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Showdown over the Future of America's Courts
April 2003CONTACT YOUR SENATORS TODAY AND TOMORROW!!
Tomorrow, as you know, is the anticipated Senate vote on the nomination of Jeffrey Sutton to serve on the Sixth Circuit Court of Appeals -- a federal court one step below the U.S. Supreme Court. This vote is about much more than Sutton or even the ADA. It's about the future of our legal system and the rights Americans enjoy under the U.S. Constitution and various federal statutes.
What makes Sutton's nomination so frightening is the profound shift it reflects in the Supreme Court about the relative powers between the federal government and state governments and between the Supreme Court and Congress -- a shift embraced by the Bush Administration. For over half a century, since the New Deal era ushered in a period of expanded federal responsibility for the welfare of ordinary Americans, the Supreme Court has generally deferred to Congress's judgment about what type of legislation was necessary to regulate commerce and ensure equal protection of the laws. But since the mid-1990s, adopting arguments that Sutton and others have been advancing before the Supreme Court, the Court has gradually undermined Congress's power.
Congress passed the ADA because it recognized a major problem and carefully considered the best ways to fix that problem. Instead of viewing Congress as a legislature entitled to deference, however, the Supreme Court has adopted Sutton's argument that Congress should be held to the Supreme Court's standard for reviewing legislative action and finding laws unconstitutional. What this means, basically, is that Congress cannot act to enforce the Constitution's guarantee of equal protection (as it did with the ADA) unless the Supreme Court would itself be able to determine that the problem in question is a constitutional violation. In other words, Congress has to meet the standard of a court that defers to legislatures rather than be entitled to the deference legislatures expect from courts. This marks a dramatic shift in Supreme Court interpretation and one that reduces the power of Congress relative both to the states (the Supreme Court is still largely deferential to state legislatures) and to the Supreme Court.
If you're comfortable with your state's policies and the interpretations of the current Supreme Court, this "federalism revolution" may not alarm you. But if you see problems around you that could benefit from federal congressional initiative, take note that Congress's power to act on your behalf is being whittled away.
The Bush Administration continues to advance conservative nominees like Sutton who will potentially shape our legal system for decades to come. This summer two Supreme Court justices could step down, opening the door for the Bush Administration to further its entrenchment in the Supreme Court itself. Tomorrow is the culminating point of one battle, but the war will rage on.
YOUR ACTION IS NEEDED TODAY AND TOMORROW! Take a moment to contact your Senator(s). Make sure they know where their constituents stand on the Sutton nomination. Tell them it's not just people with disabilities who are concerned: national, state and local women's groups, environmentalists, diverse racial and cultural groups, and labor groups are also opposed to the Sutton nomination. Explain to your Senators why Sutton is not the type of judge our nation needs. It's not a personal issue. It's not about technical credentials. It's about being a worthy trustee of our legal system's future -- and the rights our legal system is supposed to protect.
An editorial from the New York Times and an article from Time Magazine follow.
Jonathan Young JFA Editor, AAPD
Another Ideologue for the Courts
April 28, 2003
The New York TimesIt seems likely that Jeffrey Sutton, a nominee to the United States Court of Appeals for the Sixth Circuit in Cincinnati, will be confirmed by the Senate this week. But it is important to recognize why he was selected, and how he fits the Bush administration's plan for an ideological takeover of the courts. Whichever way the Senate votes on him, it must insist that the administration start selecting judges who do not come with a far-right agenda.
There is no shortage of worthy judicial nominees. Federal courts are filled with district court judges, Republicans and Democrats, who have shown evenhandedness and professionalism, and many would make fine appeals court judges. State courts are overflowing with judges and lawyers known for their excellence, not their politics.
The Bush administration, however, has sought nominees whose main qualification is a commitment to far-right ideology. Mr. Sutton is the latest example. He is an activist for "federalