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Disability Rights Event With Sen. Tom Harkin's
April 2003ADA Watch Action Alert
From the National Coalition for Disability Rights (NCDR)
For more information, see ADA Watch website.Stop Sutton! Rally on Capitol Hill and National Call-In Day
(The Text of Sen. Tom Harkin's April 11 Floor Statement Opposing Sutton Follows this Action Alert and Includes Justin Dart's Statement From the May 19, 2001 ADA Watch Press Conference.)
What: Join Sen. Tom Harkin, the National Coalition for Disability Rights, and our coalition partners, as we protest the nomination of Jeffrey Sutton to a lifetime seat on the Federal Court.
When: Tuesday, April 29 at 10:00 AM EST
Where: The U.S. Capitol Building, Mansfield Room (S 211)
"People with disabilities understand how tenuous their hold on their civil rights is today. The Supreme Court has chipped away a little bit here, a little bit there on the Americans with Disabilities Act. There are still those in our country who believe we should not have had that law. Mr. Sutton, obviously, is one of those. He says it wasn't needed."
Sen. Tom Harkin
NCDR's ADA Watch, a coalition of more than 400 disability rights, civil rights, and social justice organizations united to protect the ADA, invites you to join Sen. Tom Harkin and our coalition partners as we speak out against the confirmation of Jeffrey Sutton.
Sutton, as you may know, is the extremist nominee to the 6th Circuit Court of Appeals and has been the architect of the movement to undo the authority of Congress to invoke Federal standards to protect the rights of Americans. Sutton has weakened numerous laws including the ADA, Age Discrimination Act, Violence Against Women Act, and other civil rights protections. He even argued on the wrong side of the historic Olmstead decision. He is out of mainstream and should not be confirmed to a lifetime seat on our nation's second most powerful court.
Please join us in solidarity and speak-out against Sutton. Come to the event if you can or call your Senators on this day. The rally is on April 29, the same day as the scheduled vote on Sutton. Senators need to hear that a "yes" vote on Sutton will affirm a career dedicated to undermining disability rights and civil rights. They need to face us before they cast their votes.
NCDR's ADA Watch partners opposing Sutton include the National Council on Independent Living, ADAPT, Bazelon Center for Mental Health Law, Disability Rights Education and Defense Fund, American Association of People with Disabilities, National Association of the Deaf, American Council of the Blind, National Association of Protection and Advocacy Systems, National Spinal Cord Injury Association, TASH, Autism National Committee, National Rehabilitation Association, National Parent Network on Disabilities, Support Coalition International, Not Dead Yet, American Society for Deaf Children, Alliance for Justice, People For the American Way, Leadership Conference on Civil Rights, and hundreds of disability, civil rights, and social justice organizations.
The following is the text of Sen. Tom Harkin's April 11 Floor Statement Opposing Sutton and Includes Justin Dart's Statement From the May 19, 2001 ADA Watch Press Conference.
Mr. HARKIN. Mr. President, we are wrapping up prior to going on a 2-week break from the Congress. We have the supplemental appropriations bill yet to do, so we are wrapping up this evening, late on Friday night. Congress will be gone for 2 weeks.
Something happens when we come back. Something very important and something very meaningful happens when we come back. I will talk about that for a few moments.
Mr. President, what is going to happen when we come back, there will be at some point soon after we get back from our break, a vote up or down on the Senate floor on whether or not the Senate will advise and consent to approving President Bush's nominee, Mr. Jeffrey Sutton, to be a judge on the Sixth Circuit Court of Appeals.
I will speak for a while tonight about Jeffrey Sutton, but when we come back I will have a lot more to say. I don't think too many people have focused on this. There has been a lot of talk about Mr. Estrada and now there is talk about Judge Owen from Texas but not too much has been said about Mr. Sutton. I will lay out the case and lay out for my fellow Senators and for the public at large what is at stake in this nomination.
