Nomination of Jeffrey S. Sutton to be United States Circuit Judge for the Sixth Circuit

NOMINATION OF JEFFREY S. SUTTON, OF OHIO, TO BE UNITED STATES CIRCUIT JUDGE FOR THE SIXTH CIRCUIT

Mr. SCHUMER. Mr. President, I rise in opposition to the nomination of Jeffrey Sutton to the Sixth Circuit Court of Appeals. I am going to get into Mr. Sutton in a minute, but I just say that Mr. Sutton is another example of nominees who have been nominated who are not simply mainstream conservatives but are way over to the right side. That is what we have seen in this judicial process. We have seen nominee after nominee after nominee who is not simply a mainstream conservative—we voted for most of those—but a nominee who is a passionate ideologue and whose major view—if you had to underline it all, perhaps with the exception of the issue of choice—is a wish to curtail the power of the Federal Government.
    
They, in a very real sense, wish to turn the clock back—many not to the 1930s but even to the 1890s. There has been 100 years of history that the Federal Government expanded its power to deal with injustices that occurred with individuals. Keeping in concept with a limited government and a free market society, the general consensus in our society has been to move forward. There have been ebbs and flows. I think there was legitimacy to Ronald Reagan. There had been 50 years of Federal expansion and he said retrench. Since that time I think there is no groundswell among the American people to turn the clock back to 1930 or 1890. Any attempts by either the President or the Congress to do that are always defeated, or almost always defeated in the long run because those two parts of our Government, the article I part, the Congress, and the article II part, the Executive, are elected.

What has happened here, Mr. President, is that those who wish to turn the clock back—a narrow band of ideologues—have either captured the President's ear or certainly captured the nomination process, and they put forward nominee after nominee after nominee who is beyond the mainstream—not people who disagree on views but people, if they sat in this Chamber, would be more conservative perhaps than any of the 100 Senators. But they are not elected.
    
The President and his allies thought they could do this without a whimper. Some of us, a year and a half ago, said we were going to question these nominees on their ideological views, on their judicial philosophy. Initially, there was an outcry, but I think basically the argument has been settled.
    
Certainly, there is a right to ask nominees about their views. Secondly, I believe there is an obligation because the article III section of Government, the judiciary, has huge power. The nominees, if they become members of the bench, are there for life. This is the only chance because the White House doesn't vet their views. In fact, there seems to be a philosophy in the White House to tell the nominees to say as little as possible, and the apotheoses of that was Miguel Estrada, who was like a Cheshire cat and would not say a single thing about his views. But with the problems that Mr. Estrada has had on this floor, I think that philosophy is not going to work.
    
My guess is if any other nominees to the court of appeals took the strategy of not dare telling us how they think on anything, they would reach the same fate as Mr. Estrada, and they would not be supported by a majority here. They will not be nominated either. Mr. Sutton is one of these nominees. He is not merely a conservative judge. In fact, as I said, conservative judges are nominated—there is a nominee, for instance, in the Fifth Circuit who is pending right now, Judge Prado. Judge Prado is conservative, but he is not out of the mainstream. He is Hispanic. He is nominated to the Fifth Circuit. The majority doesn't bring him forward. Why? Because they know he will be supported by the majority on our side. Instead, we are going to refight the nomination of Priscilla Owen, one of the judges like Judge Sutton who is way over.
    
The point is that we are not blocking every judge. I don't have the exact number, but of approximately 110 or 120 of the President's nominees, I have supported around 100. And 111 out of 116 of the President's nominees have been confirmed. I voted for all 111 of them.
    
There are some who are so far over that we have to say no. Mr. Sutton is such a nominee. I just wish our President would understand this, would treat the Senate with some respect, would understand that the checks and balances in this Government make sense, and that he cannot just give the nominating process to a small group of ideologues, led by the Federalist Society, who have a view—a very respectful view, but it is out of the mainstream, way out of the mainstream.
    
Very few people believe the Federal Government's role should be cut so dramatically that we go to a Federal Government ala 1930 or 1890. So I believe our fight on these issues is gaining support, not losing it. It is a tough fight to make.
    
Why not give the President his way? No one knows the damage these nominees will do because they have not heard these cases. I will say that when our caucus rallied and coalesced around opposing the nominee Miguel Estrada and not letting him come to a vote until he was doing what the Founding Fathers wanted him to do, discuss the issues, we did not do it in this caucus for political advantage. We did it because we were so appalled by the arrogance of a nominating process that said the advise and consent process could be ignored and the nominee could say, I cannot answer this because I might have to judge it on a future case. No other nominee has done that.
    
In fact, yesterday, in my State, I was proud to support a nominee of the President named Judge Irizarry, another Hispanic nominee. I called her into my office and talked to her. I said, give me some court cases you do not like. And without flinching, this woman, educated, I believe, at Columbia and Yale, an excellent lawyer, an excellent judge, told me two cases, one she disagreed with from the right, one she disagreed with from the left. I told the White House, let's move her.
    
So this is not an issue of Hispanics or women. This is not an issue of being obstructionist. This is very simply an issue about the Constitution and about some degree of balance that ideologs—neither ideologs of the far left nor ideologs of the far right should capture the judiciary, because when they do, they do not interpret the law, which is what the Founding Fathers wished them to do but, rather, they make law.
    
