wrong doing is blatant. It seems kind of blatant here.

It's my understanding that you explained to Senator Kennedy that your dissent in this case was based on your view that (inaudible) prevented the widow from filing the suit. Is that correct?

COOK:

Only because she had previously litigated this matter. She filed a negligence—yes, so she had a negligence action that was concluded.

SCHUMER:

Right.

COOK:

And that this claim was sufficiently related and could have been brought...

SCHUMER:

So you're relying on (inaudible)

COOK:

That's right.

SCHUMER:

Once an issue is decided, it's final and to reach the conclusion that the widow couldn't refile her suit, once, even after she learned after the company's quite horrible deception. Another fundamental principle however of our legal system is that juries find facts based on the evidence presented. And judges and appellate courts give a great deal of deference to those jury determinations, it's my understanding, that to overturn a jury verdict an appellate court must find that the jury's decision was quote, against the manifest weight of the evidence. And that's as we all know, rather high standard.

In Burns v. LCI Communications, a jury found that employees had suffered age discrimination and the evidence at trial included statements by the employer that quote, wanted to bring in young, aggressive staff members and change out the old folks, unquote and that he did not want, that he did not, quote, want old marathoners in my sales organization. I want young sprinters. This man was not in charge of the Senate.

Despite this evidence which was enough to convince a jury of age discrimination, you voted to overturn the jury's verdict for the employees. It appears that you substituted your views for those of the jury who actually heard the testimony and saw the evidence of discrimination. I find it troubling that legal principles constrained you in this case where you're vindicating an employer. How do you explain the deference to legal principles in the one case, Davis v. Wal-Mart, you denied the widow's right to her day in court, but you're willingness to disregard other important legal principles when a jury has found evidence of discrimination?

COOK:

In the...

SCHUMER:

You can just pull the mike a little closer.

COOK:

I'm sorry. In the Burns case that you—the verdict was overturned by the court of appeals unanimously and then five of the seven members of the Ohio supreme court agreed that the plaintiff had not shown that she had been discriminated against. So we were—they agreed that there was a disagreement among us but at least all five members agreed that she had not shown discrimination and the facts you're mentioning, the sprinters, etcetera. I have not a great recollection of it, but I think the point was that those comments were made years before so the effort, the plaintiff's effort which garnered a verdict did not use evidence of, that was not related to her and so I mean a good majority of the supreme court agreed that actually discrimination had not been shown even though when you cite it, it all sounds pretty awful. But the three judges of the court of appeals and five of the supreme court agreed.

SCHUMER:

In Burns?

COOK:

Yes.

SCHUMER:

OK, just explain the first case, your ruling in...

COOK:

Wal-Mart?

SCHUMER:

Wal-Mart, yes.

COOK:

I'm getting tired. In Wal-Mart I think we just talked about it was a (inaudible) was the basis for my dissent and that's a dissent in Wal-Mart. And it was the second matter after the negligence claim, the widow had the information. She said that she then learned later that the employer...

SCHUMER:

Say that again, it was after the second, she didn't get the information until...

COOK:

She didn't—no, the record actually showed that she had that information but and then didn't bring it. I mean had it within time to bring it as part of the original negligence claim and failed to do so.

SCHUMER:

I see.

COOK:

And so we determined that it was waived.

SCHUMER:

(inaudible) Don't remember, OK. Well, I don't quite—you know it better than me again but I think the second case, the Burns case, at least from what my cursory knowledge is a little different. So I'm going to just ask Mr. Chairman in the interest of time, that I be—submit some questions about these two issues and maybe some others to Judge Cook in writing.