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. I recall President Clin- ship in the Senate has made no effort could not wait to claim that the im- ton’s two Hispanic nominations to the to proceed to Senate consideration of passe created by the White House’s Fifth Circuit and the poor treatment this judicial nomination—none. change in policy and practice with re- they received from the Republican-led In a statement in the RECORD early spect to nominations was somehow at- Senate. this month, I raised this matter. Then tributable to Democrats being anti- Judge Jorge Rangel was a former at the Judiciary Committee business Hispanic. The charge would be laugh- Texas State judge and a dedicated at- meeting on April 10, more than two able if it were not so calculated to do torney in private practice in Corpus weeks ago, I raised this matter, again. political damage and to divide the His- Christi, Texas when President Clinton Still, there has been no response and panic community. That is what Repub- nominated him to the United States no effort to bring this matter before lican partisans hope is the result. That Court of Appeals for the Fifth Circuit the Senate for consideration and a is wrong. in 1997. Judge Rangel is a graduate of vote. The Republican leadership would So some have come to the conclusion the University of Houston and the Har- rather focus exclusively on those con- that Republican delay in connection vard Law School and earned a rating of troversial circuit court nominees that with the consideration of Judge ‘‘Well Qualified’’ by the American Bar raise the most problems than proceed Prado’s nomination may be related to Association. Yet, under Republican to fill vacancies with nominations on the political strategy of the White leadership, he never received a hearing which we are able to achieve agree- House to unfairly characterize Demo- on his nomination, let alone a vote by ment. crats. Might the record be set straight the Committee or by the full Senate. That is most unfortunate and most if Democrats were seen to be sup- His nomination languished without ac- telling. porting this Hispanic nominee to the tion for 15 months. Despite his treat- Instead of proceeding to the nomina- Fifth Circuit. Might the Republicans’ ment, this outstanding gentleman has tion of Judge Prado, Republicans in- own record of opposing President Clin- recently written us in support of a ju- sisted on pressing forward with the ton’s nominations of Judge Jorge Ran- dicial nominee of President Bush. controversial and divisive nomination gel and Enrique Moreno to that same After Judge Rangel, disappointed of Priscilla Owen in early April and circuit court be contrasted unfavorably with his treatment at the hands of the with the controversial and divisive with Democrats’ support of Judge Republican majority, asked the Presi- nomination of Jeffrey Sutton this Prado. dent not to resubmit his nomination, week. Might Judge Prado, a conservative President Clinton nominated Enrique Judge Prado is nominated to the from Texas with a public record service Moreno, a distinguished attorney in Fifth Circuit and is an exceptional can- as a Federal district court judge, be- private practice in El Paso, Texas. Mr. didate for elevation to the appeals come the first Hispanic appointed by Moreno is a graduate of Harvard Uni- court. He has significant experience as President Bush to the circuit courts versity and the Harvard Law School. a public servant in west Texas. Perhaps with widespread support from Senate He was given the highest rating of the fact that he has bipartisan support Democrats. Might this more main- unanimously ‘‘Well Qualified’’ by the is the reason why he is not being stream, consensus nominee stand in ABA. Mr. Moreno also waited 15 brought forward at this time for a floor stark contrast to the ideological months, but was never allowed a hear- vote. choices intended to pack the courts on ing before the Senate Judiciary Com- That does not fit the Republican which the White House and Senate Re- mittee. President Clinton renominated message but reveals the truth: That publicans concentrate almost exclu- him at the beginning of 2001, but Presi- Democratic Senators, having already sively. dent Bush, squandering an opportunity acted on 119 judges appointed by Presi- Judge Prado has 19 years of experi- for bipartisanship, withdrew the nomi- dent Bush are prepared to support even ence as a U.S. District Court judge, nation and refused to renominate him. more of his nominations when they are which provides us with a significant ju- In addition, President Clinton nomi- mainstream, consensus nominees. Per- dicial career to evaluate. A review of nated H. Alston Johnson to the 5th Cir- haps the fact that Democrats unani- Judge Prado’s actions on the bench cuit in 1999. This talented Louisianan mously supported his nomination in demonstrates a solid record of fairness came to the Senate with the support of Committee is seen as a drawback for and evenhandedness. both of his home state Senators, but he Mr. Prado in the Republican world of While I may not agree with each and never received a hearing on his nomi- nomination politics. I hope that is not every one of his rulings or with every nation or a vote by the Committee or the case. action he has taken as a lawyer or the full Senate in 1999, 2000, or the be- I also hope the fact that Judge Prado judge, my review of his record leads me ginning of 2001. His nomination lan- is Hispanic is not a factor in the Re- to conclude that he will be a fair judge. guished without action for 23 months. publican delay. Some have suggested No supervisor or colleague of Judge In contrast, when I served as Chair of that Judge Prado is being delayed be- Prado’s has questioned his ability or the Judiciary Committee last Con- cause Democratic Senators are likely willingness to interpret the law fairly. gress, we granted Edith Clement a to vote for him and thereby undercut Judge Prado enjoys the full support of hearing within months of her nomina- the Republican’s shameless charge that the Congressional Hispanic Caucus and tion. At that time there had been no the opposition to Miguel Estrada is the Mexican American Legal Defense hearings on 5th Circuit nominees since based on his ethnicity. Republican par- and Education Fund. Not a single per- 1994 and no confirmations since 1995. tisans have made lots of partisan hay son or organization has submitted a Under Republican leadership, none of attacking Democrats in connection letter of opposition or raised concerns President Clinton’s nominees to this with the Estrada nomination. We all about Judge Prado. No controversy. No Court received a hearing during his en- know that the White House could have red flags. No basis for concern. No op- tire second term of office. cooperated with the Senate by pro- position. Some of my friends on the other side ducing his work papers and the Senate This explains why his nomination of the aisle have made the outrageous could have proceeded to a vote on the was voted out of the Judiciary Com- claim that Democratic Senators are Estrada nomination months ago. The mittee with a unanimous, bipartisan anti-Hispanic or anti-Latino. I think it request for his work papers was sent vote on an expedited basis. is important to set the record straight. last May. To understand the importance of Of the 10 Latino appellate judges cur- Rather than respond as every other Judge Prado’s nomination, we must rently seated in the Federal courts, administration has over the last 20 put it in the context of prior nomina- eight were appointed by President Clin- years and provide access to those pa- tions to the Fifth Circuit Court of Ap- ton. Three other Latino nominees of pers, this White House has stonewalled. peals. Until Judge Prado’s hearing, it President Clinton to the appellate Rather than follow the policy of open- had been more than a decade since a courts were blocked by Republicans, as

VerDate Mar 15 2010 22:04 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00023 Fmt 0637 Sfmt 0634 E:\2003SENATE\S28AP3.REC S28AP3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S5424 CONGRESSIONAL RECORD — SENATE April 28, 2003 well as several others for the district Ninth Circuit Court of Appeals. Unlike I ask unanimous consent that a copy court. In fact, in contrast to the Presi- the divisive nomination of Carolyn of David Broder’s April 16 column on dent’s selection of only one Latino cir- Kuhl to the same court, both home the nomination of Judge Prado be cuit court nominee in hist first 2 years state Senators returned their blue slips printed in the RECORD. in office, three of President Clinton’s and support a hearing for Judge There being no objection, the mate- first 14 judicial nominees were Latino, Consuelo Callahan. I hope she receives rial was ordered to be printed in the and he nominated more than 30 Latino a hearing in the near future and look RECORD, as follows: nominees to the Federal courts. forward to learning more about her During President Clinton’s tenure, 10 record as an appellate judge for the TALE OF TWO JUDGES of his more than 30 Latino nominees, State of California. Rather than dis- (By David S. Broder) including Judge Rangel, Enrique regarding time-honored rules and Sen- Were it not for an old friend, I would have Moreno, and Christine Arguello to the ate practices, I urge my friends on the been as oblivious to the story of Judge Ed- circuit courts, were delayed or blocked other side of the aisle to help us fill ward Prado of San Antonio as the rest of the Washington press corps. from receiving hearings or votes by the more judicial vacancies more quickly Judge Tom Stagg of Shreveport, La., told Republican leadership. by bringing those nominations that me his pal was up for appointment to the Republicans delayed consideration of have bipartisan support to the front of U.S. Court of Appeals for the 5th Circuit and Judge Richard Paez for over 1,500 days, the line for Committee hearings and suggested I go