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89–324 DTP 2003

S. HRG. 108–135, PT. 1

CONFIRMATION HEARING ON FEDERAL

APPOINTMENTS

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED EIGHTH CONGRESS

FIRST SESSION

JANUARY 29, 2003

PART 1

Serial No. J–108–1

Printed for the use of the Committee on the Judiciary

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(II)

COMMITTEE ON THE JUDICIARY 

ORRIN G. HATCH, Utah, Chairman 

CHARLES E. GRASSLEY, Iowa 

ARLEN SPECTER, Pennsylvania 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

LARRY E. CRAIG, Idaho 

SAXBY CHAMBLISS, Georgia 

JOHN CORNYN, Texas 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

JOHN EDWARDS, North Carolina 

MAKAN DELRAHIM, Chief Counsel and Staff Director 

BRUCE A. COHEN, Democratic Chief Counsel and Staff Director 

(III)

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page

Chambliss, Hon. Saxby, a U.S. Senator from the State of Georgia ..................... 42

Cornyn, Hon. John, a U.S. Senator from the State of Texas ............................... 69

Durbin, Hon. Richard J., a U.S. Senator from the State of Illinois .................... 84

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin ............. 49

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 2

prepared statement .......................................................................................... 599

Kennedy, Hon. Edward M., a U.S. Senator from the State of Massachusetts ... 29

Kohl, Hon. Herbert, a U.S. Senator from the State of Wisconsin ....................... 74

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 7

prepared statement .......................................................................................... 635

Schumer, Hon. Charles E., a U.S. Senator from the State of New York ............ 59

PRESENTERS

Cornyn, Hon. John, a U.S. Senator from the State of Texas presenting Robert 

Junell, Nominee to be District Judge for the Western District of Texas ........ 140

DeWine, Hon. Mike, a U.S. Senator from the State of Ohio: 

presenting Deborah L. Cook and Jeffrey S. Sutton, Nominees to be Circuit Judges for the Sixth Circuit ................................................................. 22

presenting John Adams, Nominee to be District Judge for the Northern 

District of Ohio .............................................................................................. 139

Feinstein, Hon. Dianne, a U.S. Senator from the State of California presenting S. James Otero, Nominee to be District Judge for the Central 

District of California ............................................................................................ 20

Hutchison, Hon. Kay Bailey, a U.S. Senator from the State of Texas presenting Robert Junell, Nominee to be District Judge for the Western District of Texas ......................................................................................................... 14

Voinovitch, Hon. George, a U.S. Senator from the State of Ohio presenting 

Deborah L. Cook and Jeffrey S. Sutton, Nominees to be Circuit Judges 

for the Sixth Circuit and John Adams, Nominee to be District Judge for 

the Northern District of Ohio .............................................................................. 16

Warner, Hon. John, a U.S. Senator from the State of Virginia presenting 

John G. Roberts, Jr., Nominee to be Circuit Judge for the District of 

Columbia Circuit .................................................................................................. 13

prepared statement .......................................................................................... 714

STATEMENTS OF THE NOMINEES

Adams, John, Nominee to be District Judge for the Northern District of 

Ohio ....................................................................................................................... 141

Questionnaire .................................................................................................... 149

Cook, Deborah L., Nominee to be Circuit Judge for the Sixth Circuit ............... 27

Questionnaire .................................................................................................... 275

Junell, Robert, Nominee to be District Judge for the Western District of 

Texas ..................................................................................................................... 142

Questionnaire .................................................................................................... 190

Otero, S. James, Nominee to be District Judge for the Central District of 

California .............................................................................................................. 141

Questionnaire .................................................................................................... 222

Roberts, John G., Jr., Nominee to be Circuit Judge for the District of Columbia Circuit ............................................................................................................. 28

Page

IV

Roberts, John G., Jr., Nominee to be Circuit Judge for the District of Columbia Circuit—Continued

Questionnaire .................................................................................................... 297

Sutton, Jeffrey S., Nominee to be Circuit Judge for the Sixth Circuit ............... 28

Questionnaire .................................................................................................... 340

QUESTIONS AND ANSWERS

Responses of Deborah L. Cook to questions submitted by Senators Leahy, 

Kennedy, Biden, Feingold, Edwards and Grassley (February 6, 2003) ........... 373

Responses of Deborah L. Cook to questions submitted by Senator Durbin 

(February 12, 2003) .............................................................................................. 404

Responses of John G. Roberts, Jr. to questions submitted by Senators Biden, 

Feingold, Feinstein, and Kennedy (February 5, 2003) ...................................... 412

Responses of John G. Roberts, Jr. to questions submitted by Senator Schumer 

(February 11, 2003) .............................................................................................. 435

Responses of John G. Roberts, Jr. to questions submitted by Senators Leahy, 

Kennedy, Kohl and Durbin (May 6, 2003) ......................................................... 443

Responses of Jeffrey S. Sutton to questions submitted by Senators Leahy, 

Biden and Kennedy (February 6, 2003) ............................................................. 462

Responses of Jeffrey S. Sutton to questions submitted by Senator Schumer 

(February 11, 2003) .............................................................................................. 490

Responses of Jeffrey S. Sutton to questions submitted by Senator Durbin ........ 495

SUBMISSIONS FOR THE RECORD

Ability Center of Greater Toledo, Sylvania, Ohio, resolution .............................. 500

Access to Independence of Cortland County, Inc., Mary E. Ewing, Executive 

Director, Cortland, New York, letter .................................................................. 501

Access II Independent Living Center, Gary E. Maddox, Executive Director, 

Gallatin, Missouri, letter ..................................................................................... 503

Access Living, Marca Bristo, President & CEO, Chicago, Illinois, letter ........... 504

Advocates for Ohioans with Disabilities, Alice Sporar, President, Cleveland, 

Ohio, letter ............................................................................................................ 507

AIDS Action, Claudia Dawn French, Executive Director, Washington, D.C., 

letter ...................................................................................................................... 508

Akron Beacon Journal, January 6, 2003, editorial ............................................... 509

American Association of People with Disabilities, Andrew J. Imparato, President & CEO, Washington, D.C., letter ............................................................... 511

American Council of the Blind, Melanie Brunson, Director of Advocacy and 

Governmental Affairs, Washington, D.C., letter ............................................... 513

Barnard, Brian, Utica, New York, letter ............................................................... 515

Barnhill, Susan, Sacramento, California, letter .................................................... 517

Beytagh, Francis X., Dean Emeritus, Ohio State University School of Law, 

Columbus, Ohio, letter ......................................................................................... 519

Boxer, Hon. Barbara, a U.S. Senator from the State of California, statement 

in support of the nomination of S. James Otero to be District Judge for 

the Central District of California ........................................................................ 521

Brick, Lawrence J., Philadelphia, Pennsylvania, letter ....................................... 522

Bryant, S., Frederick, Maryland, letter ................................................................. 523

Burt, Sharon, Meridian, Mississippi, letter ........................................................... 524

Campbell, Bonnie J., Arent Fox, Washington, D.C., letter .................................. 525

Cashin, Margarette Berg, Attorney at Law, Staten Island, New York ............... 527

Center for Civil Justice, Jacqueline Doig, Attorney at Law, Saginaw, Michigan, letter ............................................................................................................. 528

Center for Independent Living Options, Cincinnati, Ohio, letter ........................ 531

Central Utah Center for Independent Living, Eileen D. Glathar, Provo, Utah, 

letter ...................................................................................................................... 533

Cerebral Palsy Association of Ohio, Beverly Johnson, Executive Director, 

Columbus, Ohio, letter ......................................................................................... 534

Cerebral Palsy of New Jersey, Myra Ryan, Executive Director, Trenton, New 

Jersey, letter ......................................................................................................... 536

Cincinnati Enquirer, Ray Cooklis, November 8, 2002, article ............................. 537

Cleveland Plain Dealer, October 29, 2000, editorial ............................................. 538

Coalition for Independent Living Options, Inc., Genevieve Cousminer, Coordinator of Advocacy Services, West Palm Beach, Florida, memorandum .......... 541

Columbus Dispatch, August 18, 1999, editorial .................................................... 543

Page

V

Committee for Justice, Washington, D.C., editorial ............................................. 545

Crosby, Ronna, I.L. Coordinator, Southeast Kansas Independent Living Resource Center, Inc., letter .................................................................................... 555

Cunningham, Jo, Lower Lake, California, letter .................................................. 556

Dart, Yoshiko, Washington, D.C., letter and attachment .................................... 557

DeWine, Hon. Mike, a U.S. Senator from the State of Ohio, excerpts from 

Ohio newspapers .................................................................................................. 559

Dole, Hon. Bob, former U.S. Senator from the State of Kansas, letter ............... 560

Durham, Kirsten, St. Louis, Missouri, letter ........................................................ 563

Eastern Paralyzed Veterans Association, John D. Del Colle, Associate Executive Director, Government Relations, Jackson Heights, New York, letter ...... 564

Environmental organizations, joint letter and attachments ................................ 565

Everybody Counts Center for Independent Living, Teresa L. Torres, Executive 

Director, Merrillville, Indiana, letter .................................................................. 583

Fischer, Cheryl A., Cleveland, Ohio, letter ............................................................ 585

Ford, Ann, Springfield, Illinois, letter .................................................................... 586

Forman, Vicki, La Canada, California, letter ........................................................ 587

Freedom Center, Inc., Jamey George, Executive Director, Frederick, Maryland, letter ............................................................................................................ 588

Gilhool, Thomas K., Attorney at Law, Philadelphia, Pennsylvania, letter ......... 589

Godbout, Pam, Women’s Coordinator, Gender Justice Action Group, Park 

Forest, Illinois, letter ........................................................................................... 591

Godino, Michael, Baldwin, New York, letter ......................................................... 593

Grant, Patricia, Piscataway, New Jersey, letter ................................................... 594

Grim, Nancy, Attorney at Law, Kent, Ohio, letter ............................................... 595

Groedel, Caryn M., Attorney at Law, Cleveland, Ohio, letter ............................. 597

Guagliano, Joseph L., Pawling, New York, letter ................................................. 598

Heightened Independence & Progress, Nancy Hodgins, Community Advocate, 

Hackensack, New Jersey, letter .......................................................................... 603

Hetrick, Susan, Advocacy Director, Ability Center of Greater Toledo, Toledo, 

Ohio, letter ............................................................................................................ 604

Holman, Stewart, Independent Living Specialist, North Country Independent 

Living, Washburn, Wisconsin, letter .................................................................. 605

Hyman, Lester S., Counsel, Swidler Berlin Shereff Friedman, LLP, Washington, D.C., letter ............................................................................................... 606

Independence Now, Inc., Catherine A. Raggio, Executive Director, Riverdale, 

Maryland, letter ................................................................................................... 607

Individual state Attorneys General, joint letter .................................................... 609

James, Michele, Independent Living Specialist, Auburn, California, letter ....... 614

Jirschele, Lorie A., Pierre, South Dakota, letter ................................................... 617

Johnson, Harriet McBryde, Attorney at Law, Charleston, South Carolina, 

letter ...................................................................................................................... 618

Jonas, Judy, Paramus, New Jersey, letter ............................................................ 619

Jones, Eddie, Hattiesburg, Mississippi, letter ....................................................... 620

Judicial Selection Monitoring Project, Washington, D.C., letter ......................... 621

Katyal, Neal Kumar, Visiting Professor of Law, Yale Law School, New Haven, 

Connecticut, letter ................................................................................................ 625

Knoblauch, Roger, Bloomington, Illinois, letter .................................................... 627

Knop, Shirley, Clinton, New York, letter .............................................................. 628

Lawyers who served in the Office of Solicitor General, joint letter .................... 629

Laycock, Douglas, Alice McKean Young Regents Chair in Law, University 

of Texas at Austin, Austin, Texas, letter ........................................................... 633

Leahy, Hon. Patrick J., Hon. Edward M. Kennedy, Hon. Joseph R. Biden, 

Jr., Hon. Herbert Kohl, Hon. Russell D. Feingold, Hon. Charles E. Schumer, 

Hon. Richard J. Durbin, and Hon. John Edwards, joint letter ........................ 642

Leonard, James, Professor of Law and Library Director, University of Alabama School of Law, Tuscaloosa, Alabama, letter ............................................ 644

Liberty Resources, Inc., Thomas H. Earle, Esquire, Executive Director, Philadelphia, Pennsylvania, letter .............................................................................. 646

Linking Employment, Abilities and Potential, Melanie Hogan, Interim Director, Cleveland, Ohio, letter .................................................................................. 647

Long, Beverly B., Member, Board of Neuroscience and Behavioral Health, 

Atlanta, Georgia, letter ........................................................................................ 648

Meckler, Theodore E., Attorney at Law, letter ..................................................... 649

Members of the Bar of the District of Columbia, joint letter ............................... 652

Messing, Rudavsky & Weliky, P.C., Boston, Massachusetts, joint letter ........... 657

Page

VI

Michigan Association of Centers for Independent Living, Liz O’Hara, Executive Director, Haslett, Michigan, letter .............................................................. 659

Michigan Developmental Disabilities Council, Duncan Wyeth, Chair, Public 

Policy Committee, Lansing, Michigan, letter ..................................................... 660

Montgomery, Betty D., Attorney General of the State of Ohio, Columbus, 

Ohio, letter ............................................................................................................ 661

National Coalition for Disability Rights, Washington, D.C., sample petition 

and attachments ................................................................................................... 663

National Council on Independent Living, Arlington, Virginia, statement .......... 667

National Disabled Students Union, Portland, Oregon, letter and attachment .. 668

National Employment Lawyers Association, Frederick Gittes, President, San 

Francisco, California, letter ................................................................................. 672

National School Boards Association, Anne L. Bryant, Executive Director, and 

Julie Underwood, General Counsel/Associate Executive Director, Alexandria, Virginia, letter ............................................................................................. 675

New York State Independent Living Council, Brad Williams, Executive Director, Albany, New York, letter .............................................................................. 677

New York Times, editorial, October 14, 2000 ........................................................ 679

Northern Regional Center for Independent Living, Aileen Martin, Executive 

Director, Watertown, New York, letter .............................................................. 680

Ocean State Center for Independent Living, Susan Eleoff, Warwick, Rhode 

Island, memorandum ........................................................................................... 681

Ohio disability organizations, joint letter .............................................................. 682

Options for Independence, Inc., Judy Wright, Statewide Systems Advocate, 

Auburn, New York, letter .................................................................................... 683

Oregon State Rehabilitation Council, Tim E. Holmes, SRC Chair, Salem, 

Oregon, letter ....................................................................................................... 684

Perez, Clifton, Systems Advocate, Independent Living Center of the Hudson 

Valley, Troy, New York, letter ............................................................................ 685

Pressley, Fred G., Jr., Attorney at Law, Porter Wright Morris & Arthur 

LLP, Columbus, Ohio, letter ............................................................................... 687

Progress Center for Independent Living, Diane Coleman, Executive Director, 

Forest Park, Illinois, letter .................................................................................. 688

Pryor, Bill, Attorney General, State of Alabama, letter ....................................... 689

Redenbaugh, Russell G., Commissioner, United States Commission on Civil 

Rights, Washington, D.C., letter ......................................................................... 690

Regional Access and Mobilization Project, Inc., Peter Schultz, Education & 

Advocacy Coordinator, Rockford, Illinois, letter ................................................ 691

Reich, Alan A., President, National Organization on Disability, Washington, 

D.C., letter ............................................................................................................ 692

Rothenberg, Ira, North Hollywood, California, letter ........................................... 693

Ruben Center for Independent Living, Emas Bennett, Executive Director, 

Merrillville, Indiana, letter ................................................................................. 694

Sanderson, Robert G., Roy, Utah, letter ................................................................ 696

Sauerland, Paul, Hicksville, New York, letter ...................................................... 697

Schumer, Hon. Charles E., submission of Jeffrey S. Sutton quotes on federalism .................................................................................................................. 698

Seamon, Richard H., Assistant Professor of Law, University of South Carolina, Columbia, South Carolina, letter ............................................................... 701

Skaggs, Kimberly M., Executive Director, Equal Justice Foundation, Columbus, Ohio, letter .................................................................................................... 702

Sommers, Andrew R., Agency for Healthcare Research and Policy, Rockville, 

Maryland, letter ................................................................................................... 703

Southern Maryland Council of the Blind, Robert A. Kerr, President, Mechanicsville, Maryland, letter ...................................................................................... 704

Steiner, David J., Esq., Attorney at Law, Cleveland, Ohio, letter ...................... 705

Sullivan, Julie, Rock Island, Tennessee, letter ..................................................... 706

Tanya Towers Treatment Apartments, New York Society for the Deaf, New 

York, New York, joint letter ................................................................................ 707

Toledo Blade, December 15, 2002, editorial .......................................................... 708

Treanor, Richard B., Esq., Attorney at Law, Washington, D.C., letter ............... 710

Van Dyke, David A., Pastor, Broad Street Presbyterian Church, Columbus, 

Ohio, letter ............................................................................................................ 712

Watson, Patricia, Barboursville, West Virginia, letter ......................................... 719

Waxman, Seth P., Attorney at Law, Washington, D.C., letter ............................ 720

Page

VII

Williams, Keith, Statewide Action Team Community Organizer, Northeast 

Pennsylvania Center for Independent Living, Scranton, Pennsylvania, letter .......................................................................................................................... 721

Wolman, Benson A., Attorney at Law, Wolman, Genshaft & Gellman, Columbus, Ohio, letter .................................................................................................... 722

Worth, Vonne, former owner, Different Times, Seattle, Washington, letter ...... 724

Zietlow, Rebecca, Professor of Law, University of Toledo College of Law, 

Toledo, Ohio, letter ............................................................................................... 725

(1)

NOMINATION OF DEBORAH L. COOK, NOMINEE TO BE CIRCUIT JUDGE FOR THE SIXTH 

CIRCUIT; JOHN G. ROBERTS, JR., NOMINEE 

TO BE CIRCUIT JUDGE FOR THE D.C. CIRCUIT; JEFFREY S. SUTTON, NOMINEE TO BE 

CIRCUIT JUDGE FOR THE SIXTH CIRCUIT; 

JOHN ADAMS, NOMINEE TO BE DISTRICT 

JUDGE FOR THE NORTHERN DISTRICT OF 

OHIO; S. JAMES OTERO, NOMINEE TO BE 

DISTRICT JUDGE FOR THE CENTRAL DISTRICT OF CALIFORNIA; AND ROBERT 

JUNELL, NOMINEE TO BE DISTRICT JUDGE 

FOR THE WESTERN DISTRICT OF TEXAS 

WEDNESDAY, JANUARY 29, 2003 

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 9:39 a.m., in Room 

SD–226, Dirksen Senate Office Building, Hon. Orrin G. Hatch, 

Chairman of the Committee, presiding. 

Present: Senators Hatch, Kyl, DeWine, Sessions, Graham, Craig, 

Chambliss, Cornyn, Leahy, Kennedy, Biden, Kohl, Feinstein, Feingold, Schumer, Durbin, and Edwards. 

Chairman HATCH. Our hearings are open to the public and to the 

interested public. Of course, as a champion of the ADA and the 

Americans with Disabilities Act, I’ve done everything possible to 

accommodate the persons with disabilities, who informed us yesterday that they would be attending the hearing. 

Now, in fact, when we received word that there would be three 

deaf people in attendance, we immediately arranged an interpreter 

for them. When we were informed that up to 100 people with disabilities would be coming, we immediately began looking throughout the building for an additional suitable room to accommodate all 

of them. 

As background, the Committee practices to allow the public to attend hearings on a first-come, first-serve basis, and often many of 

the people who wait in line never get in. Rather than follow the 

usual practice and have most people in the hallways, we instead 

reserved SD–G50, a special first floor room for any guest who could 

2

not be accommodated in the hearing room. Now, we are very disappointed that we were unable to get SH–216, which would have 

been a bigger room and would have allowed us perhaps to get everybody in. I have asked my staff to look at SD–G50 and see how 

full it is, and see if we can accommodate everybody down there because we could immediately move down there if it is. Our problem 

is all of the television is set up and everything else right now, but 

we will check on it and we will see what we can do, because I am 

the last person on earth who would not want to accommodate those 

who are persons with disabilities. So we will start here and we will 

check out that room. If it is capable of handling this, we will try 

to accommodate if we can move everything down there, but as of 

right now, I think we are going to have to proceed here until I receive back word from staff. 

Senator LEAHY. Can I say something about that? 

Chairman HATCH. And I would like your staff to work with them. 

Senator LEAHY. I would. I have already asked my staff to go 

down and look at SD–G50. When I went by there earlier this morning, I mean it is a huge room. I think it would probably accommodate. We had people standing out here for an hour waiting, and 

maybe one way to do it would be to have the Senators who are here 

to make their statements, but I would really strongly urge that we 

move down there. It is a much larger room and it would be a lot 

easier to accommodate some people who have not been able to get 

in. 

Chairman HATCH. Let’s see if we can do it. 

[Applause.] 

Senator KENNEDY. I think it is a reasonable way to proceed in 

terms of hearing from the presenters here, and then as I understand as well, that SD–G50 is open and is available, and it seems 

to me that we ought to give the opportunity for people who have 

an interest in these nominees, an opportunity to hear them. And 

so I support Senator Leahy’s proposal and hope that that can be— 

Chairman HATCH. I think I made that comment, and I am certainly amenable to that. So let’s have Senator Leahy’s staff and my 

staff go down there and see if we can accommodate us down there. 

If we cannot, we are going to continue here. If we can, we will 

move down there with dispatch, because I am not going to waste 

a lot of time moving. So everybody is just going to have to move 

down there as quickly as they can. But I certainly want to always 

accommodate as many people as we possibly can, and especially 

those who suffer from disabilities, and we will just do it that way. 

We can make our two statements, and then we will have the two 

Senators make theirs or any other Senators who want to come at 

this time. 

OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. 

SENATOR FROM THE STATE OF UTAH 

Chairman HATCH. Good morning. I am pleased to welcome all of 

you to the committee’s first judicial confirmation hearing of the 

108th Congress. I first would like to acknowledge and thank Senator Leahy for his service as Chairman of this Committee over the 

past 16 months. 

3

I also would like to extend a particular welcome to Senator Bob 

Dole, our former majority leader, and to Commissioner Russell 

Redenbaugh, the three-term U.S. Civil Rights Commissioner, who 

also happens to be the first disabled American to serve on that 

Commission. It means a great deal to me that they are both here 

today to support Mr. Jeff Sutton’s nomination, and of course, I 

would also like to express my deep appreciation for the members 

we have here who have taken time to come and present their views 

on the qualifications of our witnesses today. 

Our first panel features three outstanding circuit nominees who 

were nominated on May 9, 2001, whose hearing was originally noticed for May 23, 2001. I agreed to postpone that hearing for a 

week at the request of some of my Democratic colleagues who 

claimed that they needed an additional week to assess the nominees’ qualifications. As we all know, control of the Senate and the 

Committee shifted to the Democrats shortly thereafter on June 5th, 

2001, and these nominees have been languishing in the Committee 

without a hearing ever since. So I am particularly pleased to pick 

up where we left off in May of 2001 by holding our first confirmation hearing for the same three nominees we noticed back then: 

Justice Deborah Cook, Jeffrey Sutton and John Roberts. It is with 

great pleasure that I welcome these distinguished guests before the 

Committee this morning. 

We also have three very impressive District Court nominees with 

us today: John Adams for the Northern District of Ohio, Robert 

Junell for the Western District of Texas, and S. James Otero for 

the Central District of California. I will reserve my remarks about 

these District Court nominees until I call their panel forward. 

Our first nominee is Ohio Supreme Court Justice Deborah Cook, 

who has established a distinguished record as both a litigator and 

a jurist. Justice Cook began her legal career in 1976 as a law clerk 

for the firm now known as Roderick Linton, which is Akron’s oldest 

law firm. Upon her graduation from the University of Akron School 

of Law in 1978, Justice Cook became the first woman hired by that 

firm. In 1983 she became the first female partner in the firm’s century of existence. I am proud to have her before us as a nominee 

who knows firsthand the difficulties and challenges that professional women face in breaking through the glass ceiling. 

During her approximately 15 years in the private sector, Justice 

Cook had a large and diverse civil litigation practice. She represented both plaintiffs and defendants at trial and on appeal in 

cases involving, for example, labor law, insurance claims, commercial litigation, torts and ERISA claims. 

In 1991 Justice Cook left the private sector after winning election 

to serve as a judge on the Ninth Ohio District Court of Appeals. 

During her 4 years on the Ninth District Bench she participated 

in deciding over 1,000 appeals. The Ohio Supreme Court reversed 

only 6 of the opinions that she authored, and 8 of the opinions on 

which she joined. In 1994 Justice Cook was elected to serve as a 

Justice on the Ohio Supreme Court. She therefore brings to the 

Federal Bench more than 10 years of appellate judicial experience 

which is built on a foundation of 15 years of solid and diverse litigation experience. There can be little doubt that she is eminently 

4

qualified to be a Sixth Circuit jurist, and I commend President 

Bush on his selection of her for this post. 

Our next nominee is Jeff Sutton, one of the most respected appellate advocates in the country today. He has argued over 45 appeals 

for a diversity of clients in Federal and State Courts across the 

country, including a remarkable number, 12 to be exact, before the 

U.S. Supreme Court. His remarkable skill and pleasant demeanor 

have won him not only a lot of decisions, but also a wide variety 

of prominent supporters including Seth Waxman, President Clinton’s Solicitor General; Benson Wolman, the former head of the 

Ohio ACLU; Bonnie Campbell, a Clinton nominee to the Eighth 

Circuit Court of Appeals; Civil Rights Commissioner Redenbaugh, 

the first disabled American to serve on the U.S. Civil Rights Commission; and former Senate Majority Leader Bob Dole, who is 

among the country’s most powerful advocates on behalf of persons 

with disabilities. 

I feel it necessary for me to comment briefly on some of the recent criticisms we have heard. Of course, no one familiar with the 

nominations process is surprised. We have the usual gang opposing 

Republican nominees. Well, their opposition of Jeff Sutton is for all 

of the wrong reasons. But as people who know me well will attest, 

I have always been willing to acknowledge a fair point made by the 

opposition. So in keeping with that principle, I want everyone to 

know that I found something commendable in the so-called report 

published by one of these groups about Jeff Sutton. That report 

conceded that, ‘‘No one has seriously contended that Sutton is personally biased against people with disabilities.’’ Now, that is a very 

important point, and should be obvious since Jeff Sutton has a 

well-known record of fighting for the legal rights of persons with 

disabilities. And he was raised in an environment of concern for 

the disabled. His father ran a school for people affected by cerebral 

palsy. 

Since the opposition to Jeff Sutton is not personal, then what is 

it? It seems to come down to a public policy disagreement about 

some Supreme Court decisions relating to the limits to Federal 

power when Congress seeks to regulate state governments. Those 

cases include the City of Berne, Kimel and Garrett, among others. 

But in those cases it was Jeffrey Sutton’s job, as the chief appellate 

lawyer for the State of Ohio and as a lawyer, to defend his client’s 

legal interest. As the American Bar Association ethics rules make 

clear: ‘‘[a] lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views of activities.’’ 

Now, I do not think anyone on this Committee would actually 

consider voting against a nominee out of dislike for the nominee’s 

clients. We had an important discussion about clients in connection 

with the confirmation of Marsha Berzon, now a judge on the Ninth 

Circuit, who was born in Ohio by the way, and this Committee ultimately decided not to hold her responsible for her clients’ views. 

Judge Berzon had been a long-time member of the ACLU, serving 

on the board of directors as the vice president of the Northern California Branch. She testified that, quote: ‘‘If I am confirmed as a 

judge, not only will the ACLU’s positions be irrelevant but the positions of my former clients and indeed my own positions on any polVerDate 0ct 09 2002 10:57 Oct 08, 2003 Jkt 089324 PO 00000 Frm 00012 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\89324.TXT SJUD4 PsN: CMORC
5

icy matters, will be quite irrelevant, and I will be required to, and 

I commit to look at the statute, the constitutional provisions and 

the precedents only in deciding the case.’’ That was on July 30th, 

1998. 

Now, I want to remind my colleagues that that answer sufficed 

for Judge Berzon, and she was approved by this Committee with 

my support and confirmed by the Senate. It took longer than I 

would have liked it to have taken, but she was approved. I think 

we all agree that anybody involved in a legal dispute has a right 

to hire a good lawyer, even if that person is guilty of murder. And 

Jeff’s clients are not murderers. They are state governments defending their legal rights. So let’s not beat up on Mr. Sutton because he worked for the State of Ohio. 

Of course, I am not suggesting that Committee members must 

praise the effects of the Supreme Court’s rulings in City of Berne, 

Kimel and Garrett. Those decisions affected real people and undid 

some of the hard work on the part of Congress. I should know. A 

number of us on this committee, and certainly Senator Kennedy 

and I, we did a lot of work on those cases. We put in a great deal 

of time and energy into drafting and passing the Religious Freedom 

Restoration Act, the Americans with Disabilities Act, and other 

laws that have been declared Federal power, including the Violence 

Against Women Act, which Senator Biden spent so much time on, 

and myself. I thought those laws would be good for the country, 

and they still are. It was not easy to see them limited or struck 

down. Of course I understand the powerful constitutional principles 

and underpinning of the Supreme Court’s decisions in those cases, 

but I can sympathize with those who see things differently. I have 

no sympathy, however, for the notion that those Supreme Court decisions and the positions of the states that were Mr. Sutton’s clients are somehow a legitimate reason to oppose Mr. Sutton’s nomination. That is ridiculous. 

So since even the people for the American Way concedes that Jeff 

Sutton harbors no personal bias, and since Mr. Sutton cannot be 

held responsible for the Supreme Court’s decisions, and since we all 

agree that Ohio and Alabama and Florida have the right to representation in court, then I do not see any real reason to oppose 

this highly skilled and highly qualified and highly rated lawyer by 

the ABA. I do look forward to his testimony and would only urge 

my colleagues and observers to keep an open mind. From the 

record I have observed so far, I am convinced that Jeff Sutton will 

be a great judge, and one who understands the proper role of a 

judge. 

Our final circuit nominee today is Mr. John Roberts, who has 

been nominated for a seat on the D.C. Circuit Court of Appeals. He 

is widely considered to be one of the premier appellate litigators of 

his generation. Most lawyers are held in high esteem if they have 

the privilege of arguing even one case before the U.S. Supreme 

Court. Mr. Roberts has argued an astounding 39 cases before the 

Supreme Court. At least that as the last count I had. It is truly 

an honor to have such an accomplished litigator before this committee, and one of the most well-recognized and approved appellate 

litigators in history. 

6

The high esteem in which Mr. Roberts is held is reflected in a 

letter the Committee recently received urging his confirmation. 

This letter, which I will submit for the record, was signed by more 

than 150 members of the D.C. Bar, including such well-respected 

attorneys as Lloyd Cutler, who was the White House Counsel to 

both Presidents Carter and Clinton; Boyden Gray, who was the 

White House Counsel for the first President Bush; and Seth Waxman, who was President Clinton’s Solicitor General. The letter 

states, quote: ‘‘Although as individuals we reflect a wide spectrum 

of political party affiliation and ideology, we are united in our belief 

that John Roberts will be an outstanding Federal Court of Appeals 

Judge and should be confirmed by the United States Senate. He is 

one of the very best and most highly respected appellate lawyers 

in the Nation, with a deserved reputation as a brilliant writer and 

oral advocate. He is also a wonderful professional colleague, both 

because of his enormous skills and because of his unquestioned integrity and fair-mindedness.’’ This is high praise from a group of 

lawyers, who themselves have clearly excelled in their profession, 

who are not easily impressed, and who would not recklessly put 

their reputations on the line by issuing such a sterling endorsement if they were not 100 percent convinced that John Roberts will 

be a fair judge who will follow the law regardless of his personal 

beliefs. 

Let me just say a brief word about Mr. Roberts’ background before turning to Senator Leahy. He graduated from Harvard College 

summa cum laude in 1976, and received his law degree magna cum 

laude in 1979 from the Harvard Law School, where he was managing editor of the Harvard Law Review. Following graduation he 

served as a law clerk for Second Circuit Judge Henry J. Friendly, 

and for then Justice William Rehnquist of the Supreme Court. 

From 1982 to 1986 Roberts served as associate counsel to the 

President in the White House Counsel’s Office. From 1989 to 1993 

he served as Principal Deputy Solicitor General at the U.S. Department of Justice. He now heads the appellate practice group at the 

prestigious D.C. law firm Hogan & Hartson, and he has received 

the ABA’s highest rating of unanimously well qualified. 

I have to say that this panel represents the best, and I commend 

President Bush for seeking out such nominees of the highest caliber. 

Now, I just have a note here. Let me see what it says, and then 

I will turn to Senator Leahy. For everybody’s information, I have 

been advised that we can set up in another large room. We will 

proceed here until the other room is ready for us at which time we 

will take a short recess and accommodate further the request made 

yesterday for additional accommodations. So I would prefer that, 

and even though it is an inconvenience to all of you, let’s see if we 

can try and get at least these folks into that room first because 

they were here first, as well as those persons with disabilities who 

desire to attend. Anybody know what the room is? SD–G50 will be 

the room, so apparently we can hold it there. 

Senator KENNEDY. Could I just thank the chair for that accommodation? Appreciate it very much. 

Chairman HATCH. That is fine. 

Senator LEAHY. Chairman, I think it was— 

7

Chairman HATCH. Let me turn to the Ranking Member for his 

remarks. 

[The prepared statement of Chairman Hatch appears as a submission for the record.] 

STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR 

FROM THE STATE OF VERMONT 

Senator LEAHY. I think it was a wise thing to do. As I said, when 

I walked by there, there appeared to be plenty of room. I am wondering, Mr. Chairman, I am wondering if we are going to be moving down there anyway, and Senator Warner and Senator Hutchinson, I would just as soon withhold my statement until we go 

down there, as a courtesy to Senator Warner and Senator 

Hutchison, and if Senator Voinovich comes, if they want to give 

their statement here, and then I will give my opening statement 

down there. 

Chairman HATCH. I would prefer for you to give your opening 

statement, and then we will hear from the two Senators. 

Senator LEAHY. Happy to do that, Mr. Chairman. I tried. 

Chairman HATCH. I think my colleagues understand. 

Senator LEAHY. I know they are anxious to hear my statement 

anyway. 

Chairman HATCH. Well, I am certainly anxious to hear it. 

Senator LEAHY. Following the Chairman’s example, it will be a 

little bit lengthy. 

We meet in an extraordinary session to consider six important 

nominees for lifetime appointments to the Federal Bench. During 

the last 4 years of the Clinton administration this Committee refused to hold hearings and Committee votes on qualified nominees 

to the D.C. Circuit and the Sixth Circuit. Today, in very sharp contrast, the Committee is being required to proceed on three controversial nominations to those same circuit courts and do it simultaneously. Many see this as part of a concerted and partisan effort 

to pack the courts and tilt them sharply out of balance. 

In contrast to the President’s Circuit Court nominees, the District Court nominees to vacancies in California, Texas and Ohio, 

seem to be more moderate and bipartisan. Today we will hear from 

Judge Otero, nominated to the U.S. District Court for the Central 

District of California, unanimously approved by California’s bipartisan Judicial Advisory Committee, established through an agreement between Senator Feinstein and Senator Boxer with the White 

House. I wish the White House would proceed to nominate another 

qualified consensus nominee like Judge Otero for the remaining vacancy in California. Too often in the last 2 years we have seen the 

recommendations of such bipartisan panels rejected or stalled at 

the White House. I note that Judge Otero’s contributed to the community, worked on a pro bono project for the Mexican Legal Defense and Education Fund, served as a member of the Mexican Bar 

Association, the Stanford Chicano Alumni Association and the California Latino Judges Association, among others. 

We will hear from Robert Junell, nominated to the U.S. District 

Court for the Western District of Texas, another consensus nominee who has a varied career as litigator and member of the Texas 

House of Representatives, life member of the NAACP, and a former 

8

member of the board of directors of La Esperanza clinic. I spoke 

earlier with Representative Charlie Stenholm, who strongly supports him. 

And then of course, Judge Adams, nominated to the U.S. District 

Court for the Northern District of Ohio. 

These are not the ones who create the controversy, and I am disappointed the Chairman has unilaterally chosen to pack so many 

Circuit Court nominees onto the docket of a single hearing. This is 

certainly unprecedented in his earlier tenure as Chairman, and it 

is simply no way to consider the controversial and divisive nominations in a single hearing. It is not the way to discharge our constitutional duty to advise and consent to the President’s nominees. 

When I was Chairman over 17 months we reformed the process 

of judicial nomination hearings. We made tangible progress repairing the damage done to the process in the previous 6 years. We 

showed how nominations of a Republican President could be considered twice as quickly in a Democratic controlled Senate as a Republican controlled Senate considered President Clinton’s nominees. We added new accountability by making the positions of 

home-state Senators public for the first time, and we did away with 

the previous Republican process of anonymous holds. 

We made significant progress in helping to fill judgeships in the 

last Congress. The number of vacancies was slashed from 110 to 

59, despite an additional 50 new vacancies that arose during that 

time. Chairman Hatch had written in September 1997 that 103 vacancies—this was during the Clinton administration—did not constitute a vacancy crisis. He also stated his position on numerous occasions that 67 vacancies meant full employment on the Federal 

court. Even with the two additional vacancies that have arisen 

since the beginning of the year, there are now 61 vacancies on the 

District and Circuit Courts. Under a Democratic controlled Senate 

we went well below the level that Chairman Hatch used to consider 

acceptable, and the Federal Courts have more judges now than 

when Chairman Hatch proclaimed them in full employment. 

We made the extraordinary progress we did by holding hearings 

on consensus nominees with widespread support and moving them 

quickly, but by also recognizing that this President’s more divisive 

judicial nominees would take time. We urge the White House to 

consult in a bipartisan way and to keep the courts out of politics 

and partisan ideology. We urged the President to be a uniter, not 

a divider, when it came to our Federal Courts. We were rebuffed 

on that. All Americans need to be able to have confidence in the 

courts and judges, and they need to maintain the independence 

necessary to rule fairly on the laws and rights of the American people to be free from discrimination, to have our environmental consumer protection laws upheld. 

Under Democratic leadership in the Senate we confirmed 100 of 

President Bush’s nominees within 17 months. Two others were rejected by a majority vote of this committee. Several others were 

controversial. They had a number of negative votes, but they were 

confirmed. And given all the competing responsibilities of the Committee and the Senate in these times of great challenges to our Nation, especially after the attacks of September 11th, then later the 

anthrax attacks directed at Senator Daschle and myself, attacks 

9

that killed several people and disrupted the operations of the Senate itself, hearings for 103 judicial nominees, voting on 102, and favorably reporting 100 in 17 months is a record we can be proud of, 

and one that I would challenge anybody to show, certainly in recent years to be matched. During the 107th Congress the Committee voted 102 of 103 judicial nominees eligible for votes. That 

is 99 percent. Of those voted upon, 98 percent were reported favorably to the Senate. Of those, 100 percent were confirmed. Incidentally, we completed hearings of 94 percent of the judges that had 

their files completed. 

Now, this 103 judges heard in 17 months is contrast to the less 

than 40 a year that the Republicans had when they had President 

Clinton as President. Indeed, they failed to proceed on 79 of President Clinton’s judicial nominees in the 2-year Congress in which 

they were nominated. More than 50 of them were never even given 

a hearing. Indeed, the Senate confirmed more judicial nominees in 

our 17 months than the Republican controlled Senate did during 30 

months. More achieved in half the time, but achieved responsibly. 

We showed how steady progress could be made without sacrificing fairness. But in contrast, this hearing today portends real 

dangers to the process and to the results, all to the detriments of 

our courts and to the protections they are intended to afford to the 

American people. The Senate, in this instance, and the Congress in 

many others, is supposed to act as a check on the Executive and 

add balance to the process. Proceeding as the majority has unilaterally chosen today is unprecedented. It is wrong. It undercuts the 

ability of this Committee and the Senate to provide balance. Three 

controversial Circuit nominations of a Republican President for a 

single hearing. That is something the Chairman, current Chairman, something he never did for the moderate and relatively noncontroversial nominees of a Democratic President just a few years 

ago. One has to think it is a headlong effort to pack the courts, and 

notwithstanding our efforts not to carry out the same instruction 

as we saw with a Democratic President, we seem to be going back 

to different rules for different Presidents. 

Jeffrey Sutton’s nomination has generated significant controversy 

and opposition. I have questions about his efforts to challenge and 

weaken among other laws the Americans with Disabilities Act, the 

Age Discrimination Employment Act, the Violence Against Women 

Act, and his perceived general antipathy to Federal protection for 

state workers. I am concerned that more than 500 disability rights 

groups, civil rights groups, and women’s groups are opposed to his 

confirmation because they feel. he will act against their interests 

and not protect their rights. I am concerned about a reputation 

among observers of the legal community that he is a leading advocate for the states’ rights revival. This is a nomination that deserves serious scrutiny and which ought to be considered has been 

the practice for decades in this Committee as the only circuit court 

nominee in this hearing. The process imposed by my friends on the 

other side of the aisle is cheating the American people of the scrutiny these nominees should be accorded. 

We are also being asked to simultaneously consider the nomination of Deborah Cook. She is one of the most active dissenters on 

the Ohio Supreme Court. She comes to the Committee with a judiVerDate 0ct 09 2002 10:57 Oct 08, 2003 Jkt 089324 PO 00000 Frm 00017 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\89324.TXT SJUD4 PsN: CMORC
10

cial record deserving of some scrutiny, and it has also generated a 

good deal of controversy and opposition as well. 

I note that these two difficult nominations are both in judgeships 

on the Sixth Circuit Court of Appeals. Now, that was a court to 

which President Clinton had a much harder time getting his nominees considered. 

Republicans fail to acknowledge that most of the vacancies that 

have plagued the Sixth Circuit arose during the Clinton administration, when President Clinton had nominated people to the 

Court, and they were never even given a hearing. The Republicans 

closed the gates. They refused to consider any of the three highly 

qualified, moderate nominees President Clinton sent to the Senate 

for those vacancies. Not one of the Clinton nominees to those current vacancies on the Sixth Circuit received a hearing by the Judiciary Committee under Republican leadership from 1997 through 

June 2001. 

Now, in spite of that history, when the Democrats took over, we 

gave Committee consideration, and we confirmed two of President 

Bush’s conservative nominees to that court last year. We did not 

play tit for tat. With the confirmations of Judge Julia Smith Gibbons of Tennessee, Professor John Marshall Rogers of Kentucky, 

Democrats confirmed the only two new judges to the Sixth Circuit 

in the past 5 years. 

Regrettably, despite our best efforts, the White House rejected all 

suggestions to address the legitimate concerns of Senators in that 

circuit that qualified, moderate nominees were blocked by Republicans when they were in charge. 

The Republican majority refused to hold hearings on the nomination of Judge Helen White, Kathleen McCree Lewis, Professor Kent 

Markus. One of those seats has been vacant since 1995, the first 

term of President Clinton. 

Judge Helene White of the Michigan Court of Appeals was nominated in January 1997. She did not receive a hearing on her nomination during the more than 1,500 days her nomination was before 

this committee, which probably set a record—4 years—51 months, 

in fact, no hearing. She was one of 79 Clinton judicial nominees 

who did not get a hearing during the Congress in which she was 

first nominated, and she was denied a hearing after being renominated a number of times, including in January 2001. 

Actually, the committee, under Republican control, had only 

about eight Courts of Appeals nominees a year that they heard. In 

2000, they only held five, which contrasted today, with a Republican president, they will hold three in 1 day. 

We have Kathleen McCree Lewis, a distinguished African–American lawyer from a prestigious Michigan law firm was never accorded a hearing on her 1990 nomination to the Sixth Circuit, and 

that nomination was finally withdrawn by President Bush. 

Professor Kent Marcus, another outstanding nominee to a vacancy in the Sixth Circuit, never received a hearing on his nomination. And while his nomination was pending, his confirmation was 

supported by individuals of every political stripe, including 14 past 

presidents of the Ohio State Bar Association, and more than 80 

professors and groups like the National District Attorneys’ Association and virtually every newspaper in the State. 

11

Now, Professor Marcus did say in testimony at another hearing 

how what happened to him, here are some of the things he said: 

‘‘On February 9, 2000, I was the President’s first judicial nominee in that calendar year. And then the waiting began.’’ 

‘‘At the time my nomination was pending, despite lower vacancy 

rates in the Sixth Circuit, in calendar year 2000, the Senate confirmed circuit nominees to the Third, Ninth and Federal Circuits.’’ 

No Sixth Circuit nominee was given a hearing. 

‘‘. . .more vacancies on the way, why then did my nomination expire without even a hearing?’’ 

And then, to quote him, ‘‘To their credit, Senator DeWine and his 

staff and Senator Hatch’s staff and others close to him were 

straight with me.’’ 

‘‘Over and over again they told me two things: There will be no 

more confirmations to the Sixth Circuit during the Clinton Administration. This has nothing to do with you, personally. It doesn’t 

matter who the nominee is, what credentials they may have or 

what support they may have, they’re not going to be heard.’’ 

As Professor Markus identified, some on the other side of the 

aisle held these seats open for years for a Republican President to 

fill, instead of proceeding fairly. That is why there are now so 

many vacancies on the Sixth Circuit. Had Republicans not blocked 

President Clinton’s nominees to the Sixth Circuit, if the three 

Democratic nominees had been confirmed and President Bush appointed the other vacancies on the Sixth Circuit, that court would 

be almost evenly balanced between judges appointed by Republican 

and Democratic Presidents, and that is why the Republicans 

blocked it. They do not want balance, and the same is true of a 

number of other circuits. 

The former Chief Judge of the Sixth Circuit, Judge Gilbert Merritt, wrote to the Judiciary Committee Chairman years ago to ask 

the nominees get hearings. He predicted by the time the next 

President is inaugurated, there will be six vacancies on the Court 

of Appeals. Almost half the court will be vacant. 

But no Sixth Circuit hearings were held in the last three/4 years 

of the Clinton administration, almost the entire second presidential 

term, despite these pleas. And when I scheduled the April 2001 

hearing on President Bush’s nomination of Judge Gibbons to the 

Sixth Circuit, it was the first hearing on a Sixth Circuit nomination in almost 5 years, even though there had been three pending 

for President Clinton that never got heard, and we confirmed 

Judge Gibson by a vote of 95 to nothing. 

But we did not stop there. We proceeded to hold this hearing on 

a second Sixth Circuit nominee just a few short months later—Professor Rogers. He, too, was confirmed. 

This is very similar to what had happened in the Circuit of Appeals for the District of Columbia, the Nation’s circuit. It plays a 

significant role in environmental areas, OSHA, the National Labor 

Relations Board. There, again, President Clinton’s nominees were 

not allowed to be heard, although we did hold a hearing for one of 

President Bush’s last year. 

Allen Snyder was a law partner of Mr. Roberts and a former 

clerk to Chief Justice Rehnquist. He was never allowed a Committee vote. The Republicans refused to give Professor Elena 

12

Kagan, another D.C. Circuit nominee, a hearing during the 18 

months she was pending. 

Today’s nominees to the D.C. Circuit, John Roberts, worked in 

the Reagan Justice Department, in the Reagan White House, was 

an associate of former Solicitor General Kenneth Starr. It is obvious the Bush administration feels far more comfortable with him. 

Also, home–State Senators I understand have not been consulted 

in these. We have certainly not received any ‘‘blue slips’’ back. 

What we are doing is we are appointing people to the highest 

courts in the land, with little more attention and scrutiny than we 

would pay to appoint these for a temporary Federal commission. It 

is a disservice to the American people. 

The American people can be excused for sensing that there is the 

smell of an ink pad in the air, rubber stamps already out of the 

drawer. 

Thank you, Mr. Chairman. 

[The prepared statement of Senator Leahy appears as a submission for the record.] 

Chairman HATCH. Thank you, Senator Leahy. 

[Applause.] 

Chairman HATCH. We will have order in the room. 

We will turn to—yes, sir? 

Senator SCHUMER. I know we do not have opening statements, 

and I do not want to get into any of the substance here, but I 

would ask that a letter that a number of us signed to you be added 

to the record. 

Chairman HATCH. We will put both your letter— 

Senator SCHUMER. And I would just make this point. We received 

notice of who the witnesses would be at 4:45 yesterday. That does 

not give anyone any chance to prepare. The Committee has not organized. We do not have rules. You are changing the rule of the 

tradition of the ‘‘blue slip,’’ but we do not know what it is. This is 

just being rushed beyond, aside from the fact which Senator Leahy 

dealt with, in terms of the three nominees, now we have received 

notice for a hearing next Tuesday. We do not know who is going 

to be on the hearing, and there is a rule in the Committee of a oneweek notice. 

And so there is just a tremendous rush to judgment here that is 

just not fair. We know we have differences on these nominees, but 

all of the procedures seem to be being ripped up in an effort to rush 

things through, and I would just ask that you give the letter that 

we sent you some consideration. 

It is not fair to tell us at 4:45 last night as to who the witnesses 

were going to be. On important judges like this, it is important 

that we get a chance to prepare, and I would just urge that in the 

future, this policy—or whatever it is—be reexamined. We have no 

chance, no chance to adequately prepare. If the impression that 

Senator Leahy said that we are just trying to rush things through 

without thorough examination is rankling some people, it is no 

wonder, because of all of these things. It is just not right for us. 

And I would ask you really give consideration to the letter, as 

you were generous enough to move the room as well, because we 

are going to have an awful time over the next year if we are not 

going to get an adequate chance to prepare to ask questions fully, 

13

et cetera, and I know it has not been your way in the past. You 

have always tried to be fair. 

Chairman HATCH. I appreciate the Senator’s remarks. Certainly, 

your letter will go into the record, and our response to your letter 

will go into the record as well, and I intended to put them in the 

record. 

Also, I have been announcing for two weeks who are the witnesses are. They have been waiting 630 days. I think that is adequate time to prepare, but on the other hand, if there is a problem 

here, I am going to solve it for you. We will try and give better notice, but our obligation is to give notice of the hearing. Sometimes 

it is very difficult to adjust and get people, you know, prepared and 

there, but I will certainly take your comments into consideration. 

Let us turn to Senator Warner, and then Senator Hutchison, and 

then Senator Voinovich, and then, of course, we have Senator 

DeWine, who, also, along with Senator Voinovich, has two Ohio 

State judges, and then Senator Feinstein, if you would care to 

make your remarks about your judge here today or we could do it 

right before they are called up. 

Senator FEINSTEIN. Whatever is your pleasure. 

Chairman HATCH. I will accommodate you. I will accommodate 

you. 

Senator FEINSTEIN. I would be happy, since I am going to be 

here, I would be happy to wait for the other Senators. 

Chairman HATCH. And then wait until your judge is called up. 

Senator FEINSTEIN. Yes. 

Chairman HATCH. That will be fine. Senator Warner? 

PRESENTATION OF JOHN G. ROBERTS, JR., NOMINEE TO BE 

CIRCUIT JUDGE FOR THE DISTRICT OF COLUMBIA CIRCUIT 

BY HON. JOHN WARNER, A U.S. SENATOR FROM THE STATE 

OF VIRGINIA 

Senator WARNER. Chairman Hatch, Senator Leahy, and members 

of the committee, I will ask to submit my statement for the 

record— 

Chairman HATCH. Without objection, all statements will be put 

in the record. 

Senator WARNER. —for three reasons: First, as a courtesy to the 

Committee and to our guests who have been very patient; secondly, 

this nominee, John Roberts, is indeed one of the most outstanding 

that I have ever had the privilege of presenting on behalf of a 

President in my 25 years in the United States Senate. His record 

needs no enhancement by this humble Senator, I assure you. 

So I ask that the Committee receive this nomination. He is accompanied by his wife Jane, his children Josephine and John, who 

have been unusually quiet, and we thank you very much and patient— 

[Laughter.] 

Senator WARNER. —his parents and his sisters. 

Mr. Chairman, members of the committee, if I may indulge a 

personal observation, Mr. Roberts is designated to serve on the Circuit Court of Appeals for the District of Columbia. Exactly one-half 

century ago, 50 years, I was a clerk on that court, and so I take 

a particular interest in presenting this nominee. 

14

Also, the nominee is a member of the firm of Hogan & Hartson, 

one of the leading firms in the Nation’s capital. Fifty years ago, I 

was a member of that firm. And I just reminisced with the nominee. I was the thirty-fourth lawyer in that firm, which was one of 

the largest in the Nation’s capital. Today, there are 1,000 members 

of that law firm, to show you the change in the practice of law in 

the half-century that I have been a witness to this. 

Mr. Chairman, you covered in your opening remarks every single 

fact that I had hopefully desired to inform the committee. So, 

again, for that reason you have, most courteously, Mr. Chairman, 

stated all of the pertinent facts about this extraordinary man, having graduated from Harvard, summa cum laude, in 1976.l Three 

years later, he graduated from Harvard Law School, magna cum 

laude, where he served as managing editor of the Harvard Law Review. Those of us who have pursued the practice of law, know that 

few of us could have ever attained that status. Even if I went back 

and started all over again, I could not do it. 

He served as law clerk to Judge Friendly on the usn Court of Appeals for the Second Circuit and worked as a law clerk to the current Chief Justice of the Supreme Court, Judge Rehnquist—Justice 

Rehnquist. 

So I commend the President, I commend this nominee. I am 

hopeful that the Committee will judiciously and fairly consider this 

nomination and that the Senate will give its advice and consent for 

this distinguished American to serve as a part of our Judicial 

Branch. 

I thank the chair and members of the committee. 

[The prepared statement of Senator Warner appears as a submission for the record.] 

Chairman HATCH. Thank you, Senator Warner. We appreciate it. 

Senator Hutchison? 

PRESENTATION OF ROBERT JUNELL, NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF TEXAS BY 

HON. KAY BAILEY HUTCHISON, A U.S. SENATOR FROM THE 

STATE OF TEXAS 

Senator HUTCHISON. Thank you very much, Mr. Chairman. 

I am very pleased to introduce my friend, Rob Junell, who has 

been nominated to serve as a district judge for the Western District 

in Midland, Texas. This court is identified as a judicial emergency 

by the Judicial Conference of the United States. 

Rob has brought his wife Beverly with him today, and I know he 

will introduce her later, but I want to say that Rob and Beverly 

are real friends of mine. Sometimes we nominate people that are 

great on the merits, but we do not know them. Well, Rob is great 

on the merits, and I know him well. 

He served seven terms in the Texas House of Representatives, 

retiring voluntarily last year. He was Chairman of the House Appropriations Committee and the House Budget Committee, and I 

worked with him when I was State treasurer. And just a little vignette about the kind of person he is, I was elected to a 4-year 

term as State treasurer and introduced a very complicated piece of 

legislation to limit our State debt to the legislature. I asked Representative Junell to carry that bill, since he was Chairman of the 

15

Appropriations Committee, and I thought, since it was so complicated, that I would put it out there, talk about it, let the members have the chance to really look at it and study it, and then in 

my second year, second part of my term, after the fourth year, I 

thought we would try to pass it. 

Well, Representative Junell did such a terrific job of carrying the 

bill that he passed it the first session that I had given it to him, 

and we do have a limit now on general obligation debt in Texas, 

which has served us very well throughout the ups and downs of the 

economy of our State. 

Rob graduated from NMMI, then graduated from Texas Tech and 

Texas Tech Law School, with honors. He received a master’s degree 

from the University of Arkansas. He is very active in his local community of San Angelo, including service on the boards of the 

United Way of the Concho Valley, the San Angelo AIDS Foundation, and Schreiner University in Kerrville, Texas. He is a lifetime 

member of the NAACP. 

He also has received numerous honors and awards recognizing 

his leadership in serving the people of Texas. He has earned the 

distinction as Legislator of the Year given by the Texas Public Employees Association, the Vietnam Veterans Association, and the 

Greater Dallas Crime Commission. The Dallas Morning News 

named him one of the best of the best in the Texas legislature in 

1995. 

In addition to Rob’s legislative service, he has continued to maintain a law practice. In Texas, the legislature only meets 5 months 

every other year, a practice that I would recommend to the U.S. 

Congress. So these are people who have real jobs in the real world. 

He has been a practicing lawyer, very well-respected in the San 

Angelo and West Texas communities and has a wide range of clients, including hospitals, small businesses, school districts and individuals. I recommend my friend Rob Junell highly to you and 

hope that we can have an expeditious confirmation of his nomination. 

Chairman HATCH. Well, thank you, Senator Hutchison. We are 

sorry you have had to wait this long, but it is just the way it is 

on this committee, so we appreciate your patience. 

Senator HUTCHISON. Thank you. 

Senator LEAHY. I appreciate you being here, too. You have mentioned him before with the same kind of glowing—he should know 

that even when he is not in the room, you have always said such 

nice things about him. As I said, Congressman Stenholm called me, 

too, to say similar things, and I do appreciate it. 

Senator HUTCHISON. Yes. Thank you very much. 

Chairman HATCH. Thank you. We will turn to Senator Voinovich, 

first, and then we will wind up with Senator DeWine. 

16

PRESENTATION OF DEBORAH L. COOK AND JEFFREY S. SUTTON, NOMINEES TO BE CIRCUIT JUDGES FOR THE SIXTH 

CIRCUIT AND JOHN ADAMS, NOMINEE TO BE DISTRICT 

JUDGE FOR THE NORTHERN DISTRICT OHIO BY HON. 

GEORGE VOINOVICH, A U.S. SENATOR FROM THE STATE OF 

OHIO 

Senator VOINOVICH. Thank you, Mr. Chairman, members of the 

committee. I thank you for allowing me to speak on behalf of three 

deserving attorneys from the State of Ohio. I am anxious to express 

my strong recommendations for Justice Deborah Cook, Jeffrey Sutton, both of whom the President nominated to serve on the United 

States Court of Appeals for the Sixth District, as well as Judge 

John Adams, who has been nominated to serve on the U.S. District 

Court for the Northern District of Ohio. 

Judge Cook and Mr. Sutton were members of the original group 

that the President of the United States nominated for the Federal 

judiciary, and I am very pleased that this Committee is finally having a hearing on their nominations. 

I have known Judge Cook for over 25 years. I know her to be a 

brilliant lawyer, a wonderful person. She graduated from the University of Akron Law School in 1998 or 1978, and immediately 

went to work for the law firm of Roderick, Myers and Linton, Akron’s oldest law firm. She was the first female lawyer to be hired 

by this firm, and in 1983 she became its first female partner. 

Deborah remained at Roderick Myers until 1991, when she was 

elected to Ohio’s Ninth District Court of Appeals. She remained on 

this bench until 1995, when she was elected to the Supreme Court 

of the State of Ohio, an office which she continues to hold. 

She is married to her husband, Robert Linton, and Deborah has 

always exhibited a love of her family and community, and I am 

glad that her brother and her nephews are here today for this 

hearing. It is an historic day for their family. 

As a long-time resident of Akron, Deborah has demonstrated her 

commitment to her community, involved in the Akron Women’s 

Network, the Akron Bar Association, the Akron Volunteer Center, 

Summit County United Way, and the Akron Art Museum, just to 

name a few. 

Throughout these 25 years, I have found Deborah to be a woman 

of exceptional character and integrity. Her professional demeanor 

and thorough knowledge combine to make her truly an excellent 

candidate for appointment to the Sixth Circuit. Deborah has served 

with distinction on Ohio’s Supreme Court since her election in 1994 

and reelection in the year 2000. 

My only regret is the confirmation to the Sixth District that we 

will lose and an outstanding judge in our Supreme Court. However, 

I am confident that she will be a real asset to the Federal bench. 

With the combined years of 10 years of appellate judicial experience on the Court of Appeals and the Supreme Court, she uniquely 

combines keen intellect, legal scholarship and consistency in her 

opinions. 

She is a strong advocate of applying the law without fear or favor 

and not making policy towards a particular constituency. She is a 

committed individual and trusted leader, and it is my pleasure to 

give her my highest recommendation. 

