Floor Statement Jeffrey Sutton Nomination -- A Lawyer Representing His Clients

FLOOR STATEMENT JEFFREY SUTTON NOMINATION -- A LAWYER REPRESENTING HIS CLIENTS

Mr. President, I would like to talk for just a minute about the case that has received the most attention in the debate over Jeff Sutton's nomination -- and that is the case of the Board of Trustees of the University of Alabama v. Garrett. Mr. Sutton has been criticized for representing the University of Alabama in the U.S. Supreme Court -- specifically for presenting Alabama's constitutional sovereign immunity argument.

In the Garrett case, the Supreme Court held that a disabled individual cannot sue a state for money damages for employment discrimination under the Americans with Disabilities Act (ADA). The Court said that in order for Congress to pass that particular remedy -- money damages against a state -- it first had to show that states were engaging in a pattern of employment discrimination against the disabled. The Court said that Congress had not met the burden of proof required by the Constitution.

I disagree with the Court's decision in Garrett, and I disagree with Alabama's arguments, as presented by Jeff Sutton in the Supreme Court. Here is why.

First, I believe that Congress did, in fact, meet its burden in passing the ADA. It established the record of discrimination against the disabled necessary to pass constitutional scrutiny by the courts. We sent a loud and clear message to the courts in the findings of the ADA and in an extensive legislative history.

What happened in Garrett is that the Supreme Court substituted its judgment for ours. The Court reviewed our extensive findings and legislative history, then, one by one, dismissed them as inadequate. I am deeply troubled by the Court's lack of deference to Congress in Garrett, and this lack of deference is why many of us in this body believe that the Supreme Court got it wrong in that case. Ultimately, though, Mr. President, whether I agree or disagree with Jeff Sutton's arguments in the Garrett case is irrelevant, because Jeff Sutton was doing nothing more than acting as a lawyer. It is clear that all Jeff Sutton has done is successfully argue his client's position in some controversial cases. Bluntly, that is what lawyers do -- they argue for their clients. And, as Mr. Sutton has testified, he has argued on behalf of a wide range of clients on a wide range of issues. Back in January 2003, the Columbus Dispatch weighed-in on this exact point, when it wrote:

"The fact is, Sutton is guilty of nothing except being a good lawyer. When he represents a disabled client, he fights hard for the disabled client. When he is representing a state opposing an extension of federal power, as in the ADA case, he fights hard for his state client. That is what attorneys are supposed to do."

I absolutely agree with that assessment and believe that arguing that Jeff Sutton should not be confirmed because of his legal representation in Garrett sets a dangerous precedent. We should not go down the path of denying the confirmation of a nominee because we may not like some of the clients he has represented or because we disagree with the arguments he has made as an attorney. Think about it -- if that were the standard we applied, we would never confirm anyone with a background as a criminal defense lawyer!

For example, what would this criterion have meant for Supreme Court Justice Thurgood Marshall? In 1943, Thurgood Marshall successfully argued a case before the U.S. Supreme Court on behalf of an accused rapist.

He used a technical jurisdictional argument to defend his client. Specifically, he argued that the federal government could not prosecute his client for a rape that took place on a federal military installation in Louisiana, based on an obscure land acquisition act. There was no question in this case as to the actual guilt of the defendant, only whether the federal government had jurisdiction to prosecute the individuals guilty of the crime.

Nobody argued that Thurgood Marshall should not be confirmed because of his role as a defense lawyer in that case. He was doing his job -- defending his client's legal position.

Obviously his role in this case did not mean that he believed that the federal government should not be able to prosecute crimes, or that Thurgood Marshall was not sympathetic to women's issues, or that he was in any way sympathetic to rapists.

Let me raise an example that was called to the attention of the Senate Judiciary Committee by a another Court of Appeals nominee -- the example is John Adams. John Adams, the revered and well-known patriot of our nation's Revolutionary War, represented extremely unpopular clients while acting in his capacity as a private attorney.

