Sunday, January 26, 2003

U.S. judge nominees face Senate this week

Democrats plan tough questions

By Carl Weiser
Enquirer Washington bureau

WASHINGTON - Two Ohioans come to Capitol Hill this week for what promise to be job interviews from hell.

Deborah Cook and Jeffrey Sutton, President Bush's nominees for the Cincinnati-based 6th U.S. Circuit Court of Appeals, have their confirmation hearings Wednesday before the Senate Judiciary Committee - 20 months after first being nominated.

Democrats, who refused confirmation hearings for the two when they controlled the Senate, plan tough questions on the nominees' records and beliefs.

Several committee Democrats, including Wisconsin's Russ Feingold, Illinois' Dick Durbin and Massachusetts' Ted Kennedy, said in interviews last week they had concerns about the two, although they wouldn't go into detail.

"I'll spell it out at the hearing," Mr. Kennedy said.

• Born: Feb. 8, 1952, in Pittsburgh
• Home: Akron
• Education: Bachelor's degree from the University of Akron, 1974; law degree from the University of Akron Law School, 1978.
• Career: She became the first female partner in Akron's oldest law firm, Roderick, Myers & Linton; Ohio Court of Appeals judge, 1991 to 1994; Ohio Supreme Court, 1994 to present.
• What supporters say: "The Ohio Supreme Court has usurped policymaking authority from the Legislature in violation of the constitutional doctrine of separation of powers. In a series of powerful dissenting opinions, Cook has consistently sought to uphold the principle that judges perform the function of case adjudication, not policymaking."
• - David Owsiany, former president, Buckeye Institute.
• What opponents say: "Her record shows she sides with corporate interests and is an opponent of employees' rights." - Carl Weiser, National Employment Lawyers Association.
A coalition of civil rights groups, environmentalists and women's rights groups will denounce the two at a Monday news conference.

Disabled activists plan to protest Mr. Sutton's nomination, angry over his arguments against parts of the Americans with Disabilities Act. Ohio Citizen Action sent a letter to senators denouncing Ms. Cook as callous.

But conservative groups, friends and clients say the nominees are victims of smear campaigns.

The American Bar Association declared them both qualified for the bench. Ms. Cook has been elected twice to the Ohio Supreme Court. Mr. Sutton, a Columbus lawyer, has been recognized by a national magazine as one of the best lawyers in the nation.

Their confirmation hearing is the first since Republicans won back control of the Senate - and that will mean plenty of senatorial speechifying.

Senate Judiciary Committee chairman Orrin Hatch, R-Utah, said he hoped to approve the Ohioans' nominations within weeks, sending it to the floor for a vote.

"They (Democrats) are going to make it rough all the way," he said.

"I think the battle over nominees on the whole has been overly nasty," said John Nowacki, director of legal policy for the conservative Free Congress Foundation. "Certainly, the biggest problem with the way Sutton and Cook's nominations have been handled is that they haven't gotten a hearing - until now."

Mr. Bush nominated Ms. Cook and Mr. Sutton in May 2001 - part of his first batch of nominees. Neither of the nominees for the court that hears cases from Kentucky, Michigan, Ohio and Tennessee agreed to be interviewed for this story.

Both sides say the battle is about more than partisan politics. If confirmed, Ms. Cook and Mr. Sutton would be one step below the Supreme Court. And federal judges are appointed for life.

