[Senate Hearing 108-135]
[From the U.S. Government Printing Office]

                                                 S. Hrg. 108-135, Pt. 1



                               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

                            WASHINGTON : 2003
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                       COMMITTEE ON THE JUDICIARY

                     ORRIN G. HATCH, Utah, Chairman
CHARLES E. GRASSLEY, Iowa            PATRICK J. LEAHY, Vermont
ARLEN SPECTER, Pennsylvania          EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona                     JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio                    HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama               DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina    RUSSELL D. FEINGOLD, Wisconsin
LARRY E. CRAIG, Idaho                CHARLES E. SCHUMER, New York
SAXBY CHAMBLISS, Georgia             RICHARD J. DURBIN, Illinois
JOHN CORNYN, Texas                   JOHN EDWARDS, North Carolina
            Makan Delrahim, Chief Counsel and Staff Director
      Bruce A. Cohen, Democratic Chief Counsel and Staff Director

                            C O N T E N T S




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


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
    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
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
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
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



                      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 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 
    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.
    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.

                       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.
    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 
    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 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 
    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 policy 
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 
    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 
    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--
    Chairman Hatch. Let me turn to the Ranking Member for his 
    [The prepared statement of Chairman Hatch appears as a 
submission for the record.]

                        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 
    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 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 
    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 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 judicial 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.
    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 
    ``. . .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 
    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 
    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 
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.
    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 one-week 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, 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 
    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 
    Senator Feinstein. Yes.
    Chairman Hatch. That will be fine. Senator Warner?


    Senator Warner. Chairman Hatch, Senator Leahy, and members 
of the committee, I will ask to submit my statement for the 
    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 
    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.
    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 
    Senator Hutchison?


    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 
    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 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.


    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 
    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 
    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.
    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 
    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 
    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 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 
    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 
    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 
    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.
    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 
    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 
    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.
    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.


    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 
    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 
    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 
    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 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 
    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' 
    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-
    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.
    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--
    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.


    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 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 
self-incrimination 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-
    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.''
    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 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 
    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.
    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.
    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 
    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.

                       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.


    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--
    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, 
    Mr. Sutton?

                       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.
    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 
    Senator Kennedy?

                     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 
    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 
    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.
    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 
    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 
    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 case.'' That of course was the Cheryl Fischer case, 
which arose when I was State Solicitor of Ohio in the mid 
    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.
    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 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 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 
    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.
    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 
    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.
    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 
    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 
    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 
    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 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 
    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 
    Senator Leahy. Do you have a feeling in your own mind or 
interpretation in your mind of the expression ``new 
    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 co-taught 
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 talking 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 
    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, 
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 
    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 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.
    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 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 
    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.''
    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.

                        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 position. 
So I think that kind of criticism really does not do justice to 
    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 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 
    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 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 
    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 
    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 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 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 
    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.''
    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 
    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 
    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 
    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 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.

                       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 
    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.
    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 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 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 
    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 
    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 non-economic. 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 
    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 
    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.
    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 
    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 
    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 
    Chairman Hatch. Thank you, Senator Feingold. We are going 
to give you until 1:30 which is almost 45 minutes. So we will 
recess 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 
    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 good-faith 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.
    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 
    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 
    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 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 
    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 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 
    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 
    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.
    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 
    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 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?

                       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?
    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.
    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 
    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.
    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 
    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 
    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 mind-boggling, 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 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 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 
    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 
    I would, respectfully, disagree with your comments, and I 
    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.
    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 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 
    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 disability services. People that 
were not disabled in that district went to private hasidic 
    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 
    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, 
    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 
    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.
    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 
    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.
    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 
    Senator Schumer. No question.
    Mr. Sutton. --and some of it with merit, but lots of inmate 
    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 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 
    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?
    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?


    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 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.
    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 
    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.
    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?
    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 
    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 particular 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?

                          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 
eliminate the need for the sort of finger-pointing and 
recriminations 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 
    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, 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 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 
    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 
    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.
    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 
    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 better-quality products and services. 
Federal courts are essential to the firm enforcement of our 
antitrust laws and to ensuring that anti-competitive conduct is 
    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.
    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.
    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 policy 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 
    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 
    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 
    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 
    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 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.

