The record of attorney Jeffrey Sutton, nominated for a seat on the U.S. Court of Appeals for the Sixth Circuit, has raised serious concerns about his legal philosophy on a number of questions. Most troubling, however, are Sutton’s views on Congress’ authority to enact laws protecting individual and other rights and how he would seek to implement those views if confirmed. Over the last ten years, the so-called “states’ rights” or “federalism” revolution promoted by the Federalist Society and other right-wing advocates has severely limited federal civil rights and other protections, particularly by restricting the authority of Congress to require compliance with laws it has passed. As a practicing lawyer for just over a decade, Sutton has become a leading activist in these damaging efforts. In fact, he has personally argued key Supreme Court cases that, by narrow 5-4 majorities, have hobbled Congress’ ability to protect Americans’ rights against discrimination and injury based on disability, race, age and religion.
Particularly with respect to limiting Congress’ authority to protect rights, Sutton has gone far beyond simply pursuing the arguments necessary to protect individual clients. In a number of cases, he has voluntarily filed friend-of-the-court briefs and argued for positions that are even further to the right than the 5-4 majority on the Court that has imposed these restrictions. Writing for the Federalist Society, for which he has been an officer in the Federalism and Separation of Powers practice group, Sutton has personally advocated significant restrictions on congressional authority based on his “federalism” theories and has praised the far-right views of Justices Antonin Scalia and Clarence Thomas. In fact, he stated several years ago that he was “always on the lookout” for “federalism” cases, proclaiming that “I believe in this federalism stuff.” 1 Sutton’s activism against federal protection for the rights of people with disabilities and other civil rights has prompted more than 70 national groups and over 375 regional, state and local organizations to oppose his confirmation.
This report focuses specifically on Sutton’s record and legal philosophy concerning the “states’ rights” or “federalism” revolution. As discussed below, Sutton has already played a major role in promoting significant and harmful restrictions on Congress’ ability to protect Americans, and his views would go even further than the 5-4 Supreme Court majority. This is true with respect to disability rights, religious liberties, other civil rights, and general limits on federal authority to protect individual rights and the environment. In addition, Sutton’s writings raise serious questions about his views on other constitutional issues, such as reproductive freedom.
As more than 200 law professors wrote to the Senate Judiciary Committee in July 2001, no federal judicial nominee is presumptively entitled to confirmation. Because federal judicial appointments are for life and significantly affect the rights of all Americans, and because of the Senate’s co-equal role with the President in the confirmation process, nominees must demonstrate that they meet the appropriate criteria. These include not only an “exemplary record in the law,” but also a “commitment to protecting the rights of ordinary Americans,” a “record of commitment to the progress made on civil rights, women’s rights, and individual liberties,” and a “respect for the constitutional role Congress plays in promoting these rights and health and safety protections, and ensuring recourse when these rights are breached.”2 Based on these criteria, as discussed below, Sutton’s confirmation to a lifetime position on the important Court of Appeals for the Sixth Circuit should be rejected.
1. Legal Times (Nov. 2, 1998) at 8.
2. See Law Professors’ Letter of July 13, 2001. A full copy of the letter, which elaborates further on these criteria, is available from People For the American Way.
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