• Born: Oct. 31, 1960, in Dhahran, Saudi Arabia.
• Home: Bexley, Ohio.
• Education: Bachelor's degree from Williams College, 1983, first in his class at Ohio State University College of Law, 1990.
• Career: Clerked for Supreme Court justices Lewis F. Powell and Antonin Scalia; Ohio state solicitor, 1995-98; Mr. Sutton is now a partner with Jones Day Reavis & Pogue, Columbus.
• What supporters say: "Jeff Sutton is as skilled a lawyer as one can find. ... Both during his tenure as a government official and in private practice, he has represented clients from all walks of life: the disabled, racial minorities, liberal interest groups such as the NAACP and the Center for the Prevention of Handgun Violence, state governments, businesses, and death-row inmates." - The Committee for Justice.
• What opponents say: "Jeffrey Sutton has a record of advocacy hostile to the interests of the disability community. He has aggressively pursued a national role as the leading advocate for a group of far-right legal theorists attempting to limit Congress' power to protect individuals' civil rights."
- The Bazelon Center for Mental Health Law.
Circuit courts of appeal are the final word on 99 percent of cases; the Supreme Court agrees to hear only about 100 cases year.

"The federal appeals courts and the Supreme Court will answer questions that shape for decades how America works and Americans live," said Ralph Neas, director of the liberal People for the American Way. Clean air, clean water, abortion rights, civil rights, voting rights - all those issues will come before these judges.

"This is a defining moment for the meaning of the Constitution and the direction of the nation for the first half of the 21st century," Mr. Neas said.

In the next year or so, the 6th Circuit will decide whether a Cleveland judge should be allowed to post the Ten Commandments in his courtroom, whether Ohio's ban on so-called "partial birth" abortions is legal, whether private holiday displays should be allowed on Fountain Square, and whether Cincinnati has the right to bar convicted drug offenders from a "drug exclusion zone" in Over-the-Rhine.

Ms. Cook, an Akron native, has been on the Ohio Supreme Court since winning election in 1994.

She has voted with conservatives on the court, arguing often that state legislatures, not the court, should decide the cases instead.

She has become the court's contrarian, offering more dissents than any other judge in her eight years there, according to the Alliance for Justice, a liberal group.

Liberal groups complain she sides with business against workers and with big institutions against the disabled.

"Justice Cook's dissents, majority opinions, and votes on the court reveal a callousness toward the rights of ordinary citizens which offends any reasonable sense of justice," Sandy Buchanan, executive director of Ohio Citizen Action, wrote in September to then-Senate Judiciary Committee Chairman Patrick Leahy.

In a 1996 case, she upheld Case Western Reserve University's decision to deny a blind woman admission to its medical school. Ms. Cook said the woman, Cheryl Fischer, did not meet the legal qualification for discrimination; Ms. Cook and those voting with her prevailed, 4-3.

The lawyer arguing on behalf of the blind woman? Mr. Sutton. It's one of the few high-profile cases he has lost.

Mr. Sutton never has been a judge but has argued 12 cases before the U.S. Supreme Court, winning nine and losing two. (One is still pending.) American Lawyer magazine named him one of the 45 best lawyers in the country younger than 45.

What has made Mr. Sutton controversial are his clients, including tobacco companies, and the causes he's taken on: challenging what he argued were Congress' overreaches in passing laws like the Americans with Disabilities Act and the Violence Against Women Act.

Mr. Sutton is "an attorney who has spent most of his career rolling back disability and civil-rights protections," said Jim Ward, president of the National Coalition for Disability Rights, which is organizing protests against him.

But legal experts and the chairman of the Senate Judiciary Committee say it's not fair to criticize a lawyer for the cases he took.

"He's being faulted for some of these clients he's had, but it's very, very unfair to do that to a lawyer. That's not legitimate," said Sheldon Goldman, a political science professor at the University of Massachusetts-Amherst who tracks judicial nominations.

Mr. Sutton's backers say charges that he is against civil rights are ridiculous. A degenerative hip condition has left Mr. Sutton with a limp, and his father ran a school for children with cerebral palsy. In court, he has represented the National Coalition of Students with Disabilities, the National Association for the Advancement of Colored People, and the National Congress for American Indians, according to a dossier prepared by The Committee for Justice, a group organized to promote Mr. Bush's nominees.

"They're trying to raise a fuss because he represented a client against the ADA - which I'm one of the authors of," Mr. Hatch said. "But he's an attorney. He has to represent his clients."

Enquirer reporter Dan Horn contributed.

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