by and ‘‘see how they treat and 39 Republicans voted against him. floor votes. him’’ at his confirmation hearing. The confirmations of Latina circuit As I have noted throughout the last Turns out it’s like the Sherlock Holmes nominees Rosemary Barkett and Sonia two years, the Senate is able to move story of the dog that didn’t bark. In the Sotomayor were also delayed by Re- expeditiously when we have consensus, midst of the bitter partisan battle in which mainstream nominees to consider. Na- Democrats have repeatedly blocked a Senate publicans. Judge Barkett was targeted confirmation vote on the nomination of for delay and defeat by Republicans tionally-respected columnist David Miguel Estrada to the U.S. Court of Appeals based on claims about her judicial phi- Broder made this point in an April 16 for the D.C. Circuit, Prado went through like losophy, but those efforts were not suc- column that appeared in the Wash- gangbusters. cessful. ington Post. Mr. Broder noted that The story of why one Latino Republican After significant delays, 36 Repub- when he asked Alberto Gonzales if has such an easy time while another creates licans voted against the confirmation there might be a lesson in Judge such controversy is an instructive tale—and of this nominee who received a ‘‘Well- Prado’s easy approval, Mr. Gonzales one with hopeful implications. Qualified’’ rating by the ABA. Addi- missed the point. In Mr. Broder’s mind: Estrada has been denied an up-or-down vote on the Senate floor because Democrats tionally, Judge Sotomayor, who also ‘‘The lesson seems obvious. Conserv- call him ‘‘a stealth nominee,’’ a man of high received a ‘‘Well-Qualified’’ rating and atives can be confirmed for the courts credentials but no judicial experience and had been appointed to district court by when they are well known in their one they say was unresponsive to their ques- President George H.W. Bush, was tar- communities and a broad range of their tions. Their demand to look at memos he geted by Republicans for delay or de- constituents have reason to think wrote while serving in the Justice Depart- feat when she was nominated to the them fair-minded.’’ To date the Senate ment has been rejected by the administra- Second Circuit. She was confirmed, al- has proceeded to confirm 118 of Presi- tion and neither side has yielded. though 29 Republicans voted against dent Bush’s nominees, 100 in the 17 Given this background, I was expecting to months in which Democrats made up see Prado, 55, put to the test at his Judiciary her. Committee hearing. His credentials are im- It is unfortunate how few Latino the Senate majority. pressive: a graduate of the University of nominees this President has sent to the The lesson that less controversial Texas and its law school, four years each as Senate. It is reassuring, however, that nominees are considered and confirmed a prosecutor and a public defender, a short the Latino nominations that we have more easily was the lesson of the last stint as a state judge, U.S. attorney for three received have been acted upon in a ex- two years and that lesson has been lost years and, since 1984, a federal district peditious manner. on this White House. judge—the last two appointments coming They have overwhelmingly enjoyed Unfortunately, far too many of this from President Ronald Reagan. bipartisan support. Under the Demo- President’s nominees raise serious con- But Prado is also a character. His court- cratically-led Senate, we swiftly grant- cerns about whether they will be fair room is wired with the latest audiovisual equipment, which Prado, a music lover and ed hearings for and eventually con- judges to all parties on all issues. showman, loves to demonstrate. Three years firmed Judge Christina Armijo of New Those types of nominees should not be ago, during a murder-for-hire trial, he came Mexico, Judge Phillip Martinez and rushed through the process. I invite the onto the bench while a recording of ‘‘Happy Randy Crane of Texas, Judge Jose Mar- President to nominate more main- Together’’ by the Turtles filled the air, and tinez of Florida, U.S. Magistrate Judge stream individuals like Judge Prado. then sang: ‘‘Imagine me as God. I do. I was Alia Ludlum, and Judge Jose Linares His proven record and bipartisan sup- appointed by the president. Appointed for- of New Jersey to the district courts. port makes it easier for us to uphold ever. My decisions cannot be questioned by This year, we also confirmed Judge our constitutional duty of advise and you. I’m always right.’’ consent. I encourage those on the other Many judges may feel that way; few say so, James Otero of California, and we and even fewer put it to music. would have held his confirmation hear- side of the aisle to allow us to consider More seriously, in answering the commit- ing last year if his ABA peer rating had his nomination. tee’s questionnaire, Prado noted controver- been delivered to us in time for the I look forward to casting a vote in sial cases in which he ruled against a wom- scheduling of our last hearing. favor of his confirmation. an’s claim of job discrimination by the San Also on the Senate executive cal- I, again, urge the Senate Republican Antonio fire department, a diabetes patient’s endar is the nomination of Cecilia leadership to work with us and to agree claim that he was unfairly found to be medi- Altonaga to be a Federal judge in Flor- to proceed to this consensus nomina- cally ineligible for a police officer’s job, and ida. tion, to provide adequate time for de- a claim that the Texas high school gradua- We expedited consideration of this bate and to proceed to a vote without tion test discriminated against Hispanics. In another part of the questionnaire, he nominee at the request of Senator GRA- further delay. Judge Prado’s nomina- listed 68 criminal, immigration and civil HAM of Florida. She will be the first tion has been delayed on the Senate ex- cases in which he had been reversed or criti- Cuban American woman to be con- ecutive calendar for several weeks, un- cized by the court of appeals. Plenty of fer- firmed to the Federal bench when Re- necessarily in my view. I recall all too tile ground, one imagined, for liberal groups publicans choose to proceed to that vividly when anonymous Republican to challenge elevating a Reagan judge to a nomination. Indeed, Democrats in the holds delayed Senate action on the closely balanced and important bench just Senate have worked to expedite fair nomination of Judge Sonia Sotomayor one level below the Supreme Court. consideration of every Latino nominee to the Second Circuit for seven But in fact the Congressional Hispanic Caucus—which has vigorously opposed the this President has made to the Federal months. I do not want to see that expe- Estrada nomination—wrote a letter endors- trial courts in addition to the nomina- rience repeated by Judge Prado. Let us ing Prado. Rep. Charlie Gonzalez, a Texas tion of Judge Prado. work together. Let us debate and act Democrat and co-signer of the letter, told me Another example, may be the nomi- on the nomination of Judge Prado that he had known Prado for almost 40 years nation of Consuelo Callahan to the without further unnecessary delay. and ‘‘he was everything you want in a

VerDate Mar 15 2010 22:04 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00024 Fmt 0637 Sfmt 0634 E:\2003SENATE\S28AP3.REC S28AP3 mmaher on DSKCGSP4G1 with SOCIALSECURITY April 28, 2003 CONGRESSIONAL RECORD — SENATE S5425 judge—he’s smart and articulate, he’s not ar- court. He is a conservative Republican, controversial cases. Bluntly, that is bitrary, and he really understands people. a Hispanic. Every Democrat is prepared what lawyers do. They argue for their Some of his rulings I would take issue with, to go forward. I ask whoever is holding clients. As Mr. Sutton has testified, he but when the caucus interviewed him, he him up on the Republican side to re- has argued on behalf of a wide range of talked honestly about cases that have im- pacted minorities and he made it clear he lease the hold, let this man go forward clients, on a wide range of issues. knows how important the courts have been and let him be elevated to the U.S. Back in January of this year, the Co- to us. It was so different from our hour’s con- Court of Appeals. lumbus Dispatch weighed in on this versation with Estrada, who conveyed no Mr. President, I yield the floor. exact point when it wrote: sense of what we would think a Latino The PRESIDING OFFICER. The Sen- The fact is, Sutton is guilty of nothing ex- should appreciate about the historical role of ator from Ohio is recognized. cept being a good lawyer. When he represents courts in bringing us to where we are today Mr. DEWINE. Mr. President, I want a disabled client, he fights hard for the dis- and where we need to be tomorrow.’’ to talk for just a moment about a case abled client. When he is representing a State With the backing of the White House and that has seen the most attention in opposing an extension of Federal power, as in the Hispanic caucus, Prado’s confirmation this debate over Mr. Sutton’s nomina- the ADA case, he fights hard for his State hearing was perfunctory Sen. Patrick Leahy client. That is what attorneys are supposed of Vermont, the ranking Democrat and tion, and that is the case of the Board to do. scourge of Estrada, read a statement com- of Trustees of the University of Ala- I absolutely agree with that editorial plaining of past Republican treatment of bama v. Garrett. from the Columbus Dispatch and with President Bill Clinton’s Latino nominees, Mr. Sutton has been criticized for that assessment. I believe arguing that then left without asking any questions. The representing the University of Ala- Jeff Sutton should not be confirmed be- two Republicans present—Sens. John Cornyn bama in the U.S. Supreme Court; spe- cause of his legal representation in of Texas and Jeff Sessions of Alabama—said cifically, for presenting Alabama’s con- they had known Prado for years and simply Garrett or any other case would set a congratulated him. stitutional sovereignty immunity ar- very bad precedent for this body. We Prado was then unanimously confirmed by gument before the U.S. Supreme Court. should not go down that path today or the Judiciary Committee. In the Garrett case, the Supreme tomorrow when we vote. We should not When I asked Alberto Gonzales, the White Court held that a disabled individual go down the path of denying the con- House counsel, if there might be a lesson in cannot sue a State for money damages firmation of a nominee because we may Prado’s easy approval, he replied, ‘‘It’s hard for employment discrimination under to say. We view Judge Prado as no more not like some of the clients he has rep- the Americans with Disabilities Act. resented or because we disagree with qualified than Miguel Estrada or others they The Court held that in order for Con- [the Democrats] have opposed.’’ the arguments he has made as an at- But the less on seems obvious. Conserv- gress to pass that particular remedy— torney. Think about it. If that is the atives can be confirmed for the courts when money damages against a State—it standard we apply, we would never con- they are well known in their communities first had to show that States were en- firm anyone who has a background as a and a broad range of their constituents have gaging in a pattern of employment dis- criminal defense lawyer. reason to think them fair-minded. Even if crimination against the disabled. The The examples are legion. they can’t resist breaking into song. Court said that Congress had not met What would this criterion have Mr. LEAHY. Mr. President, I am con- the burden of proof required by the meant for Supreme Court Justice cerned that we seem to have these divi- Constitution. That was the finding of Thurgood Marshall? In 1943, Thurgood sive nominees. The Republicans are un- the U.S. Supreme Court. Marshall successfully argued a case be- willing to bring forward Judge Edward I disagreed with the Court’s decision fore the U.S. Supreme Court on behalf Prado to the U.S. Court of Appeals for in Garrett, and I disagreed with Ala- of an accused rapist. the Fifth Circuit. I mention this be- bama’s argument as presented by Mr. He used a technical jurisdictional ar- cause I have checked every single Dem- Sutton in the Supreme Court. I believe gument to defend his client. Specifi- ocrat who is willing to have an ex- that Congress did, in fact, meet its bur- cally, he argued that the Federal Gov- tremely short time agreement and go den in passing the ADA. Congress es- ernment could not prosecute his client to a vote on Judge Prado. Apparently, tablished a record of discrimination for a rape that took place on a Federal it is not being brought forward because against the disabled necessary to pass military installation in Louisiana, of a hold on the Republican side. I men- constitutional scrutiny by the courts. based on an obscure land acquisition tion this because we hear often from Congress sent a loud and clear message act. There was no question in this case the White House: Why are Democrats to the courts in the findings of the as to the actual guilt of the defendant, holding up these court of appeals ADA and in an extensive legislative only whether the Federal Government judges? history. had jurisdiction to prosecute the indi- Well, here is one where every Demo- What happened in Garrett was that viduals guilty of the crime. crat is willing to vote on the Presi- the Supreme Court—unwisely, I be- Nobody argued that Thurgood Mar- dent’s nomination to the Fifth Circuit. lieve—substituted its judgment for shall should not be confirmed because He is a distinguished Hispanic, Judge ours. The Court reviewed our extensive of his role as a defense lawyer in that Edward Prado. We are ready to vote on findings and our legislative history, case. He was doing his job—defending him. We have cleared it on this side of then, one by one, dismissed them as in- his client’s legal position. the aisle. Apparently, it is being held adequate. Obviously his role in this case did not up on the Republican side. So the next I must say to my colleagues that I mean that he believed that the Federal time the White House asks why we can- am deeply troubled by the Court’s lack Government should not be able to pros- not move forward with some of these of deference to Congress in the Garrett ecute crimes, or that Thurgood Mar- people, let’s say: Don’t look at us; you case. This lack of deference is why shall was not sympathetic to women’s may want to ask the other side. many of us in this body believe the issues, or that he was in any way sym- It is even interesting that David U.S. Supreme Court, in Garrett, simply pathetic to rapists, for Heaven’s sake. Broder wrote a column, April 16, on the got it wrong. Let me raise an example that was nomination of Judge Prado to this seat Ultimately, whether I agree or dis- called to the attention of the Senate and pointed out that he had come to agree with Mr. Sutton’s arguments, or Judiciary Committee by a another the hearings to see what kind of divi- whether this Senator from Ohio agrees Court of Appeals nominee—the famous siveness there was and found a love-in, or disagrees with the Supreme Court in example is John Adams. John Adams, and he was probably surprised—I don’t that Garrett case, is really irrelevant the revered and well-known patriot of want to put words in his mouth, but he to whether Mr. Sutton is qualified to our Nation’s Revolutionary War, rep- is probably surprised that it has not serve on the Federal bench because, resented extremely unpopular clients been voted on. you see, Mr. Sutton was doing nothing while acting in his capacity as a pri- I will note that Judge Prado has sig- more than acting as a lawyer, as an ad- vate attorney. nificant experience. I do not agree with vocate. As some of my colleagues may recall, him on everything, by any means, but It is clear that all Mr. Sutton has John Adams argued in a murder trial he was originally appointed, I believe, done is successfully argue his client’s on behalf of a prominent captain in the by President Reagan to the district position in that case and in some other British army and several of his soldiers

VerDate Mar 15 2010 22:04 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00025 Fmt 0637 Sfmt 0634 E:\2003SENATE\S28AP3.REC S28AP3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S5426 CONGRESSIONAL RECORD — SENATE April 28, 2003 who had allegedly killed five Boston constitutional right to due process in compliment him on many aspects of citizens and injured several others in order to overturn a drug conviction. his statement especially when he first what is known as ‘‘the Boston Mas- Nobody in the Senate believes that opened up and said that he believed the sacre.’’ Adams described his work on Judge Garland has any personal opposi- Court got it wrong in the Garrett case; behalf of the British soldiers as ‘‘the tion to constitutional due process pro- Congress did have our findings, which I most gallant, generous, manly and dis- tections. have pointed out time and time again interested Actions of my whole life, Robert Bruce King, confirmed in 1998 this afternoon that, in fact, Congress and one of the best pieces of service I to the 4th Circuit Court of Appeals, did have years and years of testimony, ever rendered my country.’’ He also de- represented a client accused and con- markups by five separate committees, scribed his involvement in the Boston victed of defrauding the U.S. Depart- 17 formal hearings, on and on, making Massacre case as a source of great anx- ment of Housing and Urban Develop- the case for the Americans with Dis- iety—evidence enough that his rep- ment. Nonetheless, nobody believes abilities Act. As I understood what my resentation of the soldiers was, as a po- that Judge King advocates the practice colleague from Ohio said, he believed litical and social matter, extremely of defrauding the Government or that the Court got it wrong. I commend him unpopular at the time. he is somehow hostile toward the mis- for his statement on that; obviously, I As my colleagues know, John Adams sion of the Department of Housing and concur in that opinion. was successful in his representation of Urban Development. My good friend from Ohio goes on to the soldiers. Clearly, however, John The list goes on and on, and I am say that basically Mr. Sutton, in argu- Adams was not sympathetic to British sure that Members of the Senate and ing against Mrs. Garrett and in arguing rule or murder nor opposed to popular their staffs could easily come up with a for the State of Alabama in this case, citizen uprisings. laundry list of examples where an indi- was simply representing his client and Would the Senate have not confirmed vidual has represented potentially un- following the canons of legal ethics in John Adams to a court because of his savory clients or causes in private making sure he fought as vigorously as work as a lawyer? I certainly hope that practice and has nonetheless been con- possible on behalf of his client. I under- would not have been true. firmed to the Federal bench by the stand that and I can accept that is There are many examples of individ- Senate. Members of this body did not what Mr. Sutton was doing in this par- uals who were confirmed by this body oppose these nominees just because ticular case. for service on the Federal bench and they might not have liked all of the However, the canons of legal ethics had, during their time in private prac- nominee’s clients, or because they did also make it clear that in representing tice, represented unpopular clients or not like the positions they took or the your client to the best of your ability causes. issues they stood for while advocating and to vigorously defend your client Supreme Court Justice John Paul for that particular client. that you also have to adhere to the Stevens, for example, represented two This should not even be an issue. The codes of ethics and legal