First, for the record, Mr. Sutton is a 42-year-old lawyer, currently a partner at Jones, Day, Reavis and Pogue in the Columbus, OH, office. He is an adjunct professor of law at Ohio State University College of Law. He served as State Solicitor of Ohio from 1995 to 1998. He is a former law clerk to Justice Powell and Justice Scalia and Justice Thomas Meskill of the Second Circuit Court of Appeals. He has been nominated by President Bush to be a member of the Sixth Circuit Court of Appeals. At the outset, Jeffrey Sutton has a great résumé. He hails from Ohio State Law School, is a former solicitor for the State of Ohio, and he has argued cases before the U.S. Supreme Court. Quite frankly, he has won many of them. So he has a great résumé. Quite frankly, my arguments will not be about whether he is qualified. That is not the point.
I will state at the outset in terms of legal qualifications and background that Mr. Sutton is qualified to sit on a bench. However, I don't believe that is all we have to look at.
I had the opportunity to meet with Mr. Sutton for about an hour and a half in my office. He was kind enough to come to my office. We sat there and discussed an issue of great importance to me and to him. We had a great conversation. I found him to be personable. I found him to be highly intelligent, very bright. He is definitely an accomplished attorney. Frankly, I enjoyed my conversation with him for an hour and a half.
However, I take very seriously our responsibility to advise and consent on lifetime judicial nominees. These are not positions to rubberstamp or just to lightly say that simply because someone is qualified they should be on the court. I have done a careful review of Mr. Sutton's advocacy inside and outside the courtroom.
What I come to, I am not convinced Jeffrey Sutton would be able to put aside his own personal agenda and be a fair and balanced judge. Especially for me, I cannot support putting someone on a Federal circuit court who has worked, worked assiduously, worked intelligently, to undermine the Americans with Disabilities Act.
As many here know, my brother, Frank, now deceased, was deaf. Through his eyes and through his life, my family and I saw firsthand what discrimination against persons with disabilities looks like. It was not something abstract. It was real. It was personal. It was up close. I often said if I could ever be in a position to do something about the kind of discrimination that my brother and so many others had faced, I would do it. Through the generosity of the voters of Iowa, I was in that position. In both the House and later in the Senate, I spent my time working to develop legislation to bring out of the shadows of discrimination, of institutionalization, people with disabilities, bring them out of the shadows and bring into the sunshine of civil rights laws in this country.
The day before the Americans with Disabilities Act was signed by the first President Bush, the day before it was signed, if you were a person of color in this country, say, you were an African American, and you went down the street and answered an ad for a job for which you were qualified, and you walked in there and your prospective employer looked at you and said, I'm not hiring Black people, get out of here. You could have walked out that door, walked down the street, and walked right into the courthouse because we passed a Civil Rights Act in 1964 that outlaws, bans that kind of discrimination, based upon race.
If, however, on that same day a person in a wheelchair, qualified for that job, had rolled that wheelchair down there and the prospective employer looked at you and said, Get out of here; I don't hire cripples, and you rolled that wheelchair down to the courthouse door, the doors were locked. They were open if you were a person of color and you had been discriminated against.
But, if you were a person with a disability, the courthouse door was locked because there was no law that banned discrimination based upon disability.
The next day President Bush signed it into law and you, Mr. President, or anybody else who might have a disability, took their place alongside those who had been brought into our civil rights laws in America.
We did not pass that bill overnight. We didn't just all of a sudden decide we were going to pass a civil rights bill for people with disabilities, and pass it. We spent years. I am going to have more to say about this when we come back after the break, but we spent years on this, holding hearings and hearings, in forums all over the United States; a Presidential task force appointed by a Republican President, having hearings all over the United States. There were years of drafting, debating, trying to hone it down to make sure we had it right. With bipartisan support it passed overwhelmingly in the Senate. It passed overwhelmingly in the House of Representatives with bipartisan support.
