S5422 CONGRESSIONAL RECORD — SENATE April 28, 2003 where he can raise issues of federalism does not specifically recall these re- make my concerns known. This is one or that will affect local and state gov- marks and that, in the ones he recalls, of those times. In his selection of Mr. ernment interests. And his federalism he was constrained to argue the posi- Sutton for the Sixth Circuit, the Presi- practice boomed as he actively pursued tions that he argued on behalf of his dent and his advisors are attempting to cases attractive to his ideology and clients. As far as I know, no one forced skew its decisions out of step with the through his contacts among the mem- Mr. Sutton to write any article, and mainstream and in favor of States’ bers of the Federalist Society. In an- most lawyers are certainly more care- rights over civil rights, anachronistic swer to my follow-up questions, Mr. ful than to attribute their name to any ideas over people. Sutton admitted that he had taken no paper that professes a view with which The Sixth Circuit is one on which case in which he argued against a state they strongly disagree. In my view, Mr. Senate Republicans stalled three nomi- claiming immunity from suit under the Sutton’s suggestions that he does not nees of President Clinton during his Eleventh Amendment. Despite his prot- personally believe what he has written last four years in office. They closed estation that he might argue either are intellectually dishonest, insincere and locked the gates to this court in side of any case, it must certainly be and misleading. 1997. Professor Kent Markus’ coura- more than a coincidence that every In sum, Mr. Sutton’s extreme theo- geous testimony about that partisan time he has argued before the Supreme ries would restrict Congress’ power to process rings in my ears. Despite those Court he has always been on the same pass civil rights laws and close access excesses by Senate Republicans, during side of this issue. Despite numerous to the federal courts for people chal- my chairmanship, the Senate con- questions, Mr. Sutton did not ade- lenging illegal acts by their state gov- firmed two new conservative members quately address these concerns at his ernments (limiting individuals’ ability to the Sixth Circuit. With this nomina- hearing nor show that he has the abil- to seek redress for violations of civil tion, the plan of Republicans to pack ity to put aside his years of passionate rights). If a State government does this court and tilt it sharply out of bal- ance is evident for all to see. advocacy and treat all parties fairly. something wrong, we ought to be able On the contrary, when you talk to Mr. Before and after he took office, Presi- to sue the State government. dent Bush said that he wants to be a Sutton and you look at his testimony, I remember shortly after the Soviet he demonstrates he has not considered uniter and not a divider, and yet he has Union broke up, when a group of par- the impact that his arguments have on sent and resubmitted to the Senate liamentarians and lawyers came here the lives of millions of women, seniors, several nominees who divide the Amer- to visit with a number of Senators the disabled, low-income children, and ican people. The Senate has already about how they would set up a judicial state employees, and that he favors confirmed 119 of his other judicial system in the former Soviet Union. ideas over people, states’ rights over nominees. The Committee and the Sen- One asked the question: We have civil rights, and a patchwork of local ate made the judgment that those heard that there are cases where some- rules over national standards. nominees will fulfill their duties to act body may sue the Government, and the He has every right to these views, but fairly and impartially. Most were not when it becomes clear that those are Government loses. How could that pos- divisive or extreme. I urge the Presi- the views that would be expressed by sibly happen? dent to choose nominees who fit that an extremist, then we have to ask our- So we explained the independence of profile, rather than the alternative he selves: Are we rubberstamping or are our courts, and we look for justice in seems intent on imposing for so many we advising and consenting? Frankly, I the law and so on. circuit court nominees. End the court- He said: You mean you didn’t fire the believe in this case we would be packing effort and work with all in the rubberstamping, not advising and con- judge if he allowed the Government to Senate to name consensus, fair-minded senting. lose? federal circuit judges. Mr. Sutton has stated in several arti- I said: Quite the opposite. In fact, the The oath taken by federal judges af- cles that states should be the principal Government often loses. firms their commitment to ‘‘admin- bulwark in protecting civil liberties, a Listening to Mr. Sutton, there are a ister justice without respect to per- claim that has serious implications lot of areas where the Federal courts sons, and do equal right to the poor and given a history of state discrimination would be closed to people who chal- to the rich.’’ No one who enters a fed- against individuals. In numerous pa- lenge illegal acts by their State gov- eral courtroom should have to wonder pers for the Federalist Society, he has ernment. whether he or she will be fairly heard repeatedly stated his belief that fed- In the name of the concept of sov- by the judge. Jeffrey Sutton’s record eralism is a ‘‘zero-sum situation, in ereign immunity, Mr. Sutton threatens does not show that he will put aside his which either a State or a federal law- to undermine uniform national laws years of passionate advocacy in favor making prerogative must fall.’’ In his protecting individuals’ rights to wel- of states’ rights and against civil articles, he has stated that the fed- fare, housing, clean air, equality, and a rights, and his extreme positions favor- eralism cases are a battle between the harassment-free environment, and to ing severe restrictions on Congress’ au- states and the federal government, and undermine the core protections and thority. Accordingly, I will not vote to ‘‘the national government’s gain in services afforded by Congress to work- confirm Mr. Sutton for appointment to these types of cases invariably becomes ers, the disabled, the aged, women, and one of the highest courts in the land. members of religious minorities. the State’s loss, and vice versa.’’ f He also states that federalism is ‘‘a This view of federalism undermines neutral principle’’ that merely deter- the basic principle, announced in NOMINATION OF JUDGE EDWARD mines the allocation of power. This Marbury v. Madison, that ‘‘[t]he very PRADO view of federalism is not only inac- essence of civil liberty certainly con- Mr. LEAHY. Mr. President, I am dis- curate but troubling. First, these cases sists in the right of every individual to appointed that Senate Republicans are not battles in which one law-mak- claim the protection of the laws, when- continue to focus on the most divisive ing power must fall, but in which both ever he receives an injury.’’ The judi- judicial nominees and the White House the state and the federal government— cial role of enforcing and upholding the continues its efforts to pack the courts and the American people—may all win. Constitution becomes hollow when the ideologically, while the nomination of Civil rights laws set federal floors or government has complete immunity to Judge Edward Prado to the United minimum standards but states remain suit. The burden should be on Mr. Sut- States Court of Appeals for the Fifth free to enact their own more protective ton to show that he will protect indi- Circuit is being held captive on the laws. Moreover, federalism is not a vidual rights and civil rights as a life- Senate calendar. All Democratic Sen- neutral principle as Mr. Sutton sug- time appointee to the Sixth Circuit ators serving on the Judiciary Com- gests, but has been used by those crit- Court of Appeals. This he has not done. mittee voted to report this nomination ical of the civil rights progress of the As I have said on other occasions, favorably. All Democratic Senators last several decades to limit the reach when the President sends us a nominee have indicated that they are eager to of federal laws. who raises concerns over qualifications proceed to this nomination and, after a Mr. Sutton tried to disassociate him- or integrity or who displays an inabil- reasonable period of debate, voting on self from these views, by saying that he ity to treat all parties fairly, I will the nomination. VerDate Mar 15 2010 22:04 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00022 Fmt 0637 Sfmt 0634 E:\2003SENATE\S28AP3.REC S28AP3 mmaher on DSKCGSP4G1 with SOCIALSECURITY April 28, 2003 CONGRESSIONAL RECORD — SENATE S5423 I am confident this nomination will ness outlined by Attorney General Latino nominee to that Court had even be confirmed by an extraordinary ma- Robert Jackson in the 1940’s, this ad- been allowed a hearing by the Senate jority—maybe unanimously. The ques- ministration has stonewalled. And Re- Judiciary Committee, let alone a vote tion arises why the Republican leader- publican Senators and other partisans on the floor.