The great irony is the conservative movement in the 1960s and 1970s had a revulsion towards judge-made law. I remember arguing with some of my classmates in college about this. All of a sudden it has flip-flopped and now activism on the rightwing side is okay, turning the clock back, which certainly in an Einsteinian way, and I think in a general way, is as much changing direction as moving it forward, is not activism but fidelity to the Constitution? Judge after judge will reverse precedent—that is what activism is—when they should not.
    
So I believe, with every bone in my body, with every atom in my body, that we are doing the right thing here—that we are doing more than the right thing; we are doing the Nation a service. If we succeed, no one will ever know because the kinds of cases that would be ruled on will not come to the fore. If we fail, people will know, but it may not be for 5 or 10 years. It is the right thing to do. We know it, and I believe most people over there know it.
    
These are not nominees who are mainstream. They are not the kinds of nominees Bill Clinton generally nominated, people who were to the liberal side but not out of the mainstream, not a whole lot of legal aid lawyers or ACLU advocates but, rather, partners in law firms and prosecutors. That was the Clinton nominee.
    
Here, it is nominee after nominee who sort of with a passion wishes to say the minute the Federal Government moves its fingers, chop them off.
    
Let's talk a little bit about Mr. Sutton, because I think he fits that extreme mold. Now to his credit—and I want to give him credit—he answered questions when we asked him. He was not silent like Miguel Estrada. I do not hear anybody saying he is violating Canon No. 5 of the lawyers' ethics by saying how he felt on certain issues. That was why Mr. Estrada would not tell us things.
    
In general, some of the cases he has talked about advance an agenda that is antirights, antifairness and, in my judgment, antijustice. Probably the most notorious is Patricia Garrett. There, he sought and obtained—this was not just someone who looked up his name in the phone book, went and looked up an "S" and came to Sutton. He went out of his way to find the opportunity to oppose a breast cancer patient's bid to vindicate a right to keep her nurse's job. In other words, she was fired because she had breast cancer.
    
He went so far as to argue the Congress had no power under the 14th amendment to protect the disabled. Whether you agree or disagree with the view, it is clearly an attempt to say the Federal Government, in the kind of general, gradual, fitful progress we have made to protect the rights of individuals, should be pushed back.
    
In the case of Westside Mothers, Mr. Sutton again grabbed the opportunity to oppose a group of mothers whose children were being deprived of services under Medicaid. Mr. Sutton apparently believed impoverished children should not have the right to force the State they live in to provide them services that Congress guaranteed to them. Again, cut the Federal Government back.
    
In another case, Mr. Sutton sought the opportunity to file a brief arguing Congress does not have the power to address violence against women and argued that significant portions of the Violence Against Women Act were unconstitutional.
    
Do my colleagues think most of America agrees with that? Do they think most of America thinks Congress has no right to legislate, particularly when there are findings that say this is interfering with commerce and interfering with women's rights to hold jobs and be productive citizens? It is sort of obvious if a woman is beaten at home, that that will interfere. Do my colleagues think most Americans agree with Mr. Sutton to say there should be no Federal power to do it?

    
The bottom line is, in case after case, Mr. Sutton has sought the opportunity to represent States rights at the expense of individual rights. He has sought the opportunity to seek injustice at the expense of basic fairness, guided by some ideological construct that the Federal Government is bad, it is evil, it grabs too much power, in ways that most Americans, 95 percent—99 percent, maybe of all Americans—would have no problem with.

Mr. SCHUMER. Now, it is no exaggeration to say Jeffrey Sutton is one of the architects of the rightwing revolution that is taking place in our Federal courts. In hearings before the Judiciary Committee, he claimed he was trying to build a Supreme Court practice and he cannot be condemned for the views espoused in his advocacy, because lawyers have to represent their clients. Generally, that is true. If Mr. Sutton were a public interest lawyer taking all cases that come to him, I would agree. If he were a junior associate taking the cases partners assigned to him, I would agree. If he had a diverse array of cases taking different ideological perspectives, I would agree. But the cases Mr. Sutton took reflect a clear agenda. He believed in what he was doing.
    
In one interview, Mr. Sutton said: I love this Federalism stuff. It was obvious to me, at least, that at the hearing this was a personal agenda for him. He has taken positions far beyond what his clients' interests have demanded. His record, viewed as a whole, makes clear he has an agenda and his career has been devoted to advancing that agenda.
    
Frankly, I do not believe someone with such strong against-the-grain ideological views will simply set them aside to become a fair and neutral judge. That is a pretty tough thing to do.
    
So the bottom line is we have another nominee from the extreme, another nominee clearly bright, clearly accomplished—I have no dispute with his intellectual character or his ethics, but he comes from way outside the mainstream. It is a pity this judge divides us, does not unite us. If every judge the President nominated were that way, I would say it is not much of an argument, but it is just some. So I would urge my colleagues to oppose Mr. Sutton.
    
Frankly, I think a large number will. I think because Mr. Sutton answered questions and other reasons that there is not going to be a prevention of his nomination from coming to a vote. He certainly adds weight and burden to future nominees because many Members want to seek balance on the courts. Jeffrey Sutton does not bring a bit of balance to the courts. It continues the push, bringing them far over to the right side to eliminate the powers of the Federal Government or to greatly reduce the powers of the Federal Government at a time when only a small band of ideologues is demanding just that.
    
I yield the remainder of the time I have not used to my colleague from Iowa, and I yield the floor.