17

I would just like to mention, in closing, that newspapers from 

Ohio have endorsed her on two occasions. Recently, on January the 

6th, 2003, the Columbus Dispatch said, ‘‘Since 1996, she has served 

on the Ohio Supreme Court, where she has distinguished herself 

as a careful jurist, with a profound respect for judicial restraint, 

and the separation of powers between the three branches of Government.’’ 

The Plain Dealer, the largest newspaper in Ohio said, ‘‘Cook is 

a thoughtful, mature jurist, perhaps the brightest on the State’s 

highest court.’’ 

And in May of 2000, the Beacon Journal, the Akron paper, stated 

that ‘‘Deborah Cook’s work has been a careful reading of the law, 

buttressed by closely argued opinions and sharp legal reasoning.’’ 

I think that Deborah is someone that is very ideal for the Federal bench. 

Jeffrey Sutton, another nominee. I am pleased to speak on behalf 

of Jeffrey, a man of unquestioned intelligence and qualifications. 

With vast experience in commercial, constitutional and appellate 

legislation litigation. Jeffrey graduated first in his law school from 

the Ohio State University, followed by two clerkships with the 

United States Supreme Court, as well as the Second Circuit. 

Because he was the solicitor general of Ohio when I was Governor, I worked with him extensively when he represented the Governor’s office, and in my judgment, he never exhibited any predisposition with regard to an issue. He has contributed so much 

with his compassion for people and the law. In my opinion, Jeffrey 

Sutton is exactly what the Federal bench needs—a fresh, objective 

perspective. He is fair and eminently qualified. 

His qualifications for this judgeship are best evidenced through 

his experience. He has argued nine cases before the United States 

Supreme Court, including Hohn v. The United States, in which the 

court invited Mr. Sutton’s participation, and Becker v. Montgomery, in which he represented prisoners’ interests pro bono. 

It is worthy to note that when I recently visited the Supreme 

Court to move the admission of some of my fellow Ohio State University graduates, that the clerk of the court himself commented favorably on Jeff’s abilities. I will never forget it. We were moving 

him through, and he went out of the way. 

In addition to the U.S. Supreme Court, Jeff has argued 12 cases 

in the Ohio Supreme Court and six in the Sixth Circuit. While his 

unwillingness to shy away from challenging or controversial issues 

has, in some instances, led critics to question his qualifications and 

accomplishments, I believe such comments do not accurately reflect 

Jeff Sutton’s heart. 

What these detractors fail to mention is how he argued pro bono 

on behalf of a blind student seeking admission to medical school; 

how he filed an amicus curiae brief with the Ohio Supreme Court 

in support of Ohio’s hate crimes law on behalf of the Anti–Defamation League, the NAACP and other human rights, Bar Association; 

or his work on behalf of the Equal Justice Foundation, arguing on 

behalf of the poor. You do not hear that much about Jeff. 

Jeff Sutton also should not be criticized on assumptions that past 

legal positions reflect his personal views. Instead, he should be 

lauded for always zealously advocating his clients’ interests, no 

18

matter what the issue. In fact, the letters I received in support of 

Jeff’s nomination are some of the best evidence of his overwhelming, across-the-board support in the State of Ohio. 

I am going to ask that these letters that I have got be submitted 

for the record, Mr. Chairman. 

Chairman HATCH. Without objection. We will put them in the 

record. 

Senator VOINOVICH. But I would like to just read an excerpt from 

Benson Wolman. Benson Wolman and I have known each other 

since we were in law school together. He was probably the most liberal member there at the Ohio State University. He is a former executive director of the ACLU of Ohio, a self-proclaimed liberal 

Democrat, and here is what he said: 

‘‘Jeff’s commitment to individual rights, his civility as an opposing counsel, his sense of fairness, his devotion to civic responsibilities and his keen and demonstrated intellect all reflect the best 

that is to be found in the legal profession.’’ 

Greg Myers, chief counsel in the Death Penalty Division of the 

Office of the Public Defender, remarked: 

‘‘Jeff’s integrity, respect, tolerance and understanding not only 

for the lawyers who advocate different positions, but for the legal 

ideas that stand in opposition to his.’’ 

Mr. Chairman, I could go on praising Jeff for the outstanding—

he is one of the brightest—may be the brightest lawyer we have 

got in the entire State. I have questioned his sense of wanting to 

serve on the Federal bench at his young age, with the family that 

he has, but you will see from his testimony he is an unbelievably 

qualified individual that really wants to serve his country. 

He has been active in his community. I am glad that his wife and 

his children are here today with him, members of his family, and 

I want to thank them for the sacrifice that they are willing to 

make, to allow him to serve in the judiciary. 

So, Mr. Chairman, I have worked with Deb and with Jeff, and 

they are wonderful people, and they will be real assets to the court. 

The last individual, and I will try to make it short, is John 

Adams. John is a native of Orville, Ohio. He is a very qualified candidate for the U.S. District Court for the Northern District. 

Judge Adams received his degrees from Bowling Green and his 

juris doctorate from the University of Akron. He currently is a 

judge in the Court of Common Pleas in Summit County. The Court 

of Common Pleas is the primary State court having original jurisdiction in all criminal felony cases and all civil cases, where the 

amount in controversy is over $15,000. Prior to that, the judge 

worked as a partner in the law firm of Kaufman & Kaufman in 

Akron as a Summit County prosecutor and as an associate with the 

law firm of Germano, Rondy and Ciccolini. 

Judge Adams has demonstrated a commitment to the community 

he lives in. He is a member of the Akron Bar Association, the Ohio 

Bar. He received a Volunteer Award in 2000 for the Dramatic 

Brain Injury Collaborative. He has memberships in the Summit 

County Mental Health Association, the NAACP, Summit County 

Criminal Justice Coordinating Council, Summit County Civil Justice Commission. 

19

I sincerely hope that the Committee acts favorably on Judge 

Adams’ nominations and sends this qualified nominee to the Senate floor as soon as possible. 

Mr. Chairman, I would like to say one other thing. I know there 

has been a lot of controversy about the Sixth District and who did 

what and so on and so forth, whether it was during the Clinton administration and now the Bush administration. 

The Sixth District is in need of new, more judges. They are in 

a crisis situation, and I would ask this Committee to expeditiously 

move on those two nominees. Either they are up or down, but let 

us get on with it. It is important. We have, I mean, it is just unbelievable to me that this has gone on as long as it has, and I am 

hopeful that maybe somehow all of you can work together to move 

forward to fill those two vacancies on that court. 

Thank you very much for giving me the chance to be here. 

Chairman HATCH. Thank you. 

Senator SCHUMER. Would my colleague yield just for a comment? 

Senator VOINOVICH. Certainly. 

Senator SCHUMER. It has been a long time, and we want to fill 

them, but it would work a lot better if the White House consulted 

with some of the Senators in the area involved, such as Senators 

Levin and Stabenow, who had nominated people for years. They 

were not even given a hearing. 

There is a way to move things along, but it is not simply saying, 

‘‘This is who we pick after we blocked everybody you wanted. Now 

you must do those.’’ That is all I would say to my good friend, who 

I now is a very fair-minded person. 

Chairman HATCH. Well, let me just say this, that the administration has consulted with the in–State Senators from Ohio on this 

matter, which is their obligation, and I expect them to consult with 

the Senators from the other States when they have nominees that 

are up from their States, and I have demanded that they do, and 

I believe they are doing that. Now, I think they have met the requisite consultation here, without question, and both Senators are 

for all three of these Ohio nominees. 

But your statement, Senator, is high praise, indeed, with the experience that you have had in the State of Ohio. I think you have 

made a terrific statement for these nominees from Ohio, and I commend you for it. I am sorry you had to wait so long, but we are 

grateful to have had you here. 

Go ahead, Senator. 

Senator LEAHY. I think it is fair to say that the two Senators 

from Ohio are well-liked by everybody on this Committee on both 

sides of the aisle, and I have certainly appreciated serving with 

them. 

I was struck, though, by something that Senator Voinovich said 

about the delays in getting vacancies filled on the Sixth Circuit. I 

wished that, frankly, George, I wish there had been more in your 

party who had expressed the same concern when there were several moderate nominees, including one from your own State, and 

strongly supported in your State, during the Clinton administration, and been more effort to get them to at least have a hearing 

so that they might have been put on there. 

20

I would contrast that with when I became chairman, we moved 

two people to the Sixth Circuit within a relatively short time. From 

the time of their hearing to the time of their vote on the floor, was 

a matter of weeks, at best, and I think that you would not see the 

vacancies had there been more of a bipartisan effort to get those 

nominees of President Clinton’s, to get them through, rather than 

to be held up by Republican holds. 

Chairman HATCH. Senator Feinstein has asked to be able to go 

now, and then I am going to give Senator DeWine—we understand 

the room is available downstairs now and prepared. So, Senator 

DeWine, if you would prefer to go here or down there, we will give 

you that choice. 

Senator DEWINE. It does not matter, Mr. Chairman. 

Chairman HATCH. Well, then we will wait. 

Senator VOINOVICH. Thank you very much, Mr. Chairman. 

Chairman HATCH. Thank you, Senator Voinovich. 

Then, if you do not mind— 

Senator DEWINE. No, it does not matter. 

Chairman HATCH. —we will wait until we get down there, and 

then you can finish your statement. 

And, Senator Feinstein, if you would care to make yours now, I 

would be happy to accommodate you. 

PRESENTATION OF S. JAMES OTERO, NOMINEE TO BE DISTRICT JUDGE FOR THE CENTRAL DISTRICT OF CALIFORNIA 

BY HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE 

STATE OF CALIFORNIA 

Senator FEINSTEIN. Thank you very much, Mr. Chairman. 

I am very pleased to introduce Judge James Otero to the committee. He is nominated for the Central District of California. He 

is the sixth candidate to come before this Committee as a product 

of California’s Bipartisan Screening Committee, which the White 

House, Senator Boxer and I have set up. He received a unanimous 

6–0 vote from this Screening Committee. 

He is joined at the hearing today by his wife Jill, his son Evan, 

and his daughter Lauren. Jill is a special education teacher in the 

Los Angeles Unified School District. She has been that for 28 

years. Evan is a junior at my alma mater, Stanford, where he is 

majoring in political science, and Lauren, a high school senior, just 

got accepted to Stanford University. 

I would like to ask them to stand and be acknowledged by the 

committee. 

Thank you very much for being here. 

Judge Otero is a native Californian. He spent his entire legal career in the State. He graduated from California State University, 

Northridge, in 1973 and Stanford Law School in 1976. 

Immediately out of law school, he joined the Los Angeles City Attorney’s Office. He practiced there for 10 years. He held a number 

of important assignments, including assistant supervisor for the 

city’s Criminal Division, where he was in charge of 35 trial deputies. 

In 1987, he entered private practice as a lawyer for Southern Pacific Transportation Company. His time in private practice was 

21

brief, as he was appointed to the Municipal Court of Los Angeles 

in 1988. Two years later, he was elevated to the Superior Court. 

His 13-year career on the State bench has been distinguished. 

Notably, from 1994 to 1996, he served as a supervising judge of the 

Northern District in Los Angeles. 

In 2002, he was named assistant supervising judge for the court’s 

Civil Division, and he has earned a reputation as one of the top 

judges in Los Angeles City. 

I can give you many quotes from Judge Gregory O’Brien, Attorney Tom Girardi, Los Angeles Superior Court Judge Chris Conway, 

who has described him as one of the best judges on the court. 

He is active in professional and civic activities. He is secretary 

of the California Latino Judges’ Association and previously served 

as vice president of the California Judges’ Association. 

He is a board member of the Salesian Boys & Girls Club and the 

Salesian Family Youth Center. 

I could also note he is a fitness buff, and over the past years, he 

has run in over 100 races, including 10 marathons. 

I think it is fair to say that I strongly recommend Judge Otero, 

and I thank you, Mr. Chairman. 

Chairman HATCH. Well, thank you, Senator Feinstein. 

Now, here is what we are going to do. We are going to move 

down to SD–G50. We would like all of you in this room—we are 

trying to accommodate you by having the Sergeant of Arms and his 

people accompany you downstairs so you can get seated down 

there. So we would like you, row by row, after the dais is cleared, 

to come through this door, just come up through there, through 

that door, and we will try and get this started. 

We are going to recess for 10 minutes, and hopefully we can get 

set up in that time down there. 

[Recess from 10:45 a.m. to 11:00 a.m., to move to Room SD–G50.] 

Chairman HATCH. If everybody will come to order. I, personally, 

feel very, very good that we have been able to accommodate everybody, and I apologize that we did not get this done—can we turn 

these up somehow or another? I wonder if we can get these 

mikes—that is better. Now, the mikes are all open, for everybody, 

so they will know. 

I, personally, apologize that this was not taken care of in advance. We did not know. We tried to get 216 and other large rooms, 

and they were not available. But when I found this was available, 

then we have made this accommodation which I think absolutely 

had to be made. 

[Applause.] 

Chairman HATCH. Thank you, but we would like no further demonstrations. This is a very, very serious hearing. These are three 

very important people who have been nominated by the President. 

And if you have heard the statements, and we have one more to 

go, a very important statement by the distinguished Senator from 

Ohio, then you will understand that this a hearing that deserves 

dignity. 

So we will now turn to Senator DeWine, who is from the State 

of Ohio, and ask him—if you would go ahead, Senator Leahy. We 

will turn to Senator— 

22

Senator LEAHY. I also want to thank the Chairman for moving 

down here. It was the right thing to do. It was something that, 

when it was suggested, we moved quickly. I applaud you for doing 

that and then moving out of our regular place. But I just wanted 

to note my applause of the Chairman for moving us down here as 

quickly as he did. 

Chairman HATCH. Well, thank you, and I am very grateful to the 

Senate for scrambling and getting this room prepared and helping 

us to get this done in an efficient and quick manner. 

Now, we will have one more statement, and then we are going 

to call on the witnesses, the three Circuit witnesses. We will finish 

with them before we call on the District Court witnesses. I know 

it is going to be a pain to wait for you District Court nominees, but 

that is the way it is going to have to be, and we will turn to our 

good friend and colleague, Senator DeWine. 

PRESENTATION OF DEBORAH L. COOK AND JEFFREY S. SUTTON, NOMINEES TO BE CIRCUIT JUDGES FOR THE SIXTH 

CIRCUIT BY HON. MIKE DEWINE, A U.S. SENATOR FROM THE 

STATE OF OHIO 

Senator DEWINE. Well, thank you, Mr. Chairman. It is my pleasure, as a U.S. Senator from Ohio, to introduce to this Committee 

today two very distinguished Ohioans, who have been nominated 

by President Bush to serve on the Sixth Circuit Court of Appeals. 

First, I would like to introduce to the Committee Justice Deborah 

Cook, who is from Akron, Ohio. Justice Cook currently is serving 

her second term as an Ohio Supreme Justice, a post she was first 

elected to in 1994. 

Let me welcome to the Committee several people who are here 

to support Justice Cook. First, is her husband, Bob Linton. Bob, 

thank you very much for being with us today. 

Let me also welcome Justice Cook’s brother, Kevin Cook, and his 

wife Katerina, and their 8-year-old son Jordan, and 6-year-old 

Christina, as well as Justice Cook’s sister, Susan Adgate, and her 

two children, Frankie and Audrey, as well as two of Justice Cook’s 

judicial clerks, Shawn Judge and his wife Corie, and another judicial clerk, Amy Cadle. 

Justice Cook is an excellent judge and a gracious and giving individual who has dedicated a great deal of her personal time and energy to helping the underprivileged. 

First, let me give the members of the Committee a little bit 

about her work as a judge. Justice Cook has been an appellate 

judge for over 11 years—4 years on the Ohio Court of Appeals, over 

7 years on the Ohio Supreme Court. 

While Justice Cook was on the Court of Appeals, she participated 

in deciding over a thousand cases. Of the opinions that she wrote, 

she was reversed just six times. Of the cases in which she joined 

other judge’s opinions, her appeals panel was reversed eight times. 

So, together, of course, that is a 1.4-percent reversal rate, and by 

any standards, that is a remarkable record. 

Now, let us take a look at the statistics during her time on the 

Ohio Supreme Court. As we are all aware, few State Supreme 

Court cases are taken for review by the United States Supreme 

Court. The Ohio Supreme Court is certainly no exception to that 

23

rule. But this statistic for the Ohio Supreme Court and for her decisions on that court is still worth considering. 

During Justice Cook’s time on the Ohio Supreme Court, the 

United States Supreme Court has reviewed five Ohio Supreme 

Court decisions. The U.S. Supreme Court has agreed with Justice 

Cook in all five of those cases. Let me repeat that. The United 

States Supreme Court has agreed with Justice Cook in all five of 

those cases. 

Of those cases, one of those cases was simply a unanimous Ohio 

Supreme Court decision affirmed by the U.S. Supreme Court 8 to 

1. But in the other four cases, Justice Cook had dissented in the 

underlying Ohio case. She was the dissenter, and in each of these 

four cases, the U.S. Supreme Court reversed—reversed—Ohio Supreme Court’s majority opinion and reached the same conclusion—

the same conclusion—as Justice Cook did. 

Now, these were not all the close 5 to 4 decisions that we sometimes see in the U.S. Supreme Court. In a Fifth Amendment selfincrimination case, the Supreme Court sided with Justice Cook 9 

to nothing. Another case went 8 to 1, again siding with Justice 

Cook’s dissent. 

So it is clear from these statistics that Justice Cook’s decisions, 

when she was dissenting in these cases, was well-founded. 

Mr. Chairman, members of this committee, another useful gauge 

of a sitting judge is the evaluation she gets from objective observers 

who watch the court on a day-to-day basis. 

In Ohio, the major newspapers closely watch our High Court. 

After observing Justice Cook on the Ohio Supreme Court for a full 

6-year term, Justice Cook was endorsed by all of the major newspapers in the State of Ohio for her 2000 reelection campaign. These 

newspapers included the Cleveland Plain Dealer, the Columbus 

Dispatch, the Cincinnati Inquirer, the Akron Beacon Journal, the 

Dayton Daily News, and the Toledo Blade. 

Let me just say, as someone who has a lot of experience with 

these newspapers, that covers the entire political spectrum in the 

State of Ohio. 

Since the election in the past few weeks, several Ohio papers 

have endorsed her nomination to the Sixth Circuit. The Cincinnati 

Post wrote on January 8th of this year, and I quote, Mr. Chairman, 

‘‘Cook is serving her second term on the Ohio Supreme Court, 

where she has been a pillar of stability and good sense. Her role 

on that court, one, which in the last few years has repeatedly 

marched on 4-to–3 votes into the realm of policy-making, has often 

been writing sensible dissents.’’ 

On December 29th, 2002, insisting that the Judiciary Committee 

act on Justice Cook, the Cleveland Plain Dealer wrote, and I quote, 

‘‘Cook is a thoughtful, mature jurist, perhaps the brightest on the 

State’s highest court.’’ 

The Akron Beacon Journal wrote on January 6th, 2003, and I 

quote, ‘‘Those who watch the Ohio court know Cook is no ideologue. 

She has been a voice of restraint in opposition to a court majority 

determined to chart an aggressive course, acting as problem-solvers 

more than jurists. In Deborah Cook, they have a judge most deserving of confirmation, one dedicated to judicial restraint.’’ 

24

And the Columbus Dispatch wrote on January 6th, 2003, and I 

quote, ‘‘Cook’s record is one of continuing achievement. Since 1996, 

she has served on the Ohio Supreme Court, where she has distinguished herself as a careful jurist, with a profound respect for judicial restraint and the separation of powers between the three 

branches of Government.’’ 

Now, Mr. Chairman, these quotes are from papers across the political spectrum, all of which endorsed Justice Cook. As these comments make clear, Justice Cook is a talented, serious judge, who 

works diligently to follow the low. At the same time, she also dedicates, though, a great deal of her time to volunteer work and community service. 

Justice Cook has served on the United Way Board of Trustees, 

the Volunteer Center Board of Trustees, the Akron School of Law 

Board of Trustees, and the Women’s Network Board of Directors. 

She was named Woman of the Year in 1991 by the Women’s Network. She has volunteered for the Safe Landing Shelter and for 

Mobile Meals, and she has served as a board member, and then 

president, of the Akron Volunteer Center. 

Furthermore, Mr. Chairman, Justice Cook has served as a commissioner on the Ohio Commission for Dispute Resolution and Conflict Management, where she focused on, among other things, truancy, mediation for disadvantaged students. 

She has chaired Ohio’s Commission on Public Legal Education 

and has taught continuing legal education seminars on oral argument and brief writing. 

I find it, Mr. Chairman, remarkable that Justice Cook has found 

time for this level of commitment to her community, and I have yet 

to describe the most amazing, to me, commitment Justice Cook has 

made helping the underprivileged in Ohio. Like many of us, Justice 

Cook believes that the ticket out of poverty is a quality education, 

and over the years Justice Cook, and her husband, in their everyday lives, have come across hardworking young people who are 

making an effort to improve their lives through education. 

Tasha Smith is one of those people. Justice Cook met her when 

she was struggling to put herself through college at Kent State by 

working as a waitress. Justice Cook assisted her with tuition for 

several years, and today this woman is in her final year of nursing 

school, carrying a 3.8 grade point average. 

Tara King is another of these students. With Justice Cook’s help, 

she recently graduated from the University of Akron, and she just 

enrolled in graduate school at Cleveland State. 

After helping several students in this manner, Justice Cook and 

her husband decided they should structure their assistance so they 

could help more young people early on in their education. Four 

years ago, they started the College Scholars Program with a group 

of 20 disadvantaged third-graders from an inner-city school. The 

students were selected to participate based on teacher recommendations, financial need and level of family support. 

Justice Cook matched each of the students with a mentor in the 

community. The students met with their mentors weekly and participated in other program activities. If the students maintained 

good grades and conduct through secondary school, Justice Cook 

and her husband will pay for 4 years of their tuition in any public 

25

university in Ohio. Let me repeat that. Justice Cook is going to pay 

for 4 years of college tuition for 20—20—disadvantaged children. 

Now, Mr. Chairman, members of the committee, these activities 

demonstrate a commitment to the community and dedication to 

helping the disadvantaged that we would like to see in everyone, 

and these are qualities that help make Justice Deborah Cook a fine 

judge. 

Now, Mr. Chairman, members of the committee, let me turn my 

attention to another one of our fine nominees from Ohio, Mr. Jeff 

Sutton. Mr. Sutton, who is from Columbus, is here today with his 

family. I would like to introduce the Committee to his wife Peggy 

and their three children, Margaret, who is 6 years old; John, who 

is 9 years old; and Nathaniel, who just today is turning 11. Happy 

birthday, Nathaniel. 

I would like also to welcome Jeff’s parents, Nancy and David 

Sutton, his sister Amy, his brothers Craig and Matt, and several 

additional friends and family. We are very pleased that all of you 

could be here on this very important day. 

Mr. Chairman, Mr. Sutton’s legal and life experiences are extensive. A couple of years ago, before high school, his father took 

over—a couple of years before high school, his father took over a 

boarding school for children with severe cerebral palsy. Over 6 

years, Mr. Sutton spent much of his time around the school doing 

odd jobs for his father. He was deeply affected by this experience 

and by the interactions that he had with these students during his 

formative years. It reinforced what he had been taught by his parents; that serving others is an important calling and virtue. 

Mr. Sutton attended Williams College, where he was a layman 

scholar and varsity soccer player. He graduated with honors in history, and after college, from 1985 to 1987, Mr. Sutton was a seventh grade geography teacher and tenth grade history teacher, as 

well as the high school varsity soccer coach and the middle school 

baseball coach. 

From there, he went on to law school and graduated first in his 

class from the Ohio State University College of Law, where he 

served as issue planning editor of the Law Review. 

Mr. Sutton clerked for Judge Thomas Meskill on the U.S. Court 

of Appeals for the Second Circuit. He clerked for two U.S. Supreme 

Court Justices, retired Justice Powell and Justice Scalia. 

From 1995 to 1998, Mr. Sutton was the State solicitor of Ohio, 

which is the State’s top appellate lawyer. During this service, the 

National Association of Attorneys General presented him with the 

Best Brief Award for practicing in the U.S. Supreme Court, a recognition he received an unprecedented 4 years in a row. 

Mr. Sutton is currently a partner in the Columbus law firm of 

Jones, Day, Reavis and Pogue. He is a member of the Columbus 

Bar Association, the Ohio Bar Association, and the American Bar 

Association. He has also been an adjunct professor of law at the 

Ohio State University College of Law since 1994, where he teaches 

seminars on Federal and State constitutional law. 

Recently, Mr. Chairman, the American Lawyer rated him one of 

its 45 under 45; that is, they ranked him, named him as one of the 

45 top lawyers in the country under the age of 45. 

26

He has appeared frequently in court, having argued 12 cases before the United States Supreme Court, where he has a 9 and 2 

record, with one case still pending. In the Supreme Court’s 2000 

to 2001 term, Mr. Sutton argued four cases. That is more cases 

than any other private practitioners in the entire country. Can we 

imagine preparing to argue one case before the Supreme Court, 

much less than four? And to no one’s surprise, Jeff Sutton won all 

four. 

Mr. Sutton also has argued 12 cases before the Supreme Court, 

6 cases before various U.S. Courts of Appeal, and numerous cases 

before the State and Federal trial courts. Over the years, Mr. Sutton has been the lawyer for a range of clients on a wide range of 

issues. Some of these cases are quite well-known. For example, he 

represented the State of Ohio in Flores v. City of Berne; the State 

of Florida in Kimel v. Florida Board of Regents; and the State of 

Alabama in University of Alabama v. Garrett. But, Mr. Chairman, I would like to tell the Committee about 

some less-well-known cases. He represented, as my colleague Senator Voinovich has indicated, Cheryl Fischer, a blind woman who 

was denied admission to a State-run medical school in Ohio because of her disability. 

He represented the National Coalition of Students with Disabilities in a lawsuit, alleging Ohio University was violating the Federal motor voter law by failing to provide their disabled students 

with voter registration materials. 

He filed an amicus brief in the Ohio Supreme Court, defending—

defending—Ohio’s hate crime statute, and he filed it on behalf of 

the NAACP, the Anti–Defamation League and other civil rights 

groups. 

He defended Ohio’s minority set-aside statute against constitutional attack. 

He filed an amicus brief in the Sixth Circuit on behalf of the 

Center for the Prevention of Hand Gun Violence, defending—defending—an assault weapon ordinance. 

He represented two capital inmates in State and Federal court, 

and he represented an inmate who brought a prisoners’ rights lawsuit in the United States Supreme Court. 

Mr. Chairman, I am sure we will have the opportunity to go 

through these cases in some detail and many other cases, but I am 

confident the Committee will be impressed by Mr. Sutton’s ability 

in representing these various clients in these cases. 

Like Justice Cook, and consistent with his upbringing, Mr. Sutton has found an extraordinary amount of time to give back to his 

community. Between a demanding law practice and time with his 

very young family, he serves on the Board of Trustees of the Equal 

Justice Foundation, a nonprofit provider of legal services to disadvantaged individuals and groups, including the disabled. He has 

spent considerable time doing pro bono legal work, averaging between 100 and 200 hours per year. 

He is an elder and deacon in the Presbyterian Church, as well 

as a Sunday School teacher. He participates in numerous other 

community activities, including I Know I Can, which provides college scholarships to inner-city children, and Pro Musica, a chamber 

music organization. 

27

He also coaches soccer and basketball teams. 

Finally, Mr. Chairman, I was struck by something I once read 

that Mr. Sutton wrote in the Columbus Dispatch about former Supreme Court Justice Powell. In describing Justice Powell’s practical 

voice on the court, he wrote the following, and I quote, ‘‘Justice 

Powell never lost sight of the context in which each decision was 

made and the people, the people, that it would affect. He believed 

in people more than ideas and experience, and experience, more 

than ideology, and in the end embraced a judicial pragmaticism 

that served the country well.’’ 

Mr. Chairman, I believe this same description applies to Mr. Sutton. He will approach the bench in the same pragmatic, tempered 

and very thoughtful way. 

I appreciate the chairman’s time, and I yield the floor. 

Chairman HATCH. Well, thank you. Thank you, Senator. 

We will call the three nominees, Hon. Deborah Cook Mr. John 

Roberts and Professor Jeffrey Sutton to the witness table, and if 

you will stand and raise your right hands. 

Do you solemnly agree to tell the truth, the whole truth and 

nothing but the truth, so you help you God? 

Justice COOK. I do. 

Mr. ROBERTS. I do. 

Mr. SUTTON. I do. 

Chairman HATCH. We will start with you, Justice Cook. If you 

have any opening statement, we would like you to introduce your 

families again and those who are with you. We are just delighted 

to have you here, and we look forward to completing this hearing. 

STATEMENT OF DEBORAH L. COOK, NOMINEE TO BE CIRCUIT 

JUDGE FOR THE SIXTH CIRCUIT 

Justice COOK. Thank you, Mr. Chairman. 

My family has been introduced, but I would like to introduce one 

additional friend who has appeared today with me, and it is Mr. 

Robin Weaver. Robin is a partner with the international firm of 

Squires, Sander and Dempsey. He is in the home office in Cleveland, and Robin also serves as the president of the Cleveland Bar 

Association, and he was kind enough to come today, and I wish to 

thank him and introduce him to the committee. 

Chairman HATCH. We are delighted to have you hear, Mr. Weaver. I have heard of you, and we are very privileged to have you 

in our audience today. 

Justice COOK. Thank you, Mr. Chairman. 

Chairman HATCH. Do you care to make any statement? 

Justice COOK. I won’t reintroduce my family. 

Chairman HATCH. That will be fine. 

Justice COOK. They were good enough to already stand. 

Chairman HATCH. Do you have a statement? 

Justice COOK. I have no statement. 

Chairman HATCH. That will be fine. 

Justice COOK. Thank you, Mr. Chairman. 

Chairman HATCH. Mr. Roberts, we will turn to you. 

28

STATEMENT OF JOHN G. ROBERTS, JR., NOMINEE TO BE 

CIRCUIT JUDGE FOR THE DISTRICT OF COLUMBIA CIRCUIT 

Mr. ROBERTS. Thank you, Mr. Chairman. 

I would like to introduce my wife Jane. 

Chairman HATCH. Where is Jane? Oh, yes. 

Mr. ROBERTS. The Committee has already heard some unscheduled testimony from my children, Josephine and Jack— 

[Laughter.] 

Mr. ROBERTS. And I thank the Committee for its indulgence. I 

thought it was important for them to be here. 

Also, here are my parents, Jack Sr. and Rosemary Roberts. 

Chairman HATCH. We are delighted to have you here. 

Mr. ROBERTS. My three sisters, Kathy Godbey, Peggy Roberts 

and Barbara Burke, my brothers-in-law, Tim Burke and Dusty 

Godbey and my niece Katie Godbey and many other friends that 

I am very happy to have here today. 

Chairman HATCH. Well, we are delighted to have all of you here, 

and we look forward to this hearing, and I hope you do, too. 

Mr. Sutton? 

STATEMENT OF JEFFREY S. SUTTON, NOMINEE TO BE 

CIRCUIT JUDGE FOR THE SIXTH CIRCUIT 

Mr. SUTTON. Thank you, Mr. Chairman. My family, I guess they 

could stand up again. I think most of them have been introduced, 

but there are a few that did not get mentioned. My brother-in-law 

Bill Southard has come down from Boston, another brother-in-law, 

Jim Southard, from Ohio, and Jim’s two kids, Emily and Tyler, 

joined us as well, and my sister Amy’s boyfriend, Chris Sterndale, 

who is earning a lot of praise from me in Amy’s choice. 

Chairman HATCH. I did not see Chris stand up here now. 

[Laughter.] 

Chairman HATCH. Oh, I see. Okay. 

Mr. SUTTON. And, of course, thank you very much for the opportunity to have this hearing today. 

Chairman HATCH. Well, thank you so much. We are delighted to 

have all of you here. We welcome you to the committee. 

We are going to have 15-minute rounds. We have our staff member sitting in the middle. He is going to hold up cards that will tell 

the times left. What are the three cards? The red is what? That is 

out of time. Orange is one minute—okay. Well, he will give you notice when 5 minutes are remaining, then one minute, and then we 

are out of time. We are going to cut it off, but if a Senator feels 

that they just have to pursue a line of questioning, we will certainly consider allowing that. 

I will reserve my time and use it later, and we will turn to Senator Kennedy at this time, with the permission of the ranking 

member. 

Senator LEAHY. Mr. Chairman, if I could also just ask permission 

that a number of letters referring to Professor Sutton—I know you 

have introduced letters in favor of him, but I would introduce this 

stack for the record that are opposed. 

Chairman HATCH. Without objection, we will put them in the 

record. 

Senator Kennedy? 

29

STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR 

FROM THE STATE OF MASSACHUSETTS 

Senator KENNEDY. Thank you very much, Mr. Chairman. I must 

say, just before questioning our nominees here—and I want to congratulate all of them on receiving their nomination. I am troubled 

like other members of the Committee of having three nominees 

who are controversial, and having one hearing that is going to do 

this. I, out of necessity and desire, will attend a memorial service 

for the death of a former Congressman from Utah this afternoon, 

which I had long scheduled to be an hour and a half. We generally 

allocate 9:30 in the morning, and I am glad to stay here whatever 

time, but I think there is—this cramped process and procedure I 

think is unworthy, quite frankly, of the committee. These are enormously important nominees. These are incredibly important issues. 

And the scheduling of three nominees and others here, suggests a 

policy to try and jam those that have serious questions, and I resent it, and I find that it is not a particularly good way to expect 

that we are going to have a wide cooperation. If we have to exercise 

all of our rights in order to protect them, so be it. And if that is 

the desire to do so, so be it as well. 

We have three nominees here for the Circuit Court. Mr. Sutton 

is a nominee for the Court of Appeals for the Sixth Circuit, has actively sought to weaken Congress’s ability to protect the civil rights 

and the ability of the individuals to enforce their Federal rights in 

court. His efforts to challenge and weaken the laws are central to 

our democracy and providing equal opportunity are well documented. He has argued for the limitation on the reach of the Civil 

Rights Act of 1964, the Americans with Disabilities Act, the Age 

Discrimination Act and Employment Act, the Violence Against 

Women Act, the Medicaid Act, to name just a few. A large number 

of National, State and local disability rights groups, civil rights 

groups, women’s groups, senior citizen’s organizations and others 

have raised serious questions about Mr. Sutton’s nomination. 

Justice Deborah Cook, another nominee for the U.S. Court of Appeals, has a disturbing record of bias in favor of business and corporation over the interest of injured individuals, workers, consumers and women. Numerous Ohio citizens and groups have 

raised strong concerns about her nomination, including the National Organization of Women, Ohioans with Disabilities. 

And finally, the nomination of John Roberts to the U.S. Court of 

Appeals for the D.C. Circuit raises concerns. The D.C. Circuit, one 

of the most important courts in the country, having jurisdiction 

over many workplace, environmental, civil rights, consumer protection statutes, wiretap, other important security issues. I am concerned about Mr. Roberts’ efforts to limit reproductive rights as a 

Government lawyer, his advocacy against affirmative action, and 

Federal Environmental Protection Laws in his efforts to shield 

states from individual suits, and to limit Congress’s ability to pass 

legislation regulating state conduct in the name of the states’ 

rights. 

And given the strong concerns raised by each of the nominees to 

pack them into a single hearing impairs our ability to fulfill, I 

think, our constitutional duty to rigorously review their records. I 

will move towards questioning the nominees. 

30

Mr. Sutton, I happened to be here, Professor Sutton, during the 

enactment of virtually all of these pieces of legislation like the 

Americans with Disabilities Act. I remember the hours of hearings, 

the length of the hearings, the work that was done. Senator Hatch 

may remember opposition at that time, objected to our considering 

the Americans with Disabilities Act. We had to meet after the sessions for the Senate well into the evening until it was actually filibustered to 1 or 2 in the morning. 

And then we saw those in the disability community in wheelchairs come on into the hearing room, first of all 5, 10, eventually 

about 100, 150, and suddenly, television cameras began to come 

into the Committee room, more and more of them. And then finally 

at 2:30 the individual, the Senator who was filibustering, no longer 

in the Senate at this time, yielded, and we were able to pass it. 

We spent weeks and months I building a record because the 

Americans With Disabilities Act follows a very important movement in this country to knock down walls of discrimination, which 

you are very familiar with, in terms of knocking down the walls of 

discrimination on the basis of race, religion, ethnicity, gender, and 

then finally the Americans with Disabilities Act, and we still have, 

I think, work to do in terms of sexual orientation, but the Americans with Disabilities Act. 

So this was something that those of us who had been a part of 

that whole movement were here at the time when we made the 

progress in terms of knocking down the walls of discrimination on 

race, knocking down the walls of discrimination on gender, knocking down on limiting the discriminatory provisions of the Immigration Act, national origin quotas in the Asian–Pacific triangle, saw 

this progress made. 

Then we passed that Americans with Disabilities Act, and we 

find that there is—and when we passed it and said we wanted it 

to apply to all Americans, we meant all Americans. But we find 

that the Supreme Court said that we, under arguments that you 

made very effectively, it does not apply to the state employees, and 

it means that state employees cannot get protection of that. 

We also had the Age Discrimination Act, and we find out under 

your arguments on the reaches of the Constitution, that we cannot 

apply that to state employees. 

The Title VI and the Disparate Impact regulations, cannot be 

privately enforced, positions that you presented to the Court, supported. Those that find out that there are sitings of toxic dumps 

in minority communities that are resulting in the poor children suffering and contracting asthma, cancer. But the fact that it is being 

used in a discriminatory way, something that we take very seriously as legislators now, with understanding your position in terms 

of the Constitution, those kinds of remedies are not going to be able 

to be out there. 

Title IX regulations. I remember the battle that we had. Going 

back, we heard the eloquent statement not long ago when Senator 

Bayh, the current Senator Bayh’s father spoke about the work that 

was being done on the Title IX, and we find out it cannot be privately enforced because of the Sandoval decision; and the Religious 

Restoration Act that the Chairman has referenced, all extremely 

important kinds of progress over the period of these past years. 

31

You have supported viewpoint that has effectively dismantled 

many of these protections, and it is one that has been embraced in 

some instances by 5–4 decisions of these courts, virtually divided 

by the Supreme Court in terms of these protections which affect 

millions of fellow citizens, those that have been left out and left behind, those that are getting the short stick in our society. I am impressed, deeply impressed by your own personal kinds of involvement, reaching out with the works that you have done privately. 

But there is very legitimate kind of questions about your being on 

the Court and whether you are going to take this position with you 

in terms of continuing dismantlement of the works of Congress and 

the remedies, the remedies. We will come to that in just a moment, 

which you have also questioned the ability for private citizens to 

actually provide remedies for these statutes, which I think for 

many of us who have seen the efforts and the progress in civil 

rights cases just assume, but you challenge this particularly, go out 

of your way in terms of amicus brief, go out of your way. We will 

hear, well, this is a very important constitutional issue which I affirm, but you go out of your way in the amicus brief in the West 

Side issue to try and diminish I think. 

I am interested just about how you came to this position and 

your own kind of experience, and your views on it, what you can 

tell us about where you think as a judge, and what you would say 

to so many of those people that are left out and behind, that your 

presence on the court is not going to endanger further their rights 

that have been passed by Congress. 

Mr. SUTTON. Thank you, Senator Kennedy, for an opportunity to 

address those issues and to discuss them with you and other members of the committee. I do appreciate this opportunity, and am an 

admirer of your work in all of those areas, and I hope there’s nothing about my career that makes you think otherwise. I guess I 

have a few thoughts, and I hope I can answer this question. And 

maybe I will be able to explore this with some other questioners 

as well, but I guess the first point I would make is that in all the 

cases you referenced, I was of course an advocate. I’m not a sitting 

judge and not a scholar. I’m flattered that someone has put ‘‘professor’’ in front of this. The people at Ohio State University will be 

amused by that designation. 

But I’m an advocate and I have been since graduating from Ohio 

State in 1990 and since finishing my two clerkships. And while I 

do understand in all of these areas, and certainly in the disability 

rights area, concern that an advocate would be willing to represent 

a state, making the arguments in Garrett, at the same time I 

would hope people would appreciate that the clients I have had and 

the cases I have worked on, whether for parties, for amicus entities, or on a pro bono basis, have covered the spectrum of issues 

of really almost every social issue of the day, and I have had an 

opportunity to be on opposite sides of almost every one of these 

issues. If one talks about the issue of disability rights I’ve had 

more cases on the side in which I was representing a disabled individual than the opposite. In fact there’s only case that I can think 

of in my career where I had two clients come to me at the same 

time and say, ‘‘You can represent either side of this particular 

32

case.’’ That of course was the Cheryl Fischer case, which arose 

when I was State Solicitor of Ohio in the mid 1990’s. 

Ms. Fischer, as you may know, is blind, and was denied admission to Case Western’s Medical School on account of her blindness. 

The Ohio Civil Rights Commission issued an order saying that that 

violated State civil rights laws, which incidentally went even further than the ADA and section 504 of the Rehabilitation Act. When 

that case came to the Ohio Supreme Court, there was the Ohio 

Civil Rights Commission order to defend on the one hand, and on 

the other hand the State Universities of Ohio thought that Case 

Western was correct, that this had not been discrimination. It was 

then my job to go to the Attorney General and explain to her that, 

in a somewhat unusual situation, she needs to appoint lawyers on 

both sides of this difficult issue. It fell to me to make a recommendation to the Attorney General what should be done. I 

thought that the State Solicitor of Ohio, the position I held, should 

argue Cheryl Fischer’s case. I agreed with her position in the trial 

court. I thought it was the better of the positions, and I recommended to the Attorney General that I argue that side of the 

case. She agreed. She appointed someone else to argue the other 

side of the case. We established an ethical wall. And I think while 

I certainly understand people who are interested in these important nominations looking at briefs and oral arguments I made in 

Garrett, I would hope that they would take the same time to read 

the briefs that I wrote in the Cheryl Fischer case, my opening brief 

and my reply brief, and the oral argument I made there. I’d be 

stunned if anyone read those briefs and thought there was any risk 

whatsoever of hostility to disability rights. I think if anything the 

concern would be just the opposite. 

I’ve had an opportunity to represent other individuals with disabilities, most recently in Federal Court. I’m sorry, I don’t want 

to— 

Senator KENNEDY. No, no. I am just watching that clock. I do not 

want to interrupt you, but there are—I want to let you complete 

but I do want to get to, in this round, get to one other area if I 

could. 

Mr. SUTTON. Well, I’ll be brief. Just on the advocacy point, I’ve 

represented several other clients with disabilities. In all of those 

cases, as the ABA rules make clear, the client’s position can’t be 

ascribed to the lawyer. It’s quite dangerous. In fact, my risk in this 

hearing is not the failure to win a vote of a Democrat, I may lose 

everybody if one looks at all of my representations. 

Chairman Hatch said unfortunately that I never represented 

murderers. Well, it turns out I have. I’ve represented two. And I 

don’t stand a chance in trying to become a judge if one looks at all 

of my clients and decides whether they agreed with their views. I 

was not working at the University of Alabama when they formulated their policy. I didn’t work on the case in the lower courts. 

That position had been formulated by the time it got to the U.S. 

Supreme Court. I’m sorry. 

Senator KENNEDY. Could I just— 

Chairman HATCH. Your time is up, Senator, but I am going to 

give you additional time. 

33

Senator KENNEDY. Just on this. The fact is it just is not in the 

cases themselves, Professor Sutton. You have, in your writings, in 

your speeches, in your talks, you have been very eloquent, and 

have been, continue to be very supportive of this concept. I think 

we ought to disabuse ourselves that this is not something that is 

just you are representing a client, because I have the examples in 

your statements, in your writings, in the speeches, where there are 

positions where you took in there, any, I think, fair-minded person 

would read those, would find that they are deeply held. 

Let me go just to one other area, and that is, the limitations that 

you put in terms of the individual remedies. We all understand a 

right without a remedy is not a right at all. You, in the West Side

filed a friend of the court. You did not have to do that. There was 

no obligation. This was not a client. You went about filing an amicus brief because you wanted to, felt compelled to, and in that 

brief, if your position had been sustained, would have effectively 

overturned 65 years of Federal Court jurisprudence in terms of the 

Medicaid, spending clause under the Medicaid Act, and effectively 

it would have, in those cases, would have closed down the courthouse doors to the working parents in North Carolina who drove 

3–1/2 hours each way to get dental care for their children because 

they could not find a dentist closer to home who would accept Medicaid even though the Medicaid Act requires states to ensure adequate supply of providers, or children with mental retardation and 

development disability in West Virginia who face institutionalization because they could not get Medicaid to pay for home-based 

services they need, even thought Medicaid Act requires the states 

to cover the services, or families in Arizona who are not receiving 

notices of impartial hearings when their Medicaid HMOs denied or 

delayed needed treatments, even though the Medicaid Act requires 

states to provide those rates to such persons. 

You went into the court effectively to have them overturn 65 

years of rights of individuals pursuant to try to get a remedy. What 

do you think of those again that are the least able to protect themselves when you are on that court, if you are on the court, and look 

at you, how do you think they are going to view your views about 

their rights and being able to ensure that they are going to be able 

to get remedies which have been in legislation passed by the Congress, intended to be, and passed by the Congress. And with your 

own, I suppose, knowledge at the efforts to reduce the enforcement 

of those is quite common knowledge in terms of where the Congress is at the present time in terms of enforcement of these statutes. 

I thank the Chair for the additional time. 

Mr. SUTTON. Thank you, Senator Kennedy. I think the case 

you’re referring to is the West Side Mothers case, a District Court 

case in Michigan. 

Senator KENNEDY. Yes. 

Mr. SUTTON. And I respectfully disagree with one component of 

your question, and that’s the indication that I volunteered to take 

that case or I wrote the brief on my own behalf, and that that brief 

reflected my views. That is not the case. 

As has happened to me before in my career, I was lucky enough 

to have the U.S. Supreme Court once invite me to brief an issue 

34

that the advocates had not briefed, or that one advocate was not 

willing to brief. They asked me to brief it and I—you know, it’s not 

a call you— 

Senator KENNEDY. This was an amicus brief. 

Mr. SUTTON. Yes. It’s not a call you choose not to return. Exactly, 

that’s the Hohn case where I wrote an amicus brief for the U.S. Supreme Court. In the West Side— Senator KENNEDY. Excuse me. Who asked you to file this? 

Mr. SUTTON. In the Hohn case it was— 

Senator KENNEDY. No, in the West Side. Mr. SUTTON. The judge, Judge Cleland. His clerk called me, 

asked me to—said he had briefing on what he perceived to be a 

very difficult issue, and I think the way it ultimately turned out 

in the case, two competing lines of U.S. Supreme Court authority. 

It wasn’t—unlike the Hohn case this brief was not on behalf of myself. The Michigan Municipal League ultimately asked me to write 

the brief, so there was a client in the case. And I did exactly what 

I did in the Hohn case when the U.S. Supreme Court called me, 

which is brief the issue that I was asked to brief. And it’s very important to me to explain it. I mean I was doing everything I could 

to advocate that particular position. I could not fairly have said to 

the court, ‘‘Yes, I’ll brief that argument,’’ and then pull my punches 

and not explain every conceivable argument that could have been 

raised on that side of the case. I, of course, was not involved in the 

case for Michigan. 

I would point out as well, in hearing criticisms about that particular decision, well, I’m not going to criticize Judge Cleland’s decision. The one thing I would ask you to look at if you’re concerned 

about the case is to please compare the brief we wrote and the decision. Many of the positions he took in that case were not positions 

we had advocated, so I feel that that has not been accurate in the 

sense that it was something I suggested he do. 

Senator KENNEDY. Well, but the only point—and I know that 

time is going on—is that you are argued. It is not that they did not 

accept it, because it would have basically overturned, I believe, a 

fair reading of the existing law in terms of the rights of individuals 

to be able to seek remedies. 

The only point, and this is my last one, is just how can we be 

sure that you are not going to continue this agenda should you get 

on the court? If you could just give us a brief comment on that. 

Mr. SUTTON. I really hope I can do my best to give you that assurance. Again, I would point out I had never heard of this case 

until I got a call from a Federal District Court Judge asking me 

to brief that side of it. So there’s nothing willful about that case 

and my involvement in it. I was invited by an Article III Judge to 

do it, and I did it just as I did when the U.S. Supreme Court invited me. 

The second thing is, if one is concerned about some of these 

issues in general, or civil rights issues more particularly, I would 

hope that the members of the Committee would not just consider 

the cases and the issues in the cases, but look at the briefs I 

worked on and wrote in many other cases that I am sure you would 

be quite supportive of, whether it was defending Ohio set-aside 

statute in two different cases; whether it was defending Ohio’s 

35

Hate Crime Statute on behalf of virtually every civil rights group 

in the State that supports that form of legislation; whether it was 

writing an amicus brief, voluntarily, in the Sixth Circuit on behalf 

of the Center for the Prevention of Handgun Violence; whether it 

was seeking out a prisoner civil rights case in the U.S. Supreme 

Court, where again one could not criticize that as states’ rights. I 

was representing Dale Becker, incarcerated in Chilicothe, Ohio 

against my former boss, the Attorney General Betty Montgomery. 

So I do understand your questions and I think they’re very important, but I hope people will—and I think this is why the public 

wouldn’t be concerned about my being a judge, if looked at these 

other representations where I was acting as an advocate. 

Senator KENNEDY. I thank the Chair for the extra time. 

Chairman HATCH. Thank you, Senator Kennedy. 

Let me ask a couple questions for you. You have argued three 

very important but controversial cases, among others, in front of 

the U.S. Supreme Court concerning the scope of Congress’s power, 

under Section 5 of the 14th Amendment, to regulate state governments. Some of your critics suggest that your involvement in those 

cases somehow disqualify you from this position on the bench, so 

just let me ask you a few questions about those cases. And I am 

sure you know that I worked very hard, along with Senator Kennedy and others, to enact some of the laws that you argued 

against. We wrote the Religious Freedom Restoration Act. We 

brought together almost everybody in Congress on that bill, which 

was struck down in the City of Berne case. And of course I was one 

of the principal sponsors, as was Senator Kennedy, of the Americans with Disabilities Act, which was limited in scope by the University of Alabama v. Garrett. I also worked closely with Senator 

Biden—it was the Biden–Hatch Bill—on another law that the Supreme Court has found to be beyond Federal power, in part at 

least, and that’s the Violence Against Women Act. It was not easy 

for me, as well as my other people with whom I worked and who 

worked with me, to see these struck down after we had put so 

much time and energy into their enactment. Of course I understand the powerful constitutional principles underpinning the Supreme Court’s decisions in those cases. But I can also sympathize 

with those who might see things differently. Regardless of my 

views about these Supreme Court decisions, I certainly do not believe that you are acting as a lawyer for your clients in those cases 

by itself should by any means disqualify you from the bench. 

So what we need to know is whether you understand the difference between advocacy and judicial decision making, and whether you are firmly committed to the highest standards and principles of judicial restraint? 

Mr. SUTTON. Thank you, Mr. Chairman, for an opportunity to 

discuss those cases. I guess the first point I would make in response to that concern is there’s nothing about the issues in those 

cases or what happened in those cases that would have precluded 

me from happily representing the other side in any of them. And 

as a Court of Appeals Judge I have no idea what I would do with 

those difficult issues except to say follow whatever U.S. Supreme 

Court precedent was at the time. 

36

The other point I would make is in 1995 when I became State 

Solicitor of Ohio, I couldn’t even have given a good definition of federalism, much less a definition before this body. It wasn’t something I had any involvement with; it’s not something I had studied 

in law school. And as State Solicitor of Ohio though, I suddenly 

found myself for 3–1/2 years with the responsibility of representing 

the State’s interest, sometimes in cases like the Cheryl Fischer 

case, sometimes in the set-aside cases, but also in the City of Berne

case, which arose while I was State Solicitor. And the Attorney 

General of Ohio made the decision that the State was going to challenge RFRA. That was not a decision I was involved in. That was 

a challenge that started at the District Court level. I didn’t get involved in that issue until it got to the U.S. Supreme Court. And 

at that point in time she said it would be appropriate to have an 

amicus brief on behalf of many states, explaining the states’ perspective on these difficult issues, and that’s what we did. 

I do think the argument we made, while there’s plenty of reason 

to disagree with the decision, reasonable minds can disagree about 

these issues. The fact of the matter is, not one Justice of all 9 members of this Court, disagreed with the position advocated in City of 

Berne, that ultimately the Court has the final decision about what 

the Constitution means. 

In Kimel, that’s the ADEA case that Senator Kennedy mentioned, the same is true. Not one member of the Court disagreed 

with the position we advocated. Four members of the Court disagreed with the Seminole Tribe position, but no one disagreed with 

what we argued in our brief in terms of what Section 5 of the 14th 

Amendment means. 

And in the Garrett case, yes, there was disagreement. This disagreement was 5–4, and the disagreement there was about your 

record and whether it sufficed, and I can certainly understand how 

different people take different views on the deference that should 

be given to the record, the extensive and exhaustive record that 

you compiled. But it wasn’t my job to decide that case. I was my 

job as a lawyer to represent the State and do my best to advocate 

their position, and that’s what I tried to do. 

Chairman HATCH. And I agree with that. I think that is the 

point. Do you commit to deciding cases on the basis of relevant 

statutes and binding precedents and the Constitution, rather than 

relying on any preconceptions on policy opinions that you might 

hold personally? 

Mr. SUTTON. Absolutely. 

Chairman HATCH. All right. Now, some people think this is not 

so much an issue of adhering to your own clients as to whether 

your arguments for those clients are within the mainstream of 

American legal thought. So if you do not mind, I am just going to 

go over those cases again so everybody here understands. 

In the City of Berne v. Florida, it was a 6 to 3 decision dealing 

with the Religious Freedom Restoration Act, something that a 

number of us on this Committee feel very deeply about. And let me 

just ask it again, how many Justices on the Supreme Court disagreed with the position you advocated in that case? 

Mr. SUTTON. None. 

Chairman HATCH. Not one. 

37

Mr. SUTTON. The only disagreement was about a prior decision 

in the Court called Smith, which is not something we agreed to 

argue, 

Chairman HATCH. And you mentioned the Kimel v. Florida 

Board of Regents case. How many Justices on the Supreme Court 

disagreed with the interpretation of the 14th Amendment that you 

advanced in that case? 

Mr. SUTTON. None. 

Chairman HATCH. Not one. All of the Justices agreed with you. 

Mr. SUTTON. Well, I should make the point that the four dissenters disagreed with Seminole Tribe, a prior decision of the U.S. 

Supreme Court which we did not brief and I was not involved in. 

Chairman HATCH. You have made that point. And finally, just 

once again, in the Garrett case, how many of the Justices rejected 

your position in that case? 

Mr. SUTTON. Well, not to be too technical but it was the State 

of Alabama’s position, and I was arguing as their lawyer, but four 

justices disagreed with the State’s position in that case. 

Chairman HATCH. I think that there is a difference between 

being an advocate for clients, where you have to give the best you 

can for them, and being somebody who is out in the mainstream 

of legal thought, and the fact of the matter is, apparently you not 

only were in the mainstream, you were overwhelmingly approved. 

I have some other questions. I will reserve the rest of my time 

and turn to Senator Leahy. 

Senator LEAHY. Thank you, Mr. Chairman. 

I know Senator Kennedy had touched on this, and of course Senator Hatch has said that it is one thing to be advocating for a client, another thing for stating your own position. All of us who have 

tried cases either at the trial level or at the appellate level understand that you take your client’s position. 

But I look at the way you do it. You have discussed the Florida 

case. You had advocated to preclude claims for State employees 

with disabilities, persons that are denied Medicaid benefits. One 

newspaper called ‘‘the leader of the States’ rights revival.’’ And 

then you said yourself in a Legal Times article, that you’re quote, 

‘‘on the lookout’’ for the types of federalism cases you have become 

known for. In fact you once said that while advocating for States’ 

rights does not get you invited to cocktail parties, that nevertheless 

you believe in this stuff. So is this not a little bit different than a 

client walks in and says, ‘‘Mr. Sutton, please, take my position. 

Here is what I would like you to argue. If you feel I am right or 

not, go for it.’’ And rather what you are doing is looking for the particular cases that you can carry out your own agenda; is that correct? 

Mr. SUTTON. Thank you for an opportunity to discuss this. I 

would respectfully disagree with that characterization, and here’s 

why. I think the one legitimate accusation— 

Senator LEAHY. Well, not to interrupt, but do you disagree with 

having said what I quoted you as saying in Legal Times? 

Mr. SUTTON. No, I wanted to explain what I said and what I 

meant by it. On the lookout for U.S. Supreme Court cases, that I 

can be fairly accused of. I was on the lookout for U.S. Supreme 

Court cases after I left the State of Ohio, had the good fortune to 

38

argue four cases there while State Solicitor, and when I returned 

to Jones Day in 1998, I really was interested in continuing and developing that practice, and that is true. I don’t think it’s accurate 

to say I was only looking for federalism cases, a fairly difficult 

term. I mean, that covers a lot of things. I could cover any case involving a state. 

And the proof of that is one case I sought out soon after leaving 

the State Solicitor’s Office, was the Becker v. Montgomery case that 

I referenced earlier, which was a prose indigent civil rights case 

brought against the State of Ohio, where I was representing Dale 

Becker on a pro bono basis. And I will say I was willing to represent just about anybody at the U.S. Supreme Court because I did 

want to develop a U.S. Supreme Court practice which is not easy 

to do in Columbus, Ohio, and I tried very hard to do that. That’s 

what I think—that’s exactly what the first quote references, and 

that’s quite true. As to the believing in this federalism stuff, well, 

in one sense, yes, of course I do believe at the end of the day there 

is a checks and balances system here in our Government, one that 

has checks and balances among the national branches of the Government, and one that has a vertical checks and balances between 

Congress on the one hand and the states. But that’s a principle as 

deeply respected as stare decisis. The question is— 

Senator LEAHY. Do you have a feeling in your own mind or interpretation in your mind of the expression ‘‘new federalism?’’ 

Mr. SUTTON. The new federalism that I’m familiar with is one I 

teach at the Ohio State Law School, which is about Justice Brennan’s landmark article in 1977, explaining that state supreme 

court and state supreme court justices should be aggressively construing their state constitutions to further civil liberties and go beyond what Justice Brennan perceived a U.S. Supreme Court was 

not doing. 

Senator LEAHY. You say in the syllabus for that seminar, that 

most controversial results of the new federalism are, quote, ‘‘increased uniformity of the law and attempting new latitude for potentially result oriented judicial decision making,’’ which is what I 

would hope that all of us up here would be concerned with. 

Mr. SUTTON. Well, maybe I—it’s possible I’m misapprehending 

your question because I— 

Senator LEAHY. Let me say it another way. If you were confirmed 

as a judge, would you be able to resist the temptation to use results 

oriented reasoning to implement an agenda of new federalism? 

Mr. SUTTON. Absolutely. I thought the accusation that I wasn’t 

doing enough of that. I’m making the point the new federalism that 

Justice Brennan advocated is one that has been advancing civil liberties for the least 25 years. That’s the whole point of it, and doing 

it through the vehicle of state courts. The state constitutional law 

syllabus to which you’re referring, I should point out, is one written 

by Richard Cordray, who first—as you may know, he’s a Democratic office holder in the State of Ohio. He created that class at 

the Ohio State University. He’s a friend of mine and we have cotaught the class, and we’ve used the same syllabus he wrote. But 

I think you—I’d be very surprised, Senator Leahy—and maybe this 

proves I’m misapprehending your question—but I’d be very surprised if you attended that class and listened to what we were talkVerDate 0ct 09 2002 10:57 Oct 08, 2003 Jkt 089324 PO 00000 Frm 00046 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\89324.TXT SJUD4 PsN: CMORC
39

ing about and saw the textbook we were using. It’s a textbook that 

is advancing civil liberties at every turn. That’s the whole point of 

it. 

Senator LEAHY. Would you feel it was a fair argument that some 

would say you advocate States’ rights over national standards? 

Mr. SUTTON. I’ve been on both—I’ve been on virtually every side 

of the— 

Senator LEAHY. What side are you on today? 

Mr. SUTTON. I’m on the side of trying very hard, very hard, Senator, to show you that I would be an objective judge, and that the 

client I would have is a client that is the rule of law, not a former 

client, but the rule of law, and that’s the great honor of being a 

judge. 

Senator LEAHY. Which do you prefer, States’ rights or national 

standards? 

Mr. SUTTON. I have no idea, and it would depend on the client 

of the day. Again, if you looked at the cases I’ve represented, you’d 

see I’ve been—when I worked for the State I only had the option 

for 3–1/2 years of representing the State. 

Senator LEAHY. Let me give you a couple examples. Desegregation and the Jim Crow Laws. The arguments were made that 

States’ rights should override national standards. Which side do 

you come down on? 

Mr. SUTTON. Well, the U.S. Supreme Court correctly rejected all 

of those, and as a Court of Appeals Judge I would obviously follow 

that U.S. Supreme Court precedent. 

Senator LEAHY. Then do you see the—let me ask it another way. 

Absent a Supreme Court decision on all fours, which do you feel 

carries more weight, States’ rights or national rights? 

Mr. SUTTON. You know, there’s no doubt when a Federal statute 

is passed, as the U.S. Supreme Court has made clear, it deserves—

there’s a heavy presumption of constitutionality. The Court has 

said that in cases of upholding Federal laws and striking them. 

And there’s no doubt that a Court of Appeals Judge has every obligation to follow that presumption. 

Senator LEAHY. You are well aware of the fact there have been 

a number of writings, a lot of them by people strongly supporting 

you. They feel you should be here because of your advocacy of 

States’ rights at the expense of national standards. Are your 

friends giving you too much credit? 

Mr. SUTTON. Absolutely. Absolutely. 

Senator LEAHY. Well, the reason I ask that—and I don’t ask it 

lightly, Professor—because I have said over and over again, been 

here with six different Presidents on this committee, and I voted 

for an awful lot of Republican nominees, and on those occasions 

when they would let us vote on the Democratic nominees, I voted 

on those. But I have always had the same standard. I have also 

voted against nominees of both Democratic Presidents and Republican Presidents when I felt that a litigant would not have a fair 

hearing. And I have said so many times in this committee, that to 

get my vote, I must be convinced that a judge not only have the 

abilities—and you obviously have the legal abilities, the abilities 

and the moral character, but also, if somebody came into that 

judge’s courtroom, they would not feel the case had been prejudged, 

40

either because of who they are, that they would be treated differently depending upon which side of an issue, whether plaintiff 

or defendant, whether they are rich, poor, Republican, Democrat or 

anything else. And what I am concerned about in your writings and 

actually—and maybe you feel your friends have done you a disservice, but in their strong support and the strong support of the 

President and others, that you will be one who would give far more 

weight on States’ rights and a number of these Federal laws over 

a national standard. 

Now, the Supreme Court has done that, as you know, in a couple 

of areas. They issued a series of 5 to 4 decision under the Commerce Clause in U.S. v. Lopez. They said that Congress could not 

enact a law to prohibit guns in or near schools. In Morrison they 

struck down a provision of Federal law that allowed women to sue 

their attackers in Federal Court. They held that Congress may not 

regulate what the Court calls non-economic activity, gender-motivated crimes of violence, for example. 

Now, do you agree that Congress’s power to regulate an intrastate activity should turn on whether the activity can be classified 

as economic or non-economic? 

Mr. SUTTON. I would agree, of course, to do what the U.S. Supreme Court has said in that area, and my understanding of the 

Lopez, Morrison, Wickard v. Filburn, Jones v. Laughlin, Jones and 

Laughlin cases, is that while the holdings of the cases to date have 

been primarily economic, the Court has never said it can only be 

economic. In fact, they specifically reserved that point in Morrison. And in terms of what I would do, I have no idea. I don’t know—

you know, I obviously haven’t gone through the process of what a 

judge would do, and that process is critical to being a fair-minded 

judge, and that’s having an open mind about both parties’ positions, looking carefully at their briefs, looking for any indications 

the U.S. Supreme Court has given as to what the Court of Appeals 

or District Courts should do, listening with an open mind and a 

fair mind to what the oral argument is, and then discussing the 

issue with your clerks, with your colleagues in the Court, and doing 

your best to get it right. And I promise that’s exactly what I would 

try to do. 

Senator LEAHY. Well, for example, last year the House of Representatives passed a bill to prohibit human cloning. Is human 

cloning more or less economic in nature than gun trafficking near 

schools or gender-motivated crimes? 

Mr. SUTTON. You know, I have no idea. The one thing though 

that that kind of law, partial-birth abortion, all of the controversial 

issues that you all deal with, there’s one thing that does have to 

be true, and I certainly agree with it, that to the extent there is 

a principle of federalism at the U.S. Supreme Court is requiring 

lower courts to follow, it does have to be followed in an even-handed way, and there’s just no doubt about that. 

Senator LEAHY. Let’s talk about that. We have mentioned Lopez

before, and I mentioned that because the President, in his first 

State of the Union message said that education is a top Federal 

priority because education is the first essential part of job creation, 

and I tend to agree with President Bush on that. But then the Supreme Court in U.S. v. Lopez said that education is a non-economic 

41

activity, therefore outside the Federal regulatory power. Who is 

right, the Supreme Court or the President? 

Mr. SUTTON. That’s a great question, and I’m happy— 

Senator LEAHY. I am waiting for a great answer. 

[Laughter.] 

Mr. SUTTON. I’m happy that it’s the U.S. Supreme Court that has 

to finally decide it. The one thing I can assure you is that I would 

follow whatever decision they reached on that issue and adhere to 

it as every Court of Appeals judge has to. 

Senator LEAHY. Well, we will bet back to another round, but I 

am worried because you have argued the Constitution requires deference to the sovereignty of states, but then when the constitutional rights are asserted, due process protections, reproductive 

rights, the right to be free of states trammeling upon 14th Amendment freedoms, the standard retort we get from many, including 

many that support you, is that if the text of the Constitution does 

not articulate these rights, they do not exist. But cannot the same 

point be made of a theory of state sovereignty? I mean is there any 

words explicitly in the Constitution given out the right of state sovereignty? 

Mr. SUTTON. It’s a very difficult question, and as I think you 

know, the U.S. Supreme Court has struggled with it for 200 years. 

I mean you can go back to Chisholm v. Georgia, and then many 

of the cases in the last two decades addressing it, and of course it 

is up to the U.S. Supreme Court at the end of the day to decide 

whether there is such a thing as sovereign immunity that applies 

to states. So far they have. I guess I don’t know what their explanation would be. 

Senator LEAHY. What is your philosophy on it, and realizing—I 

certainly will grant this, and I have no question you are honest 

enough in this when you say that the Supreme Court has a decision, you are going to follow stare decisis, but you have to get—if 

it is getting all the way up to the Court of Appeals, you have to 

be getting a lot of cases of first impression. What is your philosophy on that? 

Mr. SUTTON. Well, I mean, my philosophy, the point of sovereign 

immunity I just wanted to mention is a difficult one for the national government and the States. In other words, the national government has sovereign immunity as well, of course. That’s this 

body, and that’s not mentioned either. So that’s I think the reason 

the Court’s been struggling. In terms of my philosophy, my philosophy is about what’s a good Court of Appeals Judge and what he 

does. And what the good Court of Appeals Judge should do is look 

at every case with an exceedingly open mind and when they look 

at that case do what—I’ve actually tried at sometimes as an advocate, at all times to do—see the world through other people’s eyes, 

see the world through, when I’m an advocate, other judges’ eyes, 

my opponent’s eyes. And I think when you’re a Court of Appeals 

Judge it’s a different perspective. You’re trying to see the world 

through two different advocates. We have this adversarial system. 

Their job, these lawyers, is to present the best conceivable arguments within reasonable bounds that advance their clients’ position, and I would think I would do what I think good Court of Appeals Judges do, and that’s honestly and in a fair way consider 

42

those arguments and do your best job to get it right, and getting 

it right, 9 out of 10 times, if not 100 percent of the times, turns 

on understanding what U.S. Supreme Court precedent is and adhering to it. 

Senator LEAHY. Is that a way of saying that people should have 

no fear, depending upon who they are, whether they have taken 

the position via the State or opposed to the State, whether they are 

liberal, conservative, whatever, coming before a Judge Sutton as 

compared to Professor Sutton? 

Mr. SUTTON. Absolutely, Your Honor, absolutely. 

Senator LEAHY. You do not have to call me ‘‘Your Honor.’’ I have 

not quite made that— 

Mr. SUTTON. Old habits die slowly. 

Senator LEAHY. If it is any consolation—then I will yield—if it 

is any consolation, I tried a huge number of cases before I came 

here and I did a lot of appellate work, and I found myself calling—

because I was junior most member of the Senate—I found myself 

referring to the Chairman as His Honor so many times I—the inside of my mouth was sore from the number of times I bit my 

tongue or the inside of my mouth on that. 

Mr. SUTTON. Forgive me. I’ll do my best not to do it again. 

Senator LEAHY. No, no, forget it. 

Thank you. 

Senator DEWINE. [Presiding] I always thought you liked to be 

called ‘‘Your Honor.’’ 

[Laughter.] 

Senator LEAHY. Excellency, excellency. 

Senator DEWINE. Excellency, that is right. I keep getting it 

wrong. 

Senator Chambliss. 

Senator CHAMBLISS. I was instructed to refer to Mr. Leahy as 

His Honor, so do not worry, we all do that. 

[Laughter.] 

STATEMENT OF HON. SAXBY CHAMBLISS, A U.S. SENATOR 

FROM THE STATE OF GEORGIA 

Senator CHAMBLISS. Let me just make a general comment about 

all the nominees that we have today. Having looked at your bios 

and knowing the background of all six nominees, it is a pretty impressive group. And also, having been recommended by colleagues 

and this body that I have such great respect for, it is good to see 

legal minds of the caliber that all six of you have and to be nominated. I commend all of you for that. 

I am a little bit disconcerted by some of the criticism that I have 

heard today and that I have read about with respect to our nominees. Having practiced law for 26 years, I have argued both sides 

of cases. Particularly early in my career I was appointed to criminal cases that I did not necessarily want to be appointed to. But 

those of us who practice law, which I think is by far the greatest 

profession in the world, understand that there are positions which 

we have to take that are in the best interest of our clients, regardless of what our personal feelings are. It is pretty obvious that all 

six of our nominees have been in that same position. You have 

done a heck of a job of representing your client, whatever their poVerDate 0ct 09 2002 10:57 Oct 08, 2003 Jkt 089324 PO 00000 Frm 00050 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\89324.TXT SJUD4 PsN: CMORC
43

sition. So I think that kind of criticism really does not do justice 

to you. 

I want to first of all, Judge Cook, ask you about some of this criticism that has been directed at you. It has been said that you dissent a great deal in opinions that are rendered by the Ohio Supreme Court. Well, again, having argued a large number of cases 

on appeal, and having lost some of those cases, I was kind of glad 

to see that there were some dissenting opinions. I want to ask you 

about one case in particular though, State ex rel Bray v. Russell. In that case you declared in your dissenting opinion that, in order 

for the Court to declare a statute unconstitutional, and I quote, ‘‘It 

must appear beyond a reasonable doubt that the statute is incompatible with particular provisions.’’ 

In this particular case, your dissent from the Court’s ruling 

meant that you would have allowed state prison boards to sentence 

convicted criminals to extra time for ‘‘bad time’’ violations. Would 

you please elaborate on your decision in that case? Also tell us generally what your views are on the constitutionality of statutes enacted by the General Assembly in Ohio in your case, and at the 

Federal level by the Congress. 

Judge COOK. Thank you, Senator. The case to which you refer, 

indeed I was a dissenter in that case, but the matter involved a 

statute that permitted the Executive Branch to impose what is 

called ‘‘bad time’’ on inmates for their behavior or conduct during 

incarceration, and the disparity between the majority and the dissent regarded just differing views on the interpretation of the statute. In that case, one of my colleagues who is—if you look at percentages, typically is on the other side that I’m on; he’s typically 

not with me—did join the dissent. And the standard of review that 

you mentioned, that it has to be beyond a reasonable doubt, is the 

accepted standard in Ohio, and the statute made—this was all 

about—it all concerned separation of powers. The majority felt that 

allowing the Executive Branch to impose additional time was a violation of the separation of powers doctrine. I merely opined that 

the doctrine regarded those situations where one branch interfered 

with another branch, and inasmuch as the statute at hand, allowed 

bad time as part of the original judicially imposed sentence. It was 

no separation of powers impediment to this statute, and therefore 

I would have upheld it. But as I say, that was a dissenting view. 

Yet it was joined by one of the members of the Court who is often 

said to be at odds with me, so I think it was a well supported decision. 

Senator CHAMBLISS. Thank you. Mr. Sutton, it appears that a lot 

of your criticism, or a lot of criticism that is directed at you, has 

to do with your work on disability cases. And obviously, from the 

questions that have been directed to you today, that is a very 

prominent area of law in which you have practiced. I was particularly concerned about a case which you handled for my State, the 

State of Georgia. I say you handled it, I should say you were involved with it. Before I ask you a question about it, I want to set 

the stage for my colleagues. 

In 1978, the State of Georgia adopted a program for treating 

mentally disabled citizens. The program placed the mentally disabled citizens in community placements instead of institutions. Due 

44

to limited resources the State of Georgia resisted assigning a group 

of people, who later became the plaintiffs in this case, to a community placement. The State of Georgia was sued by these plaintiffs. 

The actual person sued was the Director of Department of Human 

Resources (DHR), Mr. Tommy Olmstead, so the case has been referred to as the Olmstead case, which I know you remember very 

clearly. The plaintiffs claimed that the State of Georgia discriminated against them under the Americans with Disabilities Act. The 

case revolved around an issue that all of us are extremely sensitive 

to, and that is the issue of a mental disability, and how and where 

those mentally disabled patients were to be placed. 

If I recall correctly, you helped the State of Georgia argue this 

case before the Supreme Court, or you at least participated in preparing the young lady who did argue that case before the Supreme 

Court. And the basic argument was that the Americans with Disabilities Act (ADA) did not require states to transfer individuals 

with mental disabilities into community settings rather than institutions. Would you please tell me a little bit about your involvement in that case, the argument you put forth and the actual outcome of that case? 

Mr. SUTTON. Yes, thank you, Senator. The Olmstead case I think 

went to the District Courts. Yes, it did, a District Court in Georgia 

than the Eleventh Circuit. And I did not have any involvement in 

the case at that point, but when the U.S. Supreme Court decided 

to review the Eleventh Circuit’s decision in Olmstead I was hired 

by the State to help them write what was two briefs in the case 

at the U.S. Supreme Court and help prepare Tricia Downing for 

the oral argument. And as you acknowledged, it’s a very—the institutionalization is a difficult issue. I mean, in fact, it’s actually an 

easy issue in the States. Every State supports it. In fact, Georgia 

has a law that requires the institutionalization for those who are 

capable of living in a community setting. 

So the rub in the case was not that policy debate. That had long 

been decided in the late 1970’s and early 1980’s, that everyone, 

every State should move in this direction. But the problem I think 

Georgia must have run into was that they had a budget shortfall, 

something not dissimilar to what some states are having now, and 

wasn’t able to move individuals as quickly as they had in the past 

from State hospital settings to community settings. 

So when that happened, when that budget crunch happened, 

they were sued under the ADA, and the gist of the plaintiff’s claim 

was that the State has to continue to move patients more quickly 

regardless of resources. And of course, even that’s a very tricky 

issue. 

The position we advocated primarily was the position of whether 

that money, you know, whether—no matter the cost, the State of 

Georgia had to move every single patient as soon as they hired a 

lawyer and sued, or whether there was a reasonableness component to this. 

At the end of the day all 9 members of the Court agreed there 

was a reasonableness component. 8 members of the Court said it 

needed to be sent back to the Court of Appeals, and eventually a 

District Court to determine whether in fact the State had acted 

45

reasonably in not moving these two plaintiffs into community settings. And I did my best to help the client. 

Senator CHAMBLISS. Well, the Attorney General in Georgia is a 

gentleman named Thurbert Baker, who happens to be an elected 

Democrat, and is a good friend of mine. And as I told you after I 

talked to you earlier, I was going to check on you. And I did. Attorney General Baker had this to say about you. He said that Mr. Sutton is extremely intelligent. He’s a hard worker, and he would have 

a great judicial temperament. 

Obviously we know your mental capabilities, but for somebody 

who has worked very closely with you to say that you have a good 

judicial temperament I think says volumes about you. 

One other thing that I was impressed with about you, Mr. Sutton, is the fact that another constituent of mine, a lady named Beverly Benson Long, has written a letter to Senator Leahy regarding 

your nomination. And if this letter is not already in the record, Mr. 

Chairman, I would like to ask that it be made a part of the record. 

Chairman HATCH. Without objection, it will be part of the record. 

Senator CHAMBLISS. Mrs. Long is the immediate past president 

of the World Federation for Mental Health. She has been president 

of the Mental Health Associations of Atlanta, the State of Georgia, 

and the National Mental Health Association. She was a commissioner on the President’s Commission on Mental Health, having 

been appointed by President Carter. She has an extensive background in this field, and here is what she says about Mr. Sutton. 

‘‘I have no doubt that Mr. Sutton would be an outstanding Circuit 

Court Judge and would rule fairly in all cases, including those involving persons with disabilities.’’ 

She also says that she is familiar with the lobbying against Mr. 

Sutton by various persons who advocate on behalf of the disabled. 

Her comment is, ‘‘This effort is unfortunate and I am convinced is 

misguided.’’ 

Again, I think that is a high compliment to you, Mr. Sutton, and 

I look forward to bringing all three of you to a vote in the very near 

future. Thank you. 

Chairman HATCH. Thank you, Senator. 

We will go to Senator Feinstein for 15 minutes, and then I think 

we will have a short break for about a half hour, and give you a 

little bit of a break. 

Senator Feinstein. 

Senator FEINSTEIN. Thank you very much, Mr. Chairman. 

Good morning, Dr. Sutton. I have been surprised to see that your 

nomination has really generated a kind of intense opposition from 

the disabilities community, even as far as my State, California, 

with a number of organizations weighing in very strongly. So I 

have been trying to figure out why. And one of the cases I looked 

at was a case that was mentioned earlier, and that was the Garrett

case. And you can correct me if I misstate any of these facts, but 

my understanding is that Ms. Garrett was a 56-year-old woman 

who was diagnosed with breast cancer. She was the Director of 

Nursing for Women Services at the University of Alabama and she 

cared very much about her job. So she arranged to have her chemotherapy after work on Friday to allow her the weekend to recover. 

And she did not really take very seriously the warning she got from 

46

a colleague, that her supervisor did not like sick people and had 

a history of getting rid of them. And as it turned out, her supervisor did try to get rid of her by locking her out of a computer and 

by beginning recruitment for the replacement of her job. 

And you represented the State, the University of Alabama in 

that case, and you made this argument about the need for the 

Americans for Disabilities Act, and I quote. ‘‘All 50 States have provisions of their own designed to guard against disability discrimination by the sovereign. These laws and administrative regulations 

predate the passage of ADA, far exceed the rational basis requirements of equal protection review. All permit monetary relief 

against the sovereign, and in tend markedly over protect rather 

than under protect the constitutional rights of the disabled.’’ 

How do you reconcile that with Governor Hodges’ recent statement apologizing for South Carolina law which involuntarily sterilized in the past decades a number of mental patients? In essence, 

according to the Governor, these laws were believed—and this is a 

quote—‘‘to promote reproduction by people with good and healthy 

genes, and discourage reproduction by those with genes considered 

unfit. The goal was a healthier population. Instead these laws allowed the State to create a second-class citizenship deprived of 

their most basic civil rights.’’ 

How do you reconcile your statement in this case with the statement by Governor Hodges, which clearly shows the insufficiency of 

State law to meet any kind of what would be considered a fair national standard? 

Mr. SUTTON. Thank you, Senator. I’m not familiar with that 

statement, but I think I understand what it’s about, and so I’ll do 

my best to respond to it. 

Senator FEINSTEIN. This is about the sterilization of mental patients. 

Mr. SUTTON. Exactly. And that’s where I wanted to start. The 

reply brief in that very case, Garrett, addressed that issue and that 

horrendous history in this country, and it addressed it by talking 

about a case in the U.S. Supreme Court, where of all people, Justice Holmes wrote in the Buck decision for the U.S. Supreme Court, 

that in fact the very forced sterilization you’re talking about did 

not violate the United States Constitution. Believe it or not, that 

case still is on the books. 

We did something which is unusual for any State to do. We said 

that case was wrongly decided and quote Justice Souter for the excellent point that when Justice Holmes errs, he errs grandly, and 

he did in that case. And the brief on behalf of the State made that 

very point, and so there was no debate about that issue. 

Senator FEINSTEIN. But that is not my point in reading the two 

of them. You are arguing in this case that State law offers sufficient protection; therefore the Americans for Disabilities Act is 

really not necessary, that State law actually over protects individuals with disabilities. 

Mr. SUTTON. Right. I don’t— 

Senator FEINSTEIN. It seems to me is not correct. 

Mr. SUTTON. And if we had argued that I could be accused of 

malpractice because that’s not what we argued and that’s not what 

47

the State’s position was, and that’s not what I as an advocate recommended. 

Senator FEINSTEIN. You did not make this statement in your 

brief? 

Mr. SUTTON. I made that statement, but I want to put it in context. The issue in the Garrett case was a constitutional issue. The 

issue was not whether the ADA was needed. The brief contains 

many statements to the effect of, to its credit the Federal Government passed the ADA. So there are many statements conceding 

that Ms. Garrett could get her job back under the ADA. The issue 

in the case arose because of the Court’s Seminole Tribe decision, 

and that’s the question of whether money damages were permissible. And in that setting the question, according to the U.S. Supreme Court under City of Berne, a decision that still to this day 

no Justice of the Court has disagreed with, the question is whether 

the States have violated the constitutional rights of their citizens. 

Now, the one thing I think this Senate and Congress could certainly be frustrated with is the City of Berne was decided after the 

ADA was passed, and that of course made it difficult for you to 

compile exactly the record that the Court ultimately required, but 

the point, Senator, that the brief was making is we were applauding the 50 State laws that protected disability rights, and we were 

simply making the point that with those laws in place, it was difficult to show that the States were not, since the law’s been passed, 

violating the constitutional rights of their citizens. 

Now, that position, keep in mind, is not a position I made up. 

I mean I wasn’t involved, obviously I wasn’t involved in the underlying decision with Mrs. Garrett. I wasn’t involved in the District 

Court. I wasn’t involved in the Court of Appeals. These were positions the AlabamaAttorney General’s Office had developed, made 

the constitutional challenge, and when it got into the U.S. Supreme 

Court they asked me to argue the case for them, and I did. But 

maybe we didn’t do as well as we could have, and the statement 

you read makes me worry about that, but the brief was trying very 

hard to show that the States were being sensitive to disability 

rights. 

And I would point out in Ms. Garrett’s case, she had a parallel 

claim under another Federal law, Section 504 of the Rehabilitation 

Act, which applies wherever Federal dollars are involved. The University of Alabama gets Federal money. We specifically in a brief 

I wrote said the U.S. Supreme Court should not review the constitutionality of that issue. That would be premature and that issue 

is still in the lower courts. I mean at the end of the day Ms. Garrett

may get her money relief. That hasn’t been decided yet. 

Senator FEINSTEIN. Let me ask you, during a radio interview 

with Nina Totenberg on this very case, you made this statement, 

which puzzled me. ‘‘There are legitimate reasons for treating the 

competent differently from the incompetent in certain settings. And 

what the Court has said for some time now is it’s going to give 

States and the Federal Government quite a bit of latitude when it 

comes to drawing those distinctions because these are very difficult 

social issues and ones that political bodies in each area need quite 

a bit of latitude over.’’ 

48

I am puzzled what you mean by treating the competent differently from the incompetent with respect to civil rights. 

Mr. SUTTON. Sure. I don’t remember the statement, but I do understand the point, so I’m happy to address it. The point I assume 

I was addressing in response to a question from her relates to the 

Court’s City of Clayburn decision, a U.S. Supreme Court case about 

what level of equal protection scrutiny individuals with disabilities 

get. And what the Court has said there, and presumably was the 

point I was making in this interview, was that most of the time in 

an equal protection setting, what courts are doing is they’re saying 

it’s not ever—it’s rarely if ever appropriate to make a distinction 

based on someone’s status, their age, their race, their background, 

their religious background, and that presumptively their gender—

presumptively those laws are invalid. 

When it comes to laws dealing with the disabled, in an add sort 

of way, particularly in the recent decades, things are switched. 

Why are they switched? Because both Federal and State Governments happily have passed lots of laws based exactly on the classification of disability precisely to provide accommodations to the disabled. Of course, that’s exactly what the ADA does. It makes classifications based on whether you’re disabled or not. So I was making 

the point that’s a good thing, and that’s exactly why this constitutional issue is so difficult, makes one wonder whether the due process clause isn’t a better vehicle for bringing these arguments, but 

the distinction is a happy one. 

Senator FEINSTEIN. Thank you very much. If I might I would like 

to change subjects for a minute and go to some questions about the 

right to privacy. Do you believe there is a constitutional right to 

privacy, and if so, would you describe what you believe to be the 

key elements of that right? 

Mr. SUTTON. Well, the U.S. Supreme Court has made quite clear 

in a series of decisions that there is a 14th Amendment constitutional right to privacy growing principally out of substantive due 

process and the 14th Amendment. They said that in many areas. 

And I can assure, it’s not an area where I’ve done a lot of litigation, 

so it’s not something I have lots of familiarity with. But I can assure you that as a Court of Appeals Judge I would follow the U.S. 

Supreme Court’s decisions, instructions across the board in any 

case involving the right to privacy. 

Senator FEINSTEIN. Does that apply to Roe v. Wade? 

Mr. SUTTON. Absolutely. 

Senator FEINSTEIN. So what are your feelings about the Roe

case? 

Mr. SUTTON. Well, you know, like many a law student and many 

lawyer, probably had many different views of it at various times. 

I can say, as a Court of Appeals Judge, the thing that would be 

very important to me is making sure that I followed what the U.S. 

Supreme Court has required lower court judges to do, both in Roe

and then later in the Casey decisions, and that’s exactly what I 

would do. 

Senator FEINSTEIN. So do you believe that Roe is a settled case? 

Mr. SUTTON. well, from a Court of Appeals perspective, it sure 

is. I mean I can’t think of any case that a Court of Appeals Judge 

would say it’s somehow not settled and the Court of Appeals Judge 

49

would have a license to do something different from the U.S. Supreme Court. That’s exactly the opposite of their oath. 

Senator FEINSTEIN. So let me just put it a little more boldly. Do 

you support the holding of Roe that women have a constitutionally 

recognized and protected right to choose? 

Mr. SUTTON. I would absolutely follow that decision and Casey

and every case before me that implicated it. 

Senator FEINSTEIN. Thank you very much. 

Thank you, Mr. Chairman. 

Chairman HATCH. I said we would break, but Senator Feingold 

has a meeting at 1 o’clock, and he has asked if we can finish with 

him and then we will break for a half hour. 

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR 

FROM THE STATE OF WISCONSIN 

Senator FEINGOLD. Thank you very much, Mr. Chairman. My 

apologies, Professor Sutton. 

Chairman HATCH. Do any of you need a break right now? Because if we can just wait for another 15 minutes, we will break. 

Senator FEINGOLD. Perhaps this will shorten the afternoon. Mr. 

Chairman, I had planned an extensive critique of your decision to 

have all three of these people today, but in light of your courtesy, 

it will be a brief critique. 

Chairman HATCH. That is very much appreciated. 

Senator FEINGOLD. Mr. Chairman, I have just been so impressed 

with the way that you have run this Committee in the past and 

in your role as ranking member, and always appreciated your fairness. And I just have to say that I would have to be in the camp 

of those who say that having all three of these distinguished nominees on the same day is not the way that you have done things in 

the past, and I note your letter where you suggest in response to 

us that these nominees are not controversial. Well, the fact is they 

are extremely qualified people, but I do not think it is in the eyes 

of the Chairman to determine whether they are controversial or 

not. That is sort of our job. And these are controversial people. 

Chairman HATCH. I will tell you, that is the first time that a 

poor Chairman has been taken over the coals like that, is all I can 

say. 

[Laughter.] 

Senator FEINGOLD. Oh, it is brutal. 

Chairman HATCH. That is all right. 

Senator FEINGOLD. I certainly do understand the pressure is on 

you with regard to all the back and forth on this issue with the administration and all these nominations, but I would urge the this 

not be done again, that we only have one controversial or allegedly 

controversial nominee per hearing. 

Chairman HATCH. Well, Senator, if I could just interrupt you for 

a second without costing you any time. This is important, that we 

move with these three at this time. I am going to try and accommodate you, but I cannot limit it to just one. We held I think 11 with 

two last time. Senator Biden held one with three. This is my one 

with three. Now, I cannot guarantee you I will never do it again, 

but I think we ought to be able to move ahead, and I am prepared 

50

to do what we have to do, but I will certainly take all of my colleagues’ advice into great consideration. 

Senator FEINGOLD. Thank you, Mr. Chairman. 

Professor Sutton, I understand that you filed an amicus brief on 

behalf of the State of Alabama in Solid Waste Agency of Northern 

Cook County v. United States Army Corps of Engineers. In the brief 

you argued that in passing the Clean Water Act, if Congress delegated authority to the Corps, allowing the promulgation of the migratory bird rule, such a delegation represented, in your words, 

‘‘every measure of constitutional excess in full force,’’ under the 

Commerce Clause. As you know, the Court, by a 5 to 4 majority, 

limited the authority of Federal agencies to use the so-called migratory bird rule as the basis for asserting Clean Water Act jurisdiction over non-navigable intrastate isolated wetlands, streams, 

ponds and other water bodies. In effect, the Court’s decision removed much of the Clean Water Act protection for between 30 to 

60 percent of the Nation’s wetlands. 

An estimate for my home State of Wisconsin suggested that 60 

percent of the wetlands lost Federal protection in my State. Wisconsin is not alone. There is Nebraska, Indiana, Delaware and 

other states face water loss that have and will continue to have a 

devastating effect on our environment. 

Now, in response to this decision of the Supreme Court, my own 

State, Wisconsin, passed legislation to assume the regulation of waters no longer under Federal jurisdiction. But many states have not 

followed suit. So last Congress I introduced the Clean Water Authority Restoration Act to clarify Congress’s view that all waters of 

the United States, including those referred to as isolated, fall under 

the jurisdiction of the Clean Water Act. 

Now, is it your view that Congress’s authority for passing the 

Clean Water Act stems solely from the Commerce Clause or might 

one find reason for Congressional authority over protection of wetlands in not just the Commerce Clause, but perhaps the Property 

Clause, the Treaty Clause or the Necessary and Proper Clause? 

Mr. SUTTON. Yes. Thank you, Senator. Obviously in the federalism area, environmental issues raise some issues that aren’t 

raised in other federalism cases, and that’s principally as a result 

of the externality problem that I’m sure you’re familiar with. When 

one State does something that imposes no cost on them and imposes cost on another State, whether it’s water or air, and I think 

the U.S. Supreme Court has been very attentive to that and the 

cases make that clear. 

In terms of writing that brief again for a client in that case, it 

was aware statutory interpretation case. It as not a constitutional 

case necessarily. It was a statutory interpretation case first and 

foremost, and that of course is how it ultimately was resolved on 

the grounds you indicated. And on behalf of the client, we made the 

argument that the underlying statute—and the underlying statute 

referred to Federal jurisdiction over, quote, ‘‘navigable waters.’’ 

And the position that was taken and actually the lead lawyer for 

the case is someone who’s done a lot of work in a lot of different 

areas in this, but took the view that ‘‘navigable’’ can’t possibly 

mean every water there is anywhere in the country. It has to be 

51

water connected to something that’s quote, ‘‘navigable.’’ And we advanced that position in the brief on behalf of that client. 

The second argument that was made that I’m sure you’re familiar with is what’s called a constitutional avoidance argument, and 

the notion of a constitutional avoidance argument is really a—it’s 

a backup to a statutory interpretation argument. And what lawyers 

are trying to do there—and I do feel I had an obligation to make 

this argument. I think it would have been malpractice— 

Senator FEINGOLD. But in answer to my question, you do not rule 

out the possibility of Congressional authority over protection of 

wetlands based on the other clause in the Constitution? 

Mr. SUTTON. Oh, of course not, of course not. 

Senator FEINGOLD. Let me ask a more general question. In passing our Federal environmental laws, Congress in some cases seeks 

to justify such action on Commerce Clause grounds by describing 

the relationship between the resources we seek to protect and economic activities conducted in or affecting those resources that are 

part of interstate commerce. For example, in passing the Clean 

Water Act, Congress restricted discharges from point sources such 

as manufacturing plants, which make products that are then sold 

in interstate commerce. Do you believe that such justifications, if 

included in the legislative history or Congressional findings are insufficient to establish the basis for Congressional action to protect 

the environment under the Constitution? 

Mr. SUTTON. Well, I have to acknowledge, it’s not something I 

know a lot about, I mean the laws you’re referring to. It’s just not 

something I’ve dealt with, and I don’t know whether it’s something 

that could come before me as a judge. I do know the U.S. Supreme 

Court decisions give broad deference to Congress and they have 

given broad deference to Congress in the environmental arena. In 

fact, I’m not aware of—there probably is such a case. Someone’s 

going to find it, but I’m just not aware of a case where they’ve 

struck environmental law on the ground that it exceeded 

Congress’s Commerce Clause power, so it seems to me those precedents support what you’re suggesting. And if that’s true, Court of 

Appeals judges would have to follow them. 

Senator FEINGOLD. Then let’s turn to a better decision of Justice 

Holmes, who we discussed before. In 1920 Justice Holmes explained that the Federal Government must provide protection for 

migratory birds because actions by the States individually would be 

ineffectual. He said migratory birds can be protected only by national action in concert with that of another power. We see nothing 

in the Constitution that compels the Government to sit by while a 

food supply I cut off and the protectors of our forests and our crops 

are destroyed. It is not sufficient to rely upon the States, Justice 

Holmes wrote. 

Your brief in the Swank case takes a directly contrary position. 

Whereas Justice Holmes viewed the protection of migratory birds 

and wetlands as a national interest of very nearly the first magnitude, you argued that it is truly a matter of local oversight. Do 

you really believe that the protection of these habitats is simply 

just a matter of local oversight? In what circumstances are Federal 

protections warranted? 

52

Mr. SUTTON. Yes. It’s been a while. I think the case you’re referring to may be Missouri v. Holland. It’s been a while since I’ve 

read it. I’m not sure if I’ve got the right case, but if it’s the case 

I’m thinking of, I thought it was a case that was about Congress’s 

treaty powers. I may be wrong about that, and obviously that was 

not implicated at all in the Cook County case that you’re referring 

to. But the point I would make is again, I was simply representing 

a client, and it was first and foremost a statutory interpretation 

case. The constitutional arguments that were made were made as 

constitutional avoidance arguments, and the whole premise of that 

argument is asking the Court not to reach the constitutional argument. That’s why an advocate makes that argument. They’re signaling to the Court, you do not want to wrestle with the difficult 

constitutional issues raised by this law, and you shouldn’t do that. 

And the best way to do that is to deal with the case on statutory 

interpretation grounds, and that’s what the Court ultimately did. 

Senator FEINGOLD. Fair enough. In the amicus brief you also 

argue that the interstate commerce justifications for regulating 

wetlands used by migratory birds were false because activities conducted in wetlands, such as bird watching and hunting are noneconomic. Well, in my home State of Wisconsin hunters spent $500 

million on deer hunting alone in 2002. And we have been deeply 

concerned that the emergence of chronic wasting disease in our 

State has curbed the hunting effort and it has hurt our economy. 

Can you explain why you consider these activities to be non-economic? 

Mr. SUTTON. Well, I am not a hunter. I have never fired a gun, 

so maybe that’s my problem. I didn’t appreciate that fact, and 

maybe that’s exactly what the Court should have said in dealing 

with that argument. But again, it was part of a constitutional 

avoidance argument that the Court didn’t reach and we were actually encouraging them not to reach in that case. 

Senator FEINGOLD. Let me ask you finally this point, more generally. If we were to try to protect these habitats under your argument, we would in effect have the only differing State Clean Water 

Act for protection. How can you ensured Americans that under this 

system, your vision of the way this works, that there would be any 

sort of floor of national environmental protections or any uniform 

standard of clean water in this country? 

Mr. SUTTON. Well, I think that point goes exactly to what you 

were saying Justice Holmes said in the case. I may be 

misremembering, but at least what you were reading from the case 

makes clear the point I said at the outset, that in environmental 

concerns, the U.S.—environmental laws and environmental cases, 

the U.S. Supreme Court has made clear there are externality 

issues that alter the equation, and the reasons they alter the equation is exactly the reason you’re suggesting, and that reason is that 

sometimes one state, one city, one county can impose costs, environmental costs, pollution costs, on others because of the direction 

of the wind, the direction of the water, a navigable water flows, 

and that’s exactly why Congress has entered that sphere, and it’s 

exactly why the U.S. Supreme Court has said they should enter 

that sphere, and Court of Appeals judges would be obligated to follow those decision, and I certainly would be happy to. 

53

Senator FEINGOLD. I appreciate your answers to those questions. 

Let me turn to the age discrimination issue, Kimel decision which 

came down in 2000. In Kimel v. Florida Board of Regents, again 

the Supreme Court ruled 5 to 4 that State employees could not 

bring private suits for monetary damages against States under the 

Age Discrimination and Employment Act. As you know, the ADEA 

is a Federal law that prohibits employers, including States to 

refuse to hire, to discharge or otherwise discriminate against an 

employee based on an employee’s age. The majority of the Court 

found that while Congress intended to abrogate States’ immunity, 

that abrogation exceeded Congress’s authority under Section 5 of 

the 14th Amendment. 

Do you believe that older workers who are employed by private 

businesses are entitled to protection under Federal civil rights laws 

like the Age Discrimination and Employment Act? 

Mr. SUTTON. I’d like to talk about that case, but of course the 

ADEA requires that very thing. The brief for the State of Florida 

made it quite clear that the ADEA did protect all State employees 

and Federal employees and private employees when it comes to relief like getting your job back, in some cases back pay. The underlying issue in that case which divided the Court along the 5–4 

grounds to which you’re referring was not the question of Section 

5 power, all right, but the question of whether Congress had permissibly used its Section 5 power in passing the ADEA. The question that divided the Court along 5–4 grounds was the issue of 

whether Commerce Clause legislation, because everyone agrees the 

ADEA was also Commerce Clause legislation. Whether that type of 

legislation, that source of constitutional authority, could give Congress the right to create money damages actions. I should tell you 

that was not something we briefed in that case. The Seminole Tribe

issue did not come up either oral argument or in the briefing, but 

it was how the Court broke down. Not 1 of 9 wrote an opinion disagreeing with the Section 5 interpretation we— 

Senator FEINGOLD. Let me ask you this. Do you believe it was 

wrong for Congress to enact the ADEA in the first place? 

Mr. SUTTON. Of course not. 

Senator FEINGOLD. If confirmed to the Sixth Circuit and legislation restoring the right of older State workers to sue their State 

employees were enacted and became the law of the land, how 

would you treat a claim of age discrimination against a State before you? Would you uphold the new Federal law? 

Mr. SUTTON. I mean I would do exactly what the U.S. Supreme 

Court required in that area, and the notion that the ADEA could 

be struck is borderline laughable. I mean there’s a case—I think 

it’s Wisconsin—Wyoming—excuse me, wrong state. I can see why 

I said Wisconsin. Wyoming v. EEOC in which the Court specifically 

upheld the ADEA under Congress’s Commerce Clause power, so of 

course a Court of Appeals judge would be obligated to follow that 

law and enforce it. 

Senator FEINGOLD. Thank you very much. I will wait for further 

rounds for other questions, so that people can take a break. 

Chairman HATCH. Thank you, Senator Feingold. We are going to 

give you until 1:30 which is almost 45 minutes. So we will recess 

54

for 45 minutes, and I am going to start precisely at 1:30. With that, 

we will recess until 1:30. 

[Luncheon recess taken at 12:49 p.m.] AFTERNOON SESSION 

[1:39 p.m.] 

Chairman HATCH. We will call this meeting to order again. I do 

not see any other Senators here at this time, so I will just start 

it off with you, Mr. Roberts. I want to ask a few questions of you, 

and then hopefully, if I have enough time, Justice Cook, I will ask 

a few of you as well. 

We now have this timer, so our poor guy does not have to stand 

there with a little slip of paper. I felt sorry for him. 

It seems to me that both Mr. Roberts and Mr. Sutton are being 

criticized for positions they have taken as attorneys representing 

clients. Now, this is patently unfair, and it is inappropriate because 

attorneys do represent clients, and they should not be judged by 

who our clients are. Any of us who have tried cases know that 

sometimes our clients may not be savory, but the case may be a 

good case, who knows? 

Now, attorneys are required to represent their clients, and this 

is the case whether their client is the U.S. Government, a State 

Government, a private citizen or a corporation, and this fact is so 

fundamental that it should go beyond reproach. 

In any legal matter, the arguments a lawyer makes in the role 

of a zealous advocate on behalf of a client are no measure of how 

that lawyer would rule if he were handling the same matter as a 

neutral and detached judge, and I think it is very unfair to imply 

that the judgeship nominee would not follow the law. 

Now, this is because lawyers have an ethical obligation to make 

all reasonable arguments that will advance their clients interests. 

According to Rule 3.1 of the ABA’s model rules of professional conduct, a lawyer may make any argument if, ‘‘there is a basis in law 

and fact for doing so that is not frivolous, which includes a goodfaith argument for an extension, modification or reversal of existing 

law.’’ 

Now, lawyers would violate their ethical duties to their client if 

they made only arguments with which they would agree were they 

the judge or a judge. 

Now, Mr. Roberts, although my Democratic colleagues are, and 

some in the Senate and elsewhere, have tried to paint you as an 

extremist, the truth is, is that you are a well-respected appellate 

lawyer, who has represented an extremely diverse group of clients 

before the courts. In fact, you have often represented clients and 

what is considered to be the so-called ‘‘liberal’’ position on issues. 

I would just like to ask you about a few of these cases. 

In the case of Barry v. Little, you represented welfare recipients 

in the District of Columbia, right? 

Mr. ROBERTS. That is correct, Mr. Chairman. 

Chairman HATCH. You took this case on a pro bono basis; is that 

correct? 

Mr. ROBERTS. Yes. 

Chairman HATCH. Pro bono means that you did not get paid for 

it. 

Mr. ROBERTS. No, I did not. 

55

Chairman HATCH. You voluntarily represented these people and 

gave services to them. 

Mr. ROBERTS. Yes. 

Chairman HATCH. Now, in another case, Hudson v. McMillian, you successfully argued before the Supreme Court the claims of a 

prison inmate who alleged cruel and unusual punishment, did you 

not? 

Mr. ROBERTS. Yes. I was representing the United States in that 

case. We filed a brief supporting the prisoner’s claim that his 

Eighth Amendment rights had been violated by a beating. 

Chairman HATCH. In Rice v. Kayatama, you argued on behalf of 

a wise Democratic attorney general and Governor, both Democrats, 

in favor of a race-conscious program to benefit Native Hawaiians, 

right? 

Mr. ROBERTS. That’s correct, Mr. Chairman. It is one of several 

cases that I have found particularly gratifying, where Democratic 

State attorneys general have retained me to represent their State 

in the Supreme Court. That has happened on several other occasions as well, and a group of Democratic attorneys general, as well 

as a couple of Republican attorneys general, retained me to argue 

the Microsoft antitrust case in the D.C. Circuit. I found that particularly gratifying because it indicated that they thought my abilities were such that I would be able to represent them effectively, 

and certainly wouldn’t be dissuaded in any way by any political 

considerations. 

Chairman HATCH. Let us talk about the Tahoe–Sierra Preservation Council v. Tahoe Regional Planning Agency. In that case, you 

represented a State regulatory agency before the Supreme Court, 

arguing in favor of limits on property development and in support 

of protection of the Lake Tahoe area; is that correct? 

Mr. ROBERTS. That is correct. 

Chairman HATCH. Finally, in the 2001 landmark Microsoft antitrust case, you argued on behalf of the Clinton Justice Department. 

Who asked you to do that? 

Mr. ROBERTS. It was the group of States that had jointly pursued 

the litigation with the Federal Government. So it was actually the 

Democratic and Republican attorneys general, representing their 

States, that retained me to argue for them. 

Chairman HATCH. So you argued on behalf of primarily Democratic State attorneys; is that right? 

Mr. ROBERTS. Yes, Mr. Chairman. 

Chairman HATCH. Well, Mr. Roberts, in a Legal Times article 

that ran last May described you as ‘‘someone who has represented 

clients on both the conservative side and the liberal side of ideologically charged cases and who has encountered no plausible criticism 

of his fitness to serve.’’ 

I think these cases that I have just mentioned there, I have 

asked you about, illustrate this point perfectly, and I completely 

agree. I have yet to hear any plausible criticism of your fitness to 

serve in this very important position. 

Now, let me turn to you Justice Cook, because I think it is important that we at least look at some of the things that have been 

said about you. Now, it has been alleged by a few trial attorney interest groups that you dissent too much; that you have written too 

56

many dissenting opinions or that you have a ‘‘troubling pattern’’ of 

dissenting. 

Of course, this charge is easy to make, and it seems compelling 

on its face. However, out of basic fairness to you, Justice Cook, we 

should all recognize that these allegations do the work of implying 

that you regularly disregard precedent or favor certain parties 

without necessarily demonstrating that you do anything but conscientiously abide by precedent, and faithfully and interpret and 

apply the law. 

Now, since the charge has been made, however, Justice Cook, let 

me ask you a few questions about your record as an Ohio State 

judge or justice. 

In general, Justice Cook, what would you say compels you to 

write or join in a dissent? 

Justice COOK. On those occasions, Mr. Chairman, where, and the 

number has been cited, there are occasions in my 7 years where 

I write dissents, and more often than others on the court, I am 

quite often the one who writes for the court in dissent, but the dissenting—the importance of dissent in any court is to further the 

law. It’s a matter of fairness. On occasions, my dissents results 

from a disagreement about the text at hand, a fair reading of the 

text, a procedural matter, sometimes a disagreement on the statute 

of limitations. You know it is not often a matter of, as has been 

implied, it is not a matter of my particular bent or preference for 

any side of a case, it is simply really the reasoned elaboration of 

principle is the reason why any judge is moved to dissent. 

Chairman HATCH. It is my understanding you also served as a 

judge for the Ohio Court of Appeals for was it 4 years? 

Justice COOK. Yes. 

Chairman HATCH. I also understand that as a member of the 

Court of Appeals, you decided over 1,000 cases. 

Justice COOK. That is correct. 

Chairman HATCH. How many times were you reversed by the 

Ohio Supreme Court? 

Justice COOK. What’s been cited here, it is less than 1 percent 

of my decisions were ever reversed. 

Chairman HATCH. Do you know how many times the Ohio Supreme Court reversed an opinion in which you joined? 

Justice COOK. It was fewer than 10 cases. The stats are fairly 

low as a percentage. 

Chairman HATCH. It’s about a 1-percent reversal rate. 

Justice COOK. Yes. The percentage is less than 1 percent. 

Chairman HATCH. Now, I understand the United States Supreme 

Court has granted certiorari in three cases the Ohio Supreme 

Court has decided. In all three cases, the Supreme Court reversed. 

In all there cases, Justice Cook, I understand that the U.S. Supreme Court agreed with your dissent and that you were the only 

one of the seven justices who ruled correctly, in accordance with 

the U.S. Supreme Court’s ultimate resolution of the Federal constitutional issues in all three cases; is that correct? 

Justice COOK. That’s correct. 

Chairman HATCH. In State v. Robinette, Justice Cook, you joined 

the dissent, arguing that the court majority had developed a rule 

57

that was contrary to the Supreme Court precedent. The U.S. Supreme Court agreed and reversed the ruling; is that right? 

Justice COOK. Yes. 

Chairman HATCH. Agreed with you. 

Justice COOK. Yes, they did. 

Chairman HATCH. In American Association of University Professors Central State University Chapter v. Central State University, you wrote the dissenting opinion, and the U.S. Supreme Court, 

again, agreed with you. 

Justice COOK. Not only did it agree, we were pretty excited about 

the fact that they quoted the language of the dissent. 

Chairman HATCH. That is great. 

Justice COOK. That doesn’t happen often. It was a big day. 

Chairman HATCH. In other words, they even quoted from your 

dissent— 

Justice COOK. Yes. 

Chairman HATCH. That is kind of a badge of honor to— 

Justice COOK. It was relished in my chambers. 

Chairman HATCH. I see. Well, in State v. Reiner, the Ohio court 

reversed the conviction of manslaughter against a father who killed 

his two-month infant son on the grounds that the baby sitter, who 

refused to testify, but denied involvement in the infant’s death, did 

not have a valid Fifth Amendment right against self-incrimination 

and was therefore improperly denied transactional immunity. 

You dissented in that, right? 

Justice COOK. I did. I was the sole dissenter. 

Chairman HATCH. Could you tell us why? 

Justice COOK. Well, my dissent essentially set forth a fundamental principle that the guilty and the innocent enjoy a right 

against self-incrimination, and so the fact that she denied, this particular witness was granted transactional immunity because she 

denied all culpability did not deny her the right to invoke her Fifth 

Amendment privilege, as she did. 

Chairman HATCH. Well, you in dissent, to use my terms, argued 

that the immunity was property because the sitter, baby sitter, had 

reasonable cause to believe that her answers could put her in danger. 

Justice COOK. That is right. She could provide a link. In fact, the 

defense, the father’s defense was that, indeed, it was the baby sitter who had shaken this infant and killed the infant. 

Chairman HATCH. I see. The Supreme Court, again, of the 

United States of America, agreed with your dissent, and you were 

the sole dissenter, right? 

Justice COOK. That’s right. 

Chairman HATCH. And ruled that the baby sitter was entitled to 

immunity because, despite her claim of innocence, she had reasonable cause to apprehend danger from her answers at trial. 

Justice COOK. Yes. And, happily, that decision by the U.S. Supreme Court was 9 to nothing, so it was unanimous. 

Chairman HATCH. Justice Cook, a few others have charged that 

the so-called objective observers view the Ohio Supreme Court as 

a moderate one and that your dissenting opinions put you outside 

the mainstream. Now, I think that is a pretty strange charge, between you and me. 

58

The allegation that the court is seen, by most objective observers, 

as moderate and bipartisan belies the facts. Let me quote what 

Ohio newspaper editorials have said, and I will put all of these editorials in the record, without objection. 

The Plain Dealer said, in endorsing Justice Cook and Terrence 

O’Donnell in the 2000 judicial election, ‘‘Both are Republican nominees, but their party labels are not nearly as critical as their 

shared philosophy of judicial restraint. By contrast, success for 

their opponents would enhance the prospect that a majority of the 

seven-member court would continue on a controversial course of judicial activism best illustrated in 4–3 decisions.’’ 

The Columbus Dispatch wrote, ‘‘A majority on the Ohio Supreme 

Court has confused its role of checking the powers of the general 

assembly. The court, instead, has turned into a legislative bulldozer, up-ending whatever law conflicts with the ideological bent of 

the majority, legal and constitutional principles be damned.’’ 

Are you familiar with those? 

Justice COOK. Yes, I am aware of those. 

Chairman HATCH. The Ohio Beacon Journal editorialized, ‘‘Those 

who watch the Ohio High Court know Cook is no ideologue. She 

has been a voice of restraint in opposition to a court majority determined to chart an aggressive course, acting as a problem-solver, as 

ward polls, more than problem jurists.’’ 

Justice COOK. That is a common— 

Chairman HATCH. Now, it appears to me, Justice Cook, that you 

possess an excellent understanding of your role as a judge charged 

with faithfully and conscientiously following precedent in upholding 

the Constitution, even if that means that occasionally you have to 

dissent. 

Justice COOK. That is right. 

Chairman HATCH. Or even more than occasionally you have to 

dissent, and that is the point I think I would like to make. 

My time is just about up. I will turn to the distinguished Senator 

from New York. 

Senator SCHUMER. Thank you, Mr. Chairman. 

Senator LEAHY. Before you do, just one number, and I was not 

quite sure of it, because it has been mentioned by Senator DeWine, 

yourself and Senator Hatch, the reversals by the Ohio Supreme 

Court, that was 1 percent of all of your cases that were appealed 

to the— 

Justice COOK. That’s right. I think that it is 7 in 6—the numbers 

are something like in 6 of the cases out of 1,000 that I wrote, the 

Ohio— 

Senator LEAHY. But how many were appealed to the— 

Justice COOK. Oh, gee, I’m afraid I don’t know that. 

Senator LEAHY. Most of them? 

Justice COOK. No, I wouldn’t say that. The Ohio Supreme Court 

is a certiorari court, so they choose their cases and— 

Senator LEAHY. But do you know how many of your cases went 

up offhand? 

Justice COOK. I’m afraid I don’t, Senator Leahy. 

Senator LEAHY. Five hundred? Two hundred? 

Justice COOK. In fact, I really wouldn’t have any idea because 

that is not—I never did pay attention and keep track of the ones 

59

that were appealed. I knew the ones that were accepted, and those 

are the statistics we have, but how many were appealed, I actually 

don’t know. 

Senator LEAHY. Do you know how many were accepted? That is 

really what I mean. 

Justice COOK. Yes. 

Senator LEAHY. How many were accepted on appeal? 

Justice COOK. I could get that for you. 

Senator LEAHY. Two hundred? 

Justice COOK. I would be making a wild guess, and the wild 

guess might be 50. 

Senator LEAHY. Okay, and if it was 50, so 6 out of 50 that were 

reversed. 

Chairman HATCH. Well, she does not know. 

Senator LEAHY. No, that is okay. If you could get me the number 

for the record, please. 

Justice COOK. Yes, sir. 

Senator LEAHY. I just—because, obviously, you have a lot of 

cases that were never appealed or a cert was never granted. 

Justice COOK. That’s right. 

Senator LEAHY. Thank you. 

Thank you, Mr. Chairman. 

Chairman HATCH. Senator Schumer? 

STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR 

FROM THE STATE OF NEW YORK 

Senator SCHUMER. Thank you, Mr. Chairman. 

First, I want to make a couple of more comments just about the 

procedures here, and then I will get into questions. I will start with 

Professor Sutton. 

But, first, I want to thank you, Mr. Chairman. You did renotice, 

after I brought up the hearing, you have renoticed it from Tuesday 

to Wednesday, so that will comply with the Committee rule that we 

have one week’s notice, and I want to thank you for that as well. 

Originally, we were going to have 5-minute periods, I was told, 

and we asked you to move it up to 15, and 15 is adequate, and we 

appreciate that. 

What we are trying to do here is get a feeling that this is real, 

that these are real. You know, for us, for many of us, this is really 

significant, but we worry about the others. 

One thing I would ask you, Mr. Chairman, could we get notification by today as to which judges or which nominees we are going 

to have before us next Wednesday? 

Chairman HATCH. I think so. I have already told staff to try 

and—our obligation is give notice of the hearing. 

Senator SCHUMER. Right. 

Chairman HATCH. But I would like to give you as much—I had 

told Senator Leahy, at least two weeks ago, who was going to be 

on this. 

Senator LEAHY. Maybe my memory— 

Chairman HATCH. Senator Leahy’s memory what? 

Senator LEAHY. Maybe my memory is— 

Chairman HATCH. His memory, once again, is faulty? 

[Laughter.] 

60

Senator LEAHY. —has slipped. 

Chairman HATCH. Well, whatever. I did tell him. 

Senator LEAHY. I know that you want to give us enough time to 

look at them because, to quote a distinguished Chairman of this 

committee, ‘‘The Chairman will schedule a hearing for a nominee 

only after thorough review of a nominee’s preliminary information. 

Obviously, this is a long process, as it must be. After all, these are 

lifetime appointments,’’ so said Senator Orrin Hatch, my dear 

friend and former chairman. 

Chairman HATCH. Oh, my goodness. 

[Laughter.] 

Senator LEAHY. You never know when that stuff is going to come 

back to haunt you, Orrin. 

Chairman HATCH. Well, let me— 

Senator SCHUMER. I guess the point I want to make is having 

three substantial, controversial nominees to the court, to important 

Courts of Appeals is brand new. The notice, as I say, has not been 

thorough, and we do not even have Committee rules yet. We have 

not discussed what is happening with the ‘‘blue slip.’’ 

We have not discussed any of the other kinds of rules that this 

Committee has always prided itself on having, and then, to boot, 

today there were so few questions asked by people on the minority 

side, it just almost seemed like a rush to judgment. Let us just get 

this—I mean, majority side. The minority side we are going to ask 

plenty of questions. It is wishful thinking that we were the majority side, at least for me—but no questions asked, and it almost 

seems like, you know, this is a done deal to too many people on 

this committee. 

The White House says put them in, get them done as fast as you 

can, as few questions as possible, and we will just move them, and 

I worry about that. I worry about it from a constitutional perspective because there should be real advise and consent, whether you 

agree, whether you are the same party or the different party, in 

terms of who is in the White House, and I would just hope we could 

back to some of that. I think, even during the worst of times, when 

we were in charge, we were never accused of rushing through people and— 

Chairman HATCH. I think that is a fair characterization myself, 

but let me just say 630 days, it seems to me, is enough notice, and 

it certainly is enough time to evaluate people. 

Senator SCHUMER. Well, you know, you say that, but officially we 

did not receive notice until last night, and— 

Chairman HATCH. We will try to remedy that. 

Senator SCHUMER. And there are reasons for that. 

Chairman HATCH. We will try and remedy that. 

Senator SCHUMER. And we ought to have them. I mean, let us 

hope this is all on the level and certainly at least fair process 

would help give it at least the appearance that that is the case. 

I now want to direct some of my questions at Professor Sutton. 

Professor, you have probably been advised by those who have 

prepped you for this confirmation that I have three criteria I use 

when I weigh nominees, whether in helping choose them in New 

York, which I used to do—maybe still will do, do a little bit—but 

also in who I judge. It is excellence, moderation, diversity. 

61

Excellence, legal excellence. These are such vital positions that 

you do not want some political hack or somebody who is somebody’s 

friend to occupy them. I have no doubt you meet that criteria. You 

are a legally excellent mind. 

The second criteria I have is moderation. I do not like judges too 

far left or too far right. In fact, in my own Judicial Review Committee, when people have come to me with some very liberal 

judges, well-known liberals on the New York bench, I have not chosen to select them because I think judges who are too far left and 

too far right want to make law themselves. They have such a passion for what is right and what is wrong, that instead of interpreting the law, which is what the Constitution says they should 

do, they end up making the law. 

And, in fact, a lot of the conservative critique of the liberal courts 

of the sixties and seventies was shaped by that notion, and I find 

it ironic that the conservative movement is doing the same, exact 

thing now that they criticized people for. 

It is a little bit of a mirror image of telling us now we ought to 

move judges on, say, the Court of Appeals, when we were constantly told when President Clinton was President, we do not need 

any more judges. The caseload is the same, and yet all of a sudden 

we are pushing judges through, and that is, again, what we have 

to live with here, but the lack of consistency in all of this is mindboggling, and again makes you think that this is not on the level, 

which would be a shame for the Constitution and for the judiciary. 

So that is my second criteria. 

My third one is diversity. I do not think the bench should be 

white males. You do not meet the diversity criteria, but you cannot 

judge it by one person, and that is not a problem for me here, but 

the moderation is. 

And, frankly, by your record, to me, you are hardly a moderate. 

You have pointed views that are way beyond, I think, what most 

people would consider the mainstream, and you have helped shape 

and change the courts. Let me just go over a little history. 