ethics and one corporations charged in two separate idea of zealously advocating for your of those is to be truthful and to do due cases with conspiracy to monopolize client, no matter who that client is and diligence in terms of understanding the markets and illegal restraint of com- what he or she is accused of, is basic parameters of mistakes. People do petition. Despite his work on behalf of and fundamental to the very idea of make mistakes; I understand that, but these corporations, few would argue being a lawyer. And, I might add, it I do believe Mr. Sutton in what he said that Justice Stevens unfairly favors goes to the core obligation of being a in his oral argument before the Court the interests of businesses over those lawyer. Once a person takes a case, when he said the ADA was not needed. of consumers or that his efforts as a they must represent that client to the I think that goes a little bit far. Ear- lawyer in these cases reflect his per- fullest of their ability. lier I said he either did not know what sonal feelings about corporate mis- In fact, the American Bar Associa- Congress had done or he did know and conduct. tion Model Code of Professional Con- treated it with disdain. If that were the To take a few more recent examples, duct explicitly addresses this issue. only thing, if Mr. Sutton’s representa- Eric Clay, confirmed in 1997 to the 6th The Model Code, Canon 7–1, states this: tion in the Garrett case were the only Circuit Court of Appeals, represented a The duty of a lawyer, both to his client and thing, I would say those who oppose number of client positions that many to the legal system, is to represent his client him would, indeed, have a weak reed on might find personally problematic: An zealously within the bounds of the law. which to stand. insurance company that was seeking to The individuals listed above rep- But that is not the point. It is not deny benefits to a disabled individual resented their clients, even the un- just Garrett. It is the things Mr. Sut- covered by the company’s policy; a de- popular ones I have mentioned, because ton has said outside of his representa- fendant in a sex discrimination suit; they understood their role as attor- tion of a legal client. and a corporation which was seeking to neys. They were dedicated to rep- Before I get to that I will, again, reit- displace, by condemnation if necessary, resenting their clients, whomever they erate for the sake of emphasis what the an entire town in Michigan so that an might be, and to advocating the cause Senator from Massachusetts, Mr. KEN- automaker could build an assembly and positions of their clients. Jeff Sut- NEDY, said earlier, that in all of his rep- plant on the land. Nonetheless, nobody ton has shown the same dedication. resentations he has never taken a case would argue that Judge Clay then or He has been a passionate advocate for on the other side that is against States now on the basis of his work as an at- his clients, as every lawyer is duty- rights. Never; not one. So he picks out torney, held personal views that were bound to be. He should be judged by his and looks at those cases where he can hostile toward employees, the disabled, advocacy and ability as a lawyer. He be on the side of States rights versus or people who live in small towns. should not be condemned for this. ability or the authority of Congress to Frank Hull, who was confirmed in I yield the floor and suggest the ab- legislate on a national basis. 1997 to the 11th Circuit, represented a sence of a quorum. Beyond that, it is what Mr. Sutton company seeking to deny life insurance The PRESIDING OFFICER. The has said outside of the courtroom. benefits to the spouse of a deceased clerk will call the roll. First, I have pointed out before the employee and also represented an ac- The legislative clerk proceeded to Legal Times article in 1998 in which counting firm that was accused of fi- call the roll. Mr. Sutton told a reporter he and his nancial fraud. Justice Hull was con- Mr. HARKIN. Mr. President, I ask staff were always on the lookout for firmed 96 to 0. Nobody believed that unanimous consent that the order for cases that would be coming before the Judge Hull had a bias against widows the quorum call be rescinded. Court that raise issues of federalism. or that he supported financial fraud. The PRESIDING OFFICER. Without He is always looking out for those Merrick Garland was confirmed in objection, it is so ordered. cases. And what cases does he take? 1997 to the D.C. Circuit Court. Prior to Mr. HARKIN. Mr. President, I lis- Only those in which he can argue on that, in his capacity as a Federal pros- tened with care to the arguments es- behalf of States rights versus Federal ecutor, he successfully opposed a de- poused now by my good friend and col- authority. He says: It does not get me fendant who was trying to assert his league from Ohio, Senator DEWINE. I invited to cocktail parties, but I love

VerDate Mar 15 2010 22:04 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00026 Fmt 0637 Sfmt 0634 E:\2003SENATE\S28AP3.REC S28AP3 mmaher on DSKCGSP4G1 with SOCIALSECURITY April 28, 2003 CONGRESSIONAL RECORD — SENATE S5427 these issues. I believe in this fed- So it is not just Mr. Sutton’s rep- pecially at those who deal with dis- eralism stuff. resentation of his client in any par- ability issues, because that is my area Again, that in and of itself might be ticular case. It is the cases he takes, of interest, I see sometimes they might kind of harmless. But then on National the writings he has made, the state- have been opposed to this judge and Public Radio in 2000 he said, ‘‘As with ments he has made outside the court- then a different part of the group age discrimination, disability discrimi- room that indicate he would be an ide- might have been opposed to that judge, nation in the Constitution is really ology-driven, activist judge on the cir- but this is the first time that I know of very difficult to show.’’ Here is the evi- cuit court. that all of them came together on one dence: 17 hearings, markup by five If Mr. Sutton is so balanced, why judge: Mr. Sutton. All of them came to- committees, 63 public forums across didn’t he ever take a case that took the gether in opposing him. the country, thousands of pages of doc- opposite side on States rights? Not one. My friend from Utah mentioned a uments, oral and written testimony by Not one. person in particular, Francis Beytagh, the Attorney General of the United My friend from Utah earlier pointed mentioned by the Senator as the Direc- States, Governors, State attorneys out he has represented people with dis- tor of the National Center of Law and general, State legislators, or 300 exam- abilities and he sits on a board that the Handicapped. ples of discrimination by State govern- looks out for the interests of people I have been dealing in disability ments, all on the legislative record. with disabilities. Let’s take a look at issues now going on 25 years. I said I Yet he said it is really difficult to that. Jeffrey Sutton did, indeed, rep- don’t know about this group. Let’s find show. He did not say this on behalf of resent the National Coalition of Stu- out about it. There is nothing in Mr. a client; he said this in a radio inter- dents with Disabilities. According to Beytagh’s current and very detailed re- view. So we have to add all of these and my staff’s research, the case was filed sume posted on the Web page of the look at the whole picture that emerges on November 6, 2000. Mr. Sutton was Florida Coastal School of Law that of Mr. Sutton. nominated for this court on May 9, mentions any work of his in the dis- Then in an article for the Federalist 2001, almost 6 months later, and then ability community—not even one men- Society of 2000 Mr. Sutton says: Mr. Sutton did not become attorney of tion. But I did find out that the Na- Unexamined deference to the Violence record on this case until April 26, 2002. tional Center of Law and the Handi- Against Women Act fact findings would That is quite a bit later. I find that capped was founded in the early 1970s, give to any congressional staffer with a very curious. In all the cases Mr. Sut- in South Bend, IN, and has not existed laptop the ultimate Marbury power to ton has taken, the one case they point for 15 years at least, according to Har- have the final say over what amounts to where he represented some people vey Bender, one of its founders. to interstate commerce. with disabilities he took after he was I don’t know. My friend from Utah Take that with the statement about nominated for the vacancy on the said he was the legal director for the how difficult it is to show in a con- Sixth Circuit Court of Appeals. National Center of Law and the Handi- stitutional sense, discrimination We have heard here time and time capped. We can’t even find that that against disability, then his comments again that Mr. Sutton represented exists anymore, but evidently, in the about how he believes and loves this Cheryl Fischer in her attempt to be ad- 1970s, it was someplace at Notre Dame. federalism stuff, and the fact that he mitted to Case Western Medical I understand from Mr. Beytagh’s let- only takes cases on that side of the School. Again, Mr. Sutton did work on ter of support he worked extensively ledger. It adds up to one thing: That the case, but he did not represent with Mr. Sutton when Mr. Beytagh was Mr. Sutton, in wanting to be a Federal Cheryl Fischer. He was the Ohio Solic- Dean of the Ohio Law School, and I judge, believes that when it comes to itor. He represented the Ohio Civil also notice Mr. Beytagh also worked civil rights legislation, States rights Rights Commission that supported for Jones Day law firm, which is on his trumps what we do here. When it Cheryl Fischer because that was his resume, which of course is the law firm comes to our ability to address under- job. Again, he represented his client, for which Mr. Sutton works. That is all great. But the statement lying civil rights