Sunday, April 27, 2003

6th Circuit part of battle

Democrats oppose GOP nominees

By Carl Weiser
Enquirer Washington Bureau


WASHINGTON - Appeals court nominee Jeffrey Sutton will come up for a vote in the Senate on Tuesday - but only after disabled activists rallied against him, senators pelted him with hostile questions in a 12-hour confirmation hearing and Democrats refused to consider his nomination for nearly two years.

The fight over Sutton's nomination for the U.S. Court of Appeals for the 6th Circuit, based in Cincinnati, is the latest in what seems to be weekly battles over nominees. And it will be far from the last.

"We're in a whole new world," said C. Boyden Gray, former counsel to the first President Bush and now chairman of the Committee for Justice, which supports Sutton and other Bush court nominees.

Two factors are driving the increasingly partisan fights over judges, he said. With Republicans controlling both the presidency and Congress, Democrats want to prevent the GOP from taking over the third branch of government, the courts. And they are sending a warning to President Bush over any potential Supreme Court nominees.

The entire federal judiciary now is almost evenly divided between judges appointed by Democratic presidents and those appointed by Republicans. The appeals courts, one step below the Supreme Court, are a key battleground. That's because several of the 12 appeals courts could tilt one way or the other depending on who fills the seats. Appointments are for life.

Jeffrey Sutton
Born: Oct. 31, 1960, in Dharan, 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; now a partner with Jones Day Reavis & Pogue, Columbus.
Family: Wife, Peggy; three children
The U.S. 6th Circuit Court of Appeals has 16 judge positions. The court hears appeals from federal cases in Michigan, Ohio, Kentucky and Tennessee. Last month, the nation's federal judges asked Congress to add a 17th slot, citing the heavy caseload.

The circuit has six vacancies, two for Ohio-based judges and four for Michigan.

Of the 10 judges now serving, Democratic presidents have appointed six, Republicans four.

If Jeffrey Sutton and Deborah Cook are confirmed, the court would be evenly divided between Republican and Democratic appointees.

Michigan's Democratic senators are blocking the Michigan-based nominees. They are angry that former Republican Sen. Spencer Abraham, also of Michigan, blocked two nominees President Clinton named.

While the 6th Circuit is headquartered in Cincinnati, Sutton probably would work from Columbus and Deborah Cook out of Akron. But they would have to come to Cincinnati at least eight times a year for hearings.

While the Supreme Court decides fewer than 100 cases a year, courts of appeals like the one to which Sutton may ascend, decide 27,000 cases.

"The courts of appeals, including the 6th Circuit Court of Appeals, often are rendering the law of the land in cases affecting the environment, workers rights and the right to reproductive choice," said Nan Aron, president of the liberal Alliance for Justice.

That's one reason "we expect a very strong show of opposition" to Sutton, she said.

Both sides are bracing for a feisty debate. Sutton's confirmation hearing earlier this year had to be moved to a larger room to accommodate the dozens of disabled activists sporting "Stop Sutton" stickers. Many were in wheelchairs or brought seeing-eye dogs. Sutton's opponents plan to lobby senators, hold news conferences, and rally Tuesday outside the Capitol.

The 42-year-old Columbus lawyer never has served as a judge, but both sides consider him to have one of the sharpest legal minds in the country. He has argued 12 cases before the Supreme Court, including one that led to a weakening of the Americans with Disabilities Act. That's what has enraged activists for the disabled.

"I think it will be a very tough debate," said Sen. Mike DeWine, R-Ohio, a member of the Senate Judiciary Committee and a Sutton supporter. "I think it's likely he will pass."

Opponents like Aron say Sutton adheres to a judicial philosophy that sees Congress as constantly overreaching into areas of law that should be left to the states. As a judge, he would roll back civil rights, worker rights, women's rights and retirees' rights by striking down Congress' attempts to remedy them, Aron said.

His most controversial case involved an Alabama nurse named Patricia Garrett. She lost her job at a state hospital in Birmingham after taking medical leave to treat her breast cancer. She sued the state under the Americans with Disabilities Act.