I mean, over the past several years, the Rehnquist Supreme 

Court has slowly and steadily affected a revolution, and they have 

engaged, in my judgment, at least, in startling acts of judicial activism, reaching out to strike down law after law that Congress has 

passed to protect women and workers, environment, the disabled, 

children and senior citizens. 

And this court is leading the country down a dangerous path, 

where it seems States’ rights predominate over people’s rights. 

They call it federalism or they call it something else, but it is really 

just that, and we almost want to go back, whether it be the Eleventh Amendment or the Commerce Clause, to the 1890’s because 

there is such anger and hatred for the Federal Government. So I 

worry about that. 

And you, Mr. Sutton—Professor Sutton—you are a primary engineer of the road that court is traveling. We all know that. This is 

not just you happening to be plucked out as a 1 of 1,000 lawyers 

and say, please, represent us on this case. When you look at cases 

that make up the Rehnquist Court’s revolution, Sandoval, Garrett, 

Kimel, City of Berne, have particular meaning, and those are the 

62

cases that comprise the most significant parts of your impressive 

resume. 

I have been struck by the comments that you are nothing but a, 

you did not say a country lawyer, but you might as well, a lawyer 

just representing your clients; that you do not really believe in the 

arguments you have made or your beliefs are irrelevant, you were 

just doing your job, but I think anyone who has reviewed your 

record can see that is not the case. 

You were not just sort of like a corporate attorney who was 

picked to work for one corporation and then another. You have 

taken a leadership role in the Federalist Society, which has pushed 

this line of reasoning and the States’ rights agenda. You have made 

public comments that you love the States’ rights movement. You 

advance your agenda with a genuine ardor and passion, advocating 

positions that go even beyond where Justices Scalia, Rehnquist and 

Thomas have been willing to go. 

I am just going to read, and then ask be inserted in the record, 

a number of quotes from you, at least they are all foot-noted, and 

I would ask unanimous consent the whole statement be added to 

the record with the footnotes. 

Chairman HATCH. Without objection. 

Senator SCHUMER. Okay, talking about this federalism, this 

State’s rights. ‘‘It doesn’t just get me invited to cocktail parties. . .’’ 

these are your quotes ‘‘. . .but I love these issues. I believe in this 

federalism stuff.’’ 

Here is another one, ‘‘First, the public has to understand that the 

charges of judicial activism that have been raised, particularly in 

the most recent term, are simply inaccurate. The charge goes like 

this: How is it that justices who believe in judicial restraint are 

now striking down all of these Federal laws? The argument, however, rests on a false premise. . .’’ These are your words. These are 

not quoted in a case. This is from an article that you wrote. 

‘‘In a federalism case. . .’’ again, your words ‘‘. . .there is invariably a battle between the States and the Federal Government over 

a legislative prerogative. The result is a zero-sum game, in which 

one or the other law-making power must fall.’’ 

Here is another one. ‘‘The public needs to understand that federalism is ultimately a neutral principle.’’ Many of us would disagree with that. That is in the mind of the beholder, but it is certainly a view of yours, not who you are representing, but you. 

‘‘Federalism merely determines the allocation of power. It says 

nothing about what particular policies should be adopted by those 

who have power.’’ 

And it goes on, and on, and on. You discussed the Morrison case. 

‘‘Unexamined deference to VAWA—Violence Against Women Act—

findings would have created another problem as well. It would give 

to any Congressional staffer with a laptop the ultimate Marbury

power to have final say over what amounts to interstate commerce, 

and thus to what represents the limits on Congress’s Commerce 

Clause powers.’’ 

Right now, I disagree with these, but that is not my point here. 

My point is you are not simply a lawyer who was chosen to represent cases. You have been a passionate advocate for this point of 

view, and you state it not only when you represent a client before 

63

a court, you state it in articles, you state it in conversation, et 

cetera. 

Let me just say to you that, and this is the same question I 

asked Attorney General Ashcroft when he was here, although that 

was different because he is in the same branch of Government as 

the President, and we give the President a little more deference in 

that regard than we do Article III. You are passionate. You have 

strong beliefs that most objective observers would say, whether you 

think they are right or wrong, is way out beyond the mainstream. 

Many of the things you have said, as I said, neither Scalia, nor 

Thomas, nor Rehnquist has said in opinions. 

And so how can we believe you, that when you have been such 

an impassioned and zealous advocate for so long that you can just 

turn it off, how do you abandon all that you have fought for—you 

have been a seminal voice in all of this for so long—given the fact 

that we all know that 100 lawyers looking at the same fact case 

do not always come under 100 judges with the same answer? 

Mr. SUTTON. Right. 

Senator SCHUMER. Please. 

Mr. SUTTON. Thank you, Senator. You have raised several issues, 

and I will do my best to get to as many of them as possible. 

First and foremost, someone who has the good fortune, first, of 

being nominated, and then the good fortune of being confirmed by 

the Senate, takes an oath, and when you take an oath, the whole 

point at that stage in your career is that your client is no longer 

your personal views, no longer a person for whom you advocated, 

but your client is the rule of law. 

As a Court of Appeals judge, your objective, of course, is to do 

whatever the U.S. Supreme Court has required in that area. If 

they haven’t provided guidance, follow what your Court of Appeals 

has required in that particular area, and I can assure you that’s 

exactly what I would do as a lower court judge. 

I would, respectfully, disagree with your comments, and I understand— 

Senator SCHUMER. Please. We should have an open and fair debate here, not just go through the motions and, as Senator Leahy 

said, rubber stamp whoever the administration puts forward. I will 

not characterize interest groups the way my good friend, the chairman, does, but it seems that almost any time someone disagrees 

with what the nominee thinks, there are certain editorial pages, 

certain groups that say, ‘‘Oh, you know, they have an agenda.’’ I 

mean, we should have an open discussion here. That is the whole 

point of advise and consent, not simply to find out if someone is 

of good moral character. 

Please. 

Mr. SUTTON. And I appreciate the opportunity to have the honor 

of having this discussion with the committee, and with you directly, 

and I know you have been an impassioned speaker on these federalism decisions and critiquing them, and I do want to turn to 

those, but before I do that, the one I guess I could fairly call it a 

premise of your question was that one can line up a series of cases, 

take five or six controversial cases and say, ‘‘Boy, anyone that could 

have advocated those positions must have a viewpoint that is just 

64

inconsistent with anything I think is good and right about what 

Federal judges do and about what the Constitution means.’’ 

I, respectfully, disagree that that can fairly be said about me. I 

think there are many cases, representations I have handled that I 

think you would applaud, and if you wouldn’t applaud, would at 

least respect my role as a lawyer. 

I hope, in thinking about the federalism decisions, you will keep 

in mind cases I did before I worked for the State, whether it is 

writing a brief for the Center for the Prevention of Hand Gun Violence in the Sixth Circuit as an amicus brief, whether it’s defending 

Ohio’s hate crime statute on behalf of several branches of the 

NAACP, and the Anti–Defamation League and every other civil 

rights group affected by that law in Ohio, whether it’s the work I 

did as State solicitor. 

Keep in mind, while the States have done unfortunate things at 

times in our history, the States today are doing some good things. 

At Ohio, I twice defended Ohio’s set-aside statute. I was, I think 

one can fairly say, very passionately involved in defending Cheryl 

Fischer in trying to get into Case Western Reserve with her disability of blindness. 

Since leaving the Solicitor’s Office, while out of practice, I have 

continued to handle those kinds of representations. I sought out 

and was hired to represent an indigent inmate in a Civil Rights 

case in the U.S. Supreme Court. That’s one of the U.S. Supreme 

Court cases I did. 

In terms of Sandoval, I’ve been on the other side of Sandoval. 

I have done a case involving implied rate of actions on behalf of 

Indian tribes for the National Congress of American Indians, and 

I was approached by them and hired by them to handle that case. 

That case is the mirror image of Sandoval. 

I have handled two death penalty cases, which of course are 

about as much against States as one can ever be. 

Now, when it comes to your perspective that when I have spoken 

to the press and the articles you referred to or when I have written 

articles— 

Senator SCHUMER. Now, you do not express the sentiments of the 

people you represented in some of those cases in your private articles, only the ones on the other side. 

Mr. SUTTON. I don’t think that is true, actually. If you look at— 

Senator SCHUMER. Okay. Well, you can submit to the record— 

Mr. SUTTON. The tribute I did to Justice Powell, your second criterion, looking for moderates, I mean, if Justice Powell is not a 

moderate, then maybe I am wrong, and maybe I am not qualified, 

but I do think he was a moderate justice. He hired me. I wouldn’t 

be sitting here, but for Justice Powell hiring me back in whatever 

it was, 1989–1990. I think my tribute to him suggests that very 

point. 

I wrote another article for the Federalist Society in the Kiryas 

oe decision, criticizing the U.S. Supreme Court majority for not allowing the Satmar Hasidim to develop a district. Why did they 

want to develop that district? Precisely so handicapped citizens in 

that district could go to their own school and not have to go to the 

local public school, which was the only way they could get disVerDate 0ct 09 2002 10:57 Oct 08, 2003 Jkt 089324 PO 00000 Frm 00072 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\89324.TXT SJUD4 PsN: CMORC
65

ability services. People that were not disabled in that district went 

to private hasidic schools. 

So I think if you did— 

Senator SCHUMER. Let me say this, sir, just with the Sandoval

case, you could do 10,000 pro bono cases for individuals and the 

Sandoval case takes away rights of individuals to pursue the rights 

you were pursuing in those pro bono cases in one fell swoop, and 

I do not think some cases where you were pro bono undoes what 

Sandoval did. I mean, you are saying treat each case equally. I 

cannot. 

Mr. SUTTON. I perfectly understand that point. On Sandoval— Senator SCHUMER. I mean, the Sandoval took away rights of lots 

of individuals to be able to sue for just the things you were representing the pro bono individuals to be able to do, right? 

Mr. SUTTON. Sandoval, keep in mind is a case—I’ve never written about it, I’ve never spoken about it—that’s a case where the client position of the State in that case was developed long before I 

was involved. The Constitution—well, it wasn’t a constitutional 

case—the statutory interpretation arguments developed long before 

I was involved. 

When I was hired by that State to handle the case in the U.S. 

Supreme Court, as a lawyer upholding my oath to represent my client as best I possibly can, I had an obligation to make those arguments, but of course Sandoval is a statutory case. That can be corrected by this body tomorrow. I was simply representing them, and 

I would point out the Navajo case, where I represented these American Indian tribes, is the mirror image. It’s an implied right of action case, and those briefs I think show anything but an hostility 

to implied rights of action. 

As a judge, the reason I want to be a judge, Senator, is precisely 

so my client is a different client. The client is the rule of law, and 

that’s the great honor of it. 

Senator SCHUMER. But your view of what the rule of law is, 

based on these quotes, is far different than what most American 

judges, lawyers, students of juris prudence believe it is. 

Mr. SUTTON. Well, if I could respond to that, a similar question 

was asked earlier this morning, and the quote simply indicates 

that, of course, I believe in Federalism as a principle. Federalism 

is a principle Court of Appeals judges have to follow in the same 

way they have to follow stare decisis. The problem where people 

disagree quite reasonably is the application of that principle in 

given cases. 

Senator SCHUMER. Right. Well, let us talk about one given case. 

I understand your point. I want to talk about Boerne, the City of 

Berne. In that one, as you know, the Supreme Court held 5 to 4 

that Congress had exceeded its power under Section 5 of the Fourteenth Amendment when it passed the Religious Freedom Restoration Act. 

Senator DEWINE. [Presiding] Senator Schumer, you are 5 minutes over your time, but you can continue a reasonable time. 

Senator SCHUMER. Let me just ask this one, and then I would 

ask for a second round because I have a bunch, and I very much 

appreciate that, Senator. 

Senator DEWINE. Sure. 

66

Senator SCHUMER. And I will try to sum it up quickly. 

Anyway, you filed an amicus brief on behalf of the State of Ohio, 

and you argued the case in the Supreme Court. In that brief, you 

pushed an argument that went even further than the five–Justice 

majority on the Court was willing to go. You argued that Congress 

has no power, under Section of the Fourteenth Amendment, to 

enact any law to enforce religious freedom, free speech or any other 

provision of the Bill of Rights. That strikes me as a pretty radical 

argument. 

Now, I understand you have been saying today you were just 

representing the State of Ohio, where my good friend is from. First, 

it is true, of course, that many other States—it is not inexorably 

that that is what Ohio had to believe—other States, including my 

State of New York, came to the opposite conclusion that you came 

to when they filed an amicus brief on the other side. So it was 

hardly a neutral interpretation of law that all States would agree 

with here. It is not so cut and dry, and it is not so obvious where 

the States’ interest should be. 

But what I am wondering here is who decided it was in Ohio’s 

interest to advance such a radical proposition. Did the Governor direct you to file the brief and go that far, did the attorney general 

or did you decide to go on your own to take that extra step that 

no law could be passed in this regard? 

Mr. SUTTON. Yes, Senator. I think there is a—I may be misapprehending your question, but I am pretty sure I’m not— 

Senator SCHUMER. I am asking you did the Governor or the attorney general, say, make the argument that we should go further 

or was that your argument? 

Mr. SUTTON. No one made the argument. That’s the false 

premise. The argument you’re referring to was made by the party, 

by the City of Berne, represented by another lawyer. This is quite 

critical because not only— 

Senator SCHUMER. You did not argue in that case that the Congress has no power, under Section 5, to enact any law to enforce 

religious freedom? 

Mr. SUTTON. In the oral argument itself, Justice Scalia asked me 

the very question you’re raising because he noted that the city had 

said Section 5 of the Fourteenth Amendment only allows Congress 

to protect equal protection rights, and it is principally about race 

and voting. We did not make that affirmative argument in our 

brief. 

During the oral argument, I went second, after the City of Berne

lawyer. I specifically got up and said that is where we disagree 

with the party. Section 5, by its terms, covers everything in Section 

1, and Section 1 includes the Due Process Clause. The Due Process 

Clause includes, by incorporation, free speech, free exercise of religion, all of these Bill of Rights provisions that have been incorporated. 

Justice Scalia looked at me incredulously, saying that can’t be 

right. And we said, no, by its terms, Section 5 covers all of these 

rights. So we not only didn’t make that argument, we argued exactly the opposite that there was such a power. The quest— 

67

Senator SCHUMER. That was in the brief? I haven’t seen the oral 

argument, but the brief didn’t say what you’re saying to me now, 

did it? 

Mr. SUTTON. Exactly. We didn’t take a position on it, and during 

the oral argument—well, we were in amicus—during the oral argument, I specifically contradicted this point, even though the party 

on our side of the case— 

Senator SCHUMER. But here is what I want to ask you: When you 

filed this brief, was it on direction from the attorney general or 

from the Governor or one of the elected officials? I do not know if 

the attorney general is elected in Ohio. 

Senator DEWINE. He is. She is. 

Senator SCHUMER. Okay, she is. 

Mr. SUTTON. Yes. 

Senator SCHUMER. Did they tell you to make this argument or 

did you come up with it? Answer that yes or no if you could. 

Mr. SUTTON. The attorney general decides what arguments to 

make, and the attorney general had the final decision on whether 

that brief could be filed. 

Senator SCHUMER. Did you suggest to him that the brief be filed 

the way it was before he said, fine? 

Mr. SUTTON. She— 

Senator SCHUMER. Who came up with—she, excuse me. 

Mr. SUTTON. Betty Montgomery. 

Senator SCHUMER. Excuse me. Who came up with the idea to file 

the brief, the amicus brief, and however far—we can dispute how 

far it goes— 

Mr. SUTTON. Sure. 

Senator SCHUMER. But who came up with that idea? Was it their 

idea, and you just followed what they said or did you come up with 

the idea and suggest it to them? 

Mr. SUTTON. Neither of us. Neither of us, Senator. 

Senator SCHUMER. Well, tell me how it came about. It did not 

just—it was not spontaneous generation. 

[Laughter.] 

Mr. SUTTON. Exactly. 

Senator DEWINE. Senator, why do you not give him a chance to 

answer. 

Senator SCHUMER. I will. 

Senator DEWINE. You are 10 minutes over already. 

Mr. SUTTON. Senator, what happened in the case was Ohio, like 

many other States, after RFRA was passed, had many lawsuits 

filed against them by prison inmates claiming that under RFRA 

they could have accommodations, and it led to lots of litigation. 

Some of it I think you would agree is somewhat frivolous— 

Senator SCHUMER. No question. 

Mr. SUTTON. —and some of it with merit, but lots of inmate litigation. 

There’s a Corrections Section of the AG’s Office. I was not involved in this decision, so I don’t know if it was the Correction official or Attorney General Montgomery. I suspect that Attorney General Montgomery would have been involved. They decided in those 

cases to raise the defense that RFRA could not be used to bring 

68

these prisoner claims because it exceeded Congress’s power. I was 

not involved in that decision. 

When the City of Berne case made its way through the courts, 

by that time, the office and the State, the Correction officers of the 

State, had an interest in this litigation, and that’s exactly what 

happened. 

Senator SCHUMER. Let me, just I can come back to this, if I am 

taking too much time. I just want to go over, I have the brief here, 

and I wanted to go over a few of the points here, but I will wait 

and come back. 

Senator DEWINE. No, if it is all in the same line of questioning 

and you want to continue, go right ahead. 

Senator SCHUMER. So here is the brief that you filed. This is the 

brief for the amici States of Ohio and the others, and it says, 

‘‘Betty Montgomery, Attorney General of Ohio; Jeffrey S. Sutton, 

State Solicitor Counsel.’’ 

This is on Page—well, this is a Westlaw, so I do not have the 

page. But it says, ‘‘Point No. 1B. The debate over the Fourteenth 

Amendment confirmed that the words mean what they say. When 

Congress had an opportunity to adapt a broader version of Section 

5, which was offered in February 1866, it rejected the proposal to 

the amici States’ knowledge. Moreover, no participant in the debates embraced the interpretation of the Fourteenth Amendment 

offered here; namely, that Section 1 incorporates most of the first 

eight amendments and that Section 5 allows Congress to enforce 

both the meaning of the amendments and any values underlying 

them.’’ Does that not— 

Mr. SUTTON. That is exactly correct, Senator, and the reason it’s 

correct is the ‘‘and.’’ The ‘‘and’’ point we were making in the brief 

was that no one in the Congress at that point, in proposing the 

Fourteenth Amendment, said, simultaneously, the Congress would 

have the final say over what the U.S. Constitution means, which 

is to say overrule Marbury v. Madison, and simultaneously say 

anything covered in Section 1, even incorporated rights in the other 

Bill of Rights, would be included. 

Senator SCHUMER. But what you say here would exactly buttress—I mean, I will let you have the last word here—exactly what 

I said; that there could be no, it is not just some, but this is broad 

and sweeping, even with your ‘‘and’’ argument, that Congress 

would have no power under Section 5 to enact any law to enforce 

religious freedom; is that not correct? 

Mr. SUTTON. With all respect, Senator, I couldn’t disagree more, 

and I think it would have been poor advocacy, to say nothing of 

wrong, to make that argument. But the proof is not only the ‘‘and’’ 

that I referred to, but the proof is to read the transcript. The transcript doesn’t indicate who the justice is. It was Justice Scalia. This 

was the exact point I made. I was challenged very hard by him on 

it, and I pushed back on it, and we won on that issue, on an issue 

I think you applaud, based on your questions. We won on that 

point. That’s good. 

Senator SCHUMER. Okay, well, I am going to come back to it. I 

am going to go read the brief, I mean, the oral argument, and we 

will come back to it. We will have a second round, I presume, Mr. 

Chairman; is that correct? 

69

Senator DEWINE. Correct. 

Senator SCHUMER. Thank you. I appreciate the committee, that 

I went on for a while. 

Senator DEWINE. I would, at this point, ask unanimous consent 

that an article written by Jeffrey S. Sutton, entitled, ‘‘Justice Powell’s Path Worth Following,’’ that appeared in the Columbus Dispatch be submitted for the record made a part of the record, without objection. 

Senator LEAHY. We have no objection. 

Senator DEWINE. Without objection. 

At this point, Senator Cornyn— 

Senator SCHUMER. Mr. Chairman? 

Senator DEWINE. Yes, Senator Schumer? 

Senator SCHUMER. I just would ask unanimous consent. There 

are a whole bunch of letters of opposition to the nomination. 

Senator DEWINE. They can be made a part of the record. 

Senator SCHUMER. Without objection, I would ask that they be 

made part of the record. 

Senator DEWINE. Absolutely. 

Senator SCHUMER. Thanks. 

Chairman HATCH. Senator Cornyn? 

STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM 

THE STATE OF TEXAS 

Senator CORNYN. Thank you, Mr. Chairman. 

Mr. Chairman, I am honored to be sitting here today. This is my 

first hearing where the Presidential’s judicial nominees have come 

before the Committee and put their qualifications up for evaluation 

by the Senate in its constitutional role of advice and consent. 

Since I am a new member of the committee, perhaps you will indulge me for a moment just to talk a second about the timing, the 

unfortunate timing sequence, since the President first nominated 

these two men and Justice Cook. It was May 2001 that the President first proposed these judicial nominees and, yes, it has been an 

inordinate amount of time leading up to today’s hearing before they 

have had an opportunity to defend themselves and to present their 

record and to answer questions this Committee has about their 

qualifications to serve in the important positions to which the 

President has chosen them. 

I know that during the opening statements there were statements made by Senator Leahy about the past, and I want to tell 

Senator Leahy, and those on the other side of the aisle on the committee, that I, as a new member of the committee, you will perhaps 

allow me to say that I hope that the Committee can have a fresh 

start. 

I do not think it serves the interests of the American people for 

us to point the finger across the aisle and say because Republicans 

did not act on a timely basis on appointees of President Clinton 

that perhaps the same ought to be done in retribution when there 

is a Republican in the White House and when Democrats are in the 

majority. 

While I have reservations under the Separation of Powers provision of our Constitution about the President’s proposal for a time 

table—I do not believe that should be imposed. Indeed, it cannot 

70

be imposed by the Executive Branch on the Legislative Branch—

I do think that it would be worthwhile for this Committee to consider, on a bipartisan basis, trying to come up with some rules that 

would guide the Committee in terms of the manner in which we 

consider the President’s nominees, regardless of who happens to be 

in power, a Republican President or a Democrat President, so that 

we can have a timely consideration of these nominees’ qualifications and an up or down vote by the members of this committee, 

and then if it passes out of this committee, by the entire Senate. 

I think we not only owe the men and women who are appointed 

or nominated, excuse me, by the President the courtesy of that, I 

believe we owe the American people and the people we serve that 

same thing. Because, in fact, of course for all of the vacancies that 

have existed as a result of the failure to act on the President’s judicial nominees, there are very real human beings whose cases are 

not being heard in our courts. Of course, as we all know, justice 

delayed is justice denied. 

So I just want to say, here on my maiden voyage on this committee, that I would hope that we would try to work in a bipartisan 

way toward a fresh start and a time table that would allow timely 

consideration of all of the President’s nominees. No one is going to 

say a Senator has to vote one way or another. That is our prerogative as a member of the Senate, and we will indeed be held accountable to our constituents who set us here, but I think that the 

President is entitled to his choices, subject to an up or down vote 

by the Senate, and that should be done on a timely basis. 

Senator LEAHY. If the Senator would yield, without losing any of 

his time on this, insofar as you mentioned me on this— 

Senator CORNYN. I would be glad to turn it over to you in a 

minute, but I have waited a long time to have my shot, so if you 

will give me a chance just to say a couple of things, and then I will 

be glad to turn it over. 

Senator LEAHY. Go right ahead. 

Senator CORNYN. I also come to this job representing the State 

of Texas in the United States Senate with the background of having served in virtually all three branches of Government, as a 

judge, a member of the Executive Branch as attorney general and 

now in the Legislative Branch, albeit on the Federal level. 

Of course, I think a lot of the debate that we are hearing today 

has to do with what is the appropriate role of not only the Legislative Branch versus the Judicial Branch, but indeed what is the 

proper role of a lawyer in our adversary system and whether the 

positions that a lawyer advocates on behalf of a client are somehow 

attributable to the personal beliefs and convictions of that lawyer 

when they argue a point of law, which they are obligated to do 

under the Code of Conduct, which they may or may not agree with, 

but which they are duty-bound to propose to the court and let the 

court make that decision. 

And so I think the debate we are having today, in many ways, 

is nothing new. It is a debate, and the subject matter touched upon 

by the Founding Fathers, including, of course, Alexander Hamilton 

in Federalist No. 78, when he talked about the different roles of the 

branches of Government. 

71

And so what I would like to maybe ask, and I just have a very 

few questions for Justice Cook, and Mr. Roberts, and Mr. Sutton, 

is, first of all, Mr. Roberts, I wonder if you would please address 

the obligation of a lawyer, ethical obligation, to advance a legal argument on behalf of a client, even though a court may ultimately 

disagree with you or agree with you. What is a lawyer’s obligation, 

as you understand it, under the Code of Legal Responsibility? 

Mr. ROBERTS. I think the standard phase is ‘‘zealous advocacy’’ 

on behalf of a client. You don’t make any conceivable argument. 

The argument has to have a reasonable basis in law, but it certainly doesn’t have to be a winner. I’ve lost enough cases that I 

would hate to be held to that standard. 

But if it’s an argument that has a reasonable basis in the law, 

including arguments concerning the extension of precedent and the 

reversal of precedent—I think Chairman Hatch quoted the pertinent standard from the American Bar Association—the lawyer is 

ethically bound to present that argument on behalf of the client. 

And there is a longstanding tradition in our country, dating back 

to one of the more famous episodes, of course, being John Adams’ 

representation of the British soldiers involved in the Boston Massacre, that the positions a lawyer presents on behalf of a client 

should not be ascribed to that lawyer as his personal beliefs or his 

personal positions. 

Senator CORNYN. Justice Cook, let me ask you, if you do have, 

as a judge, and of course your responsibilities are different under 

our adversary system from an advocate like Mr. Roberts or Mr. 

Sutton may be, what do you do as a judge when you may have personal feelings about an argument, but where the legislature has 

spoken or where there is precedent by a higher court on that very 

point? How do you address that as a judge? 

Justice COOK. One of the more important things for a judge to 

have in mind is the importance of or to note the humility of function that is really asked of a judge. Judges need to exercise restraint and to put aside any personal convictions or preferences. 

The essential democracy of judging is that the judge will be above 

the fray. The judge will consider the cases impartially, and certainly objectively and conscientiously, and that is the method that 

I have employed as a judge for the past dozen years, and I know 

that to be the fairest way to judge. 

Senator CORNYN. Justice Cook, let me ask you, have you ever 

made a legal decision, in your capacity as a member of an appellate 

court or the Ohio Supreme Court, that you knew was going to be 

politically unpopular? 

Justice COOK. Oh, yes, I have. 

Senator CORNYN. And how do you address that, in terms of what 

you view to be your obligation as a judge? 

Justice COOK. It’s absolutely, you know, sometimes it’s hard to 

swallow, but it certainly is not one of my concerns that drives my 

function, my work. It’s, as we say, it goes with the territory, and 

sometimes you’re called upon, in doing your best work and your 

faithful application of the law, it will produce what could be or 

what will be viewed as an unpopular result, and certainly that’s 

part of your duties. 

72

Senator CORNYN. Well, having been in a similar position to you 

when I served as a member of the Texas Supreme Court, do you 

hope that the people evaluating your performance, whether you are 

an elected judge or an appointed judge, will understand that your 

judgment as a member of a court is not an expression of political 

opinion? 

Justice COOK. That’s the hope. Some of the criticism that I have 

seen launched with regard to this nomination process seems to be 

that very thing to which you refer, Senator. It’s a result-oriented 

view of cases, which I hope would not be any indication of my 

qualifications as jurist. 

Senator CORNYN. And how do you feel about result-oriented decision-making by a judge? 

Justice COOK. Oh, I very much—I would never—I don’t participate in it, and I suppose we see it happen, but it’s an affront, really, to democracy and to the oath that we take to judge cases, without regard to persons, is the oath we take in Ohio, to administer 

justice without regard to persons. Therefore, I would see it as an 

affront to that oath to look at the results. 

Senator CORNYN. Mr. Sutton, you, during some of the questioning, I think you alluded to the notion that if a court made a 

decision on a statutory basis, perhaps applying a statute in a particular way or that the legislature disagreed with, that the legislature would have an opportunity to come back and correct that 

error. 

I have read scholars talk about that process between the legislature and the Judicial Branch as a conversation between the 

branches of Government, and I wonder if you would tell me your 

thoughts on that. 

Mr. SUTTON. Well, that’s very well put, Senator. I’m not sure I 

could put it any better, but I think you are right. On statutory interpretation cases, particularly very important Federal statutes 

that reach the U.S. Supreme Court, there is an ongoing dialogue 

between one side of the street and the other, across this very 

street, with the U.S. Supreme Court, and I think that’s appropriate. 

You know, sometimes courts do get it wrong. Sometimes courts 

aren’t, they don’t figure out exactly what Congress had in mind, exactly what it wanted. And, happily, the way this process works is 

the Congress can come back the very next day and get it right. 

Usually, the U.S. Supreme Court does get it right, and you don’t 

need that, but that is an answer in all situations involving statutory interpretation cases. 

Senator CORNYN. I know that during the course of this hearing 

and press accounts that I have read about the qualifications and 

credentials of each of the three of you, that there has been a suggestion made that each of you have somehow participated in decisionmaking or advocacy, as the case may be, outside the judicial 

mainstream. 

But let me ask you this, Mr. Sutton, have you ever argued a case 

that you’ve lost? 

Mr. SUTTON. Unfortunately, all too often, yes. 

Senator CORNYN. Have you won more than you have lost? 

73

Mr. SUTTON. At the U.S. Supreme Court, I have been fortunate. 

I have a 9 and 3 record there. But even then, I would echo what 

Mr. Roberts said earlier. While the lawyer’s duty ethically is to 

make every reasonable argument to advance your client’s cause, 

sometimes that doesn’t work, and there’s nothing you can do about 

that. 

Senator CORNYN. Well, on those occasions when you have made 

an argument to the United States Supreme Court and you have 

lost, have you concluded that your argument was outside of the 

legal mainstream? Is that the necessary conclusion that you would 

draw? 

Mr. SUTTON. My first reaction is usually that they’re the ones 

outside the mainstream, but, happily, that lasts about an hour, and 

I realize that their job is to figure out what the right decision is 

here. 

And, no, I don’t think—I don’t reach that conclusion. I don’t 

think it’s the right one, and I think it’s a very dangerous one to 

the bar because there are a lot of clients, particularly criminal defendants, who need lawyers to really push hard on their behalf. 

The system doesn’t work if you don’t have an adversarial process 

that is effective. 

And I do think it would be quite hurtful to think that a member 

of a bar, in advocating a case, whether on behalf of a State or a 

criminal defendant, could be told that if they lost that case or if 

an argument they made wasn’t successful, they’d have to hear 

about it if they ever tried to become a judge. That strikes me as 

very dangerous. 

Senator CORNYN. Mr. Roberts, if you have made an argument 

that someone might characterize as outside of the mainstream of 

the law, but let’s say the United States Supreme Court happens to 

agree with you and you win that case, would you consider those 

two—the argument that you were outside the mainstream in making the argument, but the fact that the Supreme Court agreed with 

you, what conclusion would you draw about whether that is outside 

the legal mainstream of American jurisprudence? 

Mr. ROBERTS. Well, I would say that it is not. I mean, if you are 

making an argument before the Supreme Court and you prevail, 

you should be criticized if you, for whatever reason, decline to 

make that argument. That’s not to say that the Supreme Court is 

above criticism and it’s certainly appropriate and healthy to scrutinize and, when appropriate, to criticize the Supreme Court’s decisions. But I don’t think it’s appropriate to criticize a lawyer for 

making an argument that the Supreme Court accepts. That’s the 

lawyer’s job, and he wouldn’t be doing his job if he hadn’t made 

that argument. 

Senator CORNYN. Well, let me ask, Mr. Roberts—and I will ask 

the same question of Mr. Sutton because you are not judges— 

Senator DEWINE. Senator, last question. 

Senator CORNYN. You are not judges now, but advocates under 

this adversary system we have been discussing. Are you willing to 

commit to assuming a new role and a different role, and that is as 

an impartial umpire on the law, legal arguments, and leave your 

role as an advocate behind where you have represented one parVerDate 0ct 09 2002 10:57 Oct 08, 2003 Jkt 089324 PO 00000 Frm 00081 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\89324.TXT SJUD4 PsN: CMORC
74

ticular view or another but now to take on that disinterested, impartial, adjudicatory role? 

Mr. ROBERTS. Yes, I am, Senator. There’s no role for advocacy 

with respect to personal beliefs or views on the part of a judge. The 

judge is bound to follow the Supreme Court precedent, whether he 

agrees with it or disagrees with it, and bound to apply the rule of 

law in cases whether there’s applicable Supreme Court precedent 

or not. Personal views, personal ideology, those have no role to play 

whatever. 

Senator CORNYN. Mr. Sutton? 

Mr. SUTTON. Yes, Senator, you know, where one stands on an 

issue often depends on where one sits, and if one is fortunate 

enough to be confirmed to be an Article III judge, you sit in a position where the whole reason for being is to be fair, open-minded, 

do everything you can to make sure you appreciate every perspective that is brought before you, whether it’s an amicus brief or a 

party argument, then look for guidance from the U.S. Supreme 

Court, if not controlling guidance, look for guidance from your circuit, and do your best to get it right. 

Senator CORNYN. Thank you, Mr. Chairman. 

Senator DEWINE. Senator Leahy wants a point of personal privilege here. 

Senator LEAHY. Just following our usual practice, once having 

been mentioned by another Senator on the other side, and I realize 

he did not want to yield for a response at that time, I would note, 

one, I absolutely agree that these judges should be moved as rapidly as possible, and that is why in the 17 months that I was chairman, we moved more of President Bush’s judges than the Republicans had in 30 months with President Clinton’s. That was 100 

judges. I mention that number because even members of your 

party, both in the Senate and at the White House, keep referring 

to it as being 20 or 25. They are probably not aware—and I am 

sure the President wouldn’t intentionally mislead the public, but 

the staff probably gave him the wrong numbers. It was 100. 

Also, I would note that these three nominees, the Republicans 

were in charge of the Senate for a number of weeks after they were 

nominated. They did not call a hearing on them. 

Senator DEWINE. Senator Kohl? 

STATEMENT OF HON. HERBERT KOHL, A U.S. SENATOR FROM 

THE STATE OF WISCONSIN 

Senator CORNYN. Mr. Chairman, may I just briefly respond? I 

just want to make clear to Senator Leahy, I meant certainly no disrespect or intent to— 

Senator LEAHY. None taken. 

Senator CORNYN. —somehow mischaracterize the record. All I 

was saying is that I hope the Committee would look forward rather 

than backward, because I don’t view that as being conducive to 

doing the job that I feel like we are elected to do, and that is to 

move these nominees on a timely basis, in fairness to them and 

fairness to the people we represent. 

And so I would hope that together working across the aisle we 

could perhaps come up with some kind of framework that would 

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75

tions that I think are unfortunate, because I don’t think anyone is 

without blame, is my only point. And I hope I have made it clearly. 

Senator LEAHY. I felt no disrespect, and the Senator from Texas 

has a distinguished record in public service in all the branches, and 

I would be more than happy to work with him on just the thing 

we both agree with. 

Senator CORNYN. Thank you. 

Senator DEWINE. Senator Kohl? 

Senator KOHL. Mr. Chairman, I appreciate the opportunity to be 

here today. A vital element of our constitutional duty to advise and 

consent to judicial nominees, nominees who, once confirmed, will 

serve lifetime appointments, is an opportunity to examine their 

records, their outlook, and judicial philosophies at these confirmation hearings. 

These hearings, as you know, are our only opportunity to evaluate a nominee’s qualifications before casting our final vote. If confirmed, these hearings are likely to be the last time any of these 

individuals ever speak in a public forum regarding their views before assuming their lifetime appointments to positions that may affect the liberties and constitutional rights of every American. 

And so I am somewhat disappointed that the majority has scheduled today’s hearings with three appellate court nominees. To conduct confirmation hearings in such a manner is contrary, I believe, 

to the interests of giving Senators as well as the American people 

a fair opportunity to examine and evaluate the qualifications, credentials, and judicial temperaments of these nominees. I believe it 

is difficult to fulfill our obligations to carefully consider the merits 

of these nominees in a hearing that is somewhat crowded. 

I have several questions. The first is for you, Mr. Sutton. 

Throughout our Nation’s history, citizens have relied on our Federal courts to protect their civil liberties and constitutional rights 

against the actions of States and local governments in cases involving everything from employment discrimination, school desegregation, and free speech. However, you have spent much of your career 

arguing that individuals have no right to seek redress in Federal 

court for civil rights violations committed by State and local governments under the doctrine of federalism. 

So then why shouldn’t we be concerned that your interpretation 

of federalism will seriously harm the ability of ordinary citizens 

seeking relief against violation of their civil and constitutional 

rights in your court should you be confirmed? 

Mr. SUTTON. Yes, Senator, thanks for an opportunity to address 

that. I did—when I became involved in what we’ll call federalism 

cases or cases representing States, I did that starting in 1995 when 

I was appointed to be the State Solicitor of Ohio and was honored 

to have that job for three and a half years, and I did what all State 

assistant AGs or State Solicitors do and did my best as a lawyer, 

an advocate on behalf of the State, to just defend the State in litigation. As lawyers, obviously we weren’t involved in the underlying 

policy decisions that led to the litigation. It was just our job and 

my job at the appellate courts to defend the State’s position. 

It is true during that time I did get involved in the City of Boerne

case, which is a federalism case, and I did work on behalf of the 

States during that period of time. But it’s well to note that Ohio, 

76

like many other States, has passed a lot of laws that are very protective of civil liberties, and I was active in those cases. I helped 

defend Ohio’s set-aside statute from equal protection challenges 

twice. The only case I had while I was working in that office—the 

only case I can ever remember where I had an opportunity to represent either side was the Cheryl Fisher case involving a blind 

woman who had been denied admission to medical school. And I 

picked her side of the case to work on it. 

So I think the notion that because I’ve represented States, either 

the State of Ohio or other States, in cases where an individual disagreed with something a State was doing shows some bias, I guess 

I’d respectfully disagree with, one, because I was representing my 

client as best I could; but, two, even if one were to assess a nominee based on their advocacy and the client’s positions they represented, there are many of them that are on the other side of 

these issues that I think you’d be very comfortable with and would 

have encouraged me. 

So I do think that is an answer to the criticism that, if confirmed, I wouldn’t be able to judge these things, but I think it’s just 

the opposite. I would look at what the U.S. Supreme Court has 

done. I’d follow it carefully. I’d look at Sixth Circuit precedent, and 

if it’s binding, we’d obviously follow that. 

Senator KOHL. Mr. Sutton, how do you respond to those who 

argue that your record in private practice demonstrates certain 

hostility to the civil rights of people who are disabled? 

Mr. SUTTON. Well, most of the representations I’ve done involving, let’s say, civil rights, on the pro-civil rights part of the equation, were in private practice. I defended Ohio’s hate crime statute 

through an amicus brief and a pro bono effort on behalf of the 

NAACP, the Anti–Defamation League, and several other civil 

rights groups affected by hate crime legislation. We were successful 

in upholding that. 

I represented the Center for the Prevention of Handgun Violence 

in defending against a constitutional challenge, a Columbia assault 

weapon ordinance which was preventing assault weapons in the 

Columbus region. 

Since being State Solicitor, I’ve continued, I’ve represented a 

prisoner inmate in a civil rights case at the U.S. Supreme Court. 

I’ve defended two death penalty inmates. And I’m a member of the 

Equal Justice Foundation. I was asked to be a member of that 

foundation before I was nominated, and the purpose of the Equal 

Justice Foundation, which, of course, is a pro bono effort, is to provide legal services to all manner of indigent claimants, first and 

foremost, the disabled, but those based on race and many others. 

And that group has done a lot of very good things in Ohio. They’ve 

led the effort to, you know, eliminate—put curbside ramps in 

Ohio’s cities successfully under the ADA. 

So I do understand—I do understand the question, and I understand why someone could look at the Garrett case or the Kimel case 

and say, Boy, you know, how could someone take that case? And 

my answer, to the extent there’s a sin here, it’s that I really wanted to develop a U.S. Supreme Court practice, and I was very eager 

to do so. And it was easier to get those cases on that side, having 

77

worked for the State before I went back to private practice. But it 

didn’t reflect any bias at all. In fact, it’s quite the opposite. 

Senator KOHL. I appreciate your answer. I am not as fully convinced as you would wish me to be with respect to your predilection, but clearly you are trying to present your position as well 

as you can, and I do respect that. 

Mr. SUTTON. Thank you. 

Senator KOHL. Mr. Sutton—and I would like to also ask opinions 

from the other two nominees—in the past few years there has been 

a growth in the use of so-called protective orders in product liability cases. We saw this, for example, in the settlements arising from 

the Bridgestone–Firestone lawsuits. Critics argue that those protective orders oftentimes prevent the public from learning about 

the health and safety hazard in the products that they use. In fact, 

the U.S. District Court for the District of South Carolina recently 

passed a local rule banning the use of sealed settlements altogether. 

So I would like to ask you, Mr. Sutton, and then the other two 

nominees: Should a judge be required to balance the public’s right 

to know against a litigant’s right to privacy when the information 

sought to be sealed could keep secret a public health and safety 

hazard? And what would e your views regarding the new local rule 

of the District of South Carolina on this issue, which is, as I said, 

banning the use of sealed settlements altogether? 

Mr. Sutton, you first. 

Mr. SUTTON. Yes, Senator. I have to conference this is not an 

area in which I’ve practiced, and I can’t think of a case where I’ve 

actually had to deal with this issue. So as a Court of Appeals judge, 

I would do what all Court of Appeals judges are obligated to do and 

look very carefully at U.S. Supreme Court precedent on these types 

of issues. 

I suspect you’re right that what U.S. Supreme Court precedent 

requires is exactly the balance you’re talking about, a balance between the public’s right to know and the privacy rights of whatever 

that particular defendant might be. But I can’t say I know that for 

sure. What I can tell you is that I would discern what that precedent requires. I’d look at what Sixth Circuit precedent requires. I’d 

look very carefully and open-mindedly at the arguments of either 

party on this kind of issue. And I certainly appreciate the perspective you have on it and do my best, having done all that, to decide 

it correctly. 

Senator KOHL. Are you aware of some of the secret settlements 

that have, in effect, prevented vital information from being passed 

on to people still using defective products who were unaware of 

that because a secret settlement was made in a court? You are 

aware that these things have happened? 

Mr. SUTTON. Not that aware, I have to tell you. 

Senator KOHL. Really? 

Mr. SUTTON. Yes. 

Senator KOHL. You don’t know that at all? 

Mr. SUTTON. Well, I’m just saying I haven’t worked in one of 

these areas. I understand what you’re saying. I’ve read news reports along those lines. 

Senator KOHL. Right. 

78

Mr. SUTTON. But I’m just making the point it’s not something I 

know very much about at all. In fact, it’s the opposite. I know very 

little about it, legally. And as a Court of Appeal judge— 

Senator KOHL. It is such an important issue, without trying to 

be unduly difficult with you, that it would seem to me you would 

have a pretty strong opinion on it, but I appreciate that. 

Mr. Roberts, how do you feel about the validity of maintaining 

or throwing out secret settlements that are made which prevent 

other people who may be using these defective products from knowing that they are defective, like defective tires, for example, defective medical devices, for example? 

Mr. ROBERTS. It’s not an area that I have litigated in either. I 

certainly am aware of the cases as they’ve come up, although I 

don’t think it’s an issue that the D.C. Circuit has addressed. At 

least I’m not aware that it’s done so. And I hesitate to opine on it 

without having studied the law. I certainly would obviously follow 

the Supreme Court precedent and the precedent of the circuit if I 

were to be confirmed. 

I suspect that you’re correct that the applicable law would involve some balancing. There are some interests in sealing settlements in some cases, but I’d be very surprised if that required or 

permitted sealing in a case where that actively concealed a harmful 

condition on an ongoing basis that was continuing to present a 

danger. But, again, I’m just surmising at this point, and as a judge, 

I would apply the law in the circuit or in the Supreme Court. 

Senator KOHL. Okay. Ms. Cook? 

Justice COOK. I agree with Messrs. Sutton and Roberts, and, of 

course, balancing judges do—balancing is one of our regularly engaged in endeavors. So this certainly sounds—the issue would demand balancing if there is danger and harm to others, potential 

danger. In the absence of disclosure, I understand that balancing 

would be important. 

Senator KOHL. I ask the question because there have been over 

the years, and recent years, cases where judges have approved 

these kinds of settlements between a company and a litigant, and 

that precluded in many cases thousands and thousands of people 

who were using defective products from knowing that these products were defective. 

Now, in this simplistic kind of a presentation that I am trying 

to put before you, which is fairly black and white, while I am not 

sure whether you are going to answer, I would hope, as a judge—

I would hope—that you would not allow any settlement that endangered the health and safety of the users of products to be made 

simply to benefit a corporation who wanted to keep that knowledge 

from the users of that defective product. Where you will come out 

on these issues in the event you are confirmed, I don’t know, but 

obviously you know where I am coming from, and I think you know 

where most Americans would be coming from. 

Last question. One of my priorities on this Committee is my role 

on the Antitrust Subcommittee. Strong antitrust enforcement is essential to ensuring that competitive flourishes throughout our 

country which benefits consumers through lower prices and betterquality products and services. Federal courts are essential to the 

79

firm enforcement of our antitrust laws and to ensuring that anticompetitive conduct is sanctioned. 

Many antitrust questions are decided under what is known as 

the rule of reason in which the harm caused by the business conduct at issue is balanced against full competitive justifications. 

This document gives a great deal of discretion to the courts to determine whether or not the antitrust laws have been violated. 

What would be your approach to deciding antitrust issues under 

the rule of reason? More generally, please give us your views regarding the role of the judiciary with respect to the enforcement of 

antitrust law. 

Mr. Sutton? 

Mr. SUTTON. Yes, Senator. This, too, is a area where I have not 

had an active litigation practice. In fact, just sitting here, I can actually think of one case I’ve been involved in when I was working 

for the State of Ohio. Ohio is one of the States that sued Microsoft, 

so I have some familiarity with that case and some peripheral involvement with that one. 

But, clearly, in terms of your question, the Federal courts have 

a critical role in enforcing the antitrust acts and antitrust laws, 

and that’s what the U.S. Supreme Court has said, and I can’t imagine a Court of Appeals judge not following the precedents to that 

exact effect. 

Senator KOHL. Mr. Roberts? 

Mr. ROBERTS. As a private lawyer, I have actually represented 

probably more plaintiffs and enforcement interests in antitrust actions than defendants. I represented the State Attorneys General 

in the Microsoft case and represented several private plaintiffs in 

antitrust appeals as well, handled some antitrust cases when I was 

in the Solicitor General’s office. 

I’ve also represented corporations accused of antitrust violations, 

and I think that balanced perspective is something that’s valuable 

for a judge. I certainly think a lawyer coming into court, if I were 

to be confirmed, representing a plaintiff in an antitrust action 

should take some comfort in the fact that I’ve done that. And a 

lawyer representing a defendant should take some comfort in the 

fact that I have done that as well and I have the perspective of the 

issue from both sides. 

So, again, obviously as judge, I’d follow the binding Supreme 

Court precedent and the precedent in my circuit. But I would hope 

that in doing so, I would have some added perspective from having 

been on both sides, both the plaintiff side and the defendant side, 

in antitrust enforcement actions. 

Senator KOHL. Thank you. 

And, Ms. Cook? 

Justice COOK. And as in all the issues that a judge must consider, I think the importance would be the conscientious weighing 

and balancing and understanding the rule of reason within the confines of the existing law, and that certainly other decisions in that 

area would inform the decision that I might be called upon to 

make. So I would apply the structured, principled, decisional process. 

Senator KOHL. I thank you. 

Thank you, Mr. Chairman. 

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Chairman HATCH. Well, thank you, Senator. 

We will turn to Senator Sessions now. Senator Sessions, you are 

up. 

Senator SESSIONS. I would like to ask the three of you one question. You have had great experience and you are lawyers of integrity and ability. Do you believe that a conscientious judge can read 

the Constitution, read statutes and prior case authority, and 

render—and be able to interpret a statute? Do you believe that you 

are capable of that? I would like to hear your answer to that. 

Mr. SUTTON. Senator, you are looking at me, so I will take that 

as I should start. 

Senator SESSIONS. I will start with you first. 

Mr. SUTTON. Yes, thank you, Senator. 

Senator SESSIONS. You were smiling. I thought— 

Mr. SUTTON. Yes. Absolutely, I do. There’s no doubt there are difficult cases. There are cases at the margin where text gets difficult 

to interpret. But, yes, I do think what lawyers do is at the end of 

the day what judges do, which is read Constitutions, read statutes 

to determine what the Framers or that legislative body meant. 

Those words have meaning. There are statutes—rules of construction that give guidance to the meaning of those words. And judges 

have an obligation to follow those rules and to follow the text of 

the statute or in some cases the text of the Constitution in cases 

before them. And, happily, as a Court of Appeals judge, Court of 

Appeals judges have a lot of guidance from the U.S. Supreme Court 

on those very things, and a Court of Appeals judge would, of 

course, follow that. 

Senator SESSIONS. Mr. Roberts, do you agree? 

Mr. ROBERTS. Yes, I do. In other words, I do think there is a 

right answer in a case, and I think if judges do the work and work 

hard at it, they’re likely to come up with the right answer. I think 

that’s why, for example, in the D.C. Circuit, 97 percent of the panel 

decisions are unanimous, because they are hard-working judges 

and they come up with the same answer in a vast majority of the 

cases. 

There are certainly going to be disagreements. That’s why we 

have Courts of Appeals, because we think district courts are not always going to get it right. But I do think that there is a right answer, and if the judge and lawyers would just work hard enough, 

they’d come up with it. 

Senator SESSIONS. Judge Cook, do you agree? 

Justice COOK. Yes, I do. I think that judges search—I think it’s 

great when judges search for objectified meaning, that is, the 

meaning that a reasonable person would gather from the text that 

a judge is called upon to interpret. And certainly I really think in 

good faith judges working conscientiously can come to different conclusions sometimes, but I really think that there are objective 

boundaries within which most cases are really decided within those 

boundaries. 

Senator SESSIONS. Well, I agree. I spent 15 years in Federal 

court every day as a Federal prosecutor. If I had a case that answered the question, almost invariably the judge ruled that way. 

If the law was against me, you could expect a judge to rule against 

me. 

81

We have a theory afoot in America, sort of a post-modernism illness, deconstructionism, critical legal studies that all law is politics 

and that you are being asked about your political views about matters, and that is being promoted to a large degree, I think, by people who don’t really understand that in every court in America all 

over this country, day after day after day, judges are reading statutes and rendering sound rulings that never get appealed. If they 

do, they get affirmed unanimously, as you mentioned, because I believe we can ascertain the plain meaning of words and can render 

consistent verdicts, and to me that is what justice is. 

I am troubled by the idea that you would be brought up and you 

would be challenged on your personal political views when I know 

you as professionals know that it makes no difference what your 

personal view is. If the Supreme Court has held otherwise or a 

statute is the other way or the Constitution is the other way, you 

will follow that. Am I correct in that? 

Mr. SUTTON. Absolutely, Senator. I mean, that is the whole privilege of a being a judge, that your client is the rule of law, and the 

only way the rule of law has meaning is if judges determine the 

meaning of statutes and the Constitution based first on what the 

words say and suggest, and then based on other indicators of legislative or constitutional meaning. I agree with you. 

Senator SESSIONS. Mr. Roberts? 

Mr. ROBERTS. Yes, you know, if it all came down to just politics 

in the judicial branch, that would be very frustrating for lawyers 

who worked very hard to try to advocate their position and present 

the precedents and present the arguments. They expect the judges 

to work justified. And if the judge is going to rule one way or the 

other, regardless of the arguments, well, he could save everybody 

a lot of work, but the rule of law would suffer. And I know that’s 

a particular concern in the D.C. Circuit. I know one of the things 

that frustrates very much the judges who are on that court, all of 

whom are very hard-working, is when they announce a decision 

and they’re identified in the press as a Democratic appointee or a 

Republican appointee. That makes such—gives so little credit to 

the work that they put into the case, and they work very hard and 

all of a sudden the report is, well, they just decided that way because of politics. That is a disservice to them. And I know as an 

advocate, I never liked it when I had a political judge, when I was 

in front of a political judge, because, again, you put a lot of work 

into presenting the case, and you want to see that same work returned. And the theory is that that will help everybody reach the 

right result, and I think that’s correct. 

Senator SESSIONS. Judge Cook? 

Justice COOK. Likewise, Senator, I can’t tell you whose quote this 

is, but I ascribe to the view that this quote is the rule of—the rule 

of law should be a law of rules. And I think that’s somewhat the 

view you take, and certainly it is my experience that the cases are 

decidable and usually are decided based on rules. 

Senator SESSIONS. I just think that is so important, and I think 

it is dangerous for us to say we are going to determine people’s ideology and then we are going to vote to confirm them or not. And 

to our friends in the disability movement, let me say to you, as I 

read these cases, they have nothing whatsoever to do with the polVerDate 0ct 09 2002 10:57 Oct 08, 2003 Jkt 089324 PO 00000 Frm 00089 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\89324.TXT SJUD4 PsN: CMORC
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icy of providing protections for people with disability. It is a matter 

of constitutional questions such as sovereign immunity. 

I know that Senator Robert Byrd and other Senators in our body 

defend tenaciously the prerogative of the United States Senate. 

And if a coequal branch does not defend its prerogatives, it will 

lose those privileges. And Attorneys General are that way, aren’t 

they, Mr. Sutton? I know Attorney General Cornyn is here, but I 

was Attorney General, and I did not feel that I would have done 

my job if on my watch the legal prerogatives of the State of Alabama were eroded by my failure to defend those rights. 

You have worked for the State Attorney General’s office. Isn’t 

that true of any Attorney General? 

Mr. SUTTON. I think it’s true not only for State Attorney Generals, it’s true for the U.S. Solicitor General and the U.S. Attorney 

General, that if—just as if a State is sued in any case, their lawyers have an obligation to do their best to represent the client. The 

lawyers aren’t involved in the underlying policy decision that leads 

to the dispute, that leads to the lawsuit. The lawyers come in once 

that dispute can’t be resolved outside of court, and at that point, 

whether it’s a State AG or the United States Solicitor General, you 

know, whether it’s a claim of racial discrimination, disability discrimination, those lawyers have in the past and do continue to represent the governmental body which is publicly elected. And that’s, 

I think, an honor for people that have had the chance to represent 

the people by working in an Attorney General office, and I’m sure 

people that have worked in the U.S. Solicitor General’s office would 

say the same thing. 

Senator SESSIONS. Even if the immediate, short-term effect may 

be to undermine some social policy that is maybe popular at the 

moment, or right, even, if it is not done in a proper legal way or 

it is done in a way that undermines the long-term prerogative of 

a State, you would expect a State to defend against that, would you 

not? 

Mr. SUTTON. Well, I think every State has to make a decision 

what it’s going to do in a given case. But it is true—and my understanding—I don’t know all State Constitutions, but I’m familiar 

with many of them—the State Attorney Generals have—they don’t 

have choices in these matters, and that’s particularly through in 

sovereign immunity cases where at the end of the day there’s a 

claim of—an individual’s claim, but there’s also a claim for money. 

And the AGs—it’s the same with the U.S. Solicitor General. They 

don’t have the keys to the vault. The keys to the vault are with 

the legislature and the executive branch. The lawyers have an obligation to defend as long as the executive branch tells them to defend. 

Senator SESSIONS. As a former Attorney General and former 

United States Attorney representing the United States in court, I 

can tell you, an Attorney General that allows a State’s sovereign 

immunity to be eroded I think will have a difficult time justifying 

that position. And so with regard to the Alabama case, you not only 

filed a brief on behalf of the State of Alabama, but you also gained 

support from a number of other Attorneys General, including a 

Democratic Attorney General, Mark Pryor, who is now a member 

of this Senate. Is that not correct? 

83

Mr. SUTTON. I think that is true. There was an amicus brief of 

States, and I’m fairly confident that Arkansas joined that brief. In 

fact, I thought that brief was balanced, half Democratic AGs and 

half Republican AGs, is my rough recollection. 

Senator SESSIONS. And they saw the issue not as a disability 

issue, but as a question of State power and sovereign immunity. Is 

that correct? 

Mr. SUTTON. That’s my understanding. I haven’t read that brief 

in a while, but I think it did make the point that just as the United 

States has a sovereign immunity power, so do the States, at least 

as U.S. Supreme Court has construed it to date. 

Senator SESSIONS. Well, I think that is important for us to think 

about. You have defended criminals, have you not, and advocated 

any legal, justifiable position that they were entitled to, you were 

prepared to defend? 

Mr. SUTTON. I know you’re a former prosecutor, but, yes, I have, 

on several occasions. And I think members of the bar—these were 

pro bono efforts, and I think members of the bar not only should 

but have a duty to do those kinds of representations. 

Senator SESSIONS. And so I don’t think there is anything wrong 

with you defending States who feel they are wronged and their 

rights are not being upheld. And, in fact, that case you took to the 

United States Supreme Court, the Supreme Court agreed with you. 

Mr. SUTTON. It turns out they agreed with the University of Alabama, yes, they did. 

Senator SESSIONS. Well, in that case, you never argued against 

the rights of the disabled but against the rights of Congress to abrogate a State’s constitutional right to sovereign immunity. I mean, 

that was the question, was it not? 

Mr. SUTTON. That is the question, and it is an important point 

because even after the Garrett case, every State in the country is 

entitled to waive its immunity from ADA lawsuits for money damages. In fact, many States do that to the extent their legislature 

permits it. And just as Congress can do it when Federal employees 

are sued for disability discrimination, sometimes there’s a waiver, 

sometimes there’s not. But nothing about either the brief we argued or the decision of the case bars a State from waiving its immunity from suit in Federal court. That could obviously happen. 

Senator SESSIONS. And the U.S. Government can intervene and 

sue a State for money damages for a disability violation, can it not? 

Mr. SUTTON. That’s also true. 

Senator SESSIONS. And a private person can sue the State for injunctive relief to get the State enjoined from unfairly treating them 

due to a disability. Is that not correct? 

Mr. SUTTON. In fact, get their job back. Exactly, yes. 

Senator SESSIONS. And private persons can sue under a State’s 

own laws to enforce money damages or other relief. 

Mr. SUTTON. That’s true, yes. 

Senator SESSIONS. So it was just this narrow point of sovereign 

immunity in which the Congress up and took it upon itself to limit 

the State’s sovereign immunity that this case turned on. 

Mr. SUTTON. That’s true, and even then, Congress can still do 

the same thing either by passing new legislation with different 

fact-findings or by enacting spending clause legislation. As I’m sure 

84

you know, Congress has already done that under Section 504 of the 

Rehabilitation Act. In the Garrett case, Ms. Garrett has a claim 

which is still pending under that very law. So it was just about 

Section 5, and, of course, it had nothing to do with the spending 

claus where Congress has conspicuously broad powers. 

Senator SESSIONS. Well, I just would say in conclusion how much 

I appreciate the three of you. You are outstanding nominees with 

terrific records, unsurpassed experience handling some of our country’s most difficult cases in ways that I think have shown your mettle and your ability. I congratulate you on the nominations to these 

important offices. I feel like that it is good for us to go through this 

process so that we confront the issue that just because a lawyer 

takes a position in a case does not mean that they are against the 

policy involved in the case. It does not mean if you defend a criminal that you are for criminals or you are for law-breakers. It means 

that criminals have certain rights, and the law has to be carried 

out in certain proper ways. And I believe that is your record in all 

of these cases, and I thank you for that, and I believe the President 

has done an outstanding job in these nominations. 

Thank you, Mr. Chairman. 

Chairman HATCH. Well, thank you, Senator Sessions. 