issues, States rights which was the Ohio Civil Rights Com- that Mr. Beytagh represents a view- trumps the Federal Government. The mission. Cheryl Fischer’s attorney was point of the disability community is fact he would even think that somehow Thomas Andrew Downing. totally inaccurate—totally inaccurate. Congress, in passing a law such as the Again, I commend Mr. Sutton’s work I just wanted to make those points to ADA or the Violence Against Women on that case. But I guess it troubles me clear up some misconceptions that may Act, or any of these other civil rights that Mr. Sutton’s hearing testimony have come out here on the floor earlier bills, that somehow we have a staffer indicates his view that his work on today, and hopefully I will have some just sit down and type it out on a that single case, a case in which he more to say about this tomorrow. laptop and we bring it out here and acted in his official capacity, balances Again, I want to make it very clear pass it, again, that either illustrates out the significant impact that his ar- that it is not just Mr. Sutton’s state- that Mr. Sutton has a terribly unin- guments had on all these other cases, ments in the Garrett case. My friend formed view as to how we operate or he Garrett included. from Ohio, Senator DEWINE, is abso- just has a disdain for what we do here. Last, someone said Mr. Sutton sits lutely right. He is representing his cli- As I said, I may disagree with some on the board of the Equal Justice ent. That is not the point. of my colleagues on the other side of Foundation. Mr. Sutton came on that However, he did say one thing in that the aisle on this issue or that issue, or board a year before he was nominated. case that bothers me. That was, basi- how we approach this, but I do believe, My question is, Has Mr. Sutton ever cally, that ADA was not needed. whether it is under Republican control been the lawyer for any of the cases my OK, maybe you might excuse that or Democratic control, Senators and colleagues mentioned that the founda- and say that is just pushing the enve- Congressmen work very hard. We take tion took? The foundation took cases. lope on being a vigorous proponent of an oath of office to uphold and defend Was Mr. Sutton ever a lawyer for any his client’s views. But then take that the Constitution. We do not come out of the cases my colleagues mentioned? in the contextual framework of every- here willy-nilly and let ‘‘staffers with My friend from Utah named a few in- thing else—Mr. Sutton always taking laptops’’ draft up a bill and just sort of dividuals who ‘‘work in the disability cases that are just on one side of the vote it through. That is not what we community’’ who support Mr. Sutton. I States rights issue, just one side; the do. understand that. There are a few indi- fact that on numerous occasions out- According to Mr. Sutton, he says we viduals who claim to be active in the side the courtroom, in speaking and in do that. Well, we do not do that. We disability community, and they sup- writing, Mr. Sutton has shown either a have hearings. We have findings. We port Mr. Sutton’s nomination. But here total misunderstanding of how we oper- work things out. We took a long time is a list of 400 civil rights organiza- ate here or a clear disdain for the abil- in the case of the Americans with Dis- tions, including every major disability ity of Congress to respond nationally abilities Act—many, many years—to organization, that have come together in the area of civil rights. Take this all get it right, to make sure that we pass opposed to Mr. Sutton’s nomination. together and, again, it points to a per- constitutional muster. As I look through this list, as I look es- son who has an ideology, as the New

VerDate Mar 15 2010 22:04 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00027 Fmt 0637 Sfmt 0634 E:\2003SENATE\S28AP3.REC S28AP3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S5428 CONGRESSIONAL RECORD — SENATE April 28, 2003 York Times editorial said this morn- as adjunct professor at Ohio State. He immunity from suits for money dam- ing: It is another ideologue for the is currently a partner in the Columbus, ages by the passage of the Americans court, someone who is driven by an ide- OH, office of the esteemed law firm of with Disabilities Act. This well-estab- ology. Jones, Day, Reavis & Pogue. lished principle was recognized cen- I don’t mind someone having an ide- Mr. Sutton has argued 12 cases before turies ago by Blackstone before the ology. All of us have different beliefs. the U.S. Supreme Court; he has won 9 founding of this country. But to be driven by an ideology and to of them. That is quite an extraordinary I would say parenthetically that I carry that on the court indicates to me record. Whether he won them or not, served as attorney general of the State that Mr. Sutton would be an ideologi- just being chosen to argue any case be- of Alabama. I know what the duties of cally driven activist judge who would fore the Supreme Court is a great attorneys general are, as does Senator do all that he could to find on behalf of honor. Very few lawyers in their entire CORNYN in the chair, a member from States rights as opposed to Federal career will ever be able to argue a sin- the State of Texas. It is the duty of the rights. gle case before the Supreme Court. State to defend its prerogatives. An at- There may be times when States Why was he chosen to argue 12 cases torney general who does not defend the rights should trump Federal rights— before the Court? Because he was rec- legal authority of a State, and allows obviously. Sometimes Federal rights ognized as a brilliant lawyer, a person that authority to be eroded from any ought to trump States rights. That is who understood appellate law and pro- source whether it be the Congress or the give and take of our system. But cedure, who understood constitutional any other entity is failing in his or her according to Mr. Sutton’s views, his issues and statutory construction and duty. Blackstone, with regard to the con- writings, his statements, the cases he the things that appellate judges do. cept of being able to sue the States, has taken, his view is that States That speaks well of him. He also has said: rights should always trump what we do argued 14 cases in State supreme No action lies under a republican form of here at the Federal level. courts. government against the state or nation, un- That is why I believe Mr. Sutton Just this year, the American Lawyer less the legislature has authorized it: [this should not be on the circuit court. magazine named Mr. Sutton one of the is] a principle recognized in the jurispru- Maybe he should be on a State court best lawyers in America under age 45. dence of the United States, and of the indi- someplace but not on the Federal To recite his credentials is to reach one vidual states. bench. conclusion: If you need representation So no action lies against the State or I yield the floor. I suggest the ab- in appellate court, you could hardly do the Nation unless a legislature author- sence of a quorum. better than Jeffrey Sutton. We are izes it. The PRESIDING OFFICER. The looking at a preeminent nominee, one The reason is pretty simple. The clerk will call the roll. of the best lawyers in America. power to sue is the power to destroy. The assistant legislative clerk pro- The ABA has given Mr. Sutton what States or the Federal Government will ceeded to call the roll. the Democrats call the gold standard, a not allow themselves to be destroyed Mr. SESSIONS. Mr. President, I ask qualified rating, with a minority vot- by lawsuits. So the ability of private unanimous consent that the order for ing ‘‘well-qualified.’’ His qualifications parties to sue a sovereign Federal Gov- the quorum call be rescinded. don’t seem to matter to a few who are ernment, or a sovereign State govern- The PRESIDING OFFICER (Mr. COR- dedicated opponents, and who, I have ment, is limited. Now, State sovereign immunity NYN). Without objection, it is so or- to say, are not being realistic in this dered. matter. They are not being fair, and under the Eleventh Amendment is the concept we are dealing with, but those Mr. SESSIONS. Mr. President, I they are showing partisanship, and an who want to oppose Mr. Sutton have would like to make some remarks on extreme ideological bent. the pending nomination of Jeffrey S. The special interest groups and some taken the position that his defense of Sutton, a nominee for the Sixth Circuit in this body have targeted this nomi- sovereign immunity shows that he is Court of Appeals. He is an extraor- nee. They have raised the same argu- opposed to the Disabilities Act. Critics dinary and excellent attorney whom ments we have heard before. They al- say he doesn’t care about disabled chil- the President has nominated. lege, amazingly, that he is hostile to dren because he defended the legiti- mate interests of the State of Alabama In 1990, he graduated first in his class the rights of the disabled. They claim in a lawsuit involving how the Ameri- at Ohio State University Law School. I he favors weakening laws that deal cans with Disabilities Act ought to be know Senator DEWINE would agree with age discrimination. They say he is interpreted. This argument is baseless that that is one of America’s great law pro-life because he is a member of the schools. After law school, he served as on many levels. supposedly pro-life Federalist Society. First, I want to talk about these sov- a law clerk for a judge on the Second But these claims are not pertinent. ereign immunity cases. Some critics Circuit Court of Appeals, the same They miss the mark. say that because Mr. Sutton argues for kind of court of appeals on which he Let’s start with this disability rights state sovereign immunity, he somehow would be now a judge. He has had first- question. It is a very important issue. believes that persons who are discrimi- hand experience on how a court of ap- It is something we ought to talk about nated against because of their disabil- peals operates. Then he clerked for two with regard to Jeffrey Sutton, and we ities are not entitled to redress. That is Justices on the U.S. Supreme Court. need to remember the concepts on this not true. The National Association of That is not something easily achieved matter as we deal with other nominees Attorneys General—which I was for a graduating lawyer. To be chosen who come before the Senate. pleased to be a member of, as was the to be a law clerk for a Supreme Court The charges and complaints are Presiding Officer, and I’m sure as were Justice is a remarkable achievement. based in large part on Mr. Sutton’s rep- a majority of attorneys general at that Not many get it, and many apply for it. resentation of my home State of Ala- time who were also members of the He clerked for Justices Lewis Powell bama in Board of Trustees of the Uni- Democratic Party—in a letter signed and Antonin Scalia on the Supreme versity of Alabama v. Garrett. In the by 27 of their members, including 12 Court. Garrett case, what happened was that Democrats, said: an employee of the university sued the From 1995 to 1998, he served as the We are particularly concerned when we see Solicitor for the State of Ohio. That university, claiming that university’s a lawyer being attacked not for positions he means he was chosen to argue appel- policies violated the Americans with advocated as a private individual, but for po- late cases for the State of Ohio, to ad- Disabilities Act. Mr. Sutton argued on sitions he argued as a legal advocate for the vise the State on what cases to take behalf of the State of Alabama, and the State government. up, what positions to take on those Supreme Court agreed with him that Well said. It is not a question of cases. Again, it is the kind of experi- Congress had not identified a pattern whether Mr. Sutton believed that an ence that is invaluable for a court of of irrational State discrimination in employee of any State ought not to appeals nominee. employment against the disabled. Con- have redress. The question is whether Since 1995, he has taught courses on gress, therefore, he argued, could not or not this was a constitutionally prop- Federal and State constitutional law abrogate the State’s 11th amendment er way to go about it. If lawyers were

VerDate Mar 15 2010 22:04 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00028 Fmt 0637 Sfmt 0634 E:\2003SENATE\S28AP3.REC S28AP3 mmaher on DSKCGSP4G1 with SOCIALSECURITY April 28, 2003 CONGRESSIONAL RECORD — SENATE S5429 attacked for vigorous client represen- Federal Court. We have recognized, however, remedies like injunctions and back tation, this would have a chilling affect that Congress may abrogate the States’ pay. It is simply not true that the on their willingness to take unpopular Eleventh Amendment immunity when it States do not have any concern for dis- cases. That would be unfortunate for both unequivocally intends to do so and abled citizens. ‘‘act[s] pursuant to a valid grant of constitu- I also think it is notable that when our legal system. tional authority.’’ Congress may subject With respect to the Garrett case, it is nonconsenting States to suit in Federal Congress passed the ADA, it did not not an exaggeration to say that the Court when it does so pursuant to a valid ex- impose on the Federal Government the case has nothing to do with the overall ercise of its Section 5 power under the Four- obligations it placed on the States. The worthiness of the Americans with Dis- teenth Amendment. Members of this body express great an- abilities Act—nothing at all. Mr. Sut- That is what the Supreme Court was guish that the States did not grace- ton himself stressed in his brief to the talking about. It didn’t have anything fully allow themselves to be sued, and U.S. Supreme Court that the ADA ‘‘ad- to do with the merits or demerits of they complain that the attorneys gen- vances a commendable objective—man- the Americans with Disabilities Act eral of the States did not knuckle datory accommodation for the dis- itself. The Supreme Court went on to under by allowing people to sue the abled.’’ conclude that the narrow provision ap- States. But when Congress passed the Seth Waxman, President Clinton’s plying the ADA to the States was not ADA, it did not make the act applica- Solicitor General and Mr. Sutton’s op- a valid exercise of Congress’s section 5 ble to the United States Government. ponent in the Garrett case, said he saw power under the 14th amendment: Even though the Federal Government nothing to suggest that Mr. Sutton dis- Congress is the final authority as to desir- is the largest employer in America, it agreed with the aims of the Americans able public policy, but in order to authorize does not have to extend to its own dis- with Disabilities Act. What Mr. Sutton private individuals to recover money dam- abled employees the same benefits it did argue was that the 11th amendment ages against the States [also sovereign enti- demands of the States. It would be principle of State sovereign immunity ties, I add parenthetically], there must be a ironic, to say the least, for us to criti- protects States from lawsuits in fed- pattern of discrimination by the States cize Jeffrey Sutton for advocating eral court asserting violations of the which violates the Fourteenth Amendment, State constitutional immunity from and the remedy imposed by Congress must be Americans with Disabilities Act. Seven suit under the ADA when this very congruent and proportional to the targeted Senate exempted the Federal Govern- other States—Arkansas, Hawaii, Idaho, violation. Those requirements are not met Nebraska, Nevada, Ohio, and Ten- here. ment from the ADA’s requirements. nessee—submitted briefs joining with This criticism is particularly unfair So when my good friend Senator to Mr. Sutton because he has a dem- him to affirm this position. The Su- DEWINE—an excellent lawyer from preme Court ultimately agreed. onstrated commitment to the disabled. Ohio—earlier indicated he thought the Beyond his sound historical and effec- In the Garrett case, the question be- Supreme Court was in error, maybe fore the Supreme Court was not the va- tive legal arguments in the Garrett that was because he was here when the case before the Supreme Court, anyone lidity or purpose of the ADA; it was ADA was passed and I wasn’t. But as a whether the Federal Government could who knows Jeffrey Sutton knows that former attorney general, I think the he is sensitive to the needs of the dis- abridge State sovereign immunity by Supreme Court was correct: If we allow making States liable in Federal court abled. When Mr. Sutton started ninth Congress to go around willy-nilly and grade, his father became head of the for violations of the ADA. This issue knock down the classical, historic sov- involves a very narrow and small part Matheny School in Peapeck, NJ. ereign immunity of our States, it will Matheny was a boarding school pro- of the act. In fact, only the 3.7 percent weaken the States to an extraordinary of the American workforce employed viding education and life skills to dis- degree. abled children with cerebral palsy. by a State would be affected by this The Supreme Court went on to take Mr. Sutton spent time at the school issue. The 96.3 percent of the workforce pains to emphasize that its decision did doing maintenance work. This experi- not employed by a State was not at all not deprive the disabled of their rights: ence made him well aware of the chal- affected by the Supreme Court’s deci- Our holding here that Congress did not val- lenges faced by the disabled. sion. In other words, this Congress au- idly abrogate the States’ sovereign immu- Since that time, Mr. Sutton has con- thorized individuals to file lawsuits for nity from suit by private individuals for tinued his commitment to the disabled. ADA violations against both private money damages under Title I [of the Ameri- Few are better qualified to speak about entities and also against the States. cans with Disabilities Act] does not mean that than Cheryl Fischer. Ms. Fischer, The State of Alabama said that allow- that persons with disabilities have no Fed- eral recourse against discrimination. Title I a blind woman, applied for admission ing the Garrett lawsuit to go forward to Case Western Reserve University’s against the State violated the State’s of the ADA still prescribes standards appli- cable to the States. Those standards can be medical school. The school denied her sovereign immunity. enforced by the United States in actions for admission because of her disability. When the State of Alabama took the money damages, as well as by private indi- Mr. Sutton was asked to participate case to the Supreme Court, it looked viduals in actions for injunctive relief. . . . in the case by Ohio’s attorney general, around the country for one of Amer- In addition, State laws protecting the and was given a choice of whom to rep- ica’s best appellate lawyers, and it rights of persons with disabilities in employ- resent. He was told, ‘‘you can represent chose Jeffrey Sutton. He argued the ment and other aspects of life provide inde- the school and oppose a blind woman’s pendent avenues of redress. case and won it in the Supreme Court. right to be admitted to the medical That win does not gut the ADA; it In other words, the Supreme Court school, or you can represent her.’’ He hardly impacts it in even a minor way. said this would not leave a disabled chose to represent Cheryl Fischer, Only 3.7 percent of the workforce would person who works for a State without a without charge, pro bono, and he pas- be impacted by it. So the Supreme remedy for discrimination. That person sionately argued her case before the Court’s decision in Garrett meant al- can file for an injunction, receive back Supreme Court of Ohio. most nothing, as far as the overall en- wages if they have been unfairly termi- He lost the case, but Ms. Fischer has forcement of the ADA was concerned, nated, and get an order that they have no doubt about Mr. Sutton’s ability in dealing with discrimination against to be reinstated. But given the clas- and integrity. She said: those employees who are disabled. sical doctrine of sovereign immunity, I think he believes thoroughly in the civil What was at stake for the States in given the record this Congress devel- rights of all people. He is not someone who Garrett was how the Constitution de- oped in passing the ADA, and given the would want to minimize the rights of dis- fined the fundamental relationship be- language of the statute that was abled people. He helped me stand up for what tween the State government and Fed- passed, the Supreme Court could not I believe in. eral Government. The Supreme Court legitimize an action for money dam- She went on to say: explained the relationship in the Gar- ages against the States. I would definitely like to see him on the rett case this way: As a matter of fact, I would note all Federal court. The ultimate guarantee of the Eleventh 50 States have passed laws to give pro- Cheryl Fischer is just one of many Amendment is that nonconsenting States tections to the disabled, in addition to who believe Jeffrey Sutton would pro- may not be sued by private individuals in the Federal ADA, in part by providing tect disability rights and civil rights