                       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 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 
    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 become 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?
    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 
    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?
    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 
    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 
    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 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 
    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 lawyers 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 
    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 
    Senator DeWine. The good news for all of you, it is a 
lifetime appointment.
    Senator Leahy. They probably feel like today has been a 
    Senator DeWine. Probably. That is right.
    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 
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 
    What position did you hold at that point in time? And who 
was your staff? What were you talking about?
    Mr. Sutton. Yes, Senator, I was the State Solicitor at that 
    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 
    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 and the discussion that you had with Senator Schumer a few 
minutes 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 
    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?
    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.
    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 
    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 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 
    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.
    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 
    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, 
    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 
    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 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. 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 
    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 
    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, regardless 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 
    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 
    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?
    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 
    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--
    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 
    Mr. Sutton. That's true, although in a panel decision, a 
three-judge 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 
    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 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.
    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 
    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 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 
    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-
to-minute, 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 
    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 
    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 fact-finding 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.
    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 
    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 
    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 ultimate 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 
    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 
    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.
    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 
    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.
    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 
    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--
    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 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 
    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 
    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 today'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 
    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 
    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 
    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 
    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 
    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 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 
    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.
    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 so-called 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 
    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 
    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 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 
    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 
    Go ahead, Senator. I am sorry to interrupt you.
    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 
    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 
    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 
    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 
    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, 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 
    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 simply 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 
    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 
    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 
    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 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 
    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' 
    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.
    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.
    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 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 
    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 
Intelligence 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, ``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 
    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 
    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 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 
    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 
    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, and it was overturned by the 
Supreme Court. So it's precedent that pops up in some of these 
    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 
    Justice Cook. I appreciate that.
    Senator Leahy. --Professor Sutton was hogging all the 
    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 Hatch. Without objection, we will put those in the 
    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 
    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 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 
    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 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 
    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 
gender-based 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 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 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 
    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. 
    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 
    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 
    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 
several 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 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 
    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 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 
    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 
    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 
    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 
    Chairman Hatch. That's right, and--
    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 
    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 
    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.
    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 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 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 are working on this. So if there are other 
cases that support yours, I am more than glad to take a look at 
    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 
    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 
    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 
    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 
    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 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 
    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.

                     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 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. 


    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 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.

                   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 
    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?


    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.
    Chairman Hatch. Evan. Happy to have you with us as well.
    Judge Otero. Thank you.
    Chairman Hatch. Thank you, sir.
    Mr. Junell?


    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.
    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 
    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 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 
    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, 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?''
    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 
    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 
    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 
    Judge Otero. Absolutely. One of the fundamentals of our 
system is to make sure that all evidence is turned over to both 
    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 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, 
    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 
    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 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 
    Senator Leahy. So now he could only recover a quarter of a 
    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.
    Senator Leahy. Hold that man over.
    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 
    Senator Leahy. I would have been able to finish the book 
today if you had not kept us here so long, Mr. Chairman.
    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 District 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 
    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 
    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 
    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 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.] 



































































































    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 
    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 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 
    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 
    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 
    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 eye-opener.
    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 period of time, and that person being no threat, 
really no threat to society?''
    Professor Sutton, what do you think of mandatory minimum 
    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.
    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 
    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 
    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 candidate might think we would regard as the 
politically more appealing 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 
    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 
    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 
    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.
    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 criminal contempt, which would carry with it the 
additional protections, 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.
    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 
    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.
    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 
    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 
    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 
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.
    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 
    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 
sentences, 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 
    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. 
    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.
    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 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 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 
    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.
    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 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 far-reaching 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 
    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 
    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.
    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 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 
    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 
    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 
    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.
    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 
    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 
    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 
    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.
    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 
    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.
    Chairman Hatch. You are just so accommodating.
    Senator Leahy. There is only so much gratitude to go 
    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.
    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 
    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 
    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 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 
    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 
    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 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 
    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 
    Senator Schumer. Do either of the other two witnesses want 
to comment on that?
    Justice Cook. Not I.
    Senator Schumer. Not on Mr. Roberts' grammar, but rather 
just on the general question I asked. Where does all of this 
    Mr. Sutton. I don't know why I'm reengaging.
    Chairman Hatch. I do not know why either.
    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, 
    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 Congress 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.
    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.
    Senator Schumer. Just let me say that I was trying to be 
Dean Martin to your Jerry Lewis on that one.
    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.
    Senator Schumer. Justice Cook, it is my understanding that 
you previously discussed the decision in Davis v. Wal-Mart with 
Senator 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 
    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 
    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.
    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?
    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 
    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 
    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?
    Senator Schumer. Could we have a--I mean, I have a bunch of 
    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, 
    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 
    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 
    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.
    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 
    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 
    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 
    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.]

































































































    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 
    [Additional material is being retained in the Committee