We will turn to Senator Durbin now. 

STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR 

FROM THE STATE OF ILLINOIS 

Senator DURBIN. Thank you, Mr. Chairman. I want to thank the 

nominees who are before us today for your patience, and I hope 

that you understand that it is an unusual circumstance when we 

have three judges at this level being considered at the same time 

this early in the session, particularly when there are many questions to be asked of each of them. That has meant that this hearing 

has gone on much longer than usual and is likely to continue for 

some period of time. 

I know the Chairman of the Committee and we have worked together in past years, and I am sure we will in the future. I just 

hope that the pace of the hearings is not such that this will appear 

to be a receiving line at an Irish wedding in terms of the nominees. 

I think we need to take time and deliberate, to ask important questions so that the people of this country know a little bit more about 

those who seek lifetime appointments to the second highest court 

of the land. 

I would like to ask my questions of Professor Sutton because I 

have in this first round tried to focus on his activity and his career, 

and I will return to the other nominees in another round. 

Professor Sutton, I have listened to some of your earlier testimony before this committee. It is interesting as I reflect on it. If 

you accept the premise that was recently stated by my colleague 

from Alabama that this is a somewhat mechanical and automatic 

process, that a judge who seeks the circuit court, for example, simply to read past cases, apply them to current cases, and move on, 

then it would strike me as odd that we don’t have more nominees 

who are Democrats before us from the Bush White House. 

Apparently there is a belief in the White House that even though 

it is a fairly automatic and mechanical process, they want to make 

85

sure that if they are going to err, they are going to err on the side 

of people who have similar political views to the President. That 

suggests to me that this is not an automatic process. And I think—

I hope—that you would concede that many close cases give judges 

at every level a chance to see a new facet of the law that hasn’t 

been seen before, and perhaps in seeing it and ruling on it, to 

change the course of that law and its future. 

Would you concede that point? 

Mr. SUTTON. There is no doubt even Court of Appeals judges deal 

with difficult issues, but I do think a point that was raised earlier 

is a good one, whether it’s the Sixth Circuit, other Courts of Appeals, or even the U.S. Supreme Court, a high percentage of cases 

are either unanimous or fairly unanimous, if it is at the U.S. Supreme Court, precisely because there usually are right answers. 

But I couldn’t agree with you more that every now and then you 

do get very difficult cases. Of course, the more difficult the case, 

and particularly that have involved the constitutionality of a Federal law, the more likely the U.S. Supreme Court would review it. 

But I think your point is a very good and a fair one. 

Senator DURBIN. I think it is important when a vast majority of 

bills and resolutions in the House and Senate never get any attention, nor should they. But a handful of important bills come before 

us, and we have to make a decision as to whether they should be 

the law of the land. And that really goes to the point that has been 

made over and over as to your values, who you are, what you are 

going to do on those close calls, when you have a case that truly 

is going to set a new precedent, that is really going to open up the 

new line of thinking. 

And I think the fact that the reaction to your nomination has 

been so heated is an indication that many people are concerned, 

that when it comes down to those close cases, when the issue before the court is an issue of civil rights or human rights, the rights 

of minorities or women or the disabled in America, that you have 

shown a pattern of conduct of insensitivity by virtue of your advocacy in the past. I have never seen a hearing where we have had 

so many disabled Americans come forward, frankly, to protest your 

nomination. It tells me that they are concerned about you and 

what really is in your heart. 

Now, in the past, in our history, seldom do people announce publicly that they are prejudiced. They don’t say that. It is rare. The 

primacy of States’ rights has historically been the beard for discrimination in America. Only a few people are bold enough to just 

state forthright that they oppose civil rights, the rights of women, 

minorities, and the disabled. 

Instead, most have argued that they were not opposed to civil 

rights but only the power of the Federal Government to protect 

them. History has not been kind to those who concealed their sentiments in this legal distinction. 

Mr. Sutton, Professor Sutton, your legal career has been spent 

practicing time and again in the shadows of States’ rights. You 

have said in publications that have been quoted over and over 

again how much you value federalism and this whole issue where 

time and again you found yourself in key cases, like Garrett, on the 

side of States’ rights as opposed to individual rights. You have beVerDate 0ct 09 2002 10:57 Oct 08, 2003 Jkt 089324 PO 00000 Frm 00093 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\89324.TXT SJUD4 PsN: CMORC
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come a predictable, reliable, legal voice for entities seeking to limit 

the rights of Americans in the name of States’ rights. 

Do you believe that the Garrett case, despite what Senator Sessions has said, and its conclusion expanded or restricted the rights 

of disabled Americans? 

Mr. SUTTON. Well, there’s no doubt that it restricted in the sense 

that in that particular case someone was seeking relief and they 

didn’t get it. But in that particular case, as I think I pointed out 

earlier, Ms. Garrett’s Section 504 Rehabilitation Act claim is still 

pending, so she still may get relief. That would be the first point. 

The second point is what the Court did—and I would point out 

that is not a case I’ve spoken publicly about. That’s not a case I’ve 

written about. It was a case I was arguing on behalf of a client. 

I think the State did deserve representation at the U.S. Supreme 

Court. I think it would have been quite unusual had they not had 

it. But even in that case, with all of that, all it said was that the 

State at the end of the day was in charge of deciding when they 

could waive their sovereign immunity in the same way the U.S. Supreme Court has said the same thing about the U.S. Government. 

It doesn’t mean in future cases claims can’t be brought in Federal 

court if States waive them, and many States have waived them. 

If there’s one point, though, that I—some of the charges are—

they’re hurtful charges, and, you know, you asked about my values, 

and I think that is a fair question. It’s an important question, and 

I do want to respond to that. There is no doubt this country’s history when it comes to States’ rights is despicable. There’s no room 

for argument about that, and I think you know that’s exactly how 

I feel. The worst violations, the most egregious violations when it 

comes to States’ rights, of course, came in the area of race discrimination. And there, you know, if people are going to look at my advocacy, I hope they would appreciate that on a pro bono basis before I was State Solicitor, I defended Ohio’s hate crime statute on 

behalf of every civil rights group with an interest in that type of 

legislation. I know the Federal Government is thinking of doing the 

same thing, on behalf of local chapters of the NAACP, the Columbus Urban League, several others. And while State Solicitor, I 

helped defend Ohio’s set-aside statute. 

So I do—I know it’s very important, this process, for you to raise 

those questions, and I assume you want me to answer them, and 

that’s how I’m responding— 

Senator DURBIN. But there had to be this moment of truth for 

you as an attorney when you were asked to represent the Board 

of Trustees of the University of Alabama, when you knew that your 

success in that case would restrict the rights of disabled Americans, which you have conceded here, and you decided, not because 

you were assigned or required to, that you were going to forward 

in that role of advocate. 

Now, there are many other examples that are exceptions to this 

rule, but the one that troubles the people who have gathered here 

in the disability community is that, conscious of what you were 

seeking you went forward and said, ‘‘I will be the advocate of the 

cause that will restrict the rights of disabled Americans.’’ 

Did that ever give you pause as to whether or not that was the 

just thing to do? 

87

Mr. SUTTON. Sure, the case is an excruciatingly difficult case, 

and it did give me pause. But, first of all, I did not pursue the case. 

I was approached by the State and was hired by the State, and I 

did have the option, you’re right, I have the option of saying no. 

But, remember, that’s the exact same choice that the U.S. Solicitor 

General’s office has been faced in 88 cases where they have said 

there’s not—a claim cannot be brought by a Federal employee— 

Senator DURBIN. The Solicitor General is not seeking appointment here today, our approval. It is you. 

Mr. SUTTON. No, I’m not saying—I’m not making that point. I’m 

making the point that this is the job of an advocate, and the job 

of an advocate is not to decide in an exercise of vanity what is—

what would I do, what could I do? It was long too late for that. I 

was not involved in the underlying decisions of the University of 

Alabama in terms of what to do with Ms. Garrett. I wasn’t involved 

in the development of their constitutional arguments in the District 

Court and in the Court of Appeals. I became involved when they 

asked me to represent them in the U.S. Supreme Court, and I 

think if I have a sin here, the sin was that I did want to develop 

a U.S. Supreme Court practice. There’s on doubt about that, and 

maybe that’s what led me to take the case. But, Senator, I’ve done 

several cases, in fact, more cases on the disability rights side of the 

equation. 

Senator DURBIN. Do you think there would have been a time 

when you would have had that chance to argue before the Supreme 

Court and would have said to yourself, rather than get another 

notch in my gun to go up to the Supreme Court, I just don’t want 

to be identified with a case that restricts human rights, civil rights, 

the rights of the disabled? 

[Applause.] 

Chairman HATCH. Let’s have order. 

Mr. SUTTON. Senator, I respectfully—and, you know, this is a difficult place to make this point in this forum, but I couldn’t disagree 

with you more. I think it is exceedingly wrong to ascribe the views 

of a lawyer—the client to the lawyer. That’s exactly what the ABA 

code says. It’s exactly what would prevent any criminal defense 

lawyer—I mean, I’ve represented two capital inmates. It doesn’t 

mean I agree with their underlying acts or what happened. They 

deserved a representation. I provided that representation. 

The one case—and this is, I think, the fair response to your question and your concern. I’ve only had one case that I can think of 

where I was given an opportunity to represent either side of a civil 

rights case. That’s the Cheryl Fisher case. When that came up to 

the Ohio Supreme Court, I was given the opportunity to represent 

Cheryl Fisher, help her get into Case Western University as a 

blind medical student, or represent the side of the State universities who wanted to deny her that right. I recommended to the Attorney General—it was her choice, of course—that the State Solicitor ought to argue that case, and I thought she had the better side 

of the argument, and I did everyone I could—or could to make that 

argument. 

I’ve represented the National Coalition for Students with Disability in applying Federal law, the motor-voter law so that students with disabilities have access to the right to the vote. 

88

In a case pending in the Ohio Supreme Court, the Gobo case, I 

inserted an argument not made below that an application of Ohio 

insurance law would violate the ADA. 

My father, you know, ran a school for cerebral palsy children. I 

mean, I wouldn’t say this is a perspective that is lost on me. But 

I did feel at that time my higher obligation was to the client and 

that they did deserve a right to representation before the court. 

Senator DURBIN. Well, I will concede that you have represented 

many different clients, but when it comes to the cases that you 

have been involved in that have had the broadest impact on the 

greatest number of Americans and their rights, it is hard to find 

a case really in your career that matches the Garrett case. What 

was decided by the Court by virtue of your argument has denied 

rights to disabled people across America. It has restricted their 

rights to recover under the law. And as Senator Schumer said earlier, you can represent a lot of individual defendants before you 

make up for the loss of rights to a class of individuals, disabled individuals, because of that decision. 

May I ask another question? As we try to monitor the legal DNA 

of President Bush’s nominees, we find repeatedly the Federalist Society chromosome. And I would like to ask you as an officer of the 

Federalist Society—and I know every time I raise this at a hearing, 

the right-wing press screams bloody murder that this is dirty politics. But you have represented that you are an officer of the Federalist Society. Why is it that membership in the Federalist Society 

has become the secret handshake of the Bush nominees for the 

Federal court? 

Mr. SUTTON. Well, I don’t know that that’s true. I don’t have any 

idea whether it is true. The one point I would make is while I am 

a member of the Federalist Society, I’m also a member of the Equal 

Justice Foundation. And I hope—in thinking about my nomination, 

I know how important it is to realize who this person is and what 

kind of judge they would be. 

You will keep in mind that while I have been a member of the 

Federalist Society, I was asked separately to join the Equal Justice 

Foundation, which—whose whole purpose is to provide legal service 

to the indigent. That, of course, is a pro bono effort, takes more 

time than anything I do for the Federalist Society, and as to the 

rest of your question, I don’t know the answer. 

Senator DURBIN. Let me just ask you your impression. What in 

your mind is the Federalist Society philosophy that draws so many 

Bush nominees to the Federal bench to its membership? 

Mr. SUTTON. Well, I have no idea of what their philosophy is. In 

fact, my understanding is they don’t take— 

Senator DURBIN. Are you an officer? Are you not an officer? 

Mr. SUTTON. I’m an officer of the Separation of Powers Working 

Group. That’s true. But that doesn’t mean there’s a philosophy. In 

fact, my understanding of the Society is they don’t take positions 

on cases. 

The one point I would make is my understanding of the purpose 

of the Federalist Society and the reason I was attracted to joining 

it was that they’ve tried to sponsor forums to discuss important 

legal issues. And most of my involvement has been in the Columbus chapter to that end. And I think the Federalist Society has 

89

done a very good job having presentations that involve speakers on 

both sides of the issue. In fact, most of the criticism I have heard 

of the federalism decisions all came from Federalist Society publications. First time I saw anyone criticize Seminole Tribe was in a 

Federalist Society publication. My article about the City of Berne

decision was a point-counterpoint piece next to Judge McConnell’s, 

Judge McConnell saying it was wrongly decided, my saying it was 

rightly decided. 

So I do think they’ve tried hard to do that. I can understand 

someone having a different perspective on that. 

Senator DURBIN. Let me ask you about your representation of tobacco companies in your private practice. You represented Lorillard 

Tobacco in challenging a Massachusetts regulation regarding the 

sale and promotion of tobacco products. In that case, you argued 

these regulations violated the Free Speech Clause of the First 

Amendment. In addition, you have been critical of the $145 billion 

tobacco judgment in Florida. Although you are an advocate of 

States’ rights in some contexts, you don’t seem to like what they 

have done to tobacco companies. 

What is your view generally about the efficacy of tobacco litigation, and do you feel that is ever justifiable? 

Mr. SUTTON. Well, RJR is a Jones Day client, and that’s how I 

became involved in that case. I was not involved in that case in the 

lower courts. I became involved in it when they tried to seek certiorari before the U.S. Supreme Court, and at the time I had a U.S. 

Supreme Court practice and I was asked by the firm to become involved in the case. And I did. I mean, it was a firm client, and I 

think it would have been a rather unusual decision on my part to 

not represent them, be unwilling to represent a client of the firm. 

Senator DURBIN. Did you say RJR and Lorillard are clients of the 

firm? 

Mr. SUTTON. No. RJR—all of the—the name of the case goes by 

Lorillard, but it had several tobacco companies in it. 

Senator DURBIN. And RJR was your client. 

Mr. SUTTON. Exactly. Exactly. And in terms of the case itself, 

you know, under the Free Speech Clause, that was the main issue 

in the case. It’s no surprise in most of the biggest U.S. Supreme 

Court cases, the free speech argument is not on behalf of a popular 

client. I mean, that’s often—or, for that matter, popular speech. 

That’s exactly the way it traditionally goes, and I think if you 

looked at the 20 biggest free speech cases in the country, I suspect 

you’d disagree with the underlying speech in every single one of 

them, and I— 

Senator DURBIN. I understand that, and historically— 

Mr. SUTTON. But it’s a constitutional right, and even though they 

may be—you know, it’s a company with which people can disagree 

with the work they’re doing, their products are legal. They’ve not 

been outlawed. And I think they do have a right to raise a constitutional offense. 

Senator DURBIN. I don’t argue with that premise at all. Again, 

it is a question about that moment in time when the senior partner 

came in and said, ‘‘Jeff, I want you to take up the cause of RJR, 

somebody’s trying to restrict their advertising that’s appealing to 

children,’’ and you said, ‘‘I’ll take it.’’ That is a tough call, and lawVerDate 0ct 09 2002 10:57 Oct 08, 2003 Jkt 089324 PO 00000 Frm 00097 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\89324.TXT SJUD4 PsN: CMORC
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yers in their profession make those difficult calls. But I am, again, 

trying to find out what is driving you and motivating you in terms 

of your legal values, and as you said, it was one of the clients of 

the firm. 

I don’t know how much time I have left here. 

Chairman HATCH. Your time has been up. 

Senator DURBIN. All right. Thank you very much, Mr. Chairman. 

Thank you, Professor Sutton. 

Chairman HATCH. Well, we will begin our second round then. 

Senator DEWINE. I haven’t gone. 

Chairman HATCH. Well, could I ask one question before you do? 

Then I will turn to you. 

Senator DEWINE. But I haven’t done anything on the first round. 

Chairman HATCH. Okay. I didn’t know whether you— 

Senator DEWINE. No, we haven’t completed the first round. 

Senator LEAHY. I thought you did a second round. 

Senator DEWINE. No, I haven’t done a second—I haven’t done a 

first round. 

Chairman HATCH. Well, let’s turn to Senator DeWine. 

Senator DEWINE. You can go ahead, Mr. Chairman. 

Chairman HATCH. No, no. You go ahead. That is okay. 

Senator DEWINE. Mr. Sutton, good afternoon. I know it has been 

a long day already for all of you, and we appreciate you all hanging 

with us. 

Chairman HATCH. Excuse me just one second. If you need a 

break, just raise your hand and I will be glad to— 

Mr. SUTTON. I am proving I am older than I look. I am getting 

there. But I will go another half-hour. 

Chairman HATCH. Why don’t we go another half-hour and then 

we will—let’s go another 15 minutes with Senator DeWine, and 

then we will— 

Senator DEWINE. We will see who has the guts to raise their 

hand, right? 

Chairman HATCH. We will break for 5 minutes and then come 

back. 

Senator DEWINE. The good news for all of you, it is a lifetime appointment. 

Senator LEAHY. They probably feel like today has been a lifetime. 

Senator DEWINE. Probably. That is right. 

[Laughter.] 

Senator DEWINE. Absolutely. 

Mr. Sutton, I don’t pretend to be a legal scholar, but I did have 

the opportunity to look at a lot of the cases that have gotten the 

bulk of the publicity in regard to the cases that you have argued 

before the Supreme Court. And I was here in the Congress when 

we passed the ADA, and I must be candid and tell you that I think 

if I was on the Supreme Court, I would have decided these cases 

differently. I don’t agree with the decisions. I don’t agree with the 

bulk of the decisions that you argued in front of the Supreme 

Court, at least on the controversial ones. But I am not sure how 

relevant that is. In fact, I don’t think it is relevant at all. 

I want to follow up with a line of questioning from my good 

friend Senator Durbin, and I wish he was here. I know he had to 

go to another meeting. But I think we go down and start down a 

91

very dangerous path when we probe deeply into the clients and the 

causes that nominees have either advocated or represented. I think 

it is legitimate. I think we can look at them. But I think when we 

start down that path, it is rather dangerous. 

It is dangerous if we conclude that a person cannot go on the 

Federal bench because of certain clients that they have represented 

or because of certain positions they may have taken in arguing a 

case before the Supreme Court of the United States or any other 

court. 

If we follow that position, there would be many principled lawyers in our history who never would have served on the Federal 

bench. But, more importantly, if this Committee would be saying 

that and if this Senate would be saying that, I think it would have 

a chilling effect on the practice of law as we know it in this country. 

How many young lawyers would say to themselves, ‘‘I can’t take 

this case, I can’t represent this client, I can’t advocate this position 

because, you know, someday I may want to serve as a judge, someday I may want to be on the Federal bench’’? And all the young 

lawyers, I think, at one point in time think that they would like 

to be a judge. Some of them get over it. But many of them feel that 

way at some point. 

So I think it is a mistake. I don’t fault any of my colleagues for 

engaging in that conversation and that give and take and trying 

to find out what is in Mr. Sutton’s or Mr. Roberts’ or Justice Cook’s 

heart and soul. I think that is legitimate. But if we extend it to 

the natural consequence of that discussion and really say, no, we 

can’t put that person on the bench because they advocated that position, I think that is a very, very serious mistake. And whether 

it is—if we look back in history and whether it is John Adams and 

the Boston Massacre or whether Thurgood Marshall representing 

rapists, or whoever, whatever the case might be, and we can go 

back in history, I think it would be a very, very serious mistake. 

And if we applied that law, we would have been denied some very 

great people on the Federal bench and in politics and in Government. And I think it would have been a mistake. 

I think ultimately, Mr. Sutton, and all of you, the question is: 

Will you follow the law? Will you follow the Constitution? And will 

you follow the precedent? I assume from each one of you the answer is yes. Mr. Roberts? 

Mr. ROBERTS. Yes, Senator. 

Senator DEWINE. Justice Cook? 

Justice COOK. Yes, indeed. 

Senator DEWINE. Mr. Sutton? 

Mr. SUTTON. Yes, Senator. 

Senator DEWINE. Mr. Sutton, let me read you the entire section 

of the 1998 Legal Times article that was quoted to you. It is only 

a part of the article, but I think it was excerpted a little bit, and 

I want to read it to you. 

‘‘Sutton says he and his staff are always on the lookout for cases 

coming before the Court that raise issues of federalism or will affect local and State government interests.’’ 

What position did you hold at that point in time? And who was 

your staff? What were you talking about? 

92

Mr. SUTTON. Yes, Senator, I was the State Solicitor at that point. 

Senator DEWINE. At that time you were State Solicitor. 

Mr. SUTTON. I was State Solicitor. 

Senator DEWINE. Why were you looking for these cases? 

Mr. SUTTON. Because Betty Montgomery, the Attorney General, 

correctly realized—I think she had some vision in this area—that 

just because a case comes from another State, another set of courts, 

and goes to the U.S. Supreme Court, it doesn’t mean it’s not going 

to affect them. In fact, it’s just the opposite. You could have a case 

coming from Arkansas, Alabama, California, and once the U.S. Supreme Court decides that issue of Federal statutory law, U.S. constitutional law, that decision’s binding on every State, including 

Ohio. 

What the article was pointing out and what Betty Montgomery 

asked me to do and we did do was to look for cases principally in 

her area of interest. Her area of interest was, of course, criminal 

law. She’s a former prosecutor. And we must have sought out and 

written—you know, I don’t want to exaggerate. I’m sure it’s several 

dozen, if not considerably more, briefs in U.S. Supreme Court cases 

generally advancing her perspective on criminal law issues, which 

was her interest and what she asked us to do, and those were the 

types of cases—in fact, I think the article was about one of those 

cases. It was not about, you know, a Section 5 case. It was about 

the City of West Covina versus Perkins, which involved the Due 

Process Clause and the return of property that was seized in a 

Fourth Amendment seizure and the procedural protections individuals have and their rights in getting it back. 

Senator DEWINE. Mr. Sutton, I would like to clarify one point. 

We have had a little discussion about this, and your nameplate 

says ‘‘Professor Jeffrey Sutton.’’ I think you are listed that way 

maybe because the Committee put it down that way because you 

are an adjunct professor. This is a little different than a full-time 

professor. I just state that because the articles you have written 

were written by you really, though, in your role as a lawyer, not 

as an academic. Is that correct? 

Mr. SUTTON. Absolutely. In fact, the first articles mentioned were 

articles written while I was State Solicitor, and, of course, pursuing 

the job I was asked to do, representing the State. I think one or 

two of them were written after I was State Solicitor, but the commentary was principally about cases I argued. And, of course, a 

lawyer would have an ethical obligation not to say publicly that his 

or her client in a given case had urged a position that was ultimately incorrectly decided by the U.S. Supreme Court. I mean, in 

those cases, my clients happened to win, and it would have been 

not only unusual, but I think ethically barred for me to publicly say 

the U.S. Supreme Court was wrong in those decisions. And I was—

if one reads those articles, one would see pretty quickly that they 

were simply recycling the briefs that I had written in those very 

cases. In fact, I hate to say it, word for word. I don’t think one can 

plagiarize oneself, but if one can, I’ve just made an awful admission. But that’s what you would see if you read those articles and 

compared them to the brief. 

Senator DEWINE. I want to go back to the City of Boerne case 

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utes ago. In that exchange, he asked you about a supposed position 

that you took during oral argument, and I would like to clarify it. 

As I understand it, you argued that Congress does have the authority to enforce the Bill of Rights using Section 5 of the 14th 

Amendment as those rights are incorporated in Section 1 of the 

14th Amendment. So as I understand it, you argued that Federal 

authority was broader and that the Federal Government has the 

authority to protect more rights than some of the other parties in 

the case did. 

So in that case, with regard to your position, Senator Schumer’s 

concerns were unfounded. 

Mr. SUTTON. I think that’s right, Senator. It was a very important issue in City of Boerne because until that decision, the U.S. 

Supreme Court had not clarified that critical point. If one looked 

at all of the Section 5 laws that have been reviewed for 100-plus 

years by the U.S. Supreme Court, you would have seen that they 

all involved, at least the ones that were upheld, racial discrimination remediation or voting rights remediation. They hadn’t extended to the other Bill of Rights protections, whether it’s free 

speech, criminal rights protections, or in the case of City of Boerne, 

free exercise of religion. 

And the State was in a difficult position in that case because the 

party in the case, the City of Berne, had taken the position, because 

no case had held otherwise, that Section 5 only allowed Congress 

to correct race discrimination and voting rights discrimination. And 

we were in a difficult position. Usually an amicus tends to agree 

with the party that you’re supporting. But at the same time, you 

know, not that reasonable minds couldn’t disagree with this 

point—and Justice Scalia ultimately gave me a very hard time on 

this—but took the view that by its terms, the Constitution said 

Section 5 enforces the provisions of Section 1. Section 1 says due 

process. The U.S. Supreme Court had construed the Due Process 

Clause to incorporate many if not all of—well, most of the provisions of the Bill of Rights. And so we made that argument, and 

Justice Scalia gave me a very difficult time. I mean, if you’ve ever 

seen him ask a question, my knees clearly quivered. But, I mean, 

my backbone did stiffen on this point, and we said that’s wrong, 

Justice Scalia, by its terms and, you know, as a textualist, you 

have to—you should agree with this. By its terms, it covers all 

rights protected by Section 1. 

So while, you know, there’s part of that outcome of that case that 

one could be unhappy with and certainly reasonable minds could 

disagree with, we feel good about that part. The Court did agree 

with us on this. 

Senator DEWINE. Good. 

Justice Cook, you have been making appellate court decisions 

now for well over a decade. Obviously in that time, you have developed a style and a way of making decisions and an approach to 

that job. Tell us how you approach the job, how you do that, and 

how you would approach the job as a circuit court judge. There has 

got to be a technique, there has got to be a way of doing it. 

Justice COOK. Right. 

Senator DEWINE. Everyone has got their own style. How would 

you do it? How do you do it now? 

94

Justice COOK. My process is structured, and I hope you would 

find it principled, and it’s the process I think most appellate judges 

engage in. It’s first a review of the record of proceedings, a reading, 

a thorough reading and studying of the contesting briefs, then a review of the existing law, and then the application of logic, sometimes custom, and generally rules. And this is done—you know, I’ll 

give some credit to my counsel because every judge has talented 

law clerks, and in my chambers—actually some of my clerks are 

still here, I think. In my chambers, my clerks do serve as my counsel. And so I think that that process generally and with the inclusion of bright young minds to challenge any decisions that I come 

to, I think we achieve the impartiality and really the objective approach that fairness dictates, and any good jurist engages in pretty 

much that same decisional process, I would say, Senator. 

Senator DEWINE. Do you go through a few drafts? 

Justice COOK. Oh, yeah. And then we exchange the drafts among 

the members of the court, and in that process, we’re also able to 

learn, you know, if any other member of the court writes a concurrence or a dissent that helps in our decisionmaking to double-check 

our reasoning, to double-check our research. And so it is a—it’s a 

process—it’s a learning process at its base. And that’s what we—

that’s our job. 

Senator DEWINE. Good. Thank you very much. 

Thank you, Mr. Chairman. 

Chairman HATCH. Well, thank you, Senator. 

Let’s take a 5-minute break, and we will come right back. 

[Recess from 3:48 p.m. to 4:02 p.m.] 

Chairman HATCH. We will start the second round of questions, 

and maybe I can start it off or, Senator Leahy, if you would prefer? 

Senator LEAHY. No, go ahead. 

Chairman HATCH. Well, I will start it off, and we will turn to 

Senator Leahy as soon as I am through. Hopefully this is all the 

round we need, but I want my colleagues to feel like they have 

been treated fairly and want them to be able to ask what questions 

they have in mind. But there has to be a reasonable time, and we 

will call this at a reasonable time. This is their chance to question 

the three of you, and we will just have to see what happens. 

Let me just go back to you, Mr. Sutton. As a matter of fact, I 

understand that you came to represent the University of Alabama 

in the Garrett case because the Alabama Attorney General’s office 

called you up and asked you to take the case. Is that right? 

Mr. SUTTON. That’s correct. 

Chairman HATCH. Okay. So you were asked by the Attorney 

General of the State of Alabama. 

What if it had been the other way around? I mean, what would 

you have done if Mrs. Garrett or the United States had called you 

up and asked you to represent their side in the Garrett case? 

Would you have done it? 

Mr. SUTTON. Yes, Your Honor, absolutely. And I would have been 

very eager to represent that side of the case, either for Ms. Garrett

or if I had been fortunate enough to be in the Solicitor General’s 

office. 

Chairman HATCH. So when you represented your clients, you 

were doing what attorneys do, represent clients. 

95

Mr. SUTTON. Yes, I was. 

Chairman HATCH. I have to admit, I am absolutely nonplussed 

that some of my colleagues seem to think that you should only represent the people who agree with them. Now, I don’t know any attorney who does that who is worth his salt, if he really has any 

real broad experience. You are not going to please everybody by the 

people you represent, but to ascribe to you the negative aspects of 

your clients I think is the height of sophistry. And it is really bothering me that on this committee, with the sophistication of this 

committee, that we have had those types of indications. 

Let me just ask you this. Now, I get so sick and tired of the Federalist Society, they beat up on the Federalist Society. I happen to 

be a member. I am on the board of advisors. I know what they do. 

I know what they don’t do. 

Now, since your membership on the Federalist Society has been 

raised here today and since various groups such as the People for 

the American Way and NARAL, the National Abortion Rights Action League, have also expressed concern over your involvement 

with that group, just let me ask you a few questions about it. 

You are indeed a member of the Federalist Society, are you not? 

Mr. SUTTON. Yes, I am. 

Chairman HATCH. Okay. Well, I am, too. And I happen to think 

that it is one of the best organizations in the whole country, and 

I have found, frankly, that the Federalist Society encourages open 

and honest discussion from all points of view, from a variety of perspectives on a multitude of current issues. Have you found the 

same thing? 

Mr. SUTTON. I have, Your Honor. On the cases I argued on behalf 

of several clients, I’ve seen as much criticism of those cases in Federalist Society publications as I’ve seen anywhere. 

Chairman HATCH. I have never known the Federalist Society to 

take a position on any issue. Do you know whether they have? 

Mr. SUTTON. I’m not aware of that, no. 

Chairman HATCH. Well, I don’t think—I’ve never seen it. So I get 

a little tired of this beating up on the Federalist Society as though 

there is some sort of a secret society. It is the most open society 

in our country right now from a legal standpoint. In fact, Federalist 

Society events are known for their intellectual vigor and open debate. Do you differ with that statement? 

Mr. SUTTON. I don’t, to the extent I’ve been to them, yes. 

Chairman HATCH. Leading liberal academics and Government officials regularly participate in the organization’s events. Isn’t that 

correct? 

Mr. SUTTON. That is correct. 

Chairman HATCH. From all points of view. 

Mr. SUTTON. That’s very correct. 

Chairman HATCH. From the right to the left. Right? 

Mr. SUTTON. Yes, exactly. 

Chairman HATCH. Regular participants include Walter Dellinger. 

Walter Dellinger was President Clinton’s Acting Solicitor General. 

Very, very intelligent, interesting, and good man, but very liberal. 

Stephen Reinhardt—you have got to be pretty liberal to be to the 

left of Reinhardt, from the Ninth Circuit Court of Appeals. But one 

of the really brilliant people in our society. He really believes in 

96

what he does, even though I think many justly criticize some of his 

activist approaches. 

How about Nadine Strossen? She is the president of the ACLU. 

She is no shrinking violet, yet she participates in the seminars and 

the conferences. 

Professor Laurence Tribe of Harvard. Now, no one would say 

that Laurence Tribe is an insidious conservative. 

How about Cass Sunstein of the University of Chicago? A regular. They, I think, enjoy these give-and-take sessions, and they 

should. 

Do these sound like a gang of right-wing participants to you? 

Mr. SUTTON. No. 

Chairman HATCH. For some reason, I knew that is what your answer was going to be. 

Senator LEAHY. I had even figured that out. 

Chairman HATCH. Even Leahy figured that out. 

[Laughter.] 

Chairman HATCH. That is great. I am so happy for that. 

Senator LEAHY. I am glad to see you so supportive of Walter 

Dellinger insofar as when you were chairman, we couldn’t get him 

through the committee. That is why he was Acting Solicitor General. 

[Laughter/applause.] 

Chairman HATCH. Well, I have to say that I do have a lot of respect for Walter Dellinger. I do. I even have respect for you, Senator Leahy, quite a bit. And I have earned it over the years, I tell 

you. 

Mr. Roberts, one of my Democratic colleagues has criticized you, 

albeit rather regularly, for cases that you worked on in your official 

capacity as Principal Deputy Solicitor General at the U.S. Department of Justice. The positions you took in these cases represented 

the position of the U.S. Government, right? 

Mr. ROBERTS. Correct. 

Chairman HATCH. The U.S. Government was your client, right? 

Mr. ROBERTS. That’s right. 

Chairman HATCH. You didn’t necessarily choose these cases, 

right? 

Mr. ROBERTS. No. 

Chairman HATCH. You had supervisors who worked with you? 

Mr. ROBERTS. Yes. 

Chairman HATCH. Suggestions were made to you? 

Mr. ROBERTS. Yes. 

Chairman HATCH. And you followed those suggestions? 

Mr. ROBERTS. Yes, and quite often, of course, we were in a defensive position defending Federal agencies that were sued in court. 

Chairman HATCH. Sure. And am I correct that the Government’s 

position in these cases was often arrived at as a result of collaborative process in which many different persons aired and debated 

different views? 

Mr. ROBERTS. It’s a very broad collaborative process. I don’t 

think everyone’s familiar with it. But when a case reaches the Supreme Court that might affect the Federal Government, or in 

which a Federal agency has been a party, you canvass the whole 

scope of the Federal Government. And in a typical case, you will 

97

get responses from ten different agencies, sometimes all over the 

map, sometimes, you know, consistent in a position. A number of 

different divisions within the department, different offices, all 

weighing in on what the position of the United States should be. 

Chairman HATCH. Well, and as a lawyer in the Solicitor General’s office, you were duty-bound to represent the official position 

of the United States even if it conflicted with your own personal 

beliefs, right? 

Mr. ROBERTS. Certainly. 

Chairman HATCH. That is what attorneys do. 

Mr. ROBERTS. Not only in the public sector, but I think in the 

private sector as well, that that’s the highest tradition of the American bar. 

Chairman HATCH. Well, I have to again caution my Democratic 

colleagues about the danger in inferring a Government lawyer’s 

personal views from the position he or she takes as an attorney for 

the United States. I think that Walter Dellinger, who as we all 

know served as Solicitor General during the Clinton administration, said it best. He said that it is ‘‘very risky’’ to judge judicial 

nominees by the positions they have taken as Government lawyers 

and that such judgments may lead to a rejection of ‘‘the most qualified of the nominees, those who, like Mr. Roberts, have been out 

and have had a major lifetime of accomplishment.’’ One of the leading Democrat legal thinkers in the country. 

Now, specifically with regard to Mr. Roberts, Mr. Dellinger said 

this: ‘‘The kind of arguments that John Roberts was making in the 

position of Deputy Solicitor General were the type of arguments a 

professional lawyer is expected to make when his client, the Chief 

Executive of which is the President of the United States, has run 

on those positions.’’ 

Now, Mr. Roberts, I want the persons who have made predictions 

about how you would rule as a judge to listen to some of the things 

your colleagues, the persons who know you best, have said about 

you. 

Shortly after your nomination in 2001, the Committee received 

a letter from 13 of your former colleagues at the Solicitor General’s 

office. Now, I want to read a portion of this letter because I think 

it will help my colleagues in evaluating your nomination. 

The letters says, ‘‘Although we are diverse political parties and 

persuasions, each of us is firmly convinced that Mr. Roberts would 

be a truly superb addition to the Federal Court of Appeals. Mr. 

Roberts was attentive and respectful of all views, and he represented the United States zealously but fairly. He had the deepest 

respect for legal principles and legal precedent, instincts that will 

serve him well as a Court of Appeals judge.’’ 

‘‘In recent days, the suggestion has surfaced in press accounts 

that Mr. Roberts’’—meaning you—‘‘may be expected to vote along 

the lines intimated in briefs you filed while in the Office of Solicitor 

General.’’ In fact, this is their quote. Let me just quote it. And 

these are your colleagues from diverse political views—Democrats, 

Republicans, maybe some who aren’t either. They say, ‘‘In recent 

days, the suggestion has surfaced in press accounts that Mr. Roberts may be expected to vote in particular cases along the lines intimated in briefs he filed while in the Office of Solicitor General. 

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As lawyers who served in that office, we emphatically dispute that 

assumption. Perhaps uniquely in our society, lawyers are called 

upon to advance legal arguments for clients with whom they may 

in their private capacity disagree. It is not unusual for an individual lawyer to disagree with a client while at the same time fulfilling the ethical duty to provide zealous representation within the 

bounds of law, and Government lawyers, including those who serve 

in the Solicitor General’s office, are no different. They, too, have clients. Federal agencies and officers with a broad and diverse array 

of policies and interests. Moreover, the Solicitor General, unlike a 

private lawyer, does not have the option of declining a representation and telling a Federal agency to find another lawyer.’’ 

Then they go on again: ‘‘We hope the foregoing is of assistance 

to the Committee in its consideration of Mr. Roberts’ nomination. 

He is a superbly qualified nominee.’’ 

I will submit a copy of that letter for the record, along with copies of several other letters echoing support for your nomination. 

Now, the resounding theme of these letters is that you will be 

a fair and impartial judge whose deepest respect for law and the 

principle of stare decisis combined with your brilliance will make 

you one of the greatest Federal judges ever confirmed. 

Now, people who know you, that is the way they feel, regardless 

of their political beliefs or their ideological beliefs, that you are a 

great lawyer, as are the other two on this panel. 

I have had Supreme Court Justices say you are one of the two 

greatest appellate lawyers living today, to me personally. Now, 

they don’t do that, you know, very easily. And I think everybody 

who knows you knows that that is how good you are. 

This is not your first appointment to the courts, is it? 

Mr. ROBERTS. No, Mr. Chairman, it’s not. 

Chairman HATCH. When were you nominated before and by 

whom? 

Mr. ROBERTS. I was nominated 11 years ago last Monday to the 

same court by the first President Bush. 

Chairman HATCH. So basically it has taken you 11 years to get 

to this particular position. 

Mr. ROBERTS. Well, I like to think I haven’t been just treading 

water in the meantime, but it has been 11 years. 

Chairman HATCH. There has been an expiration of 11 years since 

your first American people, and then you have had to be—you were 

appointed on May 9th of 2001. 

Mr. ROBERTS. This current round, yes. 

Chairman HATCH. And this is the third time you have been reappointed this January by current President Bush. 

Mr. ROBERTS. Correct. 

Chairman HATCH. Well, I will reserve the balance of my time, 

but I just wanted to get those points out because for the life of me 

I can’t understand why anybody who loves the law and who respects great lawyers would not want any of the three of you to 

serve in our Federal courts. I know one thing: I would sure want 

to be able to argue cases in front of you. I know one thing: I know 

I would be treated fairly. And you and I both know another thing: 

When we tried cases, I didn’t want a judge on my side. I didn’t 

want him against me. I wanted him or—I wanted the judge, reVerDate 0ct 09 2002 10:57 Oct 08, 2003 Jkt 089324 PO 00000 Frm 00106 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\89324.TXT SJUD4 PsN: CMORC
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gardless of who it was, to be fair, down the middle, to apply the 

law. If they did, I was going to win that case. I could lose the case 

by the judge favoring me just because a jury would get mad. Or 

I could lose the case by a judge not favoring me just because the 

judge was so respected. 

We want judges who are going to be down the middle, who are 

going to—that doesn’t mean you have to be down the middle in ideology and everything else. Just on the law, they are going to be 

down the middle and do what is right and honest and legally 

sound. Well, I have every confidence that the three of you, each of 

you, will be exactly that type of a judge. And I commend you for 

these nominations, for your nominations, and I look forward to seeing you confirmed, and I hope we can do that relatively soon. 

Senator Leahy? I will reserve my other 5 minutes. 

Senator LEAHY. Thank you, Mr. Chairman. 

I don’t know where this pesky idea of the Federalist Society came 

from, probably because one of the nominees testifies here under 

oath that he was told if he wanted to be a Federal judge appointed 

in the Bush administration, he should join the Federalist Society. 

I mean, that may have stuck in people’s minds. I don’t know. You 

know how those little things are. 

Chairman HATCH. I doubt anybody of any intelligent mind would 

worry about that. 

Senator LEAHY. Well, I would hope you wouldn’t suggestion that 

President Bush’s nominee who we confirmed as a Federal judge 

would be lying under oath. 

Chairman HATCH. Of course not. 

Senator LEAHY. Okay. Am I down to only 4 minutes that quickly? 

Chairman HATCH. No, no. That was my 5 minutes. 

Senator LEAHY. Goodness gracious. Man, I never should have let 

you have that big gavel. 

The Federalist Society’s membership certainly hasn’t stopped 

people. Paul Cassell was confirmed to the Utah District Court. 

Karen Caldwell, Edith Brown Clement, Harris Hartz, Lance Africk, 

Morrison Cohen England. They are all Federalist members, all confirmed. Michael McConnell to the Tenth Circuit, John Rogers to the 

Sixth Circuit, both members. Ken Jordan, Arthur Schwab and 

Larry Block. I mean, I could go on and on. In fact, it seems a lot 

of more were there. So maybe it is coincidence, the statement of 

one, who says that they had to join to be made a judge, or maybe 

it is a coincidence so many have gone through. But be that as it 

may, it hasn’t been held against them. Certainly I would not do as 

some of my colleagues have on the other side, vote against a nominee, as they have of a Clinton nominee, because she had dared in 

her private practice to represent a labor union. They voted against 

her because of that, and having listened to your testimony, all of 

you, and Chairman Hatch’s testimony, that clients take their—or 

lawyers take their clients and represent them, although I would 

note just so that it doesn’t seem totally one-sided, we had one vote 

against for defending labor unions, we had another one for taking 

a couple pro bono cases for the ACLU and so on. 

Chairman HATCH. Was that Marsha Berzon who now sits on the 

Ninth Circuit Court of Appeals? 

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Senator LEAHY. That is right. You were not the one that voted 

against her. 

Chairman HATCH. I know. Neither were most everybody else. I 

am condemning both sides if they are going to do that type of reasoning. 

Senator LEAHY. So we won’t go through a number of the ones 

who were never given a hearing because their clients weren’t liked. 

But let’s talk about stare decisis, and I am sure that every one of 

you would, of course, agree that you would follow stare decisis. I 

have never known a judicial nominee to say otherwise, and even 

including some who, after getting on the bench, were reversed because they did not follow stare decisis. But it is a hornbook law 

that you have to. 

Now, Professor Sutton, in a Federalist Society paper in 1994—

and I realize they don’t take any positions in the Federalist Society, but you praised the analysis in Justice Clarence Thomas’ concurring opinion in Holder v. Hall, a case that considered Section 

2 of the Voting Rights Act. And you specifically praised Justice 

Thomas for providing persuasive and important reasons to reconsider and overrule prior Court precedent broadly interpreting the 

Voting Rights Act. And you told the Federalist Society that Justice 

Thomas’ approach goes a long way to developing a conservative 

theory for doing an unconservative thing, overruling precedent. 

Why wouldn’t this just be conservative judicial activism? And I 

know you were expecting the question, so I would like to hear your 

answer. 

Mr. SUTTON. No, I wasn’t expecting the question. Why wouldn’t 

it in Justice Thomas’ position be conservative judicial activism? Is 

that the question? 

Senator LEAHY. Yes. 

Mr. SUTTON. Well, I think the point the article made was that 

the Section 2 cases had led to a very difficult set of interpretations 

for the Court in the voting rights arena, and it’s important to remember that in that Holder v. Hall case, Justice Thomas’ vote was 

a concurrence, the majority. I don’t know exactly what the vote 

was, but I think it was pretty overwhelming, ultimately said that 

you couldn’t bring this type of vote dilution claim under Section 2. 

Justice Thomas took the view that while that was an application 

of several cases of the Court, including a case called Allen, I think 

from the 1960’s, that the Allen case and the case after it hadn’t 

been correctly decided, and that the Court shouldn’t have gone 

down this road trying to determine as a matter of political theory 

what size a voting group should be—a county, a city, number of 

members. 

The opinion Justice Thomas relied upon was Justice Harlan’s 

opinion in that. I don’t remember if he was concurring or dissenting. Justice Harlan, of course, is one of the Court’s moderates, 

or at least he’s perceived as a moderate, not unlike Justice Powell. 

So I don’t think the perspective Justice Thomas had on the case 

was, you know, out of the mainstream. He was following Justice 

Harlan. But I guess more importantly, as a Court of Appeals judge, 

one would not have any option of doing anything of the kind. I 

mean, whatever the Court does with— 

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Senator LEAHY. Well, not exactly. Within your circuit, within 

your circuit you could overrule stare decisis. 

Mr. SUTTON. Oh, not—I understand what you’re saying. In other 

words, circuit precedent. 

Senator LEAHY. Yes, you would not have to follow—I mean, you 

are presumed that you will follow it, but you are not required to 

follow the precedents of your own circuit, and circuits do change—

not often, but circuits either reverse themselves or circuit judges 

dissent from positions. It is not unheard of for a circuit to reverse 

itself in a subsequent case. 

Mr. SUTTON. That’s true, although in a panel decision, a threejudge panel doesn’t have that option. 

Senator LEAHY. I agree. 

Mr. SUTTON. So if the panel, no matter what the prior precedent, 

no matter how much a judge disagreed with it, they have to follow 

it. And then and only then if the— 

Senator LEAHY. It goes up en banc. 

Mr. SUTTON. —the losing party chooses to ask the entire court, 

however many members, to decide whether they should review that 

prior precedent. But, of course, that’s not one judge’s vote. That’s 

a majority vote of the entire circuit. 

Senator LEAHY. That is true. 

Mr. SUTTON. And I guess the thing that Justice Thomas, I 

thought, was trying to do was determine what is the hardest thing 

in this area, neutral principles for not following a precedent. And 

to me that was admirable. But the risk, great risk when it comes 

to stare decisis is that it becomes result-oriented, that someone is 

simply deciding they personally didn’t like something and so they 

vote to overrule. The very point of the article or this section of the 

article—this was the same article, I should point out, that was 

criticizing the Court for a ruling that heard disability rights. But 

in this part of the article, I was simply making the point that neutral principles for determining when stare decisis ought to apply 

and shouldn’t apply are to be applauded. A good idea. 

What you said actually there about Judge Thomas is, on the one 

hand, adherence to precedent is an ostensibly conservative notion. 

One consistent with protective reliance interests, in particular, and 

furthering judiciary restraint in general. But on the other hand, it 

cannot be that all liberal victories become insulated by stare decisis, while all conservative ones remain open to question, and I 

worry that what you are doing is suggesting a blueprint for overturning court decisions that maybe some of your friends do not like 

on civil rights, but here you are a strong adherent, which is a conservative principle to stare decisis or am I reading too much into 

your comments? 

Mr. SUTTON. Well, I think perhaps a little bit, Senator. The point 

I think I was making was one I would assume everyone would 

agree with. It would not be a very coherent or fair principle of stare 

decisis that said we only stick with certain types of precedential 

rulings and not with others and simply making the point it is a 

conservative doctrine to stick with stare decisis, but it wouldn’t be 

a legitimate application of stare decisis to not apply it neutrally to 

all precedents that, in the U.S. Supreme Court, has many cases 

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that have given instruction not just to the Justices, but to the 

lower courts as to when one would decide. 

I mean, the Buck case that we talked about earlier, forced sterilization of the handicapped, I mean, if ever there were a case calling for an overruling, it would be that case, and there are principles to look at, whether the underlying reasoning makes sense. 

Senator LEAHY. I understand, but we are also not going to have 

too many Dred Scott or Plessy v. Ferguson or cases like that. What 

we are going to find are some very specific cases following Congressional action within the last 5 years/10 years or a year. What I am 

trying to determine is your full sense of stare decisis. 

Let me tell you why some of this comes up. Have you read the 

book or are aware of the book Judge Noonan wrote, Narrowing the 

Nation’s Power? 

Mr. SUTTON. I have read the book. 

Senator LEAHY. It is a short, but really powerful, book. I picked 

it up 1 day flying back here from Vermont, and I started reading 

it on the plane, and I was still reading it at 2 o’clock in the morning. I felt like I was back in law school cramming, but I found it 

difficult to put down. 

He was talking about a number of the reasons why States, in effect, do not enjoy the sovereign immunity that what I consider a 

very activist Supreme Court has been giving them in the last few 

years, and I was persuaded by the conclusion that the best reason 

that States should not enjoy immunity from suit is that such treatment is simply unjust and why should a State not pay its just 

debts? 

Why should it not compensate victims for the harm it wrongly 

causes or why should States be subject to Federal patent law, and 

Federal copyright law, and Federal prohibitions of discrimination 

from unemployment, but not be accountable if it invades somebody 

else’s patent or copyrights or accountable for discriminatory acts as 

an employer? 

Has the Supreme Court, in these areas—copyright, patent law 

and others—have they been, as someone said, a very activist court 

are you are very comfortable with the decisions they have made? 

Mr. SUTTON. Well, I can’t say I read Judge Noonan’s book as 

quickly as you did, but I— 

Senator LEAHY. No, no, no. I read it until 2 o’clock in the morning. That doesn’t mean that I would want to do my third-year law 

exam on the book, but these are some of the things that I got out 

of it. 

Mr. SUTTON. No, I did read the book. I enjoyed the book. I think 

he makes a forceful case for that position, and I actually think 

that’s the most difficult position the court has taken in all of these 

we’ll call them ‘‘federalism’’ cases. 

Senator LEAHY. Are you comfortable with that direction of the 

Supreme Court? 

Mr. SUTTON. Well, the point I was going to make was I wasn’t 

involved. That’s the Seminole Tribe case that makes that ruling, 

that made that decision that the Eleventh Amendment does apply 

to States and that the only way Congress can alter that immunity 

is through Section 5 legislation or Spending Clause legislation. 

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So I was not involved in arguing Seminole Tribe. The cases I 

have done have been principally— 

Senator LEAHY. Are you comfortable with the decisions the Supreme Court has followed? 

Mr. SUTTON. Well, I’m comfortable that I would follow them as 

a Court of Appeals judge. Would I have done that as Court of Appeals judge had that case faced me? Would I have done that in any 

other position? I don’t know. I’ve never been in the position where 

I had a chance to do what a good judge should do and ask yourself, 

okay, what does one side have to say about this? What precedent 

do they think supports them? What would another side say? 

I guess the one part of the decisions that, you know, it’s the one 

part that Judge Noonan doesn’t deal with is his point that the doctrine that the king can do no wrong is a bad doctrine I think everyone would agree, and that’s exactly why most democratically elected legislatures have allowed suits against States and the Federal 

Government. 

The one point I would make, to be consistent with him, and he 

doesn’t make it, is that if you’re going to say the king can do no 

wrong, and there’s no such thing as sovereign immunity because 

the term doesn’t appear in the U.S. Constitution, it seems to me 

appropriate that that be true with the U.S. Government because it 

doesn’t apply there either. 

I think that’s what the court has done. Now, maybe the U.S. Supreme Court is wrong in these cases, but I think they have seen 

some symmetry in money damages cases being brought against 

elected Congress, elected State— 

Senator LEAHY. But you understand some of the concerns that 

many of us up here are suggesting, that the States are suddenly 

being protected from taking responsibility for discrimination, for 

example, that they or their agencies decide to do or violating other 

people’s copyrights that they or their agencies do, that they are 

protected, and—I mean, I have to ask myself were not the Civil 

War amendments, including the Fourteenth, designed as an expansion of Federal power and actually an intrusion into State sovereignty? 

Mr. SUTTON. Oh, absolutely, and that is exactly why the City of 

Boerne decision and these other cases allow individuals to bring 

money damages, actions, against States under the Fourteenth 

Amendment because of Section 5 legislation. So I agree entirely 

with that. 

Senator LEAHY. Well, then, if that is the case, we have also a 

problem, and I realize you did not decide the cases, but here in the 

Congress we might have weeks or months of hearings—so they 

have the ADA, and RFRA, and ADEA bringing in evidence, not 

only in hearings here in Washington, but field hearings around the 

country, and isn’t Congress in a better position to determine facts 

relevant to the exercise of its Section 5 authority after all of those 

hearings than the court is after an hour’s hearing over in the marble hall across the street? 

Mr. SUTTON. Absolutely, and the U.S. Supreme Court has said 

that you’re in a better position to make those findings, you’re better 

equipped to gather that kind of evidence. The thing that I think 

the U.S. Supreme Court has found to be tricky in this area, and 

104

I think this is another area Judge Noonan criticized, and reasonable minds can differ on this point, is the question of is it complete 

deference or virtually complete deference to Congressional fact 

findings? 

And I think the point the U.S. Supreme Court has made—and 

on this point I don’t think there is disagreement—I think all nine 

Justices, not applying in a given case—but I think all nine Justices 

would agree that one can’t decide that a Congressional fact finding 

is binding on the determination of the validity of Section 5 law because that would be to delegate the ultimate Marbury power to this 

branch of Government. 

So I think that principle is a difficult one. 

Senator LEAHY. On that on the general principle, I would agree 

with you, but I believe we also have a court that is totally ignoring 

the legislative record or saying that it is virtually irrelevant. That 

is what I mean by a very, very activist Supreme Court. 

Mr. SUTTON. Well, the part that I certainly sympathize, if not 

empathize, with you on is these decisions are recent rulings. City 

of Berne is 1997 or so, and many of these laws that were reviewed 

were enacted before the City of Berne decision. Now, the City of 

Berne relies on many existing precedents, but it had not dealt with 

nonvoting rights, nondiscrimination cases—the court had not—and 

so I certainly understand your position, and I think that’s what 

Judge Noonan was saying. It doesn’t seem fair to suddenly judge 

these laws based on a standard that was developed after the law. 

I think you’re right to be skeptical of that. 

Senator LEAHY. If I look at Justice Breyer’s dissent in Garrett

things like that, I find it very compelling. 

But my time is up, Mr. Chairman, and I will wait for my next 

round. 

Chairman HATCH. Senator Schumer, we will turn to you. 

Senator SCHUMER. Thank you, Mr. Chairman. I want to thank 

everybody. I know it has been a long day, but I think it is an important day as well. So I am going to ask a few more questions of 

Professor Sutton. 

Now, a few years back, as you well know, the court, the Supreme 

Court invalidated part of the Violence Against Women Act, holding 

that Congress did not adequately establish that Violence Against 

Women had an impact on interstate commerce, and the decision 

was criticized by many as an incredible incident of judicial activism. 

Justice Breyer, one of the four who dissented, wrote, ‘‘Since 

judges cannot change the world, it means that within the bounds 

of the rational, Congress, not the courts, must remain primarily responsible for striking the appropriate State–Federal balance.’’ 

That, to me, sounds right. It seems to me that is exactly what 

the Founders intended. ‘‘For better or worse, we are charged with 

making policy, and the judiciary’s role, while just as important, is 

quite different. And yet it appears to me that with increasing frequency the courts have tried to become policymaking bodies, supplanting court-made judgments for ours, the unelected branch of 

government. The Founding Fathers set them up to interpret, not 

make, the laws for a reason, and it is not good for our government, 

and it is not good for our country.’’ 

105

Now, I want to read back to you a quote I read earlier, something you said regarding Morrison, which was the case in which 

the court invalidated part of the Violence Against Women Act. You 

said, ‘‘Unexamined deference to the VAWA fact-findings would 

have created another problem as well. It would give to any Congressional staffer with a laptop the ultimate Marbury power, to 

have the final say over what amounts to interstate commerce and, 

thus, to what represents the limits on Congress’s Commerce Clause 

powers.’’ 

I have to tell you I am troubled by that statement, very troubled. 

Senator Biden and I can both tell you a little bit about the record 

Congress created on VAWA because he was the author in the Senate, and I pushed it in the House. 

It is not as if we had our counsel sit down at their computers 

with a couple of beers and make up some Congressional findings. 

It is not as if we called our legislative directors and said, ‘‘Hey, 

could you make up some stuff about how when violent acts are perpetrated against women, it affects their ability to participate in 

interstate commerce.’’ 

You seem almost contemptuous of the legislative process in your 

comments. I think you can make a pretty compelling case, without 

actual studies and testimony, simply by using logic that violence 

against women has a real effect on interstate commerce, but that 

is not just what we did. 

In passing many of the laws the court has struck down, but in 

particular in passing VAWA, because I was involved minute-tominute, and you can imagine, when I read something like this and 

see the court saying we did not have a basis for making the law, 

how infuriating it is, because they were not there, we were. We 

took testimony from citizens, from academics, from State lawmakers, from State attorneys general and an array of other interested parties. It took us years to formulate it, to change it, to test 

it, to see where it was right and where it was wrong in the legislative process. We solicited input and received a green light from 

States on the question of whether there was a need for the national 

legislature to act. 

The VAWA findings, as I presume you know, were voluminous. 

I am not sure what more the five Justices on the Supreme Court 

thought we needed to do. 

So I wanted to ask you this: Why did you think that the findings 

underlying VAWA were not enough? What more did Congress need 

to do to make the record that violence against women has an impact on interstate commerce? And if the courts should not give 

unexamined deference to Congress’s findings, what should the 

standard be? 

Mr. SUTTON. Thank you, Senator. I do appreciate having a 

chance to talk about that case and that brief. 

The first point I would make, which I hope you’ll respect my 

making it, is it wasn’t a brief on my behalf, that was a brief on 

behalf of a client, and I was doing my best to represent them. I can 

assure you I would have been happy to represent the other side in 

that case, and as a Court of Appeals judge, I would, of course, follow the U.S. Supreme Court, whether it’s the Morrison case, as is, 

or the case is reversed. 

106

Now, in terms of that statement, I agree with your criticism of 

it, in part, and then I disagree with it, in part. The part with which 

I agree is the line is too rhetorical. I don’t think it actually did advance my client’s cause, and I regret that. I do think it’s a little 

too rhetorical for good advocacy. 

The part with which I disagree, in terms of it being a reasonable 

position for the State in that case to argue was this underlying 

issue I was just discussing with Senator Leahy, and that’s the 

issue of the court has said, and they said it again in Morrison, and 

they’ve said it forever, that of course there’s a great presumption 

of constitutionality to Federal statutes and even more to the factfinding capacity of this body when it comes to determining whether 

there’s a social problem, whether that problem relates to interstate 

commerce, whether that problems relates to underlying constitutional violations or discrimination, and I think the court has correctly said that throughout. 

I think the part I slightly disagree with the suggestion of your 

question, though, is that it is somehow wrong to suggest that 

there’s some limit to that deference; that the deference, in other 

words, is complete. 

I think of, in the Morrison case, Justice Souter’s, he was the primary dissenter, and Justice Breyer joined this part of his dissent, 

I can’t tell you the footnote number, but there is a footnote, where 

Chief Justice Rhenquist, who wrote the majority opinion, and Justice Souter are discussing this deference point. And Justice Souter 

concedes that the U.S. Supreme Court does have a role, all nine 

members are agreeing they do have a role in ensuring that the evidence that this body gathered did, in fact, concern interstate commerce. 

And so I think that principle is not only within the mainstream, 

I’m not aware of a single Justice that has agreed with it. And then 

I think what you’re stuck with in Morrison is a terribly 

chAllenging, excruciatingly difficult application of that principle— 

Senator SCHUMER. Can I just—I want to let you finish. But did 

you disagree that the evidence we found was dispositive—you may 

disagree with it—but was directed at interstate commerce? We did 

not say count the number of trees in Montana and that justifies—

I mean, it was all directed at interstate commerce. We made a case 

about interstate commerce. 

Mr. SUTTON. I couldn’t agree more that that’s what you were trying to do. I agree. 

Senator SCHUMER. Well, then continue. You just said that there 

are limits, but here there is no dispute that we addressed the issue 

of interstate commerce. So explain the ruling to me. Explain what 

you think here. 

Did you disagree with how we did it? Did we not do it enough? 

Or is it really that somehow, and this would be different I think 

than the holding in Morrison, that you just did not think this affected interstate commerce, period, and it did not matter if we 

found that it did. Your view would supplant ours. 

Mr. SUTTON. When writing this brief for this client, again, as an 

advocate, the issue for me wasn’t agreeing or disagreeing. That 

wasn’t why I was hired, to tell them— 

Senator SCHUMER. I want to know what you think. 

107

Mr. SUTTON. Well, that was not an exercise I went through, and 

I have no idea, Senator, what I would have done had that been a 

case, I had been a Court of Appeals judge on— 

Senator SCHUMER. But do you think we tried to address interstate commerce when we made the findings in terms of VAWA or 

not? 

Mr. SUTTON. Oh, of course, you were—I repeat what I said earlier. You were trying to reach—you were trying to establish a factual record that established that the terrible results of gender-related crimes, gender violence-related crimes, have impacts on interstate commerce, and nothing in that brief said Congress wasn’t trying to do that. 

What the brief made the appoint, again, on behalf of a client, 

was that the theory of the Congress’s views that it was related to 

interstate commerce was a theory that would apply to the regulation of all matters—family law matters, all criminal law issues. 

And while someone could disagree with that, and in fact I’m sure 

reasonable minds would disagree with it, I can’t imagine not making that argument as an advocate on behalf of that client. I mean, 

the client was entitled to the best representation— 

Senator SCHUMER. Sir, in all due respect, aside from advocating 

for the client, which you are seeming, you know, you sort of—you 

are saying all of this work I did, and everyone, you know, it is almost like we are in 1984 here because your views on federalism are 

not just advocating for clients. You have become a leading—you 

write articles. The things you advocate, the pro bono cases are not 

in keeping with what your general activities and beliefs are, many 

of them. This is. 

I want to read from an article you wrote, not advocating for a 

client, advocating for yourself. This is from the Review of Federalism and Separation of Powers Law, and let me read it because 

it says the exact, same thing, and these are your views, signed by 

you, and I think you are hiding behind the client thing, and we’re 

not having a real debate on the issues here. 

[Applause.] 

Senator SCHUMER. Please, that is not fair, because everyone 

knows how you feel on this, and you know how you feel on this. 

That does not mean, as a judge, maybe you could not change, but 

these are not just views you advocated for a client. These are deeply held views by you, I would believe from looking at the whole 

record, and it would be awfully hard to disprove it. 

Here is what you wrote: ‘‘The necessary stacking of one inference 

on top of another required to connect an interstate rape to an act 

of interstate commerce had no fathomable limit the court held. 

Once accepted, only the most unimaginative lawyer would lack the 

resources to contend that all manner of in-state activities will have 

the rippling affects that ultimately affect commerce. Such an approach would have a disfiguring effect on the constitutional balance 

between States and national Government, and would indeed make 

the Tenth Amendment but a truism, and would ultimately make irrelevant every other delegation of power to act under Article 1.’’ 

‘‘Unexamined deference to the VAWA fact-findings would have 

created another problem as well.’’ And here is the regretful phrase. 

‘‘It would give to any Congressional staffer with a laptop the ultiVerDate 0ct 09 2002 10:57 Oct 08, 2003 Jkt 089324 PO 00000 Frm 00115 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\89324.TXT SJUD4 PsN: CMORC
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mate Marbury power, to have a final say over what amounts to 

interstate commerce.’’ 

You may have said that in the brief, I do not know, but you said 

it separately under your own pen, under your own article. So you 

cannot say, well, you were saying that just on behalf of a client. 

Those, at one point, I do not know if they still are, are your views. 

Are they still? 

Mr. SUTTON. Well, Senator, I do think a lawyer who is representing a client does have a prerogative to write an article—this 

actually was not an article about this case. It was an article about 

several decisions—saying that the court got it right when it ruled 

on behalf of your client. Obviously, the opposite was not true. I did 

not have the alternative to say publicly that the court got it wrong, 

after arguing on behalf of the State in that particular case. I mean, 

my ethical duty would have precluded that. 

But I want to go back to what I was trying to say earlier. No 

one disagrees, on the Supreme Court anyway— 

Senator SCHUMER. So, wait, can I just, again, because there is a 

lot of sophistry here, do you believe that unexamined deference to 

VAWA would give any Congressional staffer with a laptop the ultimate Marbury power? Do you, Jeffrey Sutton— 

Mr. SUTTON. I have no— 

Senator SCHUMER. —not as a lawyer representing someone, but 

as a professor, as somebody who has written articles, as somebody 

who is well-known to have a strong view on these issues? 

Mr. SUTTON. Well, as I said earlier, I have no idea what I would 

do as a judge because I have no idea what a judge— 

Senator SCHUMER. I did not ask that. 

Mr. SUTTON. You asked what I believe, and I am telling you— 

Senator SCHUMER. I did not ask what you would do as a judge. 

I asked what you, as Professor Jeffrey Sutton, not representing a 

client, do you believe this phrase or not? You know, I have written 

things that I have changed my mind later. So I am not— 

Mr. SUTTON. I think it is very consistent with something I said 

earlier today—I am not sure you were here at the time—is, yes, I 

do believe in the principle of federalism in the sense that there is 

a principle that says, on a separation of powers basis, there are 

checks and balances, horizontally, among the Federal branches of 

Government, this body, the U.S. Supreme Court and the President, 

and vertically between the national Government and the States. 

That’s a principle that’s imbedded in the Constitution, and there 

are countless U.S. Supreme Court cases that recognize it. 

And the statement you have just quoted makes the point, and 

this is what I perceive the court is trying to do, and maybe one 

could disagree that this is what they did, but is making the point 

that as long as that court has the Marbury power, and perhaps 

people could disagree with it, but as long as they have that power, 

they have not just the power, but a duty to review even the most 

exhaustive fact-findings of this body. 

And the reason I am not comfortable telling you my view on 

whether those findings related to interstate commerce or not is I 

just am not familiar enough to say that. That’s just not something 

I could tell you. 

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Senator SCHUMER. Could you say that again. I did not—you are 

not familiar enough with what? 

Mr. SUTTON. With all of the issues in the case to make that 

point. I was hired by a client to make one side of the argument. 

I have never had the opportunity to sit back and say objectively, 

‘‘What would you do, Jeff, with this particular issue?’’ 

Senator SCHUMER. You wrote this in an article, professing a 

viewpoint, your viewpoint. 

Mr. SUTTON. And I’m just telling you that that stands for the 

principle that the national Government, as broad as its powers are, 

they do have limitations. And I would say, but the broader point, 

Senator, is had I been asked by the other side in that case to argue 

that case, I can assure you I would have done it— 

Senator SCHUMER. That is not what I am asking, and please do 

not keep bringing that up. We know that you are a very successful, 

persuasive advocate, and we know you have advocated in different 

positions. You wrote an article where you said the exact, same 

thing as in the brief. You first told me it is just because you were 

advocating for a client. Now, I have an article here where you 

wrote it again. You did not say, ‘‘As I argued in or as was argued 

in’’; you professed the belief as yours, and now you are not giving 

me an answer, whether you believed it at the time and still believe 

it now. 

Mr. SUTTON. But I do think I did answer it. 

Senator SCHUMER. I did not ask you what you would do as a 

judge. I know, as a judge, you would have to examine both sides. 

I understand that. My knowledge is not as great as yours, in terms 

of juris prudence, but I know that much, but I also know that I feel 

very strongly that it is my obligation and your responsibility to let 

people know your views because they will influence how you are as 

a judge. 

I know that there are a lot of people who say, ‘‘Oh, no, every 

judge will make the same decision, but then we would have all 9-

nothing decisions, and every one of the circuits would be the same.’’ 

And in terms of studies, those appointed by Democratic Presidents 

and those appointed by Republican Presidents would come out the 

same, not the same way, but in the same percentage way, and we 

all know that is not true. 

If I have tried to do anything in the last year, it is to break 

through this shibboleth that philosophy does not matter. And by 

the way, if philosophy did not matter, the White House would send 

us a far broader panoply of judges, in terms of their views, than 

they do, without any question. 

And so we should be discussing this. We should be discussing 

this issue honestly, not hiding behind representation, not hiding 

and saying, ‘‘Well, I do not know what I think.’’ Most of us on this 

panel, I believe, know you know what you think on this, but you 

refuse to discuss it, even though you wrote an article saying it. 

Mr. SUTTON. Well, again, first of all, Senator, I respect your 

views on this, and I have been paying attention to them the last 

couple of years, and I certainly understand the seriousness of the 

issue. I guess I feel I disagree with what you are saying, in terms 

of my refusing to answer the question about this article. 

110

I did write the article. It was obviously a recycling of the brief, 

as proved by the fact it quotes the exact language of the brief. I 

do think there is a lawyer’s prerogative— 

Senator SCHUMER. You quoted it as your own, not representing 

a client. 

Mr. SUTTON. Exactly, and I am making the point the lawyer has 

a prerogative, having argued a case, to say that the court got it 

right. That is exactly what I did, and I cannot tell you that that 

is the right decision. How could I possibly say that to you, given 

how much respect I have for the role of a Court of Appeals judge 

and what their job is when it comes to deciding what they would 

do with a given case? 

And I think it would be just the opposite of what that judge’s role 

is to say, ‘‘Oh, I could tell you what I would do with that kind of 

a case.’’ I couldn’t tell you that. 

Senator SCHUMER. Could I ask you to do this within the week? 

Could I ask you to review the Congress’s findings in VAWA and 

tell us whether you agree—you, personally, not representing anyone—whether you agree with the majority or minority’s findings or 

someplace in between? 

Chairman HATCH. Well, let me just interrupt. Look, I also was 

a prime sponsor in the Senate. It was the Biden–Hatch bill. Those 

materials are so voluminous. Now, come on, let us quit asking what 

he is going to do as a judge or what he believes. Let us talk in 

terms of— 

Senator SCHUMER. Well, Mr. Chairman, in all due respect, of 

course, I want to know what he is going to do as a judge. So does 

everybody. 

Chairman HATCH. Well, I agree with that. 

Senator SCHUMER. It is not some kind of mathematical formula 

that every judge, just depending on their intellectual power— 

Chairman HATCH. But you seem to want a foregone conclusion 

from him. 

Senator SCHUMER. No, I do not. I want to get— 

Chairman HATCH. And he is not willing to give that to you. 

Senator SCHUMER. I want to know his views, not what his client’s views are and not how persuasive an advocate he is. 

Chairman HATCH. Oh, but he is making the point that his views 

are irrelevant when he becomes a judge. 

Senator SCHUMER. And I do not think anyone really believes that 

or— 

Chairman HATCH. That may be, but that is what— 

[Applause.] 

Senator SCHUMER. —or what he— 

Chairman HATCH. Now, let us understand something. I am going 

to clear this room— 

Senator SCHUMER. Please. 

Chairman HATCH. Something that I have made possible for everybody if we continue to have these outbursts. First of all, it is not 

fair to anybody. 

Senator SCHUMER. Right. 

Chairman HATCH. It is not fair to the witness, it is not fair to 

the Senators up here. We are supposed to have some decorum here, 

and I expect this proceeding to be treated with dignity. Now, let 

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us just remember that. I respect all of you, but I want no more outbursts. 

Senator SCHUMER. And I would say, in all due respect, it does 

not help my case when you applaud. 

Chairman HATCH. That is right. 

Senator LEAHY. If I might on that, Mr. Chairman. I have served 

as Chairman of numerous committees and subcommittees, as have 

you— 

Chairman HATCH. Right. 

Senator LEAHY. And we must have decorum. I know the feelings 

are very strong here. I agree with the feelings of many who have 

expressed it here, but we also have three witnesses who are answering questions under oath, Senators who are working to ask 

them, and the only way we are going to do this is through decorum. 

So I will support the Chairman in maintaining the decorum, and 

especially, as I have said before, I appreciate the Chairman taking 

the recommendation of myself and others to move down here so 

that everybody could be accommodated. 

Senator SCHUMER. Mr. Chairman, you have been very generous 

in time, and I would still ask, if he decides he wishes to, to ask 

Professor Sutton to let me know his views on whether the majority 

was correct in finding that Congress, in its findings, did not really 

justify a reach into interstate commerce in Morrison. You do not 

have to do that now. I will ask you to do it in a written question. 

Senator SCHUMER. Before I conclude, Mr. Chairman, I have some 

more questions, and I know it has been a long day, and I do want 

to thank you, Mr. Sutton. My questions are strong, but they are 

not personal, and they are heartfelt, as your answers are, and I respect that. 

Mr. SUTTON. I believe that. 

Senator SCHUMER. And I just, Mr. Chairman, I have other—I 

have to go to two other places. I have more questions of Mr. Sutton, and I have not even begun to ask questions of either Mr. Roberts or Judge Cook, and so I would simply ask that we at least 

come back at another point in time and be able to ask—I think it 

would not be fair to us if we did not get a chance to ask Mr. Roberts and Judge Cook questions at another time. 

Chairman HATCH. Well, unfortunately, I cannot do that. In other 

words, this is the hearing. And, frankly, we will keep the record 

open for questions, and Senator Leahy has already asked that we 

make sure we get a transcript of the record so that more questions 

can be asked, but, no, we are going to finish the hearing today. 

Now, I hope that we can accommodate you to come back and ask 

any further questions you would like— 

Senator SCHUMER. I am going to appeal the ruling of the chair. 

I do not think it is fair. These questions are not frivolous— 

Chairman HATCH. No, they are not. 

Senator SCHUMER. And I would appeal the ruling of the chair 

and ask for a roll call vote that we finish with Professor Sutton 

today, as long as it takes, but we come back and ask both Mr. Roberts and Judge Cook questions next week. 

Chairman HATCH. It is not fair to them. I am prepared to sit 

here as long as it takes, within reason. I mean, I think there is a 

point where you have to call an end to the hearing, but this is toVerDate 0ct 09 2002 10:57 Oct 08, 2003 Jkt 089324 PO 00000 Frm 00119 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\89324.TXT SJUD4 PsN: CMORC
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day’s hearing. These people have sat here patiently now—for how 

many hours, is it? Since 9:30 this morning—and we are going to 

finish this today. 

And I notice that Mr. Sutton’s three kids, they are the best kids 

I have ever seen in a—they have not raised a fuss here at all. I 

just want to compliment your wife and you for the wonderful children you have. 

Senator SCHUMER. In all due— 

Chairman HATCH. I want to be fair, but on the other hand, Mr. 

Roberts has been waiting 11 years. 

Senator SCHUMER. In all due respect, Mr. Chairman— 

Chairman HATCH. The other two have been waiting almost 2 

years— 

Senator SCHUMER. We are having— 

Chairman HATCH. I think it is up to us to ask the questions here 

today, and I am providing the time to do so, and I am also providing an additional time to ask written questions, a reasonable 

time, but not an unreasonable time. We are going to finish this 

today. 

Senator SCHUMER. In all due respect, we are having a third hearing on Pickering, we are having a second hearing on Owens. The 

ones who we defeated— 

Chairman HATCH. I do not know what I am going to do on those. 

Senator SCHUMER. —they get all the hearing time you want to 

change the record, but we do not have a full opportunity with Mr. 

Roberts, to the second most important court in the land, with 

Judge Cook, in terms of a Circuit, the Sixth Circuit— 

Chairman HATCH. But you do. 

Senator SCHUMER. —which has been kept open for a long period 

of time. 

Chairman HATCH. I am not prepared to leave. 

Senator SCHUMER. It is not fair—well, it is not fair— 

Chairman HATCH. When can you come back, Senator, for your 

further questions. I will be happy to be here. 

Senator SCHUMER. I can come back later this evening, but I do 

not know if my colleagues can, and I have never seen this kind of 

thing happen. We have never had three Court of Appeals— 

Chairman HATCH. Well, it is going to happen here. 

Senator SCHUMER. —judges on one panel. We knew that Professor Sutton, in particular, would take a great deal of questioning— 

Chairman HATCH. And he has. 

Senator SCHUMER. And I do not think it is right. I do not think 

it is fair, and I think if the public— 

Chairman HATCH. Senator, if you need more time, take it right 

now. I will be glad to give it to you, but the point is I am not going 

to mistreat these people either. I mean, my gosh, they have been 

waiting for 2 years, Mr. Roberts 11 years. We have made them 

available. They have been here since 9:30 this morning, and I think 

it is only fair that if you have questions, you ask them. 

Senator SCHUMER. Okay. 

Chairman HATCH. Now, you might have a schedule that is different. I cannot help that. I mean, there are a lot of things I have 

113

had to forego today and some I have just had to do, but the fact 

of the matter is that that is what we have these hearings for. 

Senator SCHUMER. I appeal the ruling of the chair and ask for 

a vote. 

Chairman HATCH. Well, I reject the appeal. 

Senator SCHUMER. I ask for a vote. 

Chairman HATCH. Well, this is not a formal Committee markup. 

You can bring it up tomorrow in a vote, and I will be happy to have 

you appeal the ruling of the chair, and we will vote on it tomorrow. 

Senator SCHUMER. I thought that, Mr. Chairman, when the chair 

rules this way, you can appeal— 

Chairman HATCH. Tell me what rule you are talking about. 

Senator SCHUMER. —the ruling of a chair at a hearing, as well 

as at a markup. 

Chairman HATCH. Not that I know of. 

Senator SCHUMER. Well, could we ask counsel to rule on that? 

Parliamentarian? 

Chairman HATCH. We will check with the parliamentarian, but 

I will defer that ruling, in any event, as chairman, until tomorrow, 

and we will have the vote tomorrow, and if you win, I guess we will 

have to come back. But the fact of to matter is— 

Senator SCHUMER. So, in other words, if you want to ask questions, you can stay all night, but you can defer a vote of people who 

do not want to ask questions? 

Chairman HATCH. No, Senator Schumer. There is a reasonable 

time that is given for hearings. 

Senator SCHUMER. This is just not right. 

Chairman HATCH. I am prepared to sit here. I will give you more 

time right now. I will give you more time, within a reasonable 

time, after right now, but this is the time to ask your questions, 

and I would like you to do it. If you do not want to, that is your 

privilege. If you do not want to ask oral questions, then submit 

written questions, and we will have them answer them within reason. 

But these folks have been under the impression that this is their 

hearing, and it is, and it has been a long, lengthy one, and I expect 

it is going to still be fairly lengthy, but I will be happy to give you 

more time right now, Senator Schumer. I have no problem with 

that. 

Senator SCHUMER. Mr. Chairman, this is one of the reasons 

that— 

Chairman HATCH. And I have already given you 21 minutes. 

Senator SCHUMER. You have been generous each time I have 

been here, but let me say this— 

Chairman HATCH. Well, and I will continue to be. 

Senator SCHUMER. Let me say this. We do not even have rules 

in this Committee yet. We have not passed rules of how the Committee works. We are already rushing to do three Court of Appeals 

justices at once, and I just do not think it is the fair way to run 

this committee. 

Chairman HATCH. Well, I apologize to you because I do think it 

is a fair way, and I think it has to be done, and I do not think we 

can keep delaying these people and putting it off. They are making 

themselves available. I am giving you more time if you need it. 

114

Senator SCHUMER. Mr. Chairman, in all due respect, this is a 

lifetime appointment, a very important court— 

Chairman HATCH. Well, it does not have to be a lifetime hearing, 

I will tell you that. 

Senator SCHUMER. And if people, and if nominees are not willing 

to wait an extra day or two to be questioned openly and fairly, I 

wonder about that. 

Chairman HATCH. I am not willing to put them through that. We 

are here, let us have the hearing, and let us finish. 

Senator LEAHY. Mr. Chairman? 

Chairman HATCH. Yes, Senator Leahy? 

Senator LEAHY. Several of us have spoken prior to this hearing 

of concern of having three controversial Court of Appeals judges on 

the same day, rather than having day-by-day or however you might 

want to do it. 

You have spoken of Mr. Roberts being waiting for 11 years. Looking at Mr. Roberts, he must have been about 20 years old at the 

time he was first nominated, but you also recall that Mr. Roberts 

was with a number of people who were nominated within the socalled Strom Thurmond rule, which means that most nominations, 

after a certain period of time in a presidential election year, are not 

heard, unless it is an extraordinary circumstance. 

And you also recall, and I was here at the time, that there was 

no really great push by the White House or other Republican leadership to make an exception for Mr. Roberts, partly because they 

were convinced that President Bush was going to get reelected easily, and they would bring him up the following January. 

I see Mr. Roberts smiling. He probably heard some of that at the 

time. I am not putting you on the spot. But just so everybody understands that the Strom Thurmond rule, which has been followed 

in this for the nearly 30 years I have been here, is that the President, Republican or Democrat, except for extraordinary circumstances, and we have made some exceptions, does not get a 

nominee through after about July or so of a presidential election 

year. 

Senator Biden did put through a number for President Bush that 

year, but they were the ones that the White House really pushed 

very hard for. Professor Sutton, Mr. Roberts and Judge Cook were 

first nominated while you were Chairman of this Committee and 

were there for a couple months before the control of the Senate, 

and nobody brought them up at that time. 

So this is not a case, I mean, I just want to get all of the facts 

on the table, another day or so to be able to complete an adequate 

hearing and have an adequate hearing record for the Senate does 

not do the nominees bad nor does it hurt the Senate. 

Chairman HATCH. Well, I have been prepared to finish the hearing today. I am prepared to do it. I am prepared to give you more 

time, Senator Schumer, and I would be glad to do it out of order 

or any way you would like to have it, but we are going to finish 

the hearing tonight and go from there, and I think it is only fair 

to the nominees. I think it is fair to Senators. We have to adjust 

our schedules to be able to be here and participate. It certainly 

would be fair to the chairman, too, who has had a whole raft of 

115

things I have had to ignore all day long, some of them very, very 

important as well. 

Senator LEAHY. Even I have had important things. 

Chairman HATCH. And even the Ranking Member has had to do 

that. So I apologize. I would hate to have you feel badly about it, 

but that is the way it is going to be. 

Senator Feingold? 

Senator FEINGOLD. Thank you, Mr. Chairman. 

Obviously, I have been following this discussion, and I just have 

to add, before I start my round, that this highlights exactly the 

problem that we pointed out at the outset of the hearing. This is 

not, 1 day, long enough to question three controversial nominees, 

and obviously we should not forget that we have three District 

Court nominees on the agenda. 

Chairman HATCH. Senator, would you yield for just a second? 

I feel badly about this, but I have asked for a little bit of leeway 

by my colleagues because I think it is time that we bite the bullet 

and do what is right with regard to at least these three nominees. 

I have been listening to my colleagues all day. I do not think it has 

been an unfair thing. I have certainly made myself available. We 

have certainly allowed all of the questions. We are prepared to sit 

for longer, within a reasonable time, but I do think there has to 

be some consideration to the people who are nominated, too. 

It has now been 630 days since they were nominated, and in the 

case of Mr. Roberts, 11 years, and three times. Now, I think there 

comes a time when we have got to put partisan politics aside, and 

I have not seen a glove laid on these people all day long, for all 

of the desire to question them. And I have seen tremendous answers, and tremendous abilities displayed here, and there comes a 

time when we have got to say, hey, look, it is the end of the hearing. 

Senator FEINGOLD. Mr. Chairman— 

Chairman HATCH. I think today is the day, and I have made that 

clear from the beginning. I have asked for some help from the minority, I have asked for some leeway here, and I hope that you will 

give it. If you do not, we are going to end this today. 

Senator FEINGOLD. Mr. Chairman, I regret— 

Senator SESSIONS. Mr. Chairman, I would like— 

Senator FEINGOLD. Mr. Chairman, I believe I have the floor. 

Senator SESSIONS. Mr. Chairman, I would like to raise a question. I thought it might have been my time next. Senator Schumer 

had 20 minutes. I kept my time within my limit. Others, on the 

other side, have gone over. I think you have bent over backwards 

beyond belief to be fair, but if Senator Feingold is ready to go now, 

I will wait. But I just think that you have been as fair as can possibly be, and if you want to let the other side have their say right 

now, I am willing to yield. 

Chairman HATCH. Our side has been willing to defer so that the 

Democrats’ side can ask the questions that they want to. I want 

to be fair. Everybody knows that I am, and, frankly, that is why 

we have a hearing. Usually, these hearings go for about two hours, 

and we have been here since 9:30. It is now 5:30 almost. 

Go ahead, Senator. I am sorry to interrupt you. 

116

Senator FEINGOLD. Mr. Chairman, I regret the fact that these 

three nominees have to sit all day through this, but, you know, 

frankly, the problem is, and I have been on this Committee only 

for 8 years—that does not compare to you, Mr. Chairman—but I 

have never seen this done. I have never seen, and the idea that the 

hearings on Court of Appeals judges are only two hours? That is 

not the case. That is not what I have witnessed here. 

The serious hearings about very important appointments like 

this take much longer. They usually take all day, and frankly Mr. 

Sutton should have been the one for all day today, and I do not 

think people have been dilatory. These questions are reasonable— 

Chairman HATCH. If the Senator— 

Senator FEINGOLD. And I will just say one more time, you know, 

I do have tremendous respect for you. I think you are very— 

Chairman HATCH. I appreciate that. 

Senator FEINGOLD. —but this procedure today really does trouble 

me. 

Chairman HATCH. If the Senator would yield, I remember a 

time—and now I have been on this committee, this is my 27th 

year—I remember a time when Senator Biden had three on 1 day, 

and I do not remember any griping about it because we want to 

fill these benches. These are emergency positions. And, frankly, I 

am willing to be here, and I think it is incumbent upon our colleagues to be here and ask their questions, and like I say, my side 

is deferring so that you can. 

Senator FEINGOLD. Mr. Chairman, I— 

Chairman HATCH. Now, look, let me say one other thing. I really 

respect you. You have always been honest. You have always been 

straightforward. You are very intelligent. You are a great lawyer, 

and I respect your feelings, but respect mine, too. I am just trying 

to do my job— 

Senator FEINGOLD. I do, and I hope— 

Chairman HATCH. —as a chairman. I am trying to fill these 

courts, and I have not seen anything wrong here today. These three 

nominees have been excellent. But in any event, you have to make 

up your own mind, but there has to be a time when you bring these 

things to a conclusion. Today is the day we bring this hearing to 

conclusion, and everybody knew that before we started. 

And if people just want to ask questions of Mr. Sutton, although 

we have had questions of all three, then that is your privilege, but 

my gosh, I am providing means whereby you can ask questions of 

others. Please start his clock over because I have used his time. 

Senator LEAHY. Mr. Chairman, could I make a suggestion before 

you start the clock? 

Chairman HATCH. Yes. 

Senator LEAHY. Usually, you and I have been able to find a rational way out of such impasses. Could I suggest that we, and with 

the members who are here, could we recess for about 5 minutes 

and we talk privately? You lose nothing by that, nor do we. 

Chairman HATCH. No, that is fine. 

Senator LEAHY. It has been a long day. It is going to be a long 

evening. Why do we not just talk privately out of the hearing of 

the room. I mean, you are the chairman, it is whatever you want, 

117

but I would suggest we do that. You and I have almost always been 

able to work things out. 

Chairman HATCH. I think that is reasonable request. We will recess for 5 minutes, and then we will resume, but we are going to 

finish this today. 

[Recess from 5:10 p.m. to 5:27 p.m.] 

Chairman HATCH. We will turn to Senator Feingold. 

Senator FEINGOLD. Mr. Chairman, again, I very much enjoy 

working with you— 

Chairman HATCH. And vice versa. 

Senator FEINGOLD. —but the record does need to reflect my concern, and the concern of many members, that this process today 

really was not a fair process, although you are generally very fair 

in your leadership of this committee. 

I just want the record to reflect that many of us believe that 

these nominees are controversial, and to be sure that there is not 

a precedent for the future, based on the claim that Senator Biden 

had done this in the past, the fact is when Senator Biden had there 

Court of Appeals nominees at the same hearing, they were as a 

courtesy to the previous Bush administration, and they were noncontroversial. So let the record reflect that this should not be a 

precedent for future attempts to have three significant, controversial Court of Appeals nominations— 

Chairman HATCH. Would the Senator yield? 

Senator FEINGOLD. —put forward at the same time. I think it is 

a very bad process and precedent for this committee. 

Chairman HATCH. Would the Senator yield on that point? I agree 

that it is extraordinary to have three Circuit Court nominees. It 

has been done before. Senator Biden did it, and I think it is not 

a precedent and we—we should avoid. But it has caused a great 

deal of concern among my colleagues, and I will certainly try to be 

more considerate in the future, but I would like to finish this tonight if we can, and I believe we can. In fact, we are going to. 

I appreciate my fair colleague. You have always been fair. You 

have always been decent to me, and I think you are being decent 

again. We, respectfully, disagree on this, but I will try to take your 

feelings very deeply into consideration in the future. 

Senator FEINGOLD. Thank you, Mr. Chairman. 

I will go to Mr. Sutton again. 

In response to my earlier question about the Swank case, you 

told me that you had not really made a direct argument that the 

migratory bird rule violated the Constitution— 

Mr. SUTTON. No, I don’t think I did. I said we made a constitutional avoidance argument and then raised the constitutional 

issues that would be implicated if the court couldn’t deal with this 

on statutory construction grounds. 

Senator FEINGOLD. Right. You said you had only made an argument you called constitutional avoidance, and we have actually 

looked up the amicus brief here filed on behalf of the State of Alabama. The entire second half of the brief, six pages out of a total 

of ten pages of argument, is an argument with the following heading: ‘‘The Regulation Exceeds Congress’s Commerce Clause Powers.’’ In other words, you made a constitutional argument, not simVerDate 0ct 09 2002 10:57 Oct 08, 2003 Jkt 089324 PO 00000 Frm 00125 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\89324.TXT SJUD4 PsN: CMORC
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ply a statutory interpretation argument based on the doctrine of 

constitutional avoidance; is that correct? 

Mr. SUTTON. It is correct, Senator, but maybe my earlier testimony was misapprehended or maybe I misspoke. I am sure the 

odds are better that I misspoke. 

One can’t make a constitutional avoidance argument without 

making a constitutional argument. I mean, in other words, if one 

said to a court that you want to construe a statute in this way to 

avoid a constitutional issue, I can’t imagine a lawyer not then arguing the constitutional issue— 

Senator FEINGOLD. I do not think that is the point that I am trying to raise. I appreciate that. 

I do understand that yours was the only amicus brief that took 

this position, so I want to get directly to the constitutional issue. 

I wanted to give you an opportunity to supplement your answer to 

my earlier question, and so let me add the following direct question 

before you respond. 

Do you personally believe the assertion in the State of Alabama’s 

amicus brief that the migratory bird rule exceeds Congress’s Commerce Clause power? Do you personally believe it does? 

Mr. SUTTON. I have no idea. I, obviously, was not involved in the 

underlying litigation that generated the Swank case that ultimately went to the U.S. Supreme Court. I wasn’t involved in it in 

the lower courts, and I simply had a client who was interested in 

making that argument, and I helped them make that argument. 

I was never—I can’t imagine working for a client and assuming 

my job was to tell them, first, what the right answer was and then 

acting as their lawyer. The way I saw my job, and still see my job 

as a lawyer, is if a client asks me to do something, find all reasonable arguments that can be made to support their position. I have 

done that, you should know this is not the only environmental case. 

I have helped environmental cases on the other side of the issue. 

There’s a case that came out of Ohio, the Sierra Club case, which 

dealt with logging in the timberlands, and while I didn’t argue the 

case for the lawyer—I wasn’t even a lawyer in the case—I did help 

the lawyer who argued on behalf of the Sierra Club in that case 

in getting ready for the U.S. Supreme Court and participated in 

the moot court with him. 

So this is another situation where I have been on both sides of 

these issues as a lawyer. It wasn’t a question of personal views. I 

didn’t decide, in the Sierra Club case, this is something I’m going 

to do because I have personal views. This is something I’m going 

to do to help someone arguing a case, and likewise with the Swank

case. 

Senator FEINGOLD. Let me move on to a different area then. 

You filed an amicus brief on behalf of Los Angeles County and 

the California State Association of Counties in the Buckhannon 

Board and Care Home, Inc. v. West Virginia Department of Health 

and Human Resources. Do you recall that case? 

Mr. SUTTON. I do. 

Senator FEINGOLD. As you will recall, the Buckhannon facility 

sued the State, alleging a violation of the Fair Housing Amendments Act and the Americans with Disabilities Act after being 

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forced to close for not meeting a self-preservation requirement of 

its residents as defined in State law. 

In response to the suit, but before the court ruled, the State legislature eliminated the self-preservation requirement. That gave 

Buckhannon all of the relief it sought. 

The District Court dismissed the case as moot, but then ruled 

that Buckhannon could not be considered a prevailing party in the 

case, and therefore could not recover its attorney’s fees. 

The Fourth Circuit, contrary to the rulings of every other circuit 

that had addressed the issue, affirmed. 

The Supreme Court ruled 5 to 4 that ‘‘under the various attorneys’ fees statutes plaintiffs may recover attorneys’ fees from defendants only if they have been awarded relief by a court, not if 

they prevailed through a voluntary change in the defendant’s behavior or a private settlement.’’ 

So this is a narrow interpretation of a definition of prevailing 

party, which I think has potentially disastrous implications for people whose civil rights have been violated, but who cannot afford to 

hire a lawyer. 

In calculating whether to take a case, an attorney for a plaintiff 

will have to consider not only the chances of losing, but the chances 

of winning too easily. Even if a plaintiff secures a complete victory 

by getting a defendant to admit to wrongdoing or prompting a 

change in a statute, the attorney who labored for years to bring 

about such a victory would not be paid at all. 

In the amicus you filed in Buckhannon, you argued, in your 

words, that ‘‘‘as a matter of mundane litigation realities,’ a narrow 

definition of prevailing party would prevent parties from commencing ‘time-consuming’ satellite litigation over fee awards.’’ 

I want you to know that I agree that litigation over fees is something to be minimized, but I would argue that a much more important interest to be furthered is the ability of aggrieved parties to 

find attorneys who will take their cases. 

The court’s interpretation of prevailing party potentially prevents 

people from seeking protection guaranteed to them under existing 

civil rights laws, and the mundane litigation realities might actually point in the other direction. 

The decision could, in fact, force attorneys to drag out lawsuits, 

to keep going to make sure that they get a judicial order, rather 

than accepting a nonjudicial settlement that give their clients everything they seek. 

So let me ask you do you believe that a person who has a legitimate claim of civil rights violation should be able to seek redress 

in court? 

Mr. SUTTON. Of course. 

Senator FEINGOLD. Do you believe that people with civil rights 

claims should have the ability to secure adequate counsel to pursue 

those claims? 

Mr. SUTTON. Of course. 

Senator FEINGOLD. Is that not why Congress enacted statutes 

giving successful plaintiffs the rights to collect attorneys’ fees? 

Mr. SUTTON. I think that is, I think it is 42 U.S.C. Section 1988, 

and I think that is the purpose of it. I agree with you. 

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Senator FEINGOLD. Then, how will a person with a legitimate 

claim be able to get adequate counsel in a case that could take 

months or even years to resolve, when defendants can avoid the 

possibility of paying attorneys’ fees by simply offering the plaintiff 

everything they want before trial? 

In other words, explain to me how the Buckhannon decision, 

which you argued for in your amicus brief, can be squared with a 

desire to encourage the enforcement of the civil rights laws and 

other statutes in which Congress has made a judgment that attorneys’ fees should be available? 

Mr. SUTTON. Yes. Well, first of all, I think this is an important 

issue, and I would like to think the brief I wrote on behalf of a client, Los Angeles County is a longstanding Jones Day client. They 

obviously get sued a lot, so that’s why we wrote the brief on their 

behalf. 

And, you know, as a board member of the Equal Justice Foundation, whose, you know, 90 percent of their revenue comes from attorneys’ fees, I can tell you that I am sensitive to this issue and 

hope that—I think the legislation you have proposed to correct the 

Buckhannon decision is correct—is successful because it will certainly help EJF when it comes to raising funds. 

The issue in that case was a statutory one of whether the term 

‘‘prevailing,’’ and prevailing was the key word, and the difficulty 

which led the Fourth Circuit to rule one way and the other Courts 

of Appeal to rule the other way, was whether someone had prevailed when, in fact, there wasn’t a court judgment indicating this, 

but simply a change in conduct. 

I fully appreciate your point, which is, my lord, if that’s the rule, 

then a litigant, a recalcitrant State or city, engaging in civil rights 

violations, can simply stop their conduct, after litigating for many 

years, change their rule, and now have the case dismissed, but not 

owe any attorneys’ fee awards. Precisely because I appreciated the 

very point you raised, at the end of the brief that we offer for Los 

Angeles County, we dealt with this issue, and the way— 

Senator FEINGOLD. Well, then why in your Buckhannon brief you 

asserted that ‘‘precedent confirms’’ your interpretation of the attorneys’ fees statute, yet you failed to bring to the attention of the 

court the decisions of nine Court of Appeals that contradicted your 

position? 

Mr. SUTTON. Well— 

Senator FEINGOLD. Did you not have an obligation to make the 

court aware of these decisions, especially in light of the fact that 

you have indicated that you believe that the law should allow a litigant to be able to settle a case at an appropriate time and still get 

attorneys’ fees? 

Mr. SUTTON. It’s very rare in U.S. Supreme Court briefs that I 

have relied on Court of Appeals’ decisions, in general, so I would 

say that’s just typical of me and cuts across cases and issues. 

But the point I wanted to address, which you have raised, and 

I think it’s a critical one, is what about the recalcitrant city or 

State that suddenly stops their conduct? Are they now scott free 

from liability, attorney fee liability, and I think your concern is a 

valid one. 

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And we indicated in the brief, we raised this very point—I think 

it is in the last couple pages of the brief—and said that’s not necessarily true. We made the point, a concession for a county which 

is sued all of the time, that if there’s a case—gosh, it’s a Justice 

Ginsburg decision, it may be Laidlaw. We cite in the back of our 

brief. I think it’s—that makes the point that just because a litigant, 

a city or State, stops their conduct, that doesn’t necessarily moot 

the case because of the possibility they may do it again or, as 

you’re suggesting, the possibility they’re just trying to hide from attorney fees. 

So I’d like to think—I obviously had a client’s perspective to represent. I did my best to represent it, but I felt like we were actually 

trying to address that very important consideration in the brief, 

and I do think it was within the mainstream to argue the point, 

on behalf of them as a client, and as you well know, this ambiguity 

can quickly be clarified by legislation. 

Senator FEINGOLD. I thank you, Mr. Sutton. I thank you, Mr. 

Chairman. 

Chairman HATCH. Are you through? Do you need more time, 

Senator Feingold? 

Senator FEINGOLD. No. 

Chairman HATCH. Thank you. 

Senator Leahy? 

Senator LEAHY. Professor Sutton, I would suggest, I would urge 

you to go back and reread Judge Noonan’s book. I have no question 

that with your mental ability, you probably can recite most of it 

verbatim, but I think that, again, I cannot tell you how much many 

of us are concerned that we have a very activist Supreme Court 

that has determined that the Congress is basically irrelevant, and 

our feelings are basically irrelevant. 

And you are going to have a number of cases that are going to 

come to you on the first impression if you are confirmed to this position. Well, obviously, I cannot tell you how one would rule, but 

I would like you to at least consider that. 

Mr. SUTTON. Can I respond to that? 

Senator LEAHY. Oh, of course. 

Mr. SUTTON. I can assure you, over the last 2 years, I have 

thought a lot about the very perspective all of you have. This is obviously not a Democratic–Republican issue, this is an institutional 

issue. And, you know, when one is criticized, as I have been, for 

advocating those cases, I really have thought about the other perspective, and I do think there are very reasoned criticisms of those 

decisions, but I do think they’re difficult decisions. They always are 

when the court is asked to referee boundary disputes between 

branches of Government. 

So I can assure you that if I were fortunate enough to be confirmed, I really would consider the perspective this body has when 

it comes to passing laws in the first instance, when it comes to 

gathering evidence, establishing whether there is a policy issue to 

be addressed or when it comes to determining whether there are 

underlying constitutional issues that need to be remedied. 

Senator LEAHY. Thank you, Mr. Chairman. At this time I have 

other questions, but Senator Durbin has been in and out of the InVerDate 0ct 09 2002 10:57 Oct 08, 2003 Jkt 089324 PO 00000 Frm 00129 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\89324.TXT SJUD4 PsN: CMORC
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telligence Committee and I would rather—I am going to be here, 

anyway, and I am just wondering if Senator Durbin— 

Chairman HATCH. We will be happy to turn to Senator Durbin. 

Go ahead. 

Senator DURBIN. No. 

Senator LEAHY. Then I guess I will go. 

Justice Cook, let me talk to you—I don’t want you to feel that 

you have been neglected here and that Professor Sutton has been 

hogging all the time, but— 

Justice COOK. I was feeling that. 

Senator LEAHY. What? 

Justice COOK. Oh, yes, I was feeling that. 

Senator LEAHY. Yes, I know you would much rather we were asking you the questions, but I understand you are the most frequent 

dissenter on the Supreme Court of Ohio. You had well over 300 dissents in your 8 years on the court. I am told you once joked that 

the female Justices on your court had three names; Alice Robey 

Resnick, Evelyn Lundberg Stratton, and Deborah Cook Dissenting. 

Should I have a concern about your judicial temperament and inability to reach consensus if you have that many dissents? And I 

ask the question not in a frivolous fashion, because the Sixth Circuit is a fairly polarized court and, if anything, we would like to 

see the Sixth Circuit help the people within its circuit to reach 

more consensus opinions and not polarized. Should I be worrying 

about your judicial temperament? 

Justice COOK. I should think not, Senator. Dissenting is really—

as I said before in answer to some other question, it really is a 

learning process. Many times I am somehow designated to write 

the dissent for other members of the court and, therefore, my numbers look rather high. But dissents are offered as a—for the benefit 

of the other side who offered the first opinion. It’s a method to 

reach consensus sometimes, and in our court it’s actually a matter 

of logistics. The members of the court live in various parts of the 

State, so consensus is the first objective and, unfortunately, it’s not 

always reached. But certainly that’s the first goal. But I don’t really think you can take anything from the fact that I write dissents 

other than I am attempting to do a precise reading of the law. 

Senator LEAHY. Well, you may think that a Democratic Senator 

would take comfort in the fact that often you have dissented. The 

Republican majority in your own court, though, has been quite critical of your view of the law. In Bunger v. Lawson, the majority 

called your interpretation of the law ‘‘nonsensical.’’ They said that 

it leads to untenable positions, unfair to employees. They said your 

opinion would be ‘‘an absurd interpretation that seems borrowed 

from the pages of Catch–22.’’ In Russell v. Industrial Commission 

of Ohio, they stated your dissent lacked statutory support for its 

position, that you were unable to cite even the slightest dictum 

from any case to support your view, that your argument, which has 

not been raised by the commission, the bureau, or the claimant’s 

employer in any of their supporting amici is entirely without merit. 

In Ohio Academy v. Sheward, the majority held that a tort reform 

law was unconstitutional because it severely limited an injured 

party’s ability to recover from wrongdoers, no matter the type of injury. And then they responded to a dissent you joined, stating that, 

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‘‘The dissenting judges mischaracterized our findings, misconstrued 

prior decisions of this court, selectively extrapolated portions of the 

legislation at issue, while ignoring its overall tenor and content, 

disassociated themselves from a decision in which one of them concurred, suggested we had created a new theory of standing, minimizing the magnitude and scope of the legislation and the importance of separation of powers, accused of us language unbecoming 

a judicial opinion, and questioned our faith in our courts of record, 

all in an obvious effort to distort our opinion into a form susceptible to competent criticism and protect this legislation from any 

timely, meaningful, and inclusive judicial review.’’ 

Now, I don’t know about Ohio, but in Vermont, that would go beyond understated New England criticism. That is pretty strong 

criticism. And I read this because I worry, one, as I said, a polarized Sixth Circuit, whether you would be not one to help bring people together but one to further polarize it; that you overwhelmingly 

favor employers in complaints brought by workers—in fact, I 

haven’t found a case where you dissented in favor of an injured employee in a claim brought against his or her employer. 

So I raise this, Justice Cook. These are all things you have 

heard. I mean, you have read the opinions. Please help us here. 

Why such strong words by the majority, many of them Republicans, for your dissents? 

Justice COOK. The court is nominally 5–2 Republican, but as you 

will note from some of the newspaper stories, there are a number 

of Republicans on the court who are labeled—as everyone is labeled, they are labeled as liberal, and I am so-called conservative. 

So I am not sure we can draw too much from a conservative— 

Senator LEAHY. Is this a liberal vendetta against you? 

Justice COOK. No, not at all. I think it was—you know, I’m sorry 

for the tone. It does appear to be a tone a little beyond what we 

expect. But it was a reasonable difference. In Sheward, in fact, 

that’s the case where you find that language. I’m not—I think it 

might be stirred somewhat by the fact that this case was very unusual. In fact, it was exceedingly unprecedented and really an untenable procedural posture by which the case came to us. It wasn’t 

an individual bringing a case to right a wrong or to achieve a remedy. In fact, it was an organization, the Ohio Academy of Trial 

Lawyers, so that’s where the standing issue came in. That’s not 

typically what we see. And beyond that, the case was brought as 

an effort to get a writ, to ask the court to issue a writ to tell the 

judges in the State to not enforce this newly enacted legislation on 

tort reform. And my dissent, frankly, was only on the issues of 

standing and the procedural posture that simply wasn’t tenable. 

And, nevertheless, the court did issue writs, a writ, even though 

the standard for issuing a writ couldn’t possibly have been met in 

this case. So I’m— 

Senator LEAHY. But they were— 

Justice COOK. I can’t really defend the language in the majority. 

Senator LEAHY. But they were pretty strong in more than one 

case. I mean, they were pretty strong in their criticism of your dissent, and when you have had well over 300 dissents in 8 years, you 

know, I assume that you can pick and choose where they are critical. But in the areas that I have read, the criticism seems to go 

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way beyond the collegiality one normally sees in a court. And the 

numbers of your dissent, of course, go way beyond anybody else in 

the court. 

It is one thing to joke that your name is Deborah Cook Dissenting, but, again, in a polarized Sixth Circuit it creates a problem to me. I am concerned that as an appellate judge you have repeatedly voted to overturn a jury’s determination that the employees before them were victims of discrimination. 

Now, I have tried an awful lot of jury cases. I know all the effort 

that goes into getting a jury verdict, and I know the courts are very 

reluctant to overturn a jury verdict. They have only got a cold 

record. They haven’t seen the witnesses. They haven’t heard them. 

But I think your dissent in Glenner v. St. Cobain, that is troubling. 

Four women sued their employer for gender discrimination. They 

received a jury verdict. It was overturned by the appellate court. 

And then a majority of Supreme Court of Ohio ruled that the appellate court erred in overturning the jury verdict. None of the 

proper legal standards—they could not uphold the appellate court’s 

unless reasonable minds could come to only one conclusion, the employer was not liable. 

Justice COOK. I think that’s the case—if I may, Senator. 

Senator LEAHY. Sure. 

Justice COOK. I believe that’s the case where the Court of Appeals initially ruled that the verdict should be overturned on insufficiency and, in fact, wrote a 97-page, very detailed opinion. And 

when the case reached our court, it actually was a very short decision that said there was some evidence. And it seemed to me in 

my—and I voiced this in my dissent—that the court had really not 

applied any analytical rigor nor applied the standards set forth in 

Civil Rule 50 for a directed verdict. And that was the basis for that 

dissent. 

And I don’t—I think collegiality is very important on the court. 

I have had a very good reputation for improving the collegiality at 

the Court of Appeals where I formerly served. 

Senator LEAHY. But collegiality aside, Justice Cook, it seems that 

time and time again if somebody has sued an employer and have 

gotten a jury verdict, you seem very comfortable in overturning 

that jury verdict. 

Now, I have seen runaway juries where the appellate court 

should overturn it, but it is rare. It is extraordinarily rare. You 

seem to find them a lot. But I think in most States that is pretty 

rare that a jury that was the finder of fact gets overturned. 

Justice COOK. I don’t know—if we went through all the cases, I 

don’t know that we’d find that it is done a lot. I know a case that’s 

been cited is the Burns case. But that was a majority opinion that 

overturned that verdict in an employment case. 

Senator LEAHY. The Reeves case, the Burns case, the St. Cobain

case. 

Justice COOK. I can tell you, Senator, I’ve been on the receiving 

end of that, and I know it’s no fun. I actually made some law in 

Ohio on discrimination representing a woman in an age discrimination case, Jean Barker, and it is the Jean Barker case that is cited 

as authority in the Burns decision. I, as I say, didn’t write that decision, but Jean Barker had—we had a verdict at the trial level, 

125

and it was overturned by the Supreme Court. So it’s precedent that 

pops up in some of these cases. 

So I certainly don’t take it lightly, and verdicts are not to be 

overturned unless there is—in some of these cases, it’s insufficiency 

of the evidence. We all know the standards where a verdict can be 

overturned, and it’s not done without the right facts or the absence 

of facts that warrant reversing a decision. But in a lot of these 

cases, I think you’ll find that if I were the dissenter, I wasn’t writing just for myself, and, moreover, quite often you’ll find that it’s 

the Court of Appeals, a unanimous Court of Appeals that felt likewise. So I’m not sure I can easily be said to have missed the boat 

inasmuch as sometimes at least three other judges and perhaps as 

many as five agreed—six agreed. 

Senator LEAHY. Justice Cook, my time is up, and we will come 

back, but I did not want you to feel neglected and feel that— 

Justice COOK. I appreciate that. 

Senator LEAHY. —Professor Sutton was hogging all the questions. 

Chairman HATCH. How considerate of you, Senator. 

Senator LEAHY. I try. 

Chairman HATCH. Senator De Wine for just a few minutes. 

Senator DEWINE. Justice Cook, Senator Leahy has indicated that 

you seem to always rule in favor of the employer. I have got at 

least 23 cases here where you have ruled in favor of the employee 

in employment cases: Ahern v. Technical Construction, Browder v. 

Morris Construction, Boyd v. Chippewa Local School District, 

Connolly v. Brown, Douglas v. Administration—I will go on and on. 

I would submit these for the record, Mr. Chairman. 

Chairman HATCH. Without objection, we will put those in the 

record. 

Senator DEWINE. Justice Cook, I want to discuss with you for a 

moment Senator Leahy’s comments about you being labeled ‘‘a dissenter,’’ and you certainly have dissented in a number of cases. But 

let’s first start with the cases that—the five cases that were appealed from the Ohio Supreme Court to the United States Supreme 

Court. One of the cases was simply a unanimous Ohio Supreme 

Court decision which was, in fact, affirmed by the U.S. Supreme 

Court. But in the other four cases, you disagreed with the majority 

of your colleagues. You dissented. You dissented. Your colleagues 

were on the other side. 

In each one of those cases, the United States Supreme Court said 

you, Justice Cook, were right and your colleagues were wrong. Is 

that correct? 

Justice COOK. Yes, it is. 

Senator DEWINE. So being a dissenter in that case may not have 

been right, but at least it is what the United States Supreme Court 

thought was right. 

Justice COOK. That’s right. That was good enough for me. 

Senator DEWINE. So being a dissenter is not always the worst 

thing in the world. 

In the State of Ohio, Mr. Chairman and members of the committee, we do have, right or wrong—right or wrong, we do have 

what at least the Ohio newspapers—and as I said earlier this 

morning, and it seems like it has been a long, long time ago—I 

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guess it was a long time ago—what the Ohio newspapers have labeled to be a very activist Ohio Supreme Court. And whether you 

think that is a good idea or not a good idea is not what we are debating today. But the Ohio newspapers, which run the gamut of 

the political spectrum—and I can say this as someone who has run 

for political office in Ohio for a long, long time. We have everything 

from the liberal to the conservative in the State of Ohio as far as 

the newspapers. But each newspaper, major newspaper in the 

State of Ohio has labeled the Ohio Supreme Court as being a very, 

very activist Supreme Court. 

I will not take the time of the Committee at this point to read 

the different editorials that make this point, but I am going to 

hand out to the different members of the Committee and also ask 

the Chairman to make a part of the record this document. 

Chairman HATCH. Without objection. 

Senator DEWINE. Which basically talks—these are different 

quotes from different editorials—which talks about how active the 

Supreme Court is. 

And I would tell the members of the Committee that it is on a 

bipartisan basis that it is active. This activist—very sweeping activist opinions. And I am just going to read a couple of the—take 

just a moment to read a couple of the comments from the newspapers. 

This is from the Toledo Blade. ‘‘The Ohio Supreme Court simply 

is not well regarded around the country, and it’s the meddling tendencies of this four-judge super-legislature that deserves most of 

the blame. The people of Ohio elect a legislature and a Governor 

to make laws and govern, but their intent has been thwarted by 

this activist court.’’ 

Senator BIDEN. Excuse me, Senator. I didn’t hear what he is 

quoting from. 

Senator DEWINE. This is a Toledo Blade editorial. 

Senator BIDEN. Okay. Thank you. 

Senator DEWINE. The point is that I think you will find, again, 

whatever way you come down on these issues, that disputes on the 

court and the disagreement that Senator Leahy was quoting from 

in these cases pretty much comes down to where Justice Cook was 

dissenting based on her strict interpretation of the law versus the 

court’s more activist interpretation of the law. 

I will reserve the balance of my time, Mr. Chairman. 

Chairman HATCH. Thank you. 

Senator Biden has not had his first round, so if it is all right 

with everybody, we will turn to him. 

Senator BIDEN. Thank you, Mr. Chairman. I apologize to the 

Committee and the witnesses. This has been a pretty busy day, 

and I have been spending my whole day dealing with issues relating to Iraq. And I have a lot of questions. I hope we are going to 

have a chance to have this panel over because I for one have—not 

a lot. I have about a half-hour’s, an hour’s worth of questions that 

I am, because of the schedule today, not able to do and— 

Chairman HATCH. We are happy to give you the time now, Senator Biden. You are a former chairman. 

Senator BIDEN. Well, let me—I won’t take that time now because 

in large part I can’t. I have another commitment relating to the 

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Foreign Relations Committee I have to do at 6:18. But let me start 

off by just asking one or two questions in a few minutes here. 

Professor Sutton, I am a little concerned with the nature and the 

way in which the Supreme Court necessarily has cut back significantly the number of cases it reviews to about 80 cases a year, and 

that most of the significant cases, whether we are talking about the 

decisions relating to Roe v. Wade or any other case, there is enough 

ambiguity and significantly less review that the Circuit Court of 

Appeals in every circuit has a significant impact beyond what they 

had 20 years ago in making law. 

And so I have a number of questions for you, Professor, relating 

to your notion of the role of the court and your assertion, I am 

told—and correct me if I am wrong—that you have indicated, and 

I quote, that ‘‘federalism is a zero-sum situation in which either the 

State or the Federal lawmaking prerogative must fall.’’ 

That is a constitutional view that I have an overwhelming disagreement with, and I suffer from the fact that I spent a lot of time 

teaching this separation of powers doctrine, and I think it is not 

inconsistent with where the majority of the Supreme Court has 

gone, but I think it is fundamentally flawed constitutional methodology. 

That is not to say that it is not intellectually defensible. It is to 

say that I have fundamental disagreement with it. And I want to 

be straight up with you. I know this is not for the Supreme Court, 

but based on what I have read, assuming it is consistent with what 

you would respond to, if you were a nominee for the Supreme 

Court I would not—even though you are intellectually and morally 

and in every way capable of sitting on the Court, I would do all 

in my power to keep you off the Court because it appears as though 

we have such a fundamentally divergent view of the Tenth Amendment, the 11th Amendment, and the role of federalism that I just 

want to be up front with you about that. 

And so for me, I will not get an opportunity to go into any great 

detail tonight, obviously, but I have some questions I would like 

you to respond to. 

Let me begin by suggesting that—and I do not ask this out of 

parochial interest, although I have great pride in being the person 

who drafted the Violence Against Women Act. But I would like to 

understand your reasoning beyond the fact that you were an advocate here, if there is a reason beyond your advocacy representing 

a client. 

You filed a brief in the Supreme Court on behalf of the State of 

Alabama arguing against the constitutionality of the Federal civil 

remedy of victim sexual assault and violence. Now, this is not a 

question of whether or not you are confirmed or not confirmed by 

the court, whether your view prevailed or not. It is a question of 

my trying to figure out how you approach these issues. 

Among other things, your brief in Morrison stated that genderbased violence does not substantially affect interstate commerce. 

Now, prior to the Violence Against Women Act, I literally held nine 

hearings and received testimony from over 100 witnesses, at the 

end of which, that long and thorough exploration, the Congress 

concluded—not just me—that gender-based violent crimes in fear of 

these—I must leave in one minute? Wonderful. I am going to have 

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to submit this question to you in writing, but the bottom line is, 

what I am trying to get a sense of is how you approach what you 

consider to be the prerogatives of the Congress, Section 5 of the 

14th Amendment, the significant change in the way in which this 

Court, which I think is a bright Court but is the most activist court 

in the history of the United States of America, no court has overruled as many national pieces of legislation, including the New 

Deal era, as this Court has. And I want you to know that, to be 

blunt with you, I come from sort of the Souter school of—in his dissents in the Florida Pre–Paid cases and their progeny, where 

Souter said, ‘‘The fact of such a substantial effect is not the issue 

for the courts in the first instance, but for the Congress whose institutional capacity for gathering evidence and taking testimony far 

exceeds ours.’’ 

Going on, Souter says, ‘‘I’m left wondering. Where does the 

Court’s decision leave Congress’ former plenary power to remove 

serious obstructions to interstate commerce by whatever source? It 

is reminiscent of the Lochner era when they said, By the way, you 

have those labor standards having to do with mining. Mining is not 

interstate commerce. Then they came along and said production is 

not interstate commerce. Then they said manufacturing is not 

interstate commerce. Until midway in the New Deal, with the end 

of the Lochner era, they said, Whoa, whoa, whoa, wait a minute, 

wait a minute.’’ 

What I am really trying to get at—and I will submit these questions in writing—is: At what point does the Court decide to become 

the Federal traffic cop? At what point does the Court’s authority 

to intervene in what I believe constitutionally has been left to the 

Congress under the Constitution to make judgments about? And 

you seem to have an incredibly restrictive view of the Congress’ 

prerogatives. This is not Lopez where the Court did not have sufficient findings—where the Court did not find sufficient findings. 

Even this Court said there is no question that there was an extensive record. But we—as they did in Alton Railroad years earlier, 

said, ‘‘But we don’t think that’s sufficient.’’ And I wondered who 

the hell the Court is to make that judgment that we don’t think 

the remedy you chose is effective. 

That is a very rapid attempt to summarize my concern so that 

you have a context in which to understand the questions, why I am 

asking the questions straightforwardly. 

Mr. SUTTON. No, I appreciate that. I appreciate your being 

straightforward. There is no doubt the criticism you just levied 

against the Morrison decision is the strongest criticism, and it was 

clearly the most difficult part of the case for the Court and exactly 

where the 5–4 line was. And that line was how much deference to 

give to these findings. And, you know, you were kind enough to 

mention—I was involved in that case on behalf of a client. I was 

working as an advocate, and I was doing my best by them. And, 

you know, what I would have done in that case, God only knows. 

The one thing I would say, though, about your concern about 

Court of Appeals judges, I agree with you. I wish the U.S. Supreme 

Court would take more cases. It’s made my U.S. Supreme Court 

practice very difficult to sustain. They take so few cases. But I’m 

not aware of too many—in fact, none—Court of Appeals decisions 

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that struck a Federal law—in other words, your handwork—that 

weren’t eventually, and usually quite promptly, reviewed by the 

U.S. Supreme Court. 