VerDate Mar 15 2010 22:04 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00029 Fmt 0637 Sfmt 0634 E:\2003SENATE\S28AP3.REC S28AP3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S5430 CONGRESSIONAL RECORD — SENATE April 28, 2003 generally as a judge on the very impor- One special interest group deems the The legislative clerk proceeded to tant Sixth Circuit Court of Appeals. society hostile to reproductive rights, call the roll. Mr. Sutton is also a board member of and suggested that this nominee is Mr. REID. Mr. President, I ask unan- the Equal Justice Foundation. It is a guilty by association. The way some of imous consent that the order for the nonprofit organization based in Colum- my colleagues on the other side of the quorum call be rescinded. bus, OH, that provides legal representa- aisle have talked about the Federalist The PRESIDING OFFICER. Without tion to the disadvantaged, including Society, it would seem that member- objection, it is so ordered. the disabled. In 1999, the Foundation ship might amount to a scarlet letter Mr. REID. Mr. President, I had the sued to compel the city of Columbus to that nominees should wear during the opportunity today to listen to Senator comply with the Americans with Dis- hearings. But this is an unwarranted HARKIN speak on the Sutton nomina- abilities Act by installing curb cuts for attack on the Society and its members. tion. I was terribly impressed with his wheelchairs on city streets. Although it sponsors numerous discus- ability to explain to the American pub- The executive director of the Equal sions of controversial issues, from lic on a very personal basis, as a result Justice Foundation, Kimberly Skaggs, abortion to the war against terrorism, of his brother’s handicap, why this disagrees with Jeffrey Sutton politi- the Federalist Society takes no posi- nomination is so important. I hope all cally but supports his nomination to tion on any of these issues. Regular the Senate has the opportunity to see the Sixth Circuit. She said: panelists at their conferences include and review Senator HARKIN’s com- Mr. Sutton possesses all the necessary noted liberals like Harvard law pro- ments. They were so appropriate and qualities to be an outstanding Federal judge. fessor Laurence Tribe and ACLU presi- directly on point. I have no hesitation whatsoever in sup- dent Nadine Strossen. The society can- Again, the Senator from Iowa, the porting his nomination. not be said to be hostile to abortion junior Senator from Iowa is a person of Frankly, I have been disappointed by rights or any other rights, and so its stature who always brings substance to the leaders of the disability commu- members—here, Jeffrey Sutton—should a debate as he did in this instance. nity on this issue. They have stirred up not be blamed for having participated Mr. SESSIONS. Mr. President, I will opposition. They have told the Amer- in the Society. comment to the distinguished Senator ican disabled community that Jeffrey Finally, we should move this nomina- from Nevada about Senator HARKIN’s Sutton does not care about the dis- tion forward because of the under- passionate advocacy for the disabled in abled. That is not true, but that is staffed Sixth Circuit bench. The Judi- America. He cares deeply about that what they have said. They said that cial Conference of the United States, issue and there is no one more eloquent the sovereign immunity position he ad- which deals with court staffing and on it than he is. vocated for his clients in ADA cases other issues related to our Federal I ask the Senator from Nevada if he meant he personally did not care about judges, has determined that the va- is aware that Jeffrey Sutton volun- the disabled, that he did not like them, cancy that would be filled by Mr. tarily agreed, on a pro bono basis, to that he was opposed to them, and that Sutton’s appointment is a judicial prepare and to passionately argue a he would not give them a fair shake in emergency. In fact, there are currently case before the Supreme Court of the court. six vacancies on the Sixth Circuit, all That is basically what they have State of Ohio that a woman who was of which have been deemed emer- blind should be admitted to the Case said. They have suggested his legal ef- gencies. This court is in crisis. Those forts were aimed at harming the dis- Western University Medical School, six vacancies impair the administra- even though he lost the case. I wonder abled, when in truth he was simply vin- tion of justice. dicating the historical legal protection if the Senator knew that? A lot of the The current understaffing on that Senators have not known that he has a of the States for his clients. The State court makes it imperative we promptly governments have long enjoyed this personal concern about this issue and examine and approve nominations of has given of his own wealth—that is, protection from federal lawsuits. all the six circuit candidates, particu- Another groundless allegation is that his time—toward that effort. larly this eminently, extraordinarily Mr. REID. I say to the distinguished Mr. Sutton opposes laws against age qualified nominee, one of the best law- discrimination. This allegation stems Senator from Alabama, I am aware of yers in America, Jeffrey Sutton. the information we have all been given from his representation of the State of I had the pleasure to see Mr. Sutton on the nomination, and he certainly Florida in a case called Kimel v. Florida testify. He was asked questions all day did do this. Board of Regents. In Kimel, the Su- long until 9 p.m. at night. He was com- What we have to look at, though, is preme Court agreed with Mr. Sutton’s plimented by Senator DIANNE FEIN- his entire background and we will all argument that it was not necessary for STEIN for his willingness to discuss do that. My point was that I think the Congress to abrogate State sovereign anything he was asked. He answered Senator from Iowa, Mr. HARKIN, laid immunity through the Age Discrimina- the questions openly. He answered the out a foundation for our taking a very tion in Employment Act because the questions with great legal skill and close look at this nominee. As the Sen- States were already protecting their judgment time after time after time. I ator from Alabama knows, the nominee senior citizens against discrimination. cannot think of a single answer that he has stated his views over a consider- As with the disabilities right issue, Mr. gave in that long examination that Sutton did not advocate judicial repeal anyone found offensive. It was a tour able period of time, more than just the of the act. Far from it. He explicitly de force of legal exposition. I was ex- one case he argued in Ohio. All Members have a decision to make stated that the ADEA advances a com- tremely impressed not only with his tomorrow as to whether this man, Jef- mendable policy—nondiscrimination brilliance but with his kind demeanor against the elderly. What he argued for and his sensitivity to the questions. He frey Sutton, would be the kind of per- was the proper constitutional balance listened to people’s questions. He re- son we want on the circuit court. We between the State and Federal govern- sponded very carefully and sensitively all have that decision to make, and we ments. The Supreme Court agreed with to those questions. can weigh what he has done with what him. So now these people are saying Those were precisely the qualities I he has not done and make that judg- that a reasonable and honorable posi- believe would make him an extraor- ment. tion he advocated for his client— dinary court of appeals judge. You My point I was making is that we of- whether he won or not, even though he could look throughout this country tentimes in the Senate debate in the did in fact win—somehow disqualifies and find very few people more qualified abstract. Senator HARKIN did not do him from the bench. I think that is un- by ability, by experience, by integrity, that. He formed his debate based upon fair, and I am disappointed with some to hold this high office. his brother, who was accepted to a of the people who are making these ar- I strongly urge my colleagues to con- school for the deaf and dumb; as Sen- guments because I think if they took a firm his nomination. ator HARKIN said, his brother may have moment to look at it, they would know I yield the floor and suggest the ab- been deaf but he wasn’t dumb. I think these arguments were not well taken. sence of a quorum. this is the only case I am aware of Some have even brought up that he is The PRESIDING OFFICER. The where the disabled community has a member of the Federalist Society. clerk will call the roll. been so up in arms over a nominee.