I will never forget that grand day when President Bush signed that into law on the White House lawn. At that time it was the biggest gathering ever in White House history for the signing of legislation.
Justin Dart was there. Justin Dart was right there on the platform. Justin Dart, the hero of the disability rights movement in America, now also sadly deceased. Justin Dart sitting up there, and President Bush talking about Justin Dart leading this great movement to bring people with disabilities under our civil rights laws.
Here is what President Bush said that morning:
The Civil Rights Act of '64 took a bold step towards righting that wrong--the wrong of discrimination against people of color--but the stark fact remained that people with disabilities were still victim of segregation and discrimination, and this was intolerable. Today's legislation brings us closer to that day when no Americans will ever again be deprived of their basic guarantee of life, liberty, and the pursuit of happiness.
Justin Dart was there that day. Before he died, Justin Dart wrote this letter:
I feel certain that the great majority of 54 million Americans with disabilities, and millions more of their family members, join me in urging President Bush to reconsider his nomination of Jeffrey Sutton as a Federal judge.
I won't read the whole letter. I ask unanimous consent Justin Dart's letter be printed in the RECORD.
There being no objection, the material was ordered to be printed in the RECORD, as follows:
Remarks by Justin Dart, ADA Watch Press Conference, May 19, 2001, Washington, DC:
I feel certain that the great majority of fifty four million Americans with disabilities, and millions more their family members, join me in urging President Bush to reconsider his nomination of Jeffrey Sutton as federal judge.
The Americans with Disabilities Act is the world's first comprehensive civil rights law for people with disabilities. Barbara Bush has described it as the finest accomplishment of her husband's administration.
Abraham Lincoln led this nation to war and died to establish the authority of our federal government to protect the rights of our citizens no matter what the state of their residence.
It is very difficult to understand how President George W. Bush could send to the Federal Court a man who challenges the ``across the board'' constitutionality of a great civil rights law written in the tradition of Abraham Lincoln and signed by his father, George Bush Sr.
I am deeply concerned for the future of American democracy. I am deeply concerned for the civil rights not only of Americans with disabilities, but of all Americans. I am deeply concerned not only for the principle of federal civil rights, but also for the economic prosperity of our nation. As more and more Americans triumph over death to live with disabilities, it becomes absolutely imperative that they be empowered to get off of the welfare rolls and onto the tax rolls.
At the last count more than seventy percent of employable Americans with disabilities were unemployed. Millions more were underemployed. In 1990 President Bush Sr. estimated the resulting burden to the nation to be 200 billion dollars annually, and growing.
Finally I love the American Dream. I am passionately serious about the pledge: ``one nation, under God, indivisible with liberty and justice for all.''
Mr. President, you have pledged to support the ADA. You have pledged to support one nation with liberty and justice for all. You must send people to the court who support those pledges.
Mr. HARKIN. We in Congress met, these many years, overwhelming evidence that discrimination in this country against people with disabilities was rampant, unchecked, building up year after year. It was not just in the private sector but in the public sector. State governments and the Federal Government discriminated against people with disabilities. It was pervasive in our society. We took care, when we passed that bill, to make sure we had the findings and the constitutional basis to pass muster in the United States Supreme Court. The signing sealed the work of a monumental bipartisan effort that sought to right decades of wrong. It took the tireless work of Democrats and Republicans alike. As I said, it passed the Senate 91 to 6. The House passed it 402 to 20. Then-Attorney General Thornburgh was a strong supporter. The Chamber of Commerce was on our side, the business community, the States, President Bush, all stood together. Why did we all stand together on the ADA? Because it was the right thing to do. Justice demanded it.
July 26, 1990--President Bush said a lot of good things that day as he signed this bill. As I said, I will never forget it.
I was proud of this because it represented the hard work of a lot of people and it broke down these old barriers of exclusion and intolerance and injustice toward people with disabilities. Now after all the work we did, all the findings, all the hearings, all the documentation we compiled, all that President Bush said, Mr. Sutton--guess what he said. He said it wasn't needed. He said the ADA was not needed.