Senator BIDEN. I think that is true. Most have been. But there 

are cases—and I am compiling this. I think we will be able to show 

there are roughly—there are over 200 cases the Circuit Court of 

Appeals has found enough leeway in the existing law where they 

have changed basic law without any review by the Supreme Court 

because the Supreme Court never took the cases. 

I have had my staff in the process of preparing that for some 

time now, which is, quite frankly, unrelated to you or any one of 

you, beginning to make me review my standard for review of nominees. I have a very different standard for 30 years reviewing Supreme Court nominees because they are not bound by stare decisis 

than I do reviewing district and circuit court judges. But I am moving to the view that there should be, in effect, to steal a phrase 

from the Court, ‘‘an intermediate standard’’ for Circuit Court of Appeal judges because they have become so much more significant in 

being the final arbiters—they are not legally. The Court, the Supreme Court is. But because of the review process, they have become the final arbiters in areas where I used to be able to say I 

know the Court will review this, if you are bound by stare decisis, 

you will—and I trust your judicial temperament that you mean 

that, then, in fact, I will take a chance on you even though I fundamentally disagree with your constitutional methodology because 

you will abide by the decisions. But there are enough discrepancies 

or differences or holes in the reasoning—I mean, look at all the 

cases that have flown—and this is not my major concern. But look 

at all the cases that have been the progeny of Roe v. Wade. They 

are very, very, very complicated, whether it is Casey or whether it 

is the issue of parental notification—all these issues. 

And in the past, I never doubted that the Court would review 

those, but now what is happening is the Court is in the position 

where it does not review a significant portion of the Circuit Court 

of Appeals decisions that change State law or uphold State law 

that are never reviewed. And that is the only generic point I wish 

to make with you. 

One of the questions is going to be: You as an advocate—I assume it is your answer, but I would appreciate an honest answer 

if it is not. You argued in your brief that even the Congress did 

not show that sexual violence, violence against women, had no impact on interstate commerce. Whether or not we get into the question of what constitutes commerce, that it had no impact by the old 

standard of what constituted commerce, as I read your brief. 

Mr. SUTTON. Well, maybe I am not understanding the question, 

but the point I think we were trying to make was in all of the Commerce Clause cases, high-watermark cases, Wickard v. Filburn, 

Jones v. Laughlin, Lopez even, there has been a consensus that the 

Court does have a role in determining whether something does impact— 

Senator BIDEN. Is interstate commerce. 

Mr. SUTTON. —interstate commerce. And I thought that was—it 

was meant to be the main theme of the brief, that the Court did 

have a role here, whether it decides to uphold Bower or not. 

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Senator BIDEN. But did not you argue that it does have a role 

in making a judgment whether it impacts, but in order for you to 

reach the conclusion that it did not impact interstate commerce, 

you had to fundamentally disregard the 100 hours of hearings that 

the Congress held and concluded that it did. Correct? 

Mr. SUTTON. I can certainly understand someone taking that 

view, but I would say it is correct that it might— 

Senator BIDEN. Is there any other view to take? 

Mr. SUTTON. My client, the client is the one that took that position, and I did everything I could to advocate that position. And I 

do understand— 

Senator BIDEN. Do you believe that? Do you believe that? I am 

not suggesting it was inappropriate for you to—for example, if you 

were teaching it, would you teach that the Congress—the facts presented in the case in the Congressional Record did not warrant the 

Court’s concurrence because, as my good friend Justice Scalia says, 

everybody knows they never read this stuff and they never write 

this stuff, those Senators. It is done by staff. So, dismissively, it is 

taken out of the record. I mean, is that a view you share? 

Mr. SUTTON. No, it is not a view I share. I guess the point I 

would make is that there was a voluminous record, no doubt about 

it, in the VAWA. And, of course, there was just one provision of 

that law at issue. The rest of it was not even— 

Senator BIDEN. I know that. 

Mr. SUTTON. —much less attacked. And I think the issue in the 

case, a difficult one, is whether there are sufficient amount of findings that no matter how much they are, no matter how much better equipped this body is to make these findings than the Court is, 

whether there’s still a role and a responsibility of the Court to examine them to determine whether they do constitute under the 

Constitution interstate commerce. 

What would I have done? I have no idea as a Court of Appeals 

judge. I just—I’m sorry, I can’t tell you that— 

Senator BIDEN. No, I’m not asking— 

Mr. SUTTON. —I have not looked at the issue— 

Senator BIDEN. —you what you would have done. But I do want 

to explore these issues with you, and I have questions as well for 

the other nominees. Like I said, I hope we have more time. 

I understand my name was invoked when someone raised the 

issue of whether or not we had three—not unqualified but controversial nominees, all in one hearing, and that Biden did it. The 

three that Biden put together had a vote of, I think, 98–0. So they 

were not controversial. 

I thank you all. I apologize for— 

Chairman HATCH. I stand corrected. 

Senator BIDEN. Thank you, Mr. Chairman. 

Chairman HATCH. Senator Kennedy? 

Senator KENNEDY. Thank you, Mr. Chairman, and I thank our 

witnesses. It has been a long day for all of you, and we appreciate 

your patience, your good will. 

I regret that I was unable to be here earlier today. This afternoon I attended a memorial for a former Congressman, Wayne 

Owens, who was a Congressman from the State of Utah. And I had 

thought that perhaps we could have had a brief recess where sevVerDate 0ct 09 2002 10:57 Oct 08, 2003 Jkt 089324 PO 00000 Frm 00138 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\89324.TXT SJUD4 PsN: CMORC
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eral of us who knew Wayne Owens and had a lot of respect for 

him—he actually worked for me, worked for my brother Bob—had 

a chance to go there. So unlike most of the other hearings where 

members are able to stay and go through it, we come in here not 

sure whether some of these areas have been covered in the past or 

not. But, nonetheless, I will move ahead and we will do the best 

we can. 

I must say I just again want to register with the Chairman at 

the opening of the session, if this is the way the Committee is 

going to be conducted, I am not sure that this accelerates the good 

will of the Committee or the action of the Committee in the long 

term, or even in the short term. But that is an issue for another 

time. 

Justice Cook, I want to come back to this issue in terms of your 

dissents and who you have been finding for. I picked up a little bit 

of the comments that my friend Senator DeWine raised in the response to Senator Leahy’s questions, but I would like to come back 

to this issue with you, if I could, please. 

There is at least an argument that is made that your decisions 

come down in protecting the more powerful against the weak, that 

you have worked hard to make it more difficult, for example, for 

those that are injured in the workplace to get rightful compensation. You have made it more difficult for victims of discrimination 

to get justice. You have made it easier for large corporations to 

avoid paying for the harms that their defective products have 

caused. 

I know these are not new to you, but I want to hear from you. 

In fact, some have said that your views have marginalized you, 

even on a conservative court; that you authored at least 313 dissents, many of them lone dissents. This number is extraordinary, 

is, in fact, more than any other Justice on your court. Even with 

all of these dissents, you have never dissented from any decision 

of the court that was favorable to the employer. You stand up for 

big business all the time. You have never stood up for the rights 

of the individual. To the contrary, you have dissented 23 times in 

cases in which the court rules in favor of the employee. That is 79 

percent of the time. You have only voted for an employee six times, 

and in five of those cases, the court was unanimous. In the other 

case, the court voted 6–1 in favor of the employee. 

All of this is why your rating by the Ohio Chamber of Commerce 

is not surprising. They say you rank first in voting for the employer in employment cases. You also rank first in voting with the 

defendant in product liability cases. You even scored a perfect 100 

percent in insurance cases, and issues affecting the environment, 

voting with the corporate defendant 100 percent of the time. 

Now, all of us are aware about these percentages, and I wanted 

to give you an opportunity to respond to those and to the other observations that I made about your holdings. 

It seems that you are in dissent so often because you are consistently and militantly pro-business, anti-worker, anti-civil rights, and 

I want to hear from you what conclusions you think we ought to 

draw from those percentages and from that record about how balanced you can be and how either workers or those people, again, 

who are left behind, those that care about the environment, other 

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issues that are in conflict between employer and employee, how 

they could look to you in your court and feel they are going to get 

a fair shake. 

Justice COOK. Thanks, Senator. I’ll address that. 

First of all, I think to say—as you acknowledge, these percentages are nothing I can ever check or know how they arrive at 

those, so I sure don’t vouch for those sort of things. But if you will, 

you know, I tried to just gather cases. I think Senator DeWine put 

out a listing of the cases that show that, frankly, I’m not a reliable 

vote for anyone, but that my decisionmaking—and I hope you will 

find this if you actually read the cases and read the dissents, you 

will find, I hope, that it’s a matter more of my precise reading of 

the law, looking for the actual text of the statute, and when the 

cases—the results of the cases go against an employee or, you 

know, in the general civil rights kind of ideas, I frankly don’t think 

I deserve any blame for the legislation that I am asked to construe 

or interpret. 

And so as in many of the cases, there is the Doe case, which involved allowing insurance for negligent hiring in molestation cases. 

In Haines v. City of Franklin, there was an edge drop off a road, 

and though the majority of the case thought that the city was immune and not liable for damages in that case, I dissented and said 

indeed the city was because the city created a nuisance. 

In Richie Produce, I upheld a minority business set-aside. In 

Nakoff v. Fairview General Hospital, it was a tragic case of medical 

malpractice where an individual came in with a fracture of the leg. 

In the setting of that leg, the circulation was cut off, which ultimately resulted in amputation. I upheld the verdict of $2.4 million. 

In the Buckeye Hope case, I dissented from the court’s decision 

that a referendum could deny minority housing in a city in Ohio. 

Ultimately the court reconsidered that case and my dissent then 

became part of the majority. 

In Valish v. Copley Board of Education, I upheld a verdict for a 

teacher—or a parent who came on school property. Again, the majority found that that individual—that the school was immune 

under our sovereign immunity law, and I ruled the other way. 

In Rice v. Certainteed, it is a case about whether or not punitive 

damages can be awarded in discrimination cases, and in that case 

I interpreted the language of the statute. The word ‘‘damages’’ I 

found was not limited by context or any modifiers and, therefore, 

allowed—ruled that that word included the whole panoply of pecuniary remedies. 

In Wallace v. Ohio Department, Gibson v. Metalgold, I have—I 

don’t want to bore the committee, but I have more, Senator. 

Senator KENNEDY. Well, the reason I raise this, you mentioned 

some, and I will review those cases. I was thinking of some of 

those, I guess Bunger v. Lawson, and in that case the court, as I 

understand it, called Cook’s interpretation of the law ‘‘nonsensical,’’ 

said that it leads to an untenable position, unfair to employees, 

adopting the lower court’s interpretation or taking the position 

adopted by Justice Cook in her dissent would be, as the majority 

clearly stated, ‘‘an absurd interpretation that seems to borrow from 

the pages of Catch–22.’’ 

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Justice COOK. And, actually, Senator, in that case it was interpreting the statute in the usual mode, but what the majority really 

was concerned about was that the law in Ohio is pretty plainly expressed that someone who is injured in the course of employment, 

the compensability can be narrower than the immunity. Employers 

are immune from suit, and, therefore, there are occasions where 

someone can be injured but not—their injury is not compensable. 

And that’s exactly how the law is written, and that is my job, to 

read it precisely. 

Senator KENNEDY. In the Russell v. Industrial Commission, the 

court stated that your dissent lacks statutory support for its position and has been unable to cite even the slightest dictum from any 

case to support its review. 

Justice COOK. Well, like so many dissents— 

Senator KENNEDY. No, I didn’t have an opportunity to give these 

cases to you before, so I— 

Justice COOK. I know that case. 

Senator KENNEDY. —would be glad to let you give whatever response or the time to do it because it’s— 

Justice COOK. In that case, there was, number one, a statutory—

a new enactment, so a statutory change in the language. My dissent was joined by the chief justice, and so I think it’s well-reasoned. I think it’s based on the statutory text. 

Senator KENNEDY. Well, now, in the Russell case, as I understand, you argued that the workmen’s compensation benefits 

should terminate without a hearing as soon as the non-attending 

physician says the benefits should stop. You argued that, in spite 

of the statutory language, that couldn’t be more clear. It says that 

benefits—this is what the statutory language says: ‘‘Payments shall 

be for a duration based upon the medical reports of the attending 

physician. If the employer disputes the attending physician’s report, payments may be terminated only upon application and hearing by a district hearing officer.’’ 

Justice COOK. That’s right. 

Senator KENNEDY. And you interpret that statute entirely differently. You argue that the compensation should be terminated 

without a hearing as soon as the non-attending physician said the 

benefits should stop. Now— 

Justice COOK. Actually— 

Senator KENNEDY. —as I understand it, if the employer disputes 

the attending physician, payment may be terminated only, as I 

said, upon the hearing officer. The majority stated your dissent 

lacks statutory support, unable to cite even the dictum for the case. 

Justice COOK. Right, and we really disagreed in that case as people in good faith can always disagree about the meaning of words. 

But in that case, the majority and the dissent disagreed about 

which statute to read. So I was construing—my dissent construed 

an analogous statute and a parallel statute that had to be read in 

conjunction with the one that the majority was relying upon. 

Senator KENNEDY. I am not an expert on the Ohio law, but it 

seems that the citation is fairly clear, that ‘‘Payment shall be for 

a duration based on the medical reports of the attending physician.’’ 

Chairman HATCH. That’s right, and— 

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Senator KENNEDY. ‘‘If the employer disputes the physician, payments may be terminated only upon application and hearing by a 

district hearing officer.’’ And you made the judgment that it could 

be terminated without a hearing. 

Justice COOK. The issue— 

Senator KENNEDY. And you have another statute. 

Justice COOK. Yes. The issue really surrounded— 

Senator KENNEDY. Could you reference that, the other statute? 

Justice COOK. Yes, I will. 

Senator KENNEDY. The concern is about in light of the persistent 

dissents and your consistent siding with the large corporations 

against the individuals and departures from the clear language of 

the law, how are we going to be assured that you won’t overreach 

in order to reach a conservative result. 

Now, let me give you another example. As you know, one of the 

real best weapons that we have in the struggle to improve the lives 

of those who are left behind in our society is education. And when 

we educate our children well, we give them an opportunity to take 

part in the American dream. You, however, have taken the Ohio 

Constitution’s provisions guaranteeing a thorough and efficient 

public education and voted to basically interpret it out of existence. 

This is the DeRolph v. Ohio case. 

You were confronted with overwhelming evidence that State 

funding of public schools was woefully inadequate. In fact, much of 

the evidence in that case showed that children were attending 

schools that were in dangerous repair, with poor sanitation, few if 

any resources for education. The majority of the court followed 

Ohio Supreme Court precedent that said where a school district is 

starved for funds or lacks teachers, buildings, or equipment, the 

right to an education is violated. It found that the woefully underfunding of such an important State function as education violated 

the Ohio Constitution. You dissented. 

You would have denied the children of Ohio the right to a thorough and efficient State education. In fact, your dissent was harshly criticized, and particularly said that if your position had prevailed, it would have turned 200 years of the constitutional jurisprudence on its head. 

I understand in your personal life you acknowledge that education is important, but we are talking about this particular case. 

How do you explain your decision on this issue that is so important 

and is an issue that is common to my State and States across the 

country and in which there is such a challenge in order to try to 

provide some quality of funding for children? And Ohio has such 

a very strong statute, I find it very difficult to understand your dissent. 

Justice COOK. Senator, my dissent was, first of all, grounded 

on—no member of the court, and there were three members—or 

two other members of the court who joined me in dissent about the 

constitutional bases that the majority was using to order a coequal 

branch of government to enact new funding statutes. So, actually, 

I never did in any way vote to reduce educational spending or in 

any way voted to say that the sorry state of some schools in Ohio 

was okay. 

135

The Court has an assigned limited role, and I exercised my role 

appropriately, I think, in saying that the phrase that the Court 

was hanging its hat on did not justify its ordering a co-equal 

branch to enact new funding laws because the Department of Education had certified that every county in the State had met the 

minimum standards for providing and education, so my view was 

beyond the minimums. It was the General Assembly’s role to decide 

what level of funding should be allocated to schools versus every 

other required funding—every other aspect of State Government 

that required funding was a policy decision to be made by the Legislative Branch. 

But I must say that that case had a—has a fairly sorry history. 

It lasted some 6 years and the Court never, though it had some, 

I think, very well intentioned—it was a well-intentioned effort, but 

it actually—the Court never was able to continue to order the General Assembly to do more and do more, and frankly, it finally just—

the case faded away. 

Senator KENNEDY. Well, that is a sad conclusion that has happened in some States. States have different, in their Constitutions, 

guards or different—ours, Massachusetts, John Adams drafted our 

Constitution in Massachusetts and made it very specific with regards actually to—on the responsibility of the State in education. 

It is interesting that every State Constitution has a guarantee on 

education. They are interpreted in different ways. But let me come 

back to the Ohio. The Ohio Constitution requires a thorough and 

efficient education. These words have meaning. They can be interpreted, enforced by a Court willing to take its responsibility seriously. In fact, a number of States have found that similar clauses 

in their constitution’s enforceable. Your unwillingness to interpret, 

enforce this clause of the constitution I find disturbing. I understand you believe the clause is too vague for judicial enforcement. 

In your dissent you compared it to another provision of the Ohio 

Constitution that says that all citizens possess inalienable rights to 

life, liberty, property, happiness and safety, but even that clause 

has much the same language of the Fifth and 14th Amendments 

of the Constitution clauses, which have been analyzed, enforced for 

many years. And I am just wondering how much assurance that we 

can have here that you are going to interpret these statutes in 

ways that we are intended to, and that reasonable people would 

feel that they should be intended. 

Justice COOK. That would be my goal, Senator, that would be my 

effort. 

Senator KENNEDY. If I could, Mr. Chairman, I have one additional area. 

Chairman HATCH. That would be fine, Senator Kennedy. We will 

give you the additional time. 

Senator KENNEDY. Thank you. 

Much of the last 2 years have been spent recovering from corporate malfeasance that has hurt our economy—I am talking about 

our country—and undermined the public’s trust in big business. 

The laws play an important role in restoring the confidence of the 

American people for preventing this abuse in the future. Unfortunately, in looking over your record—and I want to give you a 

chance to respond—one could conclude that you have consistently 

136

voted to shield corporations from the legal consequences of their actions. In the Davis v. Wal-Mart, Mrs. Davis alleged that Wal-Mart 

instructed its employees to lie to her after her husband was killed 

while working for Wal-Mart. Wal-Mart allegedly told its employees 

to lie about the way in which Mr. Davis had been killed, in order 

to encourage Mrs. Davis to settle out of court. The majority understandably found this sort of deception reprehensible and allowed 

Mrs. Davis to sue Wal-Mart. You would have prevented her from 

doing that, thereby allowing Wal-Mart to reap from the benefit of 

the lies, and encouraging other corporations to do the same thing. 

Justice COOK. My decision in that case does not suggest that I 

too don’t find that behavior reprehensible. My dissent actually was 

based on a fundamental principle of jurisprudence, and that is res 

judicata, and it was based on really well-settled law, that that—

the fact that Mrs. Davis sued Wal-Mart, got a judgment for negligence, and then years later came back with a spoliation case, I 

found—my view was that it was res judicata, and in favor of finality of judgments, as we all know. That’s why that principle is there 

and why it’s accorded importance by judges. 

Senator KENNEDY. But the majority did not find that. 

Justice COOK. No, they did not. 

Senator KENNEDY. They reached a different conclusion. 

Justice COOK. Yes, that is right. 

Senator KENNEDY. In Norgard v. Brush Wellman, the defendant 

corporation withheld information concerning how much it was exposing its employees to beryllium, including withholding the fact 

that it knew its air samplings were flawed and that it had ventilation problems. And it gave the plaintiffs in this case a skin disorder, so severe he had ulcers. He suffered for a protracted period 

of dizziness, coughing and had difficulty breathing. The company 

just told him not to worry and continued to withhold the information about the problems with beryllium. The majority found that 

the employee’s time to file a suit started running from the time he 

found out about the information his employer had been withholding. But you would have allowed the corporation again to reap 

the benefits by barring this suit. What can we draw from that? 

Justice COOK. I hope that the only thing that you’ll draw from 

that is that I look at the law on statute of limitations and the particular—my decision was simply a statute of limitations decision. 

Senator KENNEDY. Well, when? That is the— 

Justice COOK. May I finish? And as a lawyer, Senator, and so 

many people n the Committee are, this individual had knowledge 

of his injury and the expected cause, but didn’t file suit until some 

5 years later when the statute of limitations in Ohio is 2 years. So 

I just viewed, and perhaps I was the one who was mistaken, but 

I viewed the majority decision as contorting the law of statute of 

limitations beyond the scope of its justification there. 

Senator KENNEDY. Well, you are right, the majority differed with 

you. The corporation withheld information concerning how much 

was exposed to the employees. And so since the defendant did not 

know about this, effectively, by the time they found out and 

brought the case, you ruled that they really did not have—the statute had run on it, and they were denied any opportunity. This is 

enormously important. We have a lot of workers, miners. We have 

137

a lot of occupational health and safety issues involving lung damage, and increasingly so with regards to the dangers of toxic substances that are being used in industry all of the time on this. It 

is a very serious matter I know for great numbers of workers. 

Justice COOK. I think so too, Senator. 

Senator KENNEDY. I am concerned that if the employer is denying them the information about the dangers of this, and then they 

only find out about it later, to have their opportunity to get some 

kind of remedy of this is being denied to them, I mean I have difficulty understanding how you reached the conclusion that the statute ran. 

Justice COOK. Actually, the plaintiff admits that he knew that he 

was sick and that he knew it probably was the beryllium from the 

plant. I mean he was inhaling gross amounts of this, and of course 

it is a horrible scenario. But it wasn’t my personal view about 

whether this individual deserved to recover. It was simply an application of the well-settled law that it is not all the elements of a 

claim, which is what the majority held here, until this individual 

knew all the elements of their claim, they couldn’t bring the case. 

But indeed, this gentleman unfortunately both knew that he had 

an injury, and he knew the likely cause. It was later when he saw 

a website some 5 years later, that he chose to bring the action, and 

my considered judgment and I think reasoned judgment, was that 

that was beyond the discovery rule and the particular statute of 

limitations here. 

On the other hand I can tell you of another case on the discovery 

rule involving NCR, where I wrote the majority opinion that extended the discovery rule in that case, and it was I think the first 

time in the country. So there are always occasions where cases are 

decided differently based on the facts presented. And if you’re a jurist who attends to the law and tries to be diligent and conscientious about that, I think that you’ll find the decisions—I can’t do 

anything about which person wins and loses because I must be impartial. 

Senator KENNEDY. Well, I agree that that has to be the desired 

standard. The majority of course found that the employee’s time to 

file suit started running from the time he found out the information his company had been withholding, and that the company doctors were misleading the worker. So you were in the dissent in 

making the judgment. And the matters, there is a pattern. My time 

is just expiring. I mentioned several of these cases. There are many 

others, and when it comes out to the bottom line it has virtually 

100 percent on the one side. I agree that figures are not always 

necessarily absolutely accurate, but what we have is a pretty significant pattern on here, where in these cases involving workers, 

in the cases that I have mentioned here, others, that your dissents 

always seem to be at the expense of individuals, workers, in these 

cases workers rights, and it is troubling. My time is up. 

I want to thank you, and I want to say, Ms. Cook, that if you 

want to provide other kinds of cases that show a different side, I 

would welcome them. I always try, if I am going to ask a nominee 

about cases, to indicate what they are going to be beforehand. I did 

not have the chance just because of the way this was sort of, we 

138

are working on this. So if there are other cases that support yours, 

I am more than glad to take a look at them. 

Justice COOK. Thank you. 

Senator KENNEDY. Thank you. 

Chairman HATCH. Thank you, Senator Kennedy. 

Here is what we are going to do. Senator Schumer wants to ask 

some questions, and he will be here at 8 o’clock. So we are going 

to—I apologize to you that this is taking so long, but I do want to 

get this completed today because—for a variety of reasons, but especially for you. And I want you to be treated fairly, and this Committee I think is attempting to do that. 

But what we are going to do is we are going to discontinue this 

part of the hearing till 8 o’clock. That will give you a chance—by 

the way, I have ordered some food if you can stick around. I would 

like to chat with you for a minute. And what we would like to do 

at this point is to proceed to the three District Court nominees and 

see if we can resolve them at this point, and then we will resolve 

you after 8 o’clock. 

Senator KENNEDY. Mr. Chairman, just again, how we proceed is 

not up to all of you. You have been gallant witnesses today. Mr. 

Roberts, I have not had a chance to question you. We have others, 

I guess Senator Schumer and others. I will submit questions to 

you. I appreciate your patience, all of our nominees, their patience 

with us. It has been a long day for you and these are complicated 

and very important issues, and I thank them. 

Chairman HATCH. Thank you, Senator Kennedy, for your kind 

remarks. 

And, Senator Sessions? 

Senator SESSIONS. I just wanted to say I think you have been 

generous. And I notice you did something very unusual in having 

15 minute rounds. I am not sure we have ever done that before. 

Senator LEAHY. We have done it a lot. 

Senator SESSIONS. Senator Kennedy, I just notice he was 13 minutes past his 15, which is all right. You have been generous on 

that. And I would just say this, that when President Clinton’s 

nominees were coming by and there was a hearing set, if I had 

other committees or other responsibilities, I knew I had to either 

be there or not. I did not come in and expect the Committee to adjust itself totally to my schedule. But you have been generous and 

fair, I believe, and I wanted to say that for the record. 

Chairman HATCH. Well, thank you, Senator. Let us take 5 minutes— 

Senator LEAHY. Mr. Chairman? 

Chairman HATCH. Excuse me. I am sorry, Senator Leahy. 

Senator LEAHY. Mr. Chairman, you and I discussed this procedure, and I think it is a wise way to do it. We have some other 

letters, I know Mr. Sutton will be happy to know, regarding him, 

and we will put those in the record. 

Chairman HATCH. Without objection, we will put those in the 

record. 

Senator LEAHY. I would also note, Mr. Chairman, that you have 

been very fair on the clock. I think that the Senator from Alabama 

and others would agree that President Bush’s nominees, during the 

time I was Chairman, that if any one of them had any questions 

139

at any time, on either side of the aisle, they got whatever time they 

wanted or time to introduce or anything else, and several times rearrange a schedule so that the home State Senators could introduce President Bush’s nominees. 

Senator SESSIONS. I think that is a lot of truth, and sometimes 

we just had to resort to written questions because they work too. 

Chairman HATCH. There were many times we did written questions because of the time constraints. We have tried to be fair here 

and I think we have been. And you folks have been more than stalwart in being with us this long, and you are going to have to be 

here a little longer. I apologize to you, but this is an important 

hearing, and my colleagues have felt like all three of your are, 

quote, ‘‘controversial,’’ unquote. I do not agree with that assessment, but some feel that way and they have a right to feel that 

way if they want to. So what we are going to do is we will recess 

for just 5 minutes. I want everybody back in 5 minutes, and we will 

start with the three District Court nominees, and we want you 

here promptly at 8. 

Senator LEAHY. The Court of Appeals nominees can take off if 

they want, right? 

Chairman HATCH. Yes, until 8 o’clock, but I would like to see the 

three of you just for a minute in this 5-minute period. Thank you. 

[Recess from 6:48 p.m. to 6:57 p.m.] 

Chairman HATCH. We are going to reconvene. If I could have you 

stand and hold up your right hands. Do you solemnly swear to tell 

the truth, the whole truth and nothing but the truth, so help you 

God? 

Judge ADAMS. I do. 

Mr. JUNELL. I do. 

Judge OTERO. I do. 

Chairman HATCH. Thank you. I would like to welcome to the 

Committee our three District nominees, Judge John Adams, who 

has been nominated for the Northern District of Ohio; Robert 

Junell, who has been nominated for the Western District of Texas; 

and Judge James Otero, who has been nominated for the Central 

District of California. 

It has been a long day so far, and you have been very, very patient, and I am very appreciative of you. So in the interest of time, 

I am going to enter my statement in the record and as soon as Senator Leahy gets here, we will have him give any statement he cares 

to give. Until then maybe I can start with questions. 

Well, first of all, let me show a little more courtesy than that. 

We will go with Judge Adams and then Judge Otero, and then Mr. 

Junell. If you would care to make a statement and introduce anybody who is here from your family. They are probably all gone by 

now, and perhaps before we begin, I would like to turn to Senator 

DeWine to introduce Judge Adams. 

PRESETATION OF JOHN ADAMS, NOMINEE TO BE DISTRICT 

JUDGE FOR THE NORTHERN DISTRICT OF OHIO BY HON. 

MIKE DEWINE, A U.S. SENATOR FROM THE STATE OF OHIO 

Senator DEWINE. Thank you very much. I deferred this morning, 

Mr. Chairman, introducing Judge Adams, and it is my pleasure to 

140

introduce really another fine Ohio nominee appearing before the 

Committee today, Judge John Adams. 

Judge Adams, we welcome you to the committee, and we thank 

all of our nominees for their patience. I know it has been a very, 

very long day. 

And Judge Adams from Akron has been nominated to be a U.S. 

District Judge for the Northern District of Ohio. He currently 

serves as a Judge on the Court of Common Please in Summit 

County. I am pleased to welcome Judge Adams, his former law 

partner, Philip Kaufman, to the Committee as well. Judge Adams 

is a 1978 graduate of Bowling Green State University, where he 

earned a Bachelor of Science degree in education. In 1983 he received his law degree from the University of Akron School of Law. 

While a student at Akron, Judge Adams clerked for Judge Spicer 

with the Summit County Court of Common Please. Following this 

position Judge Adams spent 5 years in private practice, and during 

this time also served as Assistant Summit County Prosecutor. In 

1989 Judge Adams returned to private practice as an associate and 

then a partner at the firm of Kaufman and Kaufman in Akron. 

Since 1999 Judge Adams has served as a judge on the Court of 

Common Pleas for Summit County. In this position Judge Adams 

has demonstrated that he is an intelligent, hard-working and dedicated jurist. He is well respected, both inside the courtroom and 

out, and exhibits an excellent judicial temperament. He has shown 

that he has what it takes to be an excellent District Court Judge. 

In endorsing his reelection effort just this last November, the 

Akron Beacon Journal stated that Judge Adams, and I quote, ‘‘has 

the potential to be a distinguished Federal Judge, building on the 

record of fairness and thoughtfulness that has marked his 3 years 

on the county bench.’’ I agree completely, Mr. Chairman, with that 

sentiment. 

While Judge Adams’ professional accomplishments are impressive by any measure, I would also like to take this opportunity to 

highlight his involvement in the Akron community. Judge Adams 

has been a lifelong member of the NAACP. He has also been active 

in the Summit County Mental Health Association and the Summit 

County Civil Justice Commission. 

In summary, Mr. Chairman, I urge my colleagues on the Committee to join me in support of this fine nominee as Senator from 

the State of Ohio. Thank you, Chairman. 

Chairman HATCH. Well, thank you, Senator DeWine. 

And that is high praise, Judge Adams. 

We will turn to Senator Cornyn for his comments about Mr. 

Junell. 

PRESENTATION OF ROBERT JUNELL, NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF TEXAS BY 

HON. JOHN CORNYN, A U.S. SENATOR FROM THE STATE OF 

TEXAS 

Senator CORNYN. Mr. Chairman, I just want to add my brief 

comments to those made by Senator Hutchison this morning in introducing Mr. Rob Junell, nominee for the United States District 

Court for the Western District of Texas. Senator Hutchison talked 

141

primarily about Mr. Junell’s legislative accomplishments and his 

personal background. 

But just for the committee’s information I first met Mr. Junell 

about 20 years ago when I was a young lawyer and he and I happened to be on the opposite side of a lawsuit. You learn a lot about 

the character and the competence of your adversary in those circumstances, and I wanted the Committee to know and the record 

to reflect the high regard in which I personally hold Mr. Junell as 

a lawyer, as a person, and a person who has devoted many years 

of his life to public service already, and who I know will do an outstanding job on the Federal Bench. 

And also his wife, Beverly, who is here with him today. It seems 

like, Mr. Junell, you were introduced a long time ago, but just for 

a refresher and to add my comments and congratulations to you. 

Thank you, Mr. Chairman, for that opportunity. 

Chairman HATCH. Thank you, Senator. 

We will begin with Judge Adams, and then Judge Otero, and 

then Mr. Junell. And if you have any statements to make, we 

would be happy to take them, and if you would, introduce anyone 

who is accompanying you here. 

STATEMENT OF JOHN ADAMS, NOMINEE TO BE DISTRICT 

JUDGE FOR THE NORTHERN DISTRICT OF OHIO 

Judge ADAMS. Senator, first of all, I would like to thank the 

Committee for allowing us this hearing this late day. I know it has 

been a long day for you. We greatly appreciate it. I greatly appreciate the courtesy in being permitted to be heard today. 

I want to acknowledge my former law partner who is here today, 

Mr. Philip Kaufman, as Senator DeWine has acknowledged him. 

I additionally would like to acknowledge my father who could not 

be here today due to his age, somewhat age and somewhat unwillingness to travel here today, and acknowledge the memory of my 

mother who passed away some time ago and could not be here. I 

am sure she would be quite proud. And once again, thank you, Senator, for your courtesy. 

Chairman HATCH. Well, thank you, Judge. Appreciate it. 

Judge Otero? 

STATEMENT OF S. JAMES OTERO, NOMINEE TO BE DISTRICT 

JUDGE FOR THE CENTRAL DISTRICT OF CALIFORNIA 

Judge OTERO. Thank you, Senator. I just want to thank the Committee for having me here. I am very honored. I would like to 

thank Senator Leahy and Senator Feinstein for the gracious statements made earlier today, and also to Senator Boxer for her written statement provided to the committee. 

I would like to thank my family who is back there for being here, 

and also my parents who could not be here today because of health 

concerns. 

Chairman HATCH. Introduce your family to us. 

Judge OTERO. My wife Jill is here. 

Chairman HATCH. Jill. 

Judge OTERO. And my daughter Lauren. 

Chairman HATCH. Lauren. 

Judge OTERO. And my son, Evan. 

142

Chairman HATCH. Evan. Happy to have you with us as well. 

Judge OTERO. Thank you. 

Chairman HATCH. Thank you, sir. 

Mr. Junell? 

STATEMENT OF ROBERT JUNELL, NOMINEE TO BE DISTRICT 

JUDGE FOR THE WESTERN DISTRICT OF TEXAS 

Mr. JUNELL. Thank you, Mr. Chairman. It is indeed an honor to 

be here today. I want to thank both you and Senator Leahy for allowing us to be here for this hearing, and I want to thank Senator 

Hutchison and Senator Cornyn, the two Senators for Texas that 

said such nice things. 

My wife Beverly is here with a crutch from knee surgery. She 

hurt the other one, Senator, at Snowbird about 10 years ago in 

your state. 

Chairman HATCH. Oh, my goodness. That is not good. 

Mr. JUNELL. And this time it was in New Mexico, so she recently 

had surgery. 

Senator LEAHY. Should have skied in Vermont. 

[Laughter.] 

Chairman HATCH. No, no, that is worse there. It is just plain ice 

there. We at least have powder snow. 

Mr. JUNELL. My son, Ryan, who is in California, could not be 

with us. My daughter Keith is the Peace Corps in Bolivia, and my 

son Clay is a student at Angelo State University in San Angelo. 

Chairman HATCH. Well, we are honored to have all of you with 

us, and we again apologize for this taking so long, but it is the nature of this place. Every once in a while it does take a little bit of 

time, so please forgive us. 

I think we will begin with Senator Leahy. He has been so patient 

all day, I am going to turn to him first, and then whatever questions he does not ask, maybe the rest of us can. 

Senator LEAHY. Thank you, Mr. Chairman. I will try to be brief. 

The level of controversy is a lot different here. 

Judge Adams, you have been actively involved in partisan politics on behalf of your fellow Republicans. You served as an elected 

official. You have contributed to Republican campaigns. You have 

volunteered on campaigns. You have run for city council. All of 

which is perfectly appropriate, but when you go to the Federal 

Bench, you have no problem with the fact that partisan activity 

then is—it is gone; is that correct? 

Judge ADAMS. Absolutely, Senator, and I think as a common police court judge my record will establish that that has certainly 

been the case while on the bench. 

Senator LEAHY. Thank you. And you assure us that if somebody 

walked into your court, if you are confirmed, that they would not 

have to worry about whether they were the right political party or 

the wrong political party; they would just have to worry that Judge 

Adams reads the law correctly? 

Judge ADAMS. Absolutely, Senator. You can rest assured in that 

regard, please. 

Senator LEAHY. In private practice you specialized in estate planning and trust and probate law. You had a special emphasis on 

providing service to senior citizens and people with mental and 

143

physical disabilities, and I commend you for that. What do you 

bring from that, the work you did with people with disabilities? 

What do you bring from that as you go into a Federal Bench? 

Judge ADAMS. Well, I think I bring a couple things that I’ve 

learned from my representation of seniors and folks with disabilities. I’ve learned how important it is to listen. I think as a judge, 

one of the most important things that we overlook is how important it is to take time to listen to the litigants, the parties, their 

attorneys. Sometimes I think we, the judges, overstate our own importance, and I think I have learned a great deal in representing 

seniors, and in my life I always enjoy listening to their life experiences, and I think I have learned a lot from them, I have gleaned 

a lot from them and from their life experiences. And it has given 

me balance in my life, in my views from the bench. 

Senator LEAHY. Thank you. And I think you are right. It is very 

easy for a judge who sits there, it is ‘‘all rise’’ and all that kind of 

thing. I think the judges who are best is, when they hear the ‘‘all 

rise’’ they almost have to stop themselves to see who it is they are 

doing that for, and not take it for granted. And the judges that 

keep themselves fairly grounded in their community end up being 

the best judges. I mean there are a lot of things you have to give 

up as a judge. I mean I love politics and I am sure you do too, giving up some of those things. You have to be careful of your associations. Like any member of the bar, a lot of your friends are going 

to be lawyers. You have to pick and choose there. But you are not 

really in a monastery. I mean you are still a human being, and the 

most important thing is that the people who are in front of the 

bench are also human beings, and so I appreciate that. 

Judge Otero, you have served as a judge for the last 14 years. 

Correct me if I am wrong in any of this. First in the Los Angeles 

Municipal Court and then on the Los Angeles Superior Court. Is 

that correct? 

Judge OTERO. Yes, Senator. 

Senator LEAHY. I spent some years ago in the Superior Court 

when I was a prosecutor. One of my fellow board members in the 

National DAs was the District Attorney of Los Angeles, and the 

times we have meetings out there I go into some of those courts 

and realize that Los Angeles is larger than my jurisdiction in 

Vermont or what was my jurisdiction. I do get out there now and 

then. I have a son, a former Marine, and his wife, who live in Los 

Angeles, in the Los Filas area, and I do not think there is just 

about any kind of case anybody is ever going to see that has not 

been in the Los Angeles Superior Court at one time or another. 

Judge OTERO. That’s correct. We may be the largest court system 

in the United States, if not the world. 

Senator LEAHY. I think it is an extraordinary court system. I 

know a lot of the people I see who come here from other countries 

to study our judicial system, that is one of the places they want to 

go to, and you probably have seen a lot of foreign representatives 

who come to your court to see it. 

Judge OTERO. From China recently and from Japan also. 

Senator LEAHY. One thing that we talk about is the impartiality 

of our Federal Judiciary. One thing I think might interest you is 

when the Soviet Union broke up, a group of Soviet, or now Russian, 

144

lawmakers came here to meet with me, with Senator Hatch, others, 

and I remember one question one of them asked almost incredulously. He said, ‘‘We have heard in the United States there have 

been times when the Government has been sued and the Government actually lost. I mean did you not quickly replace the judge?’’ 

[Laughter.] 

Senator LEAHY. And we had to explain to him, no, we have a certain independence here, and yes, the Government does lose on occasions. And I think this was probably as big an eye opener as ever. 

I have always encouraged these people to go out to Los Angeles 

and watch your court system. 

Now, a number of issues of the death penalty have come up. Justice O’Connor said there were serious questions about whether the 

death penalty is fairly administered. She added, ‘‘The system may 

well be allowing some innocent defendants to be executed.’’ Now, 

you have presided over a capital murder case. One case you presided over, People v. Chauncey Beasley, Delano Cleveland and 

Rashish Sheron. The jury returned a guilty verdict against the 

three defendants, recommended death. And you had the sentencing 

hearing. You sentenced two of the defendants to death. You rejected the jury’s recommendation of death for the third defendant. 

You sentenced him to life without possibility of parole. And I am 

not asking you what is your reasoning in that case, but you have 

obviously had to look at the question of the death penalty. Do you 

think there are changes that are warranted in the way the death 

penalty is administered? None of us have questioned that it is constitutional. The Supreme Court has held so. But are there changes 

that should be made in capital cases, or are they all, in your experience, always fairly handled? 

Judge OTERO. I would hesitate to comment about the particular 

case because it’s before the California Supreme Court. 

Senator LEAHY. I do not want you to comment about that one, 

but I mention it only because obviously it has focused your attention here. 

Judge OTERO. I think as judges we have to be very concerned 

about the rights of defendants, especially in capital cases. I think 

the entire issue is probably better handled by the legislature. As 

judges it is our duty to follow the law and interpret the law to the 

best of our abilities. In California we have a system that allows the 

trial judge to conduct an independent review of the aggravating 

and mitigating factors, to sit as a 13th juror on the penalty phase, 

and I think that’s a very good system. 

Senator LEAHY. Do you feel that it is an absolute, that especially 

in a capital case, that a judge should make sure that there is adequate counsel, and I mean real counsel for the defense? 

Judge OTERO. Oh, absolutely, absolutely, Senator. 

Senator LEAHY. We can assume the State will always have the 

best in a capital case and that if there is evidence available, incriminating of exculpatory, that it be available to both sides. 

Judge OTERO. Absolutely. One of the fundamentals of our system 

is to make sure that all evidence is turned over to both sides. 

Senator LEAHY. The reason I say that, there have been some 

states and some jurisdictions that has not happened, or where the 

least competent counsel has been appointed at a small flat fee in 

145

a capital case, and that is where we have problems. You have probably found, as has been my experience and I think Senator Hatch’s 

experience and Senator DeWine’s, in trying cases you actually have 

a far easier time of it if you have good counsel on both sides. 

Judge OTERO. Good lawyers make for a better trial judge, absolutely. 

Senator LEAHY. Mr. Junell, we are chatting earlier, and I repeated the call I received from Congressman Stenholm, who assured me that in his estimation you would be a fair judge of the 

matter of who was before you. I want to ask for a moment about 

your work as a State legislator in a claim that a whistleblower 

named George Green. In August of 1989 he was an employee of the 

Texas Department of Human Services, and he reported what he 

thought was corruption among his superiors and others. The State 

of Texas responded by investigating him and firing him. Then they 

indicted him, and the indictment was, the charge eventually 

dropped. He sued under the Texas Whistleblower Statute. The jury 

awarded him $13.6 million. In February 1994 the Texas Supreme 

Court affirmed that judgment, saying the State did not have immunity because of the Texas Whistleblower law. Under State Law, to 

collect the award Mr. Green was required to get his claim approved 

by the State legislature. He tried to do that. You were Chairman 

of the Texas House Appropriations Committee. You refused to approve the full amount, which had grown to around 19 million with 

interest, and offered him 25 percent or 25 cents on the dollar. You 

were quoted as saying that the State of Texas does not owe him 

this money; under the law of sovereign immunity we do not have 

to pay. The Texas legislature eventually gave him a substantial 

portion of that. 

I raise this because this Committee has heard from people like 

Sharon Watkins, who are out to expose many of the misdeeds at 

Enron, or we have read of hers. FBI Special Agent Colleen Rowley 

brought public attention to some of the shortcomings in the Department of Justice prior to 9–11. Senator Grassley and I have 

worked—it has been very much of a bipartisan thing—on whistleblowers. A lot of people risk everything to point out waste or corruption and so on. So one, why did you want to deny Mr. Green 

his full award? Do you think that deterred other whistleblowers? 

Mr. JUNELL. No, Senator, and I appreciate you asking that question. No, it didn’t. Texas law at that time, if the State of Texas ran 

over somebody in a truck out on the highway, the amount of damages that could be recovered for someone who either perished or 

who was made a quadriplegic is $250,000. In the case of the Whistleblower Act, which was passed before I came to the legislature, 

there was not a cap on the damages, but it did require a review 

by the legislature, somewhat like this process of presidential appointees being reviewed with the advice and consent of the Senate 

and of this committee. 

Senator LEAHY. Well, we are written into the Constitution, the 

U.S. Constitution. 

Mr. JUNELL. We are written into statute in the same manner. We 

are written into statute that all awards of that nature, if there was 

not a permission to sue prior to the time the suit was brought, had 

to come to the legislature to apply for the money. We held hearings 

146

on Mr. Green’s case. I don’t want to—spent a lot of time reading 

trial testimony and reviewing all of his case. Ultimately participated in amount. And senator, I don’t remember the amount that 

it was ultimately settled for. It was in the millions of dollars 

though. The legislature, either that session or the next session revised the statute to put the cap the same that we have on our Tort 

Claim Act as well. 

Senator LEAHY. So now he could only recover a quarter of a million? 

Mr. JUNELL. Yes, sir, but I can tell you that we have active—not 

only at the State level, but at the county level and at the city level. 

Any political subdivision is covered by that, and it has not deterred 

anyone to my knowledge. I have never heard that, anyone being deterred of reporting wrongdoing in Government. 

Senator LEAHY. Well, there you had a specific statute to review. 

A trial judge can review a question of damages that a jury awards. 

Is that something a trial judge should eagerly jump in to do, or 

should they be reluctant to overturn or change a jury verdict? 

Mr. JUNELL. I think they should be very reluctant to overturn a 

jury verdict. 

Senator LEAHY. I do too. If I have other questions, I will submit 

them for the record. You have been patient. Your families have 

been patient. Senator Hatch has the patience of Job sometimes. 

Chairman HATCH. Sometimes, that is for sure, and today is one 

of them is all I can say. 

But you have had patience, and we have been very grateful to 

have you here. I know all three of you. I know how good you are. 

I know your reputations. I have no real desire to put you through 

any more questions. All I can say is that I would—just one little 

thought. 

Mr. Junell, I understand that you are quite well read and that 

you have excellent taste in books. I would just like to know the last 

book that you have read. 

Mr. JUNELL. You know, one of my favorite books, Mr. Chairman, 

is A Square Peg. 

Senator LEAHY. Oh my God. 

[Laughter.] 

Senator LEAHY. Hold that man over. 

[Laughter.] 

Chairman HATCH. I think everybody should read that, including 

Senator Leahy. 

Senator LEAHY. I am halfway through it. 

Mr. JUNELL. I understand they are going to make a movie, by the 

way. Tom Cruise is looking to play— 

Chairman HATCH. I see. I should be so lucky. Well, thank you. 

Senator LEAHY. I would have been able to finish the book today 

if you had not kept us here so long, Mr. Chairman. 

[Laughter.] 

Senator LEAHY. That is one of my greatest disappointments. 

Chairman HATCH. I have a feeling I am going to support you, Mr. 

Junell. I am going to support all three of you, and we are grateful 

that you are willing to take these jobs. We know that it is really 

a sacrifice for people like yourselves to take these jobs, but yet they 

are extremely important for our society. Without these Federal DisVerDate 0ct 09 2002 10:57 Oct 08, 2003 Jkt 089324 PO 00000 Frm 00154 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\89324.TXT SJUD4 PsN: CMORC
147

trict Court Judges, our society would not exist nearly as well as it 

does. 

Let me just say that the one thing that I caution you on, as an 

attorney trying a lot in Federal Courts, there seems to be a little 

syndrome that happens sometimes when Federal District Judges 

and Circuit Judges—well, frankly, all the way to the top. Once they 

are on the Court for just a little while, they seem to begin to think 

they have elements of deity, and we just want to make sure that 

you three do not get that attitude. Just remember—and do not try 

cases for the other attorneys. When a young attorney is there and 

he or she might not understand the evidence as well, you can help 

them, but do not try their cases for them. And be patient, and do 

not let being a Federal Judge go to your head. That is one bit of 

caution that I will tell you. And I have seen it happen in so many 

cases, even with really dear friends of mine, where they just—and 

part of it is because you have to make decisions all the time, and 

you have to sometimes draw a line, and sometimes you get so that 

you get used to that. But I think it is very important that you help 

everybody concerned and do justice in the Courts. And I have a 

great feeling that all three of you will. 

So with that, we— 

Senator LEAHY. I may note for the record, this deification never 

happens to the 100 members of the U.S. Senate, you understand. 

Chairman HATCH. That is right. What we are going to do is we 

will probably put you on the next markup Thursday after this one, 

and hopefully you—now anybody on the Committee has a right to 

put people over or put any item on the markup agenda over for a 

week. It is an automatic right on the committee, and it is a very 

important rule. But hopefully no one will put you over for a week. 

But with that, if they do put you over for a week, in about two 

weeks we hopefully will have you out of committee. Then we have 

to get you on the floor, and we will work on that as well. So we 

will do our very best to push this process along. And I intend to 

do that when there is a Democrat President as well. I tried to do 

it, and I think we did do it to a large degree with President Clinton. It was not perfect, but we did move a lot of judges for him. 

He became second only to Reagan, the all-time champion, and only 

five less than Reagan, but nevertheless, I wish we could have done 

better. 

And both Senator Leahy and I are committed to try to change 

this atmosphere to where we can, whoever is President will be 

given tremendous consideration on his or her selection of judges. 

So with that, we are grateful for your patience. Because of it you 

really have not had to spend an awful lot of time with us, and that 

is a great blessing. Think about it. And with that, we will— 

Senator LEAHY. Mr. Chairman, excuse me. And I have heard of 

absolutely no objection on our side of the aisle to these three, so 

I suspect you are going to be able to keep to that schedule without 

people putting them over. 

Chairman HATCH. We are going to try, and then we will try to 

get you up on the floor immediately thereafter. 

I just want to thank Senator DeWine for his leadership on this 

committee, and he has not asked any questions any more than the 

rest of us, and frankly, he plays a great role on this committee, and 

148

Mr. Adams, you are lucky to have him as your Senator, as well as 

Senator Voinovich. 

[The biographical information of Judge Adams, Mr. Junell, and 

Judge Otero, follow.]

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With that, we are going to recess until 8 o’clock. I do have pizza 

back here for everybody who is concerned, so please drop in and 

have some if you can. With that, we will recess till 8 o’clock. 

[Recess from 7:20 p.m. to 8:02 p.m.] 

Chairman HATCH. Okay, it is 8 o’clock. We are ready to go again, 

and hopefully we will not be too long, but whatever time it takes, 

I want to be fair to the other side, and I know this is an ordeal 

for the three of you to be here this long. You have been here almost 

12 hours—10.5 hours—but we will, hopefully, finish within the 

near future. We will do our best. 

Senator Leahy, do you have any more questions you want to ask? 

Senator LEAHY. Mr. Chairman, I understand Senator Durbin was 

here just a moment ago, and I just do not want to start into his 

time. 

Chairman HATCH. All right. 

Senator LEAHY. Dick, why do you not come up here. 

Chairman HATCH. Yes, Dick. We will turn to Senator Durbin now 

for any questions he might have. 

Senator DURBIN. Thank you very much. 

I would like to ask this question of the three of you. It is an observation which was made several years ago, relative to the issue 

of racial profiling. I know if I asked you what your position is on 

racial profiling what you would say, what we would all say. We are 

opposed to it. It is not just, it is not fair. We certainly do not want 

it in America. 

But I came across some statistics which trouble me, and I have 

asked virtually every nominee at all sorts of levels, Department of 

Justice and Judiciary, for a reaction and what they think we 

should do about the following. I want to make sure I get these 

numbers right as I give them to you. I am just trying to remember 

them off the top of my head. 

But we have a situation in America today where 12 percent of 

our population are African-Americans. The Drug Enforcement Administration believes that 11 percent of the drug users in America 

are African-American, but 35 percent of those arrested for drug violations are African-American, 53 percent of those convicted in State 

Courts for drug felonies are African-American, and 58 percent of 

those currently incarcerated in State prison for drug felony are African-Americans. 

I would like your reaction to that. You are asking for a major position in the administration of justice, and if we are honest about 

our opposition to racial profiling, what do these numbers mean in 

terms of our system of justice, in general terms, and in specific 

terms, the whole question of minimum mandatory sentencing. 

Justice Cook, you have been on the Supreme Court in Ohio. I 

would like to hear your reaction. 

Justice COOK. I have not heard those statistics, but I suppose, 

like anyone, that is disturbing, and what it tells me is that what 

I already knew, primarily, is that we have to be vigilant in reviewing cases for the typical issues that would go with profiling would 

be the probable cause, and the suppression issues, and to see if 

there is anything in the work that we are doing that would contribute to those statistics if, indeed, the folks, by their race, are 

being targeted for law enforcement and without justification. I 

249

think that is the only role that I play in that problem with the Supreme Court, but certainly even just as a citizen, I think anybody 

would be upset to hear those numbers, and to be concerned if there 

is something that we could be doing. 

As I say, I only know that I can be looking carefully at my cases 

which I actually hope that I already do, but that is, I guess I find 

those numbers a lot higher than I would have thought. 

Senator DURBIN. Mr. Roberts? 

Mr. ROBERTS. I think that sort of statistical disparity ought to 

spark further inquiry. I mean, it sort of points out we may have 

a potential problem here, and I think you want to find out what 

is behind the numbers because any statistical grouping that shows 

that kind of disparity would suggest that there may be a problem 

not treating people as individuals, and that is sort of at the core 

of our constitutional liberties, that we don’t group people according 

to characteristics and say, well, you share this characteristic, and 

so you must be like this, this and this. We treat people as individuals. 

No matter how compelling the statistical evidence may be, it 

shows that whatever group it is, and 99-whatever percent here is, 

that’s not what due process means, that’s not what liberty means, 

that’s not what the various protections of the Bill of Rights mean; 

that you’re part of a group that more often than not is subject to 

this or does this, and therefore we’re going to treat you as a member of a group, rather than an individual. 

So that type of disparity, I think, is one that ought to concern 

people, and spark interest, and call people to look to see what’s behind the numbers and why that’s the case. 

Senator DURBIN. Professor Sutton, would you like to comment? 

Mr. SUTTON. Well, I agree with all of those comments. They are 

disturbing statistics, and they do deserve inquiry to find out what’s 

behind them, and I do think it’s a very important subject for inquiry. From my own personal experience, my uncle is Lebanese and 

lives in this country, and his kids, of course, are part Lebanese, 

and the issue of racial profiling is not lost on them. I know it 

doesn’t relate directly to the issue you raised, but it does relate to 

the underlying point of potentially making assessments about 

someone based solely on their background and their appearance, 

and that deserves a lot of inquiry. 

Senator DURBIN. I mentioned minimum mandatory sentences, 

and there is a lot to be said, and Senator Sessions, for example, has 

some views on it. We may differ a little bit, but I wonder, I will 

just tell you my experience in going to a Federal women’s prison 

in Pekin, Illinois, and looking at the prison population, it is an eyeopener. 

You will find in that prison women who are generally in their 

forties and fifties, sitting around knitting afghans, serving 12- to 

20-year mandatory sentences because they were ratted out by boyfriends who were trying to find some way to reduce their own culpability for drug crimes. 

And when you talk to judges about this, they say, ‘‘Why do you 

do this to us? Why do you put us in this position, where the prosecutor, doing their job, ends up with charging a crime that puts a 

person in prison at the expense of taxpayers for an incredible peVerDate 0ct 09 2002 10:57 Oct 08, 2003 Jkt 089324 PO 00000 Frm 00257 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\89324.TXT SJUD4 PsN: CMORC
250

riod of time, and that person being no threat, really no threat to 

society?’’ 

Professor Sutton, what do you think of mandatory minimum sentencing? 

Mr. SUTTON. Well, I think, for quite a few reasons, States, among 

others, are reconsidering them because of the problem of overflows 

in prisons and State budgets that are preventing the very thing 

that you’re suggesting is happening, of some form of mandatory 

minimum, whether it is Federal or State law, and a prison population that, as you suggest, may involve a lot of people that do not 

belong in prison any more. 

I think from the perspective of a judge, it’s not as easy to solve 

that problem as one might like. I do think there’s a lot that the 

legislature, whether it’s the national legislature, Congress or State 

legislatures, but I do agree with you that it’s hard to imagine anything worse than someone in prison who really doesn’t belong 

there, could be serving society well, contributing to society, and yet 

still in prison. That’s quite sad. 

Senator DURBIN. Mr. Roberts? 

Mr. ROBERTS. I guess my first comment would be it strikes me, 

as a general matter, a quintessential legislative policy judgment, 

what the sentence for a crime is going to be and whether a judge 

is going to have discretion in sentencing or whether there’s going 

to be a mandatory minimum. I know there are constitutional issues 

at the margin, and those have been addressed, in some cases, but 

it’s a policy judgment. 

I guess my own reading in the area has led me to think that it’s 

one of those areas where the consequences of the policy judgments 

are not always apparent. For example, I do know that in many 

areas, it has had an enormous impact on prosecutorial decisions. It 

gives great leverage, and you find one concept that a lot of people 

are pleading to different offenses. And so when you look at someone’s record, and you say, ‘‘Well, he’s never done this before,’’ it 

turns out he’s, in fact, been arrested for it probably four times, but 

he’s not prosecuted because it’s easy for the prosecutor to leverage 

the mandatory minimum to a different plea. 

And the situation you discussed as well, where you have co-defendants, I just think the policy consequences are often pretty far 

downstream. As Mr. Sutton mentioned, we’re beginning to see 

some of those play out, and some people, some legislatures are revisiting the question. 

Senator DURBIN. Justice Cook, instead of asking you that question, I’m going to run out of time. I would like to direct one question to you, as I did to Professor Sutton, that really goes to the 

heart of many of the objections to your nomination. 

When I was a practicing attorney fresh out of law school, and our 

little firm in a down–State town in Illinois represented a railroad, 

and we had a Federal judge in our hometown who was a railroad 

dream come true. We would go into his courtroom, he would suck 

on lemon drops, stare at the ceiling, and rule in our favor on everything. This was perfect, and we made sure that we removed everything to Federal court, and we did a great job representing our railroad. 

251

So there are some judges who come to this with certain feelings 

and certain inclinations, which become very obvious in the way 

they do their business every single day. 

When I take a look at Professor Sutton and the disability community coming out today, I take a look at letters that we have received, and you have seen them, from women’s groups and employee-sponsored groups who, in looking at the totality of your 

record, think they have detected a disturbing trend, that when it 

comes to cases that compensate people injured or cases involving 

employee discrimination, that more often than not, you will be staring at the ceiling and ruling against them. 

Now, my friend, Senator DeWine, has pointed out exceptions to 

that rule, but clearly there are a lot of cases we have gathered here 

which prove the case. I would like to give you a chance, and you 

have probably had that chance before, but at this moment to express your defense of your record on the dissenting justice on the 

Ohio Supreme Court. 

Justice COOK. My defense, Senator, is that I—it’s a simple defense, and it’s an honest one. I take each case and look at the factors that I need to review. I said, obviously, I look at the record, 

I look at the briefs, study them, I look at the law, and particularly 

the text, and using logic, and rules, and customs, I come to the conclusion that the law dictates. I rule as the law is, and I think sometimes that is viewed as I’m ruling how I would like to rule or how 

I would like the law to be, and that’s just not the case. I follow the 

statutes in Ohio. 

In honesty, anybody who thoroughly reviews the record would 

find that the statutes in Ohio, and the general assembly in Ohio, 

it’s a conservative legislature, and I follow the law that they set 

forth. And I don’t know about any patterns. I know that I’ve read 

those websites, and you know I just sink because I think I can tell 

you chapter and verse about each and every one of those cases, and 

it’s some principle of law that dictated where I went, not any antipathy for any party nor any favoring. 

I hope that a thorough review of the record would actually show 

you that that’s the case. 

Senator DURBIN. Thank you very much. 

Thank you, Mr. Chairman. 

Chairman HATCH. Thank you, Senator Durbin. 