VerDate Mar 15 2010 22:04 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00030 Fmt 0637 Sfmt 0634 E:\2003SENATE\S28AP3.REC S28AP3 mmaher on DSKCGSP4G1 with SOCIALSECURITY April 28, 2003 CONGRESSIONAL RECORD — SENATE S5431 First, I hope we have the opportunity group of people can be reborn in the ties, including second language GED tomorrow to speak to our respective United States. Armenian Americans and job training skills. caucuses—the majority leader has to are at the forefront of the effort to Beyond reaching adult and young make that decision as to whether we keep the events of the Armenian Geno- adults, the center also works to expand will vote at noon tomorrow or after the cide in the public eye, but it is the opportunities for children through its caucuses. Regardless, it is quite clear duty of us all, as citizens of a nation Plaza de Ninos preschool, which pre- that we are going to vote tomorrow. that embodies justice, liberty, and pares young Latino children for early All 100 Senators have to make a deci- freedom not to forget. school success and helps them with the sion as to what they want to do. We must take time each year to ac- necessary English language skills, Mr. SESSIONS. I note that the Sen- knowledge this act of ethnic cleansing while providing childcare for working ator from Nevada, who is himself a su- because we cannot afford to forget. The parents. perb lawyer, has represented criminals 20th century saw too many genocides, The Guadalupe Center’s activities and defended them on occasion, as I the events in the Ottoman Empire and services, which continue to grow in have. I would point out that just be- being only the first. In Germany and number and impact, serve as an exam- cause he represented a cause and advo- Eastern Europe, Cambodia, Rwanda, ple of the center’s vision and dedica- cated it, it does not necessarily mean Bosnia, and Serbia, millions of people tion for the Latino community. he shared all those views, personally. I were killed because of their race, eth- The future of Kansas City and the also would note, and am pleased to see, nicity, or religion. quality of life for its residents, espe- that the State of Nevada joined Ala- Through these tragedies, too many cially the Latino community, depends bama as amicus curiae in the Garrett have remained silent. We must make on the decisions and the investments case. clear, in the 21st century, that mass made today. The Guadalupe Center had Maybe the Senator would like to murder cannot be tolerated, will not be taken the lead in making these stra- once again respond. I am not entitled tolerated. We cannot afford to forget or tegic investments in Kansas City’s to the last word. If not, I will go for- hide events such as the Armenian urban core. Their efforts have im- ward with morning business. Genocide, or another group in another proved the lives of the Latino commu- Mr. REID. Mr. President, if I could place will experience the same persecu- nity’s children and families and the ef- just ask the Senator to yield, I have tion and the same systematic intent to fects will be felt for generations to learned, having served in the Senate, destroy an entire people. This is why come. that the majority always gets the last we must commemorate this horrific pe- I look forward to partnering with the word, so the last word is that of the riod in the history of the Armenian Guadalupe Center in future invest- Senator from Alabama. people each and every year. ments in Kansas City’s Latino commu- ∑ f Let us remember the Armenian nity. Genocide. Let us ensure that those who f MORNING BUSINESS suffered did not die in vain. Let us en- CHAMPION TREE PLANTING AT Mr. SESSIONS. Mr. President, I ask sure that those who survived did not do THE U.S. CAPITOL unanimous consent that we proceed to so to watch the world forget their a period of morning business. sufferings. We honor the living by ∑ Ms. STABENOW. Mr. President, I The PRESIDING OFFICER. Without speaking out today.∑ rise today to commemorate a wonder- ful Arbor Day gift that was donated to objection, it is so ordered. f the U.S. Capitol by the Champion Tree f GUADALUPE CENTER FOR DEDICA- Project and the Mount Vernon Ladies’ ADDITIONAL STATEMENTS TION TO IMPROVING THE LIFE Association. Last Thursday, on April OF LATINO COMMUNITY 24, 2003, the U.S. Capitol planted a 6- ∑ Mr. BOND. Mr. President, today I foot sapling clone of a white ash tree COMMEMORATING THE ANNIVER- would like to commend the Guadalupe grown by George Washington in the SARY OF THE BEGINNING OF Center Inc. for their continued com- late 1700s. This sapling clone is the THE ARMENIAN GENOCIDE mitment to improving the life of first successful recreation of the Cham- ∑ Mrs. FEINSTEIN. Mr. President, I Latinos throughout Kansas City, MO. pion Tree Project’s efforts to spawn rise today, as I do every year, to com- The Guadalupe Center began as a vol- exact genetic duplicates of each of memorate the anniversary of the Ar- unteer school and well baby clinic for Washington’s surviving trees at Mount menian Genocide. It has now been 88 Mexican immigrants in Kansas City’s Vernon. years since this tragic event unfolded, Westside in 1919, becoming one of the This gift is extremely special to me and after another year, the historical Nation’s first social service agencies for two reasons. First, the Champion fact of this atrocity continues to be for Latinos in the United States. Tree Project is a Michigan-founded, questioned. Once working out of the rectory of grassroots organization that was April 24, 1915, marked the beginning Our Lady of Guadalupe Shrine on West founded by a Michiganian father and of the Ottoman Empire’s brutal and 23rd Street, the Guadalupe Center now son team, David and Jared Milarch. unconscionable policy of mass murder, has nine buildings and has expanded to The Milarch family has been the driv- directed against men, women and chil- serve the entire Kansas City Metropoli- ing force behind this organization, and dren Armenians. Over 8 years, Arme- tan Latino community. I commend them for their historic ef- nians faced starvation, deportation, Today, the Center provides a number forts to protect these important trees. and violent death at the hands of their of essential services and is a leading In addition to working to protect his- own government. Before the genocide advocate for the Latino community. torically significant trees like those on began, 2.5 million Armenians lived in Health programs at the center in- the Mount Vernon estate, the Cham- the Ottoman Empire. One and a half clude substance abuse, teen pregnancy, pion Tree Project is dedicated to pro- million Armenians were killed and an- and HIV/AIDS education and coun- tecting Champion trees, which are the other 500,000 were driven from their seling. The center’s diligent work in biggest—and often among the oldest— homes, their property and land con- reaching this disproportionately af- known members of their species in the fiscated. fected Latino population is to be con- United States. After cloning, these sap- Many descendants of the survivors of gratulated and encouraged. lings are planted in protected sites the Armenian Genocide live in the Also, the center has had a great deal where they can be enjoyed and studied United States, and some actual sur- of success with increasing employment by future generations. vivors settled in my own State of Cali- opportunities for the unemployed and Second, I was at Mount Vernon on fornia. Overall, half a million Arme- underemployed in the Latino commu- August 1, 2001, when the Champion nian Americans live in California, and nity. This success goes hand in hand Tree Project collected the budwood and I am proud to serve them in the Sen- with the center’s constantly expanding branches from the 13 surviving trees ate. The strength and importance of education programs, which provide par- planted under George Washington’s di- their community exemplifies how any ticipants with a number of opportuni- rection over 200 years ago. The DNA

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