As some of my colleagues may recall, John Adams argued in a murder trial on behalf of a prominent Captain in the British Army and several of his soldiers who had allegedly killed five Boston citizens and injured several others in what is known as "the Boston Massacre." Adams described his work on behalf of the British soldiers as "the most gallant, generous, manly and disinterested Actions of my whole life, and one of the best pieces of service I ever rendered my country." He also described his involvement in the Boston Massacre case as a source of great anxiety -- evidence enough that his representation of the soldiers was, as a political and social matter, extremely unpopular at the time.

As my colleagues know, John Adams was successful in his representation of the soldiers. Clearly, however, John Adams was not sympathetic to British rule or murder nor opposed to popular citizen uprisings.

Would the United States Senate have not confirmed John Adams to a court because of his work as a lawyer? I seriously doubt it.

There are many examples of individuals who were confirmed by this body for service on the federal bench and had, during their time in private practice, represented unpopular clients or causes.

Supreme Court Justice John Paul Stevens, for example, represented two corporations charged in two separate cases with conspiracy to monopolize markets and illegal restraint of competition. Despite his work on behalf of these corporations, few would argue that Justice Stevens unfairly favors the interests of businesses over those of consumers or that his efforts as a lawyer in these cases reflect his personal feelings about corporate misconduct.

To take a few more recent examples, Eric Clay, confirmed in 1997 to the 6th Circuit Court of Appeals, represented a number of client positions that many might find personally problematic -- an insurance company that was seeking to deny benefits to a disabled individual covered by the company's policy; a defendant in a sex discrimination suit; and a corporation which was seeking to displace, by condemnation if necessary, an entire town in Michigan so that an automaker could build an assembly plant on the land. Nonetheless, nobody would argue that Judge Clay then or now on the basis of his work as an attorney, held personal views that were hostile toward employees, the disabled, or people who live in small towns.

Frank Hull, who was confirmed in 1997 to the 11th Circuit, represented a company seeking to deny life insurance benefits to the spouse of a deceased employee and also represented an accounting firm that was accused of financial fraud. Justice Hull was confirmed 96-0 -- nobody believed that Judge Hull had a bias against widows or that he supported financial fraud.

Merrick Garland was confirmed in 1997 to the D.C. Circuit Court. Prior to that, in his capacity as a federal prosecutor, he successfully opposed a defendant who was trying to assert his constitutional right to due process in order to overturn a drug conviction.

Nobody in the Senate believes that Judge Garland has any personal opposition to constitutional due process protections.

Robert Bruce King, confirmed in 1998 to the Fourth Circuit Court of Appeals, represented a client accused and convicted of defrauding the U.S. Department of Housing and Urban Development. Nonetheless, nobody believes that Judge King advocates the practice of defrauding the government or that he is somehow hostile toward the mission of the Department of Housing and Urban Development.

The list goes on and on, Mr. President, and I am sure that members of the Senate and their staffs could easily come up with a laundry list of examples where an individual has represented potentially unsavory clients or causes in private practice and has nonetheless been confirmed to the federal bench by the Senate. Members of this body did not oppose these nominees just because they might not have liked all of the nominee's clients, and rightly so.

This shouldn't even be an issue -- the idea of zealously advocating for your client, no matter who that client is and what he or she is accused of, is basic and fundamental to the very idea of being a lawyer. In fact, the American Bar Association Model Code of Professional Conduct explicitly addresses this issue. The Model Code, Canon 7-1, states this:

"The duty of a lawyer, both to his client and to the legal system, is to represent his client zealously within the bounds of the law."

The individuals listed above represented their clients, even the unpopular ones I've mentioned, because they understood their role as attorneys. They were dedicated to zealously representing their clients, whomever they might be. Jeff Sutton has shown the same dedication.

He has been a passionate advocate for his clients, as every lawyer is duty-bound to be. He should be confirmed for this, not condemned.