Senator Leahy? 

Senator LEAHY. Mr. Roberts, we had, last year we had White 

House Counsel Fred Fielding testify here, and he said he hoped 

that the administration had not nominated any liberals to the 

court. I assured him I suspected that he would not have to stay 

awake nights worrying about that. 

I was wondering, when you worked in President Reagan’s White 

House on judicial selection, did you ever ask potential nominees 

about his or her views on any issues such as political or ideological 

views? 

Mr. ROBERTS. No, Senator, not at all. 

If I remember—I’m trying to remember specific questions—one 

thing we tried to do was pose hypotheticals, the purpose of which 

was to put a situation where the legal answer was A, but what this 

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pealing result was B, and if that candidate said B, that would raise 

concerns with us because we think somebody wouldn’t follow the 

law, but would instead follow politics. 

Sometimes we would tend to, at least I did when I would sit 

down with the folks, focus on particular things in their resume. If 

they had written an article or a book, we’d say, ‘‘Tell us about that. 

What’s that about?’’ really just to see how their way of reasoning 

went, but I, at least, never asked about particular cases or issues 

that might come before the court. 

Senator LEAHY. Did you have many candidates give you the political versus the legal answer? 

Mr. ROBERTS. Some, yes. 

Senator LEAHY. Did they make it through? 

Mr. ROBERTS. No. I don’t know of a single case where they did. 

You know, it wasn’t—you know, a number of people would do—I, 

obviously, was fairly junior, and I don’t know that my views were 

regarded as determinative, but we would meet and discuss it, and 

we would say this is what he did, and he said he’d do this, and you 

know that would raise concerns because, at least in that situation, 

we weren’t looking for people who were going to follow politics; we 

were looking for judges who were going to follow the rule of law. 

Senator LEAHY. Even if the political result might be something 

that the Reagan White House might have liked. 

Mr. ROBERTS. Well, that’s what we tried to come up with in the 

hypothetical so that they would think— 

Senator LEAHY. It is a good way to do it. 

Mr. ROBERTS. Oh, you know, they want me to say this— 

Senator LEAHY. That is an impressive way of doing it. 

Mr. ROBERTS. Well, I don’t know how effective it was, but it was 

I think effective in weeding some people out. 

Senator LEAHY. I may—that is very interesting. 

When you returned to private practice, you took on the United 

Mine Workers v. Bagwell case. That is where, if I recall it right, 

the union had contempt fines for over $60 million/$64 million, 

something like that, for strike activities. You were on the side opposed to them, opposed to the union. 

I have been told that your fellow D.C. Circuit nominee, your 

former colleague in the Solicitor General’s Office, Miguel Estrada, 

sought out the opportunity for the Justice Department to intervene 

on the same side as yours. As I recall, and correct me if I am wrong 

on these facts, the Supreme Court ruled against your side and said 

that fines of that magnitude could not constitutionally be imposed 

by a judge without a jury trial. 

Was that sort of the crux of their— 

Mr. ROBERTS. My recollection of that case—I recall cases I won 

a lot more clearly than cases that I lost, but if I’m remembering 

it— 

Senator LEAHY. We all do that. 

[Laughter.] 

Mr. ROBERTS. If I’m remembering it correctly, I think the fundamental issue was whether the contempt citations in that case were 

properly characterized as civil contempt or should be regarded as 

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253

tions, and the court, I think we were arguing for civil, and the 

court ruled in favor of criminal. 

Senator LEAHY. The $64 million was they better get a jury in 

there to— 

Mr. ROBERTS. Well, it was a type of civil contempt sanction 

judges often impose, which was, you know, it’s going to be $1,000 

or whatever the number— 

Senator LEAHY. X number of dollars per day. 

Mr. ROBERTS. —$10,000 a day until you come into compliance, 

and it added up. 

Senator LEAHY. Yes. 

Mr. ROBERTS. And I was defending, I believe, at that time—I 

don’t remember exactly what the office was, but whoever it was 

that was enforcing the contempt for the court. 

Senator LEAHY. You were on the Bagwell side? 

Mr. ROBERTS. I was trying to remember what his office was. I 

think he was appointed to enforce the contempt citation that the 

court issued. 

Senator LEAHY. What was Mr. Estrada’s involvement? 

Mr. ROBERTS. If I recall, he was in the Solicitor General’s office 

at the time, and the question—they were participating as an amicus, I think, in the case along with the Deputy Solicitor General 

Paul Bender. I remember Mr. Bender argued for the Federal Government. 

Senator LEAHY. And did you feel he was active in getting the 

Government to get involved on your side of the case? 

Mr. ROBERTS. Well, I don’t remember any meetings. I certainly 

would have—I don’t actually remember. I would have contacted the 

Justice Department and said this is something you should be—for 

the legal principle, you should be arguing on our side. But I don’t 

remember any particular involvement by Mr. Estrada. 

Senator LEAHY. And you have told NPR you support and 

originalist approach to constitutional interpretation, saying the reason that that is the way it was in 1789 is not a bad one when you 

are talking about construing the Constitution. Of course, the Constitution in 1789 did not have the Bill of Rights. To get it ratified—

you couldn’t have gotten it ratified, States wouldn’t have ratified 

it without that. It allowed African-Americans to be enslaved back 

then. We had the Civil War amendments, like the 14th, which limited State power to make or enforce laws to deny equal protection 

to people. 

So the originalist concept can’t be an exact one, can it? 

Mr. ROBERTS. No, and I don’t remember exactly what the issue 

was that they were discussing at that point, and I— 

Senator LEAHY. First, just tell me what your philosophy is on 

that. 

Mr. ROBERTS. Well, I think I’d have to say that I don’t have an 

overarching, uniform philosophy. To take a very simple example to 

make the point, I think we’re all literal textualists when it comes 

to a provision of the Constitution that says it takes a two-thirds 

vote to do something. You don’t look at what was the intent behind 

that, and, you know, given that intent, one-half ought to be 

enough. 

254

On the other hand, there are certain areas where literalism 

along those lines obviously doesn’t work. If you are dealing with 

the Fourth Amendment, is something an unreasonable search and 

seizure, the text is only going to get you so far. And in those situations— 

Senator LEAHY. There weren’t too many wiretaps in 1789. 

Mr. ROBERTS. Exactly. And even basic concepts like commerce, 

didn’t have to deal with air travel and things of that sort. That 

doesn’t mean they’re not covered by the Commerce Clause. Our 

Constitution is flexible enough to accommodate technological 

changes of that sort. And I think in some areas—for example, the 

Supreme Court’s jurisprudence on the jury trial right, I argued a 

case in favor of the jury trial right in the Supreme Court, and I 

learned more history than I thought I’d ever see again after being 

a history major in college, because what the Supreme Court has 

said is you look at what happened at common law at the point in 

time when the Seventh Amendment was adopted. And if it was on 

the equity side, you don’t get the jury. If it was on the law side, 

you do. So you read a lot of old history. That doesn’t mean that 

that same approach is going to make sense when you’re dealing 

with other provisions of the Constitution. 

So I think I’d have to say that I don’t have an overarching, guiding way of reading the Constitution. I think different approaches 

are appropriate in different types of constitutional provisions. 

Senator LEAHY. Mr. Chairman, again, as you know, I am very 

concerned, having three nominees of this nature, that is, controversial, however defined, all at once. We saw what happened with 

three District Court judges. It took us about 20 minutes to hear 

them where there was no controversy. By having the three on a 

day when there are other things going on for all of us, I think it 

has created a problem. Obviously we are going to want time to get 

the transcript and to submit written questions. I assume you have 

no objection to that. 

Chairman HATCH. Well, we will have— 

Senator LEAHY. We will get the transcript overnight. 

Chairman HATCH. If we can have the transcript by 4 o’clock tomorrow, I would feel good about it. 

Senator LEAHY. And we get, what, a week then to— 

Chairman HATCH. Well, noon if you can do it, but I don’t want 

you to kill yourself. Four o’clock is fine. And then, see, that would 

be Thursday, and we would have Friday, Monday— 

Senator LEAHY. Tuesday, Wednesday— 

Chairman HATCH. I think if we could have— 

Senator LEAHY. I think because there are so many extremely important ones in here, we ought to have time at least to get the 

questions out. I am going to urge our side not to be dilatory in any 

way. I don’t think anybody will. But we really should— 

Chairman HATCH. If we can have the transcript by tomorrow at 

4:00, then that would give the rest of the day and Friday and Monday, and if we can have the questions in by Tuesday at 5 o’clock, 

then I would hope you could get them answered and right back, because I would like to put you on the markup next Thursday after 

tomorrow. 

255

Now, it is very likely that somebody on the Committee would put 

all three of you over—it might be me—to give even additional time 

to our colleagues. But that is what I have in mind, and I think it 

is fair. I hope it will work well for you. And we have been chatting 

about the reasonable time here, and we will work on that basis. 

Senator LEAHY. Thank you, Mr. Chairman. 

Mr. Sutton, earlier today you said that if you were confirmed as 

a judge, you would try to see the world through other people’s eyes, 

try and imagine what it would be like to be on the other side of 

the case that came before you. So imagine you are Pat Garrett or 

J. Daniel Kimel, Gina Brancalla, a West Side mother, any disabled 

person, senior citizen, woman, or low-income child. They are coming in knowing that you have been involved in court decisions 

which denied—I think they would feel—individual remedies for 

their claims. Can they or their counterparts walk into a court with 

not Professor Jeffrey Sutton arguing the case as a litigant but 

Judge Jeffrey Sutton sitting on a three-judge panel or en banc, can 

they look at you and say—are they going to say, ‘‘I’m dead,’’ or are 

they going to say, ‘‘I’ve got a chance’’? 

Mr. SUTTON. Well, I can promise you that if I were fortunate 

enough to be confirmed, I would do everything I could to become 

the kind of judge that I want to become, and that’s a judge that 

is not thought of as a Republican appointee, a Democratic appointee, someone who worked for a State government, someone 

who worked in private practice in this or that side of the case. 

That’s the whole objective. That’s exactly why one would want to 

seek the honor of this particular position. 

I would hope if someone chose to look at some of my representations that they perhaps didn’t care for that they would look at the 

rest of my representations. And I think if they looked at all of 

them, by the time they walked into my courtroom, even, if I were 

lucky enough to be confirmed, the very first day, I think if they 

looked at all of those, looked at all of the briefs I’ve worked on, 

looked at all of my associations, my role in the Equal Justice Foundation, I’m quite confident that they would be comfortable. And I 

can assure you that this is exactly the task I would want to take 

on. 

As an appellate advocate, it is true, you’ve got a client to represent and you’re obligated to further their interests in every way 

you can. But even while you’re beholden to them and to seeking relief for that particular side of the case, one cannot be an effective 

advocate if one is a true believer. Those are the worst advocates. 

The best advocates—and I’m not saying I’m one. I’ve just tried to 

be like the best advocates or the advocates that in arguing a case 

to the court can show that they do appreciate both sides of the 

case, do appreciate the way nine different Justices might look at 

an issue. And while I’m sure I’ve failed at times, I’ve really worked 

hard in the cases I’ve done at the U.S. Supreme Court and in other 

courts to do that very thing. 

So I actually think in some ways appellate advocacy has been 

helpful training for this very type of job and learning how to see 

the world through other people’s perspectives. 

Senator LEAHY. Well, if somebody is coming in there seeking 

compensation under a law that Congress has passed that allows 

256

compensation if their rights are violated, assuming all the things 

the jury agrees and so on, are they going to have to worry based 

on things you have said, positions you have advocated for, and so 

on, that they are going to have somebody who is going to have a 

view that Congress didn’t have that authority in the first place? 

Mr. SUTTON. Absolutely not, and, you know, maybe 1 day if I’m 

lucky enough to get to the Court of Appeals, I’ll prove it and we’ll 

see a dissenting opinion from something I’ve written and the dissenting opinion cites an article or brief I’ve advocated. I hope I’ll 

be able to prove that 1 day. 

Senator LEAHY. Thank you. 

Mr. Chairman, I understand that Mr. Schumer is coming down 

the hall. 

Chairman HATCH. We will be glad to wait until he gets here. 

Senator LEAHY. I now submit my other questions for the record, 

and I appreciate not only the witnesses’ time but their families’ patience throughout this, and that little jolt of nutritional pizza provided by the chairman, if there is even time we needed something 

to clog our arteries, it is tonight. 

[Laughter.] 

Chairman HATCH. That wasn’t what I had in mind, but now that 

you mention it. 

Senator LEAHY. And I noticed you ate an equal amount, and so 

I knew it was safe. 

Senator SESSIONS. Mr. Chairman, we will have to get Senator 

Durbin and Senator Leahy on our bill to reform the minimum mandatory sentences for crack cocaine and provide some better balance 

that we have worked on that would reduce in a number of ways 

the severity of the penalties and balance some other equities in 

that matter. I hope that pretty soon we will bring it up and get 

some cosponsors. If not, we will have a vote on it, I hope. 

Senator LEAHY. I have no question that the disparity between 

crack and powder cocaine is unjustified. I might be thinking of 

moving in a slightly different direction than where the Senator 

from Alabama is. 

I would note—and Professor Sutton noted this. If you pick up the 

Wall Street Journal or the New York Times or even your local papers, and you see article after article about State after State facing 

real budgetary problems where it was easy to be tough on crime 

and just have mandatory minimums, suddenly have prisons they 

can’t afford, a prison population they cannot afford, and I voted for 

some of these mandatory minimums. And I think now in retrospect 

we hampered the judges too much and perhaps the States too 

much. And when you get somebody that goes in there at high 

school age, then they get out 15 years later, saying now go get 

gainfully employed, you know that is not going to happen. 

Senator SESSIONS. It is time to do something about it and express concern. We have got good legislation, I think, that is significant— 

Senator LEAHY. I think what you do is raise the floor more than 

lower the top. 

Senator SESSIONS. No, we have a concern that the powder cocaine yuppies are not getting enough sentence, so they have a modest increase in powder and a significant decrease in crack senVerDate 0ct 09 2002 10:57 Oct 08, 2003 Jkt 089324 PO 00000 Frm 00264 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\89324.TXT SJUD4 PsN: CMORC
257

tences, some other equities that deal with the girlfriend situation, 

as Senator Durbin mentioned. And all in all, it has received very 

good reviews and quite consistent with what the Sentencing Commission has asked us to do. 

So I think Senator Hatch and I have stepped up to the plate. 

People have been talking about it. It is a problem. The Federal sentences, as you mentioned, Mr. Roberts, are set by this Congress, 

and there is no need for the Senators up here to blame you about 

Federal sentences. We mandate them. And if they are not precisely 

correct, we ought to alter them and amend them and fix them. And 

I think it is time to get moving on it. Every year that goes by— 

Senator LEAHY. Actually, I tend to agree, and I will look at your 

legislation. 

Senator SESSIONS. I think you will like it. 

Senator LEAHY. We should also look at some point—and this is 

going to be something where it will work only if Democrats and Republicans work together. At some point we have got to look at a 

basic overhaul. We have federalized far too many crimes. We ought 

to trust our local and State police— 

Senator SESSIONS. Well, you want to federalize violence against 

women. You want to federalize taking guns on State school 

grounds— 

Senator LEAHY. We federalize— 

Senator SESSIONS. —our witnesses who file legal briefs that 

question some of that. 

Senator LEAHY. We federalize carjacking. We federalize so many 

things. We don’t really need to. Actually, you would like the gun 

laws we have in Vermont. Anybody, unless they have a felony 

background, can carry a loaded concealed weapon in Vermont with 

no permit required. Very high incidence of gun ownership. You 

don’t need to register it or anything else. You need no permit to 

own or carry a weapon, concealed or otherwise. We also have the 

lowest crime rate in the country. Maybe it is because they figure 

that everybody is armed. 

Chairman HATCH. I think that has something to do with it. You 

know, don’t you just love this? I mean, this philosophical— 

Senator LEAHY. We also have—something else we have. We have 

the second lowest death rate from drunk drivers in Vermont. The 

lowest is in Utah. But then they don’t drink. And— 

Chairman HATCH. Once again, one of our quirks. 

Senator LEAHY. And I will take some credit for that, for having 

established the toughest drunk-driving program in the State when 

I was a prosecutor. 

Okay, we have filibustered long enough, Schumer. It is good for 

you to get back here. 

[Laughter.] 

Chairman HATCH. We are happy to have you. 

Senator LEAHY. We are glad to have you here at 8 o’clock, just 

as you said. 

Chairman HATCH. We are happy to have Senator Schumer here. 

Before I turn the microphone over to him, let me just put into 

the record a letter from Russell J. Redenbaugh, who himself is 

blind—and he is a member of the United States Commission on 

258

Civil Rights—re: the nomination of Jeff Sutton. This is today’s 

date. 

‘‘Dear Senator Hatch: As a three-term member of the United 

States Civil Rights Commission and the Commission’s first and 

only representative of disabled Americans, I am writing to express 

my strong support for the nomination of Jeff Sutton to serve on the 

United States Court of Appeals for the Sixth Circuit. I am familiar 

with Mr. Sutton’s accomplishments in many of the landmark cases 

he has argued in the highest courts. I agree with some outcomes. 

I disagree with others. But it is clear to me that those of us who 

are disabled in America and those of us who seek to protect equal 

opportunity and equal access for all Americans will be well served 

by having in the Federal judiciary someone who is so intellectually 

active on the issues that concern disabled Americans.’’ 

‘‘I am also impressed by Jeff Sutton’s personal background which 

shows heartfelt sympathy for ordinary people and the disabled in 

particular. The interests of the disabled are not easily pursued by 

partisan tactics and loud noise. The issues are complex. We are not 

benefited by the mere continuation of past policies or the fighting 

of old battles. I am well satisfied that Jeff Sutton will make a fine 

judge and that he will bring to the job of judge the fine mind he 

has applied as an advocate and a compassionate heart that is so 

evident. Sincerely, Russell J. Redenbaugh.’’ 

I just thought I would put that in the record. 

We will turn now to my dear friend and colleague from New 

York, Senator Schumer. 

Senator SCHUMER. Thank you, Mr. Chairman. I know the Committee has been here for such a long time, and I apologize for being 

later than the 8 o’clock that I had expected to be here. Hopefully 

we won’t have to have meetings like this on into the night into the 

future, and that is our hope, our sincere hope that we can work together on those issues to prevent this from happening again. 

Senator SESSIONS. With all due respect, if the Senator had been 

here this morning and had his questions, we wouldn’t be into the 

night. 

Senator SCHUMER. That is not true. 

Senator LEAHY. He was here this morning. 

Senator SCHUMER. I asked questions— 

Senator SESSIONS. We have been here all day. 

Chairman HATCH. Enough is enough. We are going to go with 

Senator Schumer right now. 

Senator SCHUMER. You weren’t here to hear my brilliant questioning this morning. 

Senator SESSIONS. I heard one round. 

Chairman HATCH. Senator Schumer— 

Senator SCHUMER. Then you forget very fast. 

Chairman HATCH. Senator Schumer, the time is yours. 

Senator SCHUMER. Thank you. 

So one of the things—more questions for Professor Sutton—that 

I appreciate here is that you haven’t done what some of our other 

witnesses have done in the case of hear no evil, see no evil, do no 

evil. You haven’t said—you haven’t shied away from being critical 

of all Supreme Court jurisprudence. We have had other nominees 

who have refused to criticize any Supreme Court case ever. I asked 

259

Mr. Estrada: Name a past case—because he kept saying, well, it 

might come before him in the future, he doesn’t want to judge. So 

name a past case he was critical of, and he didn’t want to even do 

that. So you are not—I think you have won some points from some 

of my colleagues I have talked to by not being so Sphinx-like. 

But you did mention, for instance, earlier in our dialogue that 

you disagreed with the Kiryas Joel case where you were critical of 

the Supreme Court’s decision not to take cert. 

Could you point to one other Supreme Court case you are critical 

of? 

Mr. SUTTON. With Kiryas Joel, just to be clear, I wasn’t critical 

of not to take cert, critical of the outcome in the case and specifically the decision not to allow handicapped individuals to obtain an 

education in a setting where they could be with other members of 

their religious sect. 

Senator SCHUMER. Right. How about another case you are critical of? 

Mr. SUTTON. Well, earlier in the day, it came up that—there was 

a discussion about the ADA, and specifically the question was 

raised by Senator Feinstein about whether—what my reaction was 

to the horrendous and egregious history of forced sterilization of 

those with mental disabilities. And I made the point that there was 

a rather embarrassing U.S. Supreme Court case by the name if 

Buck, remarkably, written by Justice Holmes—remarkably, because he was otherwise a fairly distinguished jurist. And I made 

the point that in the Garrett brief that has received some criticism—and I understand your perspective and other members of the 

committee’s perspectives on the position of my client in that case. 

But even in that particular case, where the Buck case, remarkably, 

is still on the books, the State of Alabama agreed to take the position in the Court to say we don’t think that is correctly decided. 

And, you know, it’s a sad, sad chapter. 

Happily—it would be very difficult to overrule Buck now because 

every—all those laws— 

Senator SCHUMER. And you were representing—I am sorry. You 

were representing Alabama in that situation? 

Mr. SUTTON. Exactly. And all of those laws are now off the books. 

Senator SCHUMER. How about a case—and it could be a decided 

case—that you disagree with that you weren’t representing anybody, that you as a professor— 

Mr. SUTTON. I didn’t represent anybody in Buck. Buck is a 1927 

decision. 

Senator SCHUMER. I see. 

Mr. SUTTON. It’s an infamous decisions of the U.S. Supreme 

Court. It’s been criticized in every court it’s ever been— 

Senator SCHUMER. But you represented Alabama later on when 

they challenged Buck, or on? 

Mr. SUTTON. No. I’m making—I didn’t do a good job explaining 

that. I was making the point that in the Garrett brief, which is the 

case about the ADA— 

Senator SCHUMER. Oh, I see. 

Mr. SUTTON. —we acknowledged this—it’s called the eugenics 

movement. 

Senator SCHUMER. Right. 

260

Mr. SUTTON. That it was a very unfortunate, sad chapter in 

American history. Happily, it’s a closed chapter in American history, and if it weren’t closed, the ADA would require it to be closed. 

Senator SCHUMER. Any others? 

Mr. SUTTON. I can’t think of any others offhand. I didn’t come to 

the— 

Senator SCHUMER. How about Korematsu? 

Mr. SUTTON. Well, I mean, anyone who’s read Korematsu would 

obviously be very uncomfortable with the result. I made another 

point in the very brief I’m talking about— 

Senator SCHUMER. I am just trying to get an idea of your thinking when you’re not representing a client, and I don’t want to get 

you into the issue of prospective cases, so I am just asking some 

cases that you disagree with— 

Mr. SUTTON. Yeah. 

Senator SCHUMER. I mean, I am sure you would disagree with 

Plessy v. Ferguson, right? 

Mr. SUTTON. Right. But the point I wanted to make, though—

and it’s actually the same point we made in the Garrett brief—you 

know, while it’s easy today to look back on a case like Buck, look 

back on a case like Korematsu, and say, boy, you know, how could 

that have happened? You know, time has a way of making, you 

know, yesterday’s progressives look like today’s Neanderthals. I 

mean, there’s just no doubt that that’s true. 

The thing I’m a little reluctant to do is to second-guess courts in 

saying, boy, you know, had I been a judge on that particular case 

back in that period of time, I would never have fAllen into that 

trap. I think that’s Monday morning quarterbacking and unfair. 

Senator SCHUMER. Well, that is a different issue. It is a different 

issue to say at the time I would have ruled differently, then times 

have changed and things have changed, and I would now disagree 

with that holding, right? 

Mr. SUTTON. That’s true, although I must say, you know, unfortunately as a Court of Appeals judge I can’t imagine it coming up 

with these particular cases. But, you know, a Court of Appeals 

judge is obligated to follow U.S. Supreme Court precedent, for better or worse, and I, of course, would do that, for better or worse. 

Senator SCHUMER. But you would—okay. Any others you want to 

mention? 

Mr. SUTTON. No. 

Senator SCHUMER. Is it that you can’t think of any or you don’t 

want to mention it? Well, I am going to submit that question in 

writing. Okay. I am going to ask you, just so you can think about 

it for a while, about cases that you—already decided Supreme 

Court cases that you might disagree with, and I will assume if you 

don’t submit any that you agree with every one of them that has 

been decided already. 

Mr. SUTTON. Well, that is a big task, but thank you for the opportunity to put it in writing. 

Senator SCHUMER. Okay. Well, just give me a few. That is all. 

I am not asking you to go through every Supreme Court case. I am 

asking that we try to stop the sort of Sphinx-like behavior we have 

had with witnesses who don’t say anything about anything. I am 

261

not saying you have done that. You have done more than some. I 

think that is a good question to ask. 

Mr. SUTTON. I understand. 

Senator SCHUMER. As a way of getting to your thinking. Okay. 

The next question is—I want to talk a little bit about Sandoval because this one I think had really far-reaching opinions—a farreaching effect. And I believe that you more than most lawyers 

have been quite successful in persuading this Supreme Court to 

adopt your ideas. Five Justices on the Court have basically bought 

into the States’ rights jurisprudence that you have been one of the 

leading advocates of and creators of, really. The ripple effect of that 

jurisprudence in my judgment has been very powerful. And perhaps the most striking example is Sandoval where the Court was 

dealing with Title VI of the Civil Rights Act of 1964, which prohibits discrimination based on race, color, or national origin in federally funded programs. 

The Sandoval decision reversed an understanding of law that 

had been in place for nearly three decades, and it limited private 

citizens’ power to enforce rights protected by Federal laws. The ruling makes it nearly impossible to challenge a range of State practices with an unjustified disparate impact, such as, for instance, 

disproportionate toxic dumping in minority neighborhoods, or the 

use of educationally unjustified testing or tracking procedures that 

harm minority students, the failure to apply appropriate language 

services in health facilities. 

But I believe your arguments in Sandoval went even further 

than the Court went. You argued that neither private citizens nor 

the Federal Government has the power to enforce disparate impact 

regulations. 

If the Court had adopted your position, in my judgment, it would 

have gutted the laws and regulations that protect millions of Americans. You would have rendered enforcement of these laws entirely 

effective. That is why I said earlier this afternoon that you could 

do a thousand pro bono cases, and it wouldn’t undo the damage, 

in my judgment, that Sandoval has done to individual rights and 

to the ability of this country to be as colorblind as we possibly can. 

So I for one am grateful that the Court refused to go as far as 

you argued that they ought to go, but I worry about what would 

happen if you were wearing the judicial robes and had the power 

to make your ideas law, into law. And I worry about, frankly, what 

Professor Jeffrey Sutton’s America would look like if you had the 

power conferred by a lifetime seat on the Federal bench. I worry 

that in that America, poor parents couldn’t go to court to ensure 

that their children get basic medical care. I worry that disabled 

children couldn’t go before a judge and ask that she or he enforce 

the rights of equal educational opportunities. I worry that in that 

America, senior citizens wouldn’t have the right to go to court and 

seek protection from employment discrimination. Women would 

have no power to go to court to fight gender discrimination. 

I fear that in the America that you see from your reasoning and 

your jurisprudence that States have rights but people really don’t 

because your argument in Sandoval went really far, again, way beyond what even most would concede as a rather conservative 

Court, conservative majority went with. 

262

So I would just like to know how you allay my concerns about 

that. I mean, the courts have been a place that individuals seek 

justice, and I think one of the great things about our jurisprudence 

over 200 years is they have enabled more and more individuals to 

seek that type of justice when it is either State government or 

some other entity stopping them from gaining that justice. 

We have a philosophy that seems to be governing here that Government regulation is bad, and if the Government isn’t going to 

protect people, then you at least want to see individuals be able to 

protect themselves through the rights that have been granted 

through our judicial process over centuries. 

So how would you allay my concerns about that, that individuals, 

particularly at a time when Government is doing less to protect 

them, don’t have the basic ability as a result of your arguments, 

you know, if it were to become law, your arguments in Sandoval

to seek justice, to seek—well, in this case, to seek freedom from 

discrimination? 

Mr. SUTTON. Senator, I know we discussed this a little earlier, 

and I appreciate your perspective on this, and I think I’m gaining 

a greater appreciation as time goes on. And I think it’s obviously 

a very important perspective on this. 

I would like to say something—and I hope this doesn’t irritate 

you, but I would like to point out that, again, this is not a case I’ve 

written about. This was a case where I was an advocate, and I 

really do feel strongly—I mean, maybe I’m misguided in this, but 

I do feel strongly that I had an obligation to make all reasonable 

arguments that I thought would advance my client’s cause. I don’t 

think the Sandoval decision or brief in any way indicates what I 

would do as a Court of Appeals judge, and all— 

Senator SCHUMER. Did your client in that case urge you to take 

the argument that individual—you know, to take that extra step in 

the argument that said individuals couldn’t sue? Or did you suggest it to your client? I mean, where did the—Sandoval was a State 

case, basically, and you went further— 

Mr. SUTTON. Senator, this may show that I’m not as sensitive as 

I should be, but I actually thought I was advocating the moderate 

position, and let me explain what I mean by that. You said that 

we challenged the validity of the regs and that we said the Federal 

Government could not enforce the disparate impact regulations 

against States that had violated the rights of individuals within 

that State. There was a big debate about whether to challenge the 

regs. We could have challenged the regs. 

As the opinion for the Court indicates, we did not challenge the 

validity of the regs. I think the reason someone might say that we 

did—I mean, but the opinion of the Court makes it quite clear. 

They say the validity of the regs is not in front of us because the 

State has not challenged them. So even though we could have challenged them, gone that extra step, we did not challenge them. 

But you might say, okay, so why is there anything in the brief 

at all about the regs? Well, the part of Sandoval that was difficult 

was the fact that Section 601—that’s Title VI—Section 601 was a 

provision that the U.S. Supreme Court in Bakke, you know, the affirmative action case, where Justice Powell, Justice Brennan, Justice Marshall—and I’m not sure about this, but I think it was also 

263

Justice Blackmun and Justice White. But I know it was Justice 

Brennan, Justice Marshall, and Justice Powell concluded that Section 601 did not allow for claims for disparate impact, but only for 

claims for intentional discrimination. 

You might, as you’re hearing me say that, well, that seems a little counterintuitive. Why in the world were Justice Marshall and 

Justice Brennan saying 601 didn’t reach disparate impact— 

Senator SCHUMER. Right. 

Mr. SUTTON. —discrimination, which seems like an awfully good 

idea and something in other cases they might have supported. 

Well, I don’t know why they didn’t do that, obviously. One can 

speculate—and the speculation makes a little sense to me—and 

this gets to the whole complexity of disparate impact litigations. An 

interpretation of the Civil Rights Act, Section 601, that allowed 

that kind of disparate impact claim could have doomed the Bakke

affirmative action position that Justice Powell, Justice Brennan, 

Justice Marshall carved out because of the very obvious point that 

affirmative action could have disparate impacts on other people 

based on race. 

I don’t know. Who knows why they did that? But the fact of the 

matter is those Justices— 

Senator SCHUMER. I am not following you. What I was focusing 

on is that the brief went beyond what the Federal Government can 

do and talked about individual citizens’ rights to deal with disparate impact, not the disparate impact itself, not the argument 

the regulations—I don’t know why— 

Mr. SUTTON. Your question has said that we challenged the validity of the regulations, and we didn’t challenge the validity of the 

regulations, and the Federal Government can enforce them against 

individuals. 

In terms of the brief arguing that private individuals could not 

sue for disparate impact under— 

Senator SCHUMER. Did you just argue that they could not sue for 

disparate impact, or did you argue that they couldn’t sue for a 

broader range of issues under Title VI? I don’t know the answer. 

I am just asking. 

Mr. SUTTON. Well, the only thing in the case was the regulations, 

because under the titles—this part of the brief I don’t recall, but 

I’d be surprised if I didn’t—we didn’t concede this point, our client 

didn’t concede this point. The point was there’s a case called Canon

which deals with Title IX, and Canon says that there is an implied 

right of action for claims—there is an implied right of action for 

claims for intentional discrimination, so we would have conceded 

that point. 

I think what you might be—the reason you might be asking this 

question—and, you know, someone could disagree with this—is the 

notion that—there’s a case called Penhurst and a case called South 

Dakota v. Dole, which say before spending clause legislation or 

other legislation is going to create a cause of action against States, 

you need a clear statement, and that the argument in Sandoval

someone might have construed to mean even Canon wasn’t rightly 

decided. And that’s a pretty good objection. That’s, of course, exactly what the Supreme Court said. That’s exactly what the Federal Government argued in opposition, and it didn’t prevail. 

264

Senator SCHUMER. But what you are saying here is in Sandoval

your arguments were simply related to the disparate impact regulations, not a general view that individuals didn’t have the right 

to sue? 

Mr. SUTTON. No—yeah—no, the disparate impact regulations 

were all that were at issue. I’m sorry if I didn’t get to that more 

quickly. 

Senator SCHUMER. Okay. I just wanted to go back to City of 

Berne again. I don’t even know where it is. Where is the City of 

Berne? 

Mr. SUTTON. It’s in Texas. 

Senator SCHUMER. Texas. All right. What I asked you there is—

and we didn’t get a clear answer. I just want to get an answer to 

the underlying question, all right? Which is: Did you, the Attorney 

General, or the Governor decide what position to take in that case? 

I mean, you were trying to think back, but maybe you have had 

a chance to think about it. 

Mr. SUTTON. When you say ‘‘position,’’ the decision whether to 

file an amicus brief in the U.S. Supreme Court in City of Berne? 

Senator SCHUMER. And the arguments that were made. 

Mr. SUTTON. I guess on the first part of it, clearly it’s the Attorney General in Ohio. The State Solicitor job is an appointed position. One reports to the Attorney General. The Attorney General is 

an elected office holder in Ohio and— 

Senator SCHUMER. So did they contact you and say, ‘‘We want to 

argue this case’’? Or did you contact them initially to file the brief? 

Mr. SUTTON. Well, the point I was making was the Attorney General or people in her corrections staff had already decided to challenge RFRA— 

Senator SCHUMER. I didn’t ask you that. I asked you: Did they 

contact you initially? Did they reach out to you? Or did you call 

them up and say, ‘‘Hey, this would be a good idea and I want to 

help you with this’’? 

Mr. SUTTON. In terms of our involvement in City of Berne itself, 

I understand. I think my recollection’s correct. I think the State of 

Ohio filed an amicus brief on behalf of States, both at the cert 

stage, which is to say encouraging the Court to take the case—I 

think the city had lost at the Fifth Circuit, if my memory’s correct—and then filed a brief at the merit stage. So the important 

point would have been the cert stage, because once you’ve filed an 

amicus brief for States at the cert stage, generally you’ll follow— 

Senator SCHUMER. Your involvement didn’t come in until the 

highest level, right? 

Mr. SUTTON. Exactly. We— 

Senator SCHUMER. And I am just asking you—I am not asking 

you how Ohio came up with its position. I am asking did you—initially there would have to be some hook-up between— 

Mr. SUTTON. Yes. 

Senator SCHUMER. —Professor Sutton and the State of Ohio at 

this level. 

Mr. SUTTON. Right. 

Senator SCHUMER. Did you contact them and say, ‘‘I’d like to be 

involved in this, I’m an expert’’? Or did they contact you? 

265

Mr. SUTTON. I honestly don’t remember. If I were to guess what 

would have happened, because I— 

Senator SCHUMER. If you don’t remember, you don’t remember. 

Mr. SUTTON. Well, I don’t, but if I could take an educated guess, 

because I think it’s most likely the case. The educated guess is that 

what would have happened is—as I said before, the corrections 

lawyers were challenges RFRA in the lower courts. The corrections 

lawyers, like all lawyers in the AG offices, work together on consumer affairs, environmental—they coordinate work and they tell 

each other what they’re doing. And my suspicion is that what happened is that corrections officials in our office would have known 

about the City of Berne litigation. Why? Because they were challenging the same law in their cases. And my, again, educated guess 

is they came to me saying, ‘‘Jeff, this is something we ought to try 

to get involved in.’’ The thing— 

Senator SCHUMER. Okay. How many of the cases where you argued on these significant cases—I mentioned four or five before. 

Are there any where you reached out to the client and said, ‘‘I’d 

like to make this argument, I’d like to get involved’’ as opposed to 

them asking you? 

Mr. SUTTON. Right. Well, the one that I know I reached out in 

is the Dale Becker case, and Dale Becker was the prisoner rights 

case where an inmate in Ohio filed a pro se cert petition. The reason I know I reached out for that one is because when the U.S. Supreme Court grants a cert petition— 

Senator SCHUMER. Go ahead. I am listening. 

Mr. SUTTON. When the U.S. Supreme Court grants a cert petition for a pro se inmate, for obvious reasons that inmate is not 

going to be able to argue the case in the U.S. Supreme Court. 

Senator SCHUMER. You don’t have to give me the whole—so in 

that one you reached out. 

Mr. SUTTON. I did. 

Senator SCHUMER. I am going to ask you to respond in writing. 

Did you reach out and make the initial contact in—you don’t have 

to answer me now. I will do it in writing. But I would like in 

Sandoval, Garrett, Kimel, and I asked you about City of Berne already. Okay? Because in each of these cases, your argument is you 

were just following what the client wanted. Well, it would be a little different if you reached out to them and said, ‘‘Hey, this is a 

good argument, let’s make it.’’ That would be before representing 

the client. 

Let me give you one other follow-up question. I want to follow 

up here on something Senator Durbin asked. You said you decided 

to take the Garrett case because you wanted to argue before the 

Supreme Court. That was in reference to what Senator Durbin had 

asked you. Is there any case you would refuse to take because the 

potential client’s desired outcome was too wrong or too offensive to 

you? 

Mr. SUTTON. Well, that’s a difficult question. I would say the 

Garrett case, I want to make sure I’m correct on that, I mean, I 

was trying to develop a U.S. Supreme Court practice, and it’s obviously an honor to be asked to argue a case in the U.S. Supreme 

Court, and it’s just an easy opportunity to accept, and that’s certainly what I did. And I was happy to be litigating there. 

266

Chairman HATCH. Would the Senator yield on that point? 

Senator SCHUMER. Please. 

Chairman HATCH. I have a letter from Bill Pryor, attorney general of the State of Alabama. 

‘‘Dear Chairman Hatch, I am writing to correct the record concerning Jeffrey Sutton, nominee to the Court of Appeals for the 

Sixth Circuit. I understand that it has been reported that Mr. Sutton aggressively pursued the opportunity to work on Garrett v. Alabama, a case in which the State of Alabama defended itself against 

a lawsuit brought under the Americans with Disabilities Act.’’ 

‘‘I am the person who hired Mr. Sutton to represent Alabama before the Supreme Court of the United States, and I did so solely 

on the basis that I hold his legal abilities n the highest esteem. Mr. 

Sutton never solicited this representation. I sought his representation for the State of Alabama. I hope this clears up any confusion 

in this matter.’’ 

I thought that would be something that would help here at this 

point for both Senator Schumer and you. 

Senator SCHUMER. Did somebody reach out to him since Senator 

Durbin asked the question; is that— 

Chairman HATCH. Excuse me. I am not sure what you are saying. He said that— 

Senator SCHUMER. That letter is pretty timely, in terms of Senator Durbin’s question. Did we get that letter this afternoon? 

Chairman HATCH. No, it is dated January 23rd. 

Senator SCHUMER. Thanks. 

Mr. Chairman, I have some more questions for Mr. Sutton. The 

hour is late. I am going to submit them in writing. 

Chairman HATCH. I appreciate that. 

Senator SCHUMER. Because I will not have any other chance to 

question either Judge Cook or Mr. Roberts, I would like to ask each 

of them one question tonight. 

Chairman HATCH. Sure. Now, we have reserved this time for 

you, and we are grateful that you came back to do this. 

Senator SCHUMER. Well, thank you. I will do it again if you 

would like to be more grateful to me. 

Chairman HATCH. I think once is enough. 

[Laughter.] 

Chairman HATCH. You are just so accommodating. 

Senator LEAHY. There is only so much gratitude to go around. 

[Laughter.] 

Senator SCHUMER. This is for Mr. Roberts. It is a long day for 

you, and I am sorry that you have had to sit here through all of 

this. I know Senator Hatch has argued we are inconveniencing you, 

and I apologize for that. 

I do think, I mean, I have made my point clear that I wish we 

had had better time, more time, not at 9 o’clock, to question you, 

and I do not think asking people to come back for such an important appointment is anything undue. Judges ask you to come back 

and argue cases all of the time, and that is less significant than 

this, and every lawyer has sat around and waited in the court for 

the calendar to clear. 

267

But here we are, and I have made my argument and not succeeded, so let me ask each of these questions—one question to each 

of you. 

You have come very highly recommended. You are obviously one 

of the great legal minds in a city full of great legal minds, and for 

me, with your situation, just as with Professor Sutton’s excellence 

is not the issue. But I do want to ask you something about these 

State rights issues we have been discussing all day. 

As with Professor Sutton, I am not going to ask you questions 

based on briefs you wrote for your clients. I want to ask you about 

some of the things you have said in your personal capacity. I want 

to read to you an excerpt from an interview you did with Nina 

Totenberg, I guess well-known to this Committee before I got on it, 

discussing several States’ rights cases from the 1999 Supreme 

Court term. 

I think we have a fair excerpt from that interview, but I will give 

you a full chance to explain your thoughts, if it is out of context 

at all, but here is what was said, quote, Mr. Roberts: ‘‘Well, I think 

the three decisions taken as a group are a big deal.’’ I do not know 

what—you will probably remember this better than—you know it 

better than I do, that is for sure. 

‘‘It’s a healthy reminder that we’re a country that was formed by 

States and that we still live under a Federal system. It’s the 

United States of America, and what these cases say is just because 

Congress has the power to tell individuals and companies that this 

is what you’re going to do, and if you don’t do it, people can sue 

you, that doesn’t mean they can treat the states the same way; 

that the States, as co-equal sovereigns, have their own sovereign 

powers, and that includes, as everyone at the time of the Constitutional Convention understood, sovereign immunity.’’ 

You went on to say, regarding the Congress’s exercise of the 

Spending Clause power—these are all quotes—‘‘Well, so much of 

what we, what our restrictions are based on, the spending power. 

You know, even for private citizens, if you accept Federal money, 

you’re covered by Title IX and Title VI, and the basic principle is 

if you pay the piper, you get to call the tune. And I think the Federal Government could say, if we’re giving you money, and it’s related to the area in which we’re trying to get you to waive sovereign immunity, we can require you to consent to suit as a condition of getting those funds.’’ 

The example you gave is a good one. This is you still speaking. 

‘‘If they get Federal funds for your Probation Department, they can 

say, ‘We’re not going to give you those unless you waive sovereign 

immunity,’ and that’s quite common. The Federal Government, for 

example, has sovereign as well. It has waived it.’’ 

Then, Nina Totenberg says, ‘‘And supposing the Federal Government said, ‘If you accept any Federal money—States—you have to 

abide by the Federal provisions that we, we enact for everybody’?’’ 

Mr. Roberts, ‘‘I think that would go too far. The jargon is that 

the waiver has to be germane to what the funds are for. You may 

remember a while back the Federal Government said, if we give 

you highway funds, you’ve got to raise your drinking age to 21 because we think having these teenage drinkers causes accidents. 

The court held that that was germane to that purpose, but there 

268

has to be a connection. It can’t just be if you take a penny of Federal funds, you’ve got to waive your sovereign immunity across the 

board.’’ That is the end of the quote. 

What I am trying to figure out here is where all of this appears 

in the Constitution. For the life of me, I cannot figure it out. I keep 

going back to this document and looking for the words like ‘‘sovereign immunity’’ and ‘‘congruent, and proportional and germane to 

the purpose,’’ and I do not see any of it. 

We keep hearing that the Justices who are advocating these 

things are strict constructionists, but as far as I can tell, they 

mostly strictly construe the law in favor of States and big businesses against the interests of average people. 

Can you help me understand this? It appears from this interview, you agree with the court’s jurisprudence in this area, the majority’s recent jurisprudence here. Do you? And, if so, why, when 

the plain language of the Constitution is either silent or to the contrary? 

Mr. ROBERTS. If I’m remembering the radio show, I think it was 

sort of a wrap-up of the Supreme Court’s term, and I think she 

may have had other people on as well, and they’re talking about 

what’s significant. And I thought that the Supreme Court’s immunity cases involving the States were indeed significant. That was 

I think the question before it got to the part you were quoting—

is this a big deal? And I thought it was, and I said that. 

And then part of the rejoinder was, well, can’t we use the spending power to get around this? In other words, if we’re serious about 

it, let’s use the spending power. And what I was articulating there 

was what I understood the state of the law to be which was, as a 

general matter, the answer is, yes. South Dakota v. Dole was the 

highway funds case, but that, again, I’m stating what I understood 

the law to be, that there is this so-called germaneness requirement. 

Senator SCHUMER. Right. 

Mr. ROBERTS. So that’s what the Supreme Court’s precedence— 

Senator SCHUMER. Where did it come from? Where in the Constitution did it come from? Let us say the Federal Government 

made a more sweeping law and said, ‘‘If you accept any Federal 

money, not just highway money, you have to have a 21-year-old 

drinking age’’? Now, that may be very broad power of the Federal 

Government, but I would like to know where in the Constitution, 

explicit or derived, it says that the Federal Government cannot do 

that? 

Mr. ROBERTS. I don’t know what the Supreme Court’s precedence 

hold. My familiarity with the requirement really was the South Dakota case, where they articulated it, and they explained over, for 

example, over the dissent of Justice Brennan and Justice O’Connor, 

that this requirement was met. I haven’t gone back and read the 

prior case. I don’t know the answer, what the analysis was. 

I was just articulating what I understood the law to be for the 

purposes of the interview. 

Senator SCHUMER. Do you have any further thoughts on, I mean, 

it is an important question. You know the laws much better than 

I do, but it would seem to me, when you are making such a, you 

know, you are making a dramatic change, we have had, basically 

relates to expanded Federal Government power versus reducing 

269

Federal Government power, and that has been the trend in this 

court, and there has got to be a basis for it. 

Mr. ROBERTS. Well, Senator, I was listening, as you always are, 

with some trepidation when someone says this is what you said. 

You’re waiting for not only the nongrammatical part, but the part 

that sounds ludicrous, and I have to say— 

Senator SCHUMER. I am from Brooklyn. I am used to nongrammatical parts. Do not worry. 

Mr. ROBERTS. I have to say I didn’t hear anything that I would 

say, gosh, you know, I wish I hadn’t said that. 

Senator SCHUMER. I wasn’t trying to— 

Mr. ROBERTS. I think it is the case that we do have a Federal 

system, that States have powers and responsibilities, and the Federal Government does as well. Certainly, under the Supremacy 

Clause, the legislation that you enact is the supreme law of the 

land, consistent with the Constitution. I appreciate the concern 

about the sovereign immunity cases. You are quite right. There is 

no sovereign immunity clause in the Constitution. 

On the other hand, the court’s cases have been fairly consistent 

that the Federal Government enjoys sovereign immunity. This body 

has done much over the years to waive that—the Federal Tort 

Claims Act, a whole variety of things. But that basic recognition of 

Federal sovereign immunity has always held firm, and I think it 

is hard to explain to State Government why do they have it and 

we don’t, and if we had it at the time of the founding, when did 

we give it up? 

The Supreme Court has given some answers. Well, part of it you 

gave up in the Fourteenth Amendment, in Section 5. 

But I do appreciate that it is a difficult area because you’re not 

dealing with a textual provision in the Constitution. 

Senator SCHUMER. Do either of the other two witnesses want to 

comment on that? 

Justice COOK. Not I. 

[Laughter.] 

Senator SCHUMER. Not on Mr. Roberts’ grammar, but rather just 

on the general question I asked. Where does all of this spring? 

Mr. SUTTON. I don’t know why I’m reengaging. 

[Laughter.] 

Chairman HATCH. I do not know why either. 

[Laughter.] 

Mr. SUTTON. I’m a fool. But the one point I just wanted to make, 

there’s no spending clause either, for what it’s worth. This comes 

from Article I, Section 8, and it says, ‘‘Congress can provide for the 

general welfare.’’ And the court, sensibly, A, textually, but sensibly 

has said, hey, if it’s Congress’s money, they can tell the States how 

they want it spent, and if they want to attach conditions, they can. 

Senator SCHUMER. So where does this one come from? 

Mr. SUTTON. That’s my point. There isn’t a spending clause. 

Senator SCHUMER. I understand, but you just said it sprung 

from, you know, the clause to protect for the general welfare, right? 

Mr. SUTTON. Exactly. I’m just saying there isn’t a spending 

clause, so there’s not a textual basis for it. I’m just making the 

point that the Supreme Court decisions sensibly have said, if ConVerDate 0ct 09 2002 10:57 Oct 08, 2003 Jkt 089324 PO 00000 Frm 00277 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\89324.TXT SJUD4 PsN: CMORC
270

gress raises money to provide for the general welfare, they can attach conditions as to how it’s spent. 

Senator SCHUMER. Only certain conditions. 

Mr. SUTTON. Well, that’s what South Dakota v. Dole— Senator SCHUMER. This is what Mr. Roberts was talking about 

in his interview. He was saying there has to be germaneness, there 

has to be proportionality. 

Mr. SUTTON. I don’t think he was saying proportionality. I think 

the germaneness— 

Senator SCHUMER. He did not say proportionality. I stand corrected. He was saying—I am going to try to correct the grammar 

here, although I do not know where you made such egregious mistakes. 

But, anyway— 

Senator LEAHY. While you are doing that, I just would note for 

the record that Professor Sutton did not serve in the military, otherwise he would know better than to volunteer at this point. 

[Laughter.] 

Mr. SUTTON. I deserved that. 

Senator SCHUMER. It was brave. Do you have anything you 

would like to say, Judge Cook, on this? 

Justice COOK. I don’t, sir. 

[Laughter.] 

Senator SCHUMER. Just let me say that I was trying to be Dean 

Martin to your Jerry Lewis on that one. 

[Laughter.] 

Senator SCHUMER. Let me ask you a question, okay? 

Senator SESSIONS. Senator Schumer, on that subject, Blackstone’s Commentaries says that ‘‘no suit or action can be brought 

against the king, even in civil matters, because no court can have 

jurisdiction over him.’’ Then it goes on, ‘‘For the same reason, no 

action lies under a Republican form of Government against the 

State or Nation, unless the legislature have authorized it, a principle recognized in the jurisprudence of the United States and of 

individual States.’’ 

So that was the classic principle— 

Senator SCHUMER. But sovereign immunity is not— 

Senator SESSIONS. And as attorney general, I mean, I have relied 

on it. Every attorney general relies on it. It is not explicitly stated 

in the Constitution directly, but there is a sense in which if the 

State can be sued or the Federal Government can be sued, it can 

be destroyed. So there is some— 

Senator SCHUMER. I understand, but that is where we pass from 

strict constructionism to judicial activism in a certain way, and— 

Senator SESSIONS. I do not think the Constitution ever covered 

everything. This was existing principle at the time. 

Senator SCHUMER. Look, I have made that argument for a long 

time, as you know. 

Let me go to Justice Cook. 

Chairman HATCH. One last question for Justice Cook. 

Senator SCHUMER. It is a very long one—no, it is not. 

[Laughter.] 

Senator SCHUMER. Justice Cook, it is my understanding that you 

previously discussed the decision in Davis v. Wal-Mart with SenVerDate 0ct 09 2002 10:57 Oct 08, 2003 Jkt 089324 PO 00000 Frm 00278 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\89324.TXT SJUD4 PsN: CMORC
271

ator Kennedy. I would like to return to the case. I am troubled by 

your dissent. 

In that case, a widow, whose husband had been killed on the job, 

settled a lawsuit against the employer. She then attempted to file 

a second lawsuit, after learning that the employer had instructed 

employees to lie about how her husband had been killed. The employer apparently did this in order to wrangle a settlement out of 

her. 

Your colleagues found that this evidence was not only enough to 

permit the suit to go forward, but that it actually might support 

punitive damages. Punitive damages are usually reserved for cases 

where the wrongdoing is blatant. It seems kind of blatant here. 

It is my understanding that you explained to Senator Kennedy 

that your dissent in this case was based on your view that res judicata prevented the widow from filing the suit; is that correct? 

Justice COOK. Only because she had previously litigated this 

matter. She filed a negligence— 

Senator SCHUMER. Well, of course. 

Justice COOK. Yes. So she had a negligence action that was concluded. 

Senator SCHUMER. Right. 

Justice COOK. And that this claim was sufficiently related and 

could have been brought and wasn’t. 

Senator SCHUMER. So you are relying on res judicata. 

Justice COOK. That’s right. 

Senator SCHUMER. Once an issue is decided, it is final, and to 

reach the conclusion that the widow could not refile her suit, even 

after she learned after the company’s quite horrible deception. 

Another fundamental principle, however, of our legal system is 

that juries find facts based on the evidence presented, and judges 

and appellate courts give a great deal of deference to those jury determinations. It is my understanding that to overturn a jury verdict, an appellate court must find that the jury’s decision was 

‘‘against the manifest weight of the evidence.’’ That is, as we all 

know, a rather high standard. 

In Burns v. LCI Communications, a jury found that employees 

had suffered age discrimination, and the evidence at trial included 

statements by the employer that it ‘‘wanted to bring in young, aggressive staff members and change out the old folks,’’ and that he 

did not ‘‘want old marathoners in my sales organization. I want 

young sprinters.’’ This man was not in charge of the Senate. 

[Laughter.] 

Senator SCHUMER. Despite this evidence, which was enough to 

convince a jury of age discrimination, you voted to overturn the 

jury’s verdict for the employees. It appears that you substituted 

your views for those of the jury who actually heard the testimony 

and saw the evidence of discrimination. 

I find it troubling that legal principles constrain you in this case, 

where you are vindicating an employer, how do you explain the deference to legal principles in the one case, Davis v. Wal-Mart, you 

denied the widow’s right to her day in court, but your willingness 

to disregard other important legal principles when a jury has found 

evidence of discrimination? 

272

Justice COOK. In the Burns case that you talked about, the verdict was overturned by the Court of Appeals unanimously and then 

five of the seven members of the Ohio Supreme Court agreed that 

the plaintiff had not shown that she had been discriminated 

against. So we weren’t—they agreed that there—there was a disagreement among us, but at least all five members agreed that she 

had not shown discrimination. 

And the facts you’re mentioning—you know, the sprinters, et 

cetera—I have not a great recollection of it, but I think the point 

was that those comments were made years before, so the plaintiff’s 

effort, which garnered a verdict did not—used evidence that was 

not related to her. A good majority of the Supreme Court agreed 

that actually discrimination had not been shown, even though 

when you cite it, it all sounds pretty awful. But the three judges 

of the Court of Appeals and five at the Supreme Court agreed. 

Senator SCHUMER. In Burns. 

Justice COOK. Yes. 

Senator SCHUMER. Just explain the first case, your ruling in— 

Justice COOK. Wal-Mart? 

Senator SCHUMER. Wal-Mart, yes. 

Justice COOK. I am getting tired. In Wal-Mart, I think we just 

talked about res judicata was the basis for my dissent, and that’s 

a dissent in Wal-Mart, I think. 

It was the second matter, after the negligence claim, the widow 

had the information. She said that she then learned later that the 

employer had withheld. 

Senator SCHUMER. After the second, she did not get the information until— 

Justice COOK. No, the record actually showed that she had that 

information— 

Senator SCHUMER. Had it. 

Justice COOK. And then didn’t bring it. I mean, had it within 

time to bring it as part of the original negligence claim— 

Senator SCHUMER. I see. 

Justice COOK. —and failed to do so, and so we determined that 

it was waived. 

Senator SCHUMER. Why did she do that? 

Justice COOK. I’m not— 

Senator SCHUMER. You do not remember. 

Justice COOK. I don’t remember. 

Senator SCHUMER. I do not quite—you know it better than me, 

again, but I think the second case, the Burns case, at least from 

what my cursory knowledge is a little different. So I am going to 

just ask, Mr. Chairman, in the interest of time, that I submit some 

questions about these two issues, and maybe some others, to Judge 

Cook in writing. 

Chairman HATCH. Thank you, Senator. I would like Senators to 

submit as many questions as they—submit their questions now. We 

will have the transcript by tomorrow at 4:00 and any additional 

questions, have them submitted by 5 o’clock on Tuesday, and then 

I would like your answers back by Wednesday evening, because I 

intend to put you on the markup for the Thursday from tomorrow. 

Senator SCHUMER. Mr. Chairman? 

Chairman HATCH. Yes? 

273

Senator SCHUMER. Could we have a—I mean, I have a bunch of 

questions. 

Chairman HATCH. We have already agreed on this. 

Senator SCHUMER. We need to— 

Chairman HATCH. It amounts to a week, really. I mean, we are—

and nobody is going to press you on this. If we have to put them 

over for a week, we will do so, but that is what we are going to 

do. 

I just have to say you have been very patient today, and this has 

been a tough day for you. I apologize that it has taken so long. You 

have been here really for 12 hours, really the equivalent of 2 days. 

You have been patient with us, and we appreciate it, and hopefully 

we can move ahead with your nominations and do so in an expeditious, yet fair to all sides, fashion. 

I just caution you, when you get these questions, answer them 

as quickly as you can, but I am hopeful that you will have all of 

these questions answered by next Wednesday night. 

Now, Senator Leahy? 

Senator LEAHY. First, I want to reiterate, I appreciate you moving down here to accommodate especially the disabled people earlier, and I appreciate you accepting our recommendation for that. 

I would also note that you have been very fair with the clock on 

giving Senators on both sides whatever amount of time they needed. I would hope, and I understand the pressures the Chairman 

was under from his side of the aisle on this, but I would hope that 

this would not be necessary to have—I do not mind having hearings every day if you want—but not to have three nominees, where 

there will be three extensive questions on like this at the same 

time. 

Again, we saw what happened with the three District Court 

judges, there were not extensive questions, and we finished that in 

45 minutes or so. 

Again, I appreciate, having been there, I appreciate the pressures 

the Chairman is under, under this, but I would hope that those 

pressures would lessen as the year goes on and that we might work 

out something because I think it is important when all Senators 

who are going to have to vote initially in the Committee can actually have the time to be here to hear the candidates. 

Chairman HATCH. Well, thank you, Senator, and we will certainly take that into heavy consideration; in fact, I already have. 

Next week’s hearing will involve only one Circuit Court of Appeals 

nominee, and I do not know how many District Court. We will decide that. I think three or four District Court nominees. 

I just want to thank everybody for their cooperation, the distinguished Senator from New York. I know he has been upset at me, 

but I care a great deal for him, and he is one of the most astute 

people on this panel, and I just appreciate his forbearance with me. 

Senator SCHUMER. Mr. Chairman, I am not upset at you. I mean, 

I am just upset at the situation. 

Chairman HATCH. I understand, and we are going to— 

Senator SCHUMER. It does not do justice to the importance of 

what we are doing here. 

Chairman HATCH. Well, I appreciate that. 

274

With that, I just want to compliment each of you. I do not know 

when we have had a panel that has been as articulate on some of 

these constitutional issues as the three of you have been. 

Mr. Sutton, you have borne the brunt of most of the questions 

today. I know that you are probably worn out, but you have done 

a terrific job, in my opinion, and deserve a lot of credit for your astuteness. I think everybody here acknowledges you are a fine lawyer, if not one of the best, in the whole country. 

And, Mr. Roberts, no question about your abilities, and I think 

everybody here has basically acknowledged that today as one of the 

great appellate advocates in our country. Both of you are among 

the greatest appellate advocates we have in this country. 

Justice Cook, it is very apparent that you are a very good person, 

that you understand what the role of a judge really is, and we expect you to abide by that understanding as you serve on the Federal court. 

[The biographical information of Justice Cook, Mr. Roberts, and 

Mr. Sutton follow.]

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Chairman HATCH. So, with that, we will recess until further notice, and thank you all for being here, and I will move us as fast 

as I can on these nominations. 

Thanks so much. 

[Whereupon, at 9:28 p.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.] 

[Additional material is being retained in the Committee files.]

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