Sutton argued against Garrett, telling the Supreme Court that Congress had gone too far when it wrote the Americans with Disabilities Act. Constitutionally, he said Congress couldn't give state employees the right to sue for damages.

The Supreme Court agreed.

"In Mr. Sutton's eyes, I and others with disabilities seem to be pawns in a game of power between the federal government and the states," Garrett said at a Washington news conference last month.

Sutton and his defenders say it's wrong to judge him by the clients he took on as a lawyer. He was ambitious and wanted to practice before the Supreme Court, he told the Senate Judiciary Committee.

He also has argued on behalf of disabled clients, the poor and minorities. He counts among his defenders former GOP presidential candidate Bob Dole and a blind medical student he helped in court.

"Although some of his clients and positions might seem controversial, the consensus in a lot of legal circles is that he is a very good lawyer and has a good legal mind," said Barbara Reed, director of the courts initiative at the nonpartisan Washington-based Constitution Project that does not take stands on individual nominees.

What's important to the public is that federal courts have enough judges, she said. And just as important: that judges not have specific policy agendas.

Sutton told the Senate Judiciary Committee that if confirmed, he would make decisions based on Supreme Court precedents and keep an open mind. But Democrats were not convinced. All but one of committee Democrat, California's Dianne Feinstein, voted against him.

"The Sutton nomination has been divisive because he epitomizes the kind of judicial activism that some in the right wing of the Republican party have been advocating," said David Carle, spokesman for the Senate Judiciary Committee's top Democrat, Patrick Leahy of Vermont.

Sutton is the latest in a series of controversial nominees that have both revolted and galvanized environmentalists, civil rights groups and other liberal lobbying organizations.

The one bit of good news for Sutton, nominated for the appeals court with the most vacancies, is that Democrats do plan to vote on him. They do not plan to filibuster, dragging out the debate endlessly to prevent a vote.

Democrats have this year filibustered one Bush nominee, Miguel Estrada. Republicans have neither conceded defeat nor succeeded in ending the filibuster.

Other controversial appeals court nominees set to come up for votes this spring include:

Deborah Cook. An Ohio Supreme Court justice, she, too, has been criticized for ruling too often in favor of business against the powerless. Nominated for the same 6th Circuit appeals court as Sutton, she is expected to come up for a vote before the end of the month, DeWine said. She is expected to pass without a filibuster.

Priscilla Owen. The Texas Supreme Court justice was rejected last year for a seat on a New Orleans-based 5th Circuit when Democrats controlled the Senate Judiciary Committee. The committee, now under GOP control, approved her nomination last month. But she could face a filibuster on the Senate floor. Opponents say her record is too pro-business and anti-abortion.

Bill Pryor. Alabama's attorney general is an advocate of relaxing the wall between church and state and a champion of Ten Commandments Judge Roy Moore, the Alabama chief justice who suggested the Sept. 11, 2001, terrorist attacks may be a consequence of American's turning away from God. Pryor also has called Roe v. Wade, the Supreme Court decision that legalized abortion, "the worst abomination of constitutional law in our history." Bush nominated him for the Atlanta-based 11th U.S. Circuit Court of Appeals. He hasn't yet had a hearing before the Senate Judiciary Committee.

Charles Pickering. Like Owen, the Senate Judiciary Committee turned him down when Democrats controlled it. Bush has nominated him again for the New Orleans-based appeals court, but he has not come up for a new hearing yet. Democrats opposed him, saying he was insensitive to the rights of women and minorities.

Carolyn Kuhl. A Superior Court judge in Los Angeles, she is in trouble because of something she did when she served in Ronald Reagan's Justice Department. She urged the attorney general to reinstate the tax-exempt status of South Carolina's Bob Jones University, which at that time banned interracial dating. Bush has nominated her for the 9th Circuit Court of Appeals, based in San Francisco. She has had her hearing, but the Judiciary Committee has not voted on her. She too could face a filibuster.

To stop a filibuster takes 60 votes in the Senate. That means that any truly controversial judge will require 60 votes in the future, not the simple majority - now 51 votes - specified in the Constitution.


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