As Sutton’s record makes clear, his “states’ rights” advocacy aimed at restricting the authority of Congress to protect the rights of Americans has extended well beyond his role as a lawyer for clients, and his troubling and harmful positions on these issues reflect his own jurisprudential views. At the January 29 hearing, one of Sutton’s primary responses to the concerns raised about his nomination was to suggest that he has also “had an opportunity to be on opposite sides of almost every one of these issues,” pointing to his arguments in several cases supporting people with disabilities. As Sutton conceded in response to Senator Leahy’s written questions, however, he has never argued on behalf of a state employee like Patricia Garrett seeking remedies for discrimination based on disability, age, or other grounds. He has never argued a section 5 federalism case on the side of a private individual or the federal government against a state. He has never argued in favor of women’s rights (as opposed to his argument against VAWA in Morrison). To the contrary, he has consistently argued to limit or invalidate federal protections against discrimination and injury, and has written and spoken in his own capacity, not on behalf of clients, to precisely the same effect. Sutton’s testimony failed to dispel, and indeed reinforced, the troubling concerns that have led so many to oppose his confirmation.
Jeffrey Sutton’s aggressive advocacy for an extreme states’ rights approach to the Constitution and his disingenuous efforts to distance himself from his own clear record make him unfit for a lifetime position on the powerful federal appeals courts.