Why did he say it was not needed? Why, because the States were doing the job. This was a State responsibility and Congress did not have the findings that States had been discriminating. As I told Jeffrey Sutton when he sat in my office that day, I said, ``How could you say that?'' I said, ``Did you read all the documentation? Did you read all the findings that we had? Twenty-five years of studies going clear back to 1965 and beyond; 1974. There were 17 formal hearings by congressional committees, markup by 5 separate committees. There were 63 public forums across the country by congressionally established task forces. There was oral and written testimony by the Attorney General of the United States, Governors, States' attorneys general and State legislators. There were over 300 examples of discrimination by State governments in that record.
Yet before the Supreme Court of the United States, Mr. Sutton said it wasn't needed. That is Garrett v. Alabama. I'll have more to say about Pat Garrett, too. But he said it just wasn't needed.
Regarding the Americans With Disabilities Act, I see them chipping away at a law that symbolizes the inclusion of all Americans in our society. For the past few years, Jeffrey Sutton has held the hammer and the chisel.
In my mind it is not about whether he is qualified to be a Federal judge, or whether he is a nice guy. As I said, I happen to have enjoyed my conversation with him. Frankly, I know who the six Senators were who voted against the ADA in the Senate. I hope to enjoy my conversations with them, too. I just disagreed with them and so did 91 other Senators disagree with them. But that doesn't mean the six who voted against it are bad people. I, frankly, enjoy the friendship of those six people.
That is not the point. The point is whether or not someone should be on the circuit court who holds that same kind of opinion. His qualifications--to me, a judge's qualifications are half of the equation. In other words, I think they have to meet the test of are they qualified. I think the other half of our responsibility is to determine whether or not that person can be a fair and balanced judge who understands the role of Congress in correcting ancient wrongs and helping to make our society more fair and more just. Frankly, in his writings and in his statements, and even in my conversation with him in my office, Mr. Sutton seems to have a unique view of our role here that somehow when it comes to civil rights laws, especially the Americans with Disabilities Act, that we have a very narrow area in which we can operate; the rest must be left to the States.
As I said, you read his writings. I was in the Supreme Court. I sat there in the front row the day he argued the Garrett case, sat right next to Bob Dole. And when I heard him stand up and say the ADA was not needed, I said: Wait a minute. When I heard him talk about how we had not really established the record, that we had not really had the findings of State discrimination, I said: How could he possibly say that? Only someone who did not know what we did could ever say that.
And that is what I talked to him about in my office. How could he say such a thing, when we had all this? Well, he said, yes, OK, he appreciated that, but I never got to the bottom of it with him.
Anyway, his arguments before the Supreme Court articulated that States can do a better job of it than we can, and Congress did not find enough evidence. We found the evidence. It is there. It is in the record. It is compiled.
Mr. Sutton has said a lot of times: Well, I was only representing my client, and I am duty bound as a lawyer to do the best I can for my client. And he was representing the State of Alabama. Well, OK, I can accept that. But here is what Mr. Sutton said on National Public Radio on October 11, 2000. Now, a lawyer's responsibility to fully represent his or her client does not spill over into talking on National Public Radio. That is his personal opinion. And here is what he said:
Disability discrimination, in a constitutional sense, is really difficult to show.
That is what Mr. Sutton said on National Public Radio.
I am going to talk more about this when we come back after the break, about the extensive record that we found of constitutionally based discrimination against people with disabilities--discrimination that was pervasive in our society, the institutionalization of people, the blatant discrimination in jobs, in transportation, in public places against people with disabilities. And yet he said it is difficult to show.
Well, we showed it. But evidently that was not enough for Mr. Sutton because he has his own narrow view, his own personal view of what the limits of Congress are in addressing these wrongs.
