The Nomination of Jeffrey Sutton: A Post-Hearing Report

Sutton’s Aggressive Advocacy for Imposing Harmful Restrictions on Congress’s Authority to Protect Americans’ Rights Goes Well Beyond Client Representation

A clear example of Sutton’s personal support for severe limits on Congress’s power concerns United States v. Morrison, 529 U.S. 598 (2000). In that case, the 5-4 Court ruled unconstitutional the federal remedy for victims of sexual assault and violence in the Violence Against Women Act (“VAWA”), despite extensive Congressional findings on both the need for the legislation and the substantial effect of such activities on interstate commerce. Based on this record, Congress explained that it had the authority to enact the law under the Commerce Clause because of the significant effect that violence against women has on interstate commerce, and 36 states supported the constitutionality of the law before the Supreme Court. Sutton, however, filed an amicus curiae brief for the State of Alabama arguing against the law. The brief claimed that the law exceeded Congress’s authority under the Commerce Clause because sexual assaults and violence could not properly be considered to substantially affect interstate commerce.

Notwithstanding his testimony at the January 29 hearing, Sutton’s voluntary decision to write a brief arguing against VAWA’s constitutionality provides at least some evidence of his own jurisprudential views. But Sutton did much more than write a brief in the case. Not once, but twice he wrote articles for the Federalist Society strongly supporting the decision and its rationale. 1 When several Senators expressed concern about Sutton’s views on when, if ever, Congress’s fact-finding could be sufficient to uphold such a law, particularly in light of the extensive fact-finding in VAWA, Sutton expressed sympathy and referred to the deference generally owed to congressional fact-finding. But as Sutton made clear in his articles, no amount of fact-finding should have made a difference for VAWA because of his view that sexual violence is “intrastate” in nature and is categorically not subject to Congressional legislation under the Commerce Clause. Federalism 2000 at 2; Supreme Court 2000 at 6. To hold otherwise, Sutton derisively wrote, would “give to any congressional staffer with a laptop” the ability to define “the limits on Congress’s Commerce Clause powers.” Federalism 2000 at 2; Supreme Court 2000 at 6. While suggesting at the hearing that this phrase may not have been “good advocacy,” Sutton did not disavow it. Sutton’s belief in a “categorical” approach to Congress’s Commerce Clause power that would declare entire categories of activity like sexual violence out of bounds for federal legislation is extremely troubling.

Sutton’s Federalist Society articles also personally praised other Supreme Court decisions limiting Congress’s power. These include the ruling striking down the Gun-Free School Zones Act in United States v. Lopez, 514 U.S. 549 (1995), the holding invalidating parts of the Brady Handgun Control Act in Printz v. United States, 521 U.S. 898 (1997), the ruling invalidating the Religious Freedom Restoration Act in City of Boerne v. Flores, 521 U.S. 507 (1997), and the decision that state employees victimized by age discrimination on the job could not sue for damages under federal law in Kimel v. Florida Board of Regents, 528 U.S. 62 (2000). 2 Sutton participated in several of these cases, although he was not involved in several others. In any event, his decision to praise these harmful rulings in his own name clearly demonstrates his personal support for their extremely narrow view of Congress’s authority. Indeed, as Senator Leahy pointed out in written post-hearing questions, Sutton personally stated at a Federalist Society panel that it is “frustrating” that “states are not rising up together and defending their authority against encroachment by Congress” and has proclaimed that “I believe in this federalism stuff.” 3

Even more disturbing, Sutton has personally and strongly supported an opinion by Justices Thomas and Scalia that was not accepted by the Court majority, but would significantly limit crucial federal civil rights protections. As Senator Leahy pointed out at the hearing, Sutton wrote an article for the Federalist Society praising the concurring opinion by Justices Thomas and Scalia in Holder v. Hall, 512 U.S. 874 (1994). That case concerned Section 2 of the Voting Rights Act, an important provision that prohibits state and local conduct that has a discriminatory impact on minority voters. In a concurring opinion in Holder, Justices Thomas and Scalia claimed that despite past precedent, Section 2 should not apply at all to actions such as candidate eligibility rules, redistricting plans, and any other conduct that does not specifically regulate the process of registering, voting, and counting votes. Sutton acknowledged at his hearing that he had strongly praised the Thomas-Scalia opinion, both with respect to the Voting Rights Act and because it helped in “developing a conservative theory for doing an unconservative thing – overruling precedent,” including “liberal victories” in the courts. 4

At his hearing, Sutton tried to soften his praise of the Thomas-Scalia opinion, claiming that it was supported by the views of the late Justice Harlan, a more moderate conservative who served on the Court from 1955-71. As Sutton’s article reveals, however, any support from Harlan for the Thomas-Scalia opinion was based solely on a dissent filed by Harlan in a single Voting Rights Act case more than 30 years ago, long before Congress strengthened the Act in 1982. As Justices Stevens, Blackmun, Souter, and Ginsburg pointed out in specifically criticizing the Thomas-Scalia opinion in Holder, its “radical” view would require overturning or reconsidering at least 28 previous Court decisions holding that the Act should be interpreted broadly to prohibit racial discrimination in all aspects of voting. Holder, 512 U.S. at 963-65. Sutton’s legal philosophy would thus threaten to undermine numerous court decisions on the scope of the Voting Rights Act, not to mention other unnamed “liberal victories” in the courts.

In response to questioning, Sutton tried to deflect attention from his personal legal writings, suggesting that in some he was simply sharing ideas about the law and was ethically required to support his clients’ positions, and that his articles do not “necessarily” reflect the view he would take as a judge. As Sutton himself conceded, however, he had no obligation to write personally at all about cases he had been involved in; his decision to do so clearly reflects his own points of view on these crucial legal issues, as well as on issues in cases like Holder in which he was not involved. And while Sutton’s legal articles do not “necessarily” reflect what he would do as a judge, the Senate has heard that line before. Nominees like Clarence Thomas and Antonin Scalia testified that their past writings would be irrelevant to their conduct as a judge — and then proceeded to rule in accordance with the views stated in their past writings. Sutton’s legal philosophy, as expressed in his personal writings as well as his court advocacy, continue to raise extremely troubling concerns about his nomination.

1. See J. Sutton, “Federalism 2000: A Review of the Supreme Court’s Federalism Decisions,” Review of Federalism and Separation of Powers Law (Fall 2000)(“Federalism 2000"); J. Sutton, “Supreme Court 2000 - A Review and Preview,” The Federalist Paper (Summer 2000)(“Supreme Court 2000").
2. See Federalism 2000 at 1-3; Supreme Court 2000 at 1,6; J. Sutton, “City of Boerne v. Flores: A Victory for Federalism,” Federalism and Separation of Powers News (Fall 1997) at 7, 10-11.
3. See Written Questions 6 and 8 submitted by Senator Leahy, quoting Sutton at Federalist Society panel on “Federalism Revived” and in 1998 Legal Times article.
4. See J. Sutton, “Supreme Court Highlights,” The Federalist Paper (Nov. 1994) at 21.
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