People with disabilities, as I said, locked away in institutions for years; people with mental disabilities subjected to involuntary sterilization because, in the words of the late Justice Holmes: ``Three generations of imbeciles are enough.'' Persons with severe hearing loss, like my brother Frank, labeled deaf and dumb. They sent my brother away to a school, segregated him away from his friends, from his family, from his community, to go to the Iowa State School, as they said in those days, for the deaf and dumb. What does that do to people, simply because they are deaf, being called dumb? For too many years, those who were blind were forced to sell pencils on a street corner to earn a living.
When the day is done, and we all go home, Jeffrey Sutton--no matter how likable he is, no matter how good his qualifications are--has an extreme, limited view of our congressional role to legislate in this important area. From his arguments before the Supreme Court, he seems to believe that each State does its job to protect the constitutional rights of persons with disabilities as the State sees fit.
After what I saw and heard with my own ears, and during the crafting of the ADA over all those years and all those hearings, I cannot fathom anyone reaching that conclusion.
Pat Garrett--I will have more to say about the Garrett case--Pat Garrett, from Alabama, working in a job for the State, came down with breast cancer. She had to go have an operation. She had chemotherapy. She recovered. She went back to work. She was told by one of her fellow coworkers that her boss didn't like sick people. Her boss fired her.
So she brought a case under the Americans with Disabilities Act. She won. She won her case in the lower court. Then the State of Alabama hired Jeffrey Sutton to argue its case before the Supreme Court, and the Supreme Court found for Alabama by a 5-to-4 decision.
It seems to me that according to Jeffrey Sutton, that if Pat Garrett does not like the fact that the State of Alabama did not have a law that protected her rights as a disabled person, why, she can move to Nevada, maybe move to Minnesota, maybe move to Iowa. That is her right, that she can just move out of the State, maybe find some other place to live, where a State does have laws against discrimination against people with disabilities in their State institutions.
But is that what we have become in our country, a patchwork quilt? That is what we found in all these hearings on the ADA, a patchwork. Yes, some States were good; some States had none -- a patchwork quilt.
I do not believe that your civil rights ought to depend on your address.
Your civil rights, under the Constitution of the United States, ought to depend on whether you are in this country and you are a citizen of the United States, not whether you live in Minnesota, Iowa, Nevada, or Alabama.
States rights--I don't know which seat the occupant of the chair from Minnesota holds, but it was that great Senator from Minnesota who, back in 1948, took on his own party--my party--the Democratic Party, in that great speech he gave at the convention and said: It is time to come out of the shadow of States rights and into the sunshine of civil rights. And that is when the Dixiecrat, Senator Strom Thurmond, left the party, because of what Hubert Humphrey said.
But Hubert Humphrey was right, it was time to come out of that shadow of States rights and recognize that civil rights inures to all of us as citizens of the United States and not just because I happen to live in one State or another.
But Jeffrey Sutton does not believe that; down deep inside he does not. And I say that only because of what he has said and what he has written, not just because of his representation of a client, but what he has said outside the courtroom.
All the lawyer code and duty talk does not tell the whole story. He has written articles, participated in radio talk shows, panel discussions, expressing his personal views, not his clients', but his own personal views. That kind of publicity is not required by his role as a lawyer advocating on behalf of his clients.
So based on his advocacy, based upon his own words, I am not convinced that a person with a disability, walking into Jeffrey Sutton's courtroom, can expect a fair shake from Mr. Sutton.
Again, as I said, I find him a likable individual, obviously very intelligent. But he means to undo with his position all we have done here to make sure that people with disabilities have their civil rights.
There are over 400 disability rights and civil rights groups in the United States opposing this nomination to the Sixth Circuit. I am hard pressed to know of any disability group that supports Mr. Sutton.
Again, this is nothing personal. People with disabilities understand how tenuous their hold on their civil rights is today. The Supreme Court has chipped away a little bit here, a little bit there on the Americans with Disabilities Act. There are still those in our country who believe we should not have had that law. Mr. Sutton, obviously, is one of those. He says it wasn't needed.
People with disabilities live every day wondering whether or not they will be treated fairly based not upon their disability but on their abilities: Will I be able to get a good education? Will I be able to be treated fairly and equitably in terms of employment? Will I be able to find some reasonable accommodation so I can do a job? Will I go into a place of business and be ignored because I look different, maybe I act differently?
That is what people with disabilities live with every day. They know their hold on this is tenuous. I can understand very deeply the concern that people with disabilities all over America have about this individual, the deep concern they have, because they see in Mr. Sutton the personification of all of the people in their lives who made life harder for them, people who had a view that was narrow, who said that somehow our National Government cannot do anything to secure their civil rights, they only have to look to the State.
I will have more to say about Mr. Sutton. I will close with this. On that National Public Radio broadcast I talked about, he also said:
I think it is a positive attribute of this system of divided government that when 51 different sovereigns, 51 different legislatures tackle a difficult social problem, they all arrive at different approaches. And the ultimate idea and really transcendent purpose of federalism is to have them compete for the best solution.
That is his personal view. He was not representing anyone. This is Jeffrey Sutton talking:
I think it is a positive attribute of this system of divided government that when 51 different sovereigns, 51 different legislatures tackle a difficult social problem, they all arrive at different approaches. And the ultimate idea and really transcendent purpose of federalism is to have it compete for the best solution.
What happens when a State wins in these competitions? Do they get a prize? What happens to the people who are in the losing States? Are they just unlucky? What about Pat Garrett? Obviously, Alabama was not competing to have the best antidisability discrimination laws in the country.
I would be the first to say that one of the great things about our system of government is, it does allow for experimentation in different States. It allows different States to approach problems differently. Out of that we do get not a top-down, one-size-fits-all type of government. That is one of the beauties of our system. But when it comes to fundamental issues of fairness and justice and equity, when it comes to the basic, fundamental issues of civil rights, I say again, your civil rights as an American citizen should not depend on your address. It should not depend upon the shadow of States rights. It should depend upon the sunshine of being a U.S. citizen and having the Federal Government make sure that our civil rights are protected no matter where we are.
Again, if we want to have competition among States on education and transportation and all kinds of different things, that is fine. But on fundamental, basic civil rights, one law, one Constitution, one Bill of Rights that covers us all.
Mr. Sutton is going to be before us. He is not now, but I understand he will be as soon as we come back. I wanted to start the debate. Quite frankly, I don't think Mr. Sutton has received the kind of attention and the kind of discourse and debate in this body that a circuit judge of his stature deserves, at least one who has this background and one who by his statements invites this kind of controversy.
We have approved circuit court judges around here almost on voice vote, 98 to nothing, 96 to nothing. I have joined in that. The people were not only qualified, but they didn't raise these kinds of troubling questions about how they will deal with fundamental civil rights laws. But Jeffrey Sutton does. He raises those issues. He has done it on his own.
I will have more to say about his statements when we come back. I am hopeful--not in a vindictive sense or anything like that--that this Senate will disapprove of putting Mr. Sutton on the court, thereby sending a very loud and strong message to people with disabilities all over this country that we passed the Americans with Disabilities Act with our eyes wide open; that we knew what we were doing; that we assembled the data. We had all of the evidence we needed. We compiled the record, and we want to keep it as the law of the land--as the civil rights law of the United States.
It would be a powerful message because I can tell you this. If Jeffrey Sutton ascends to the Sixth Circuit Court of Appeals, Americans with disabilities all over this country will see the hands of the clock turning backward--back, back to the days of discrimination, back to those days when they were afraid to enter that door, or to demand their rights as an American citizen, as a human being. I believe it is going to cause people with disabilities to wonder whose side we are on.
Whose side are we really on? I hope we are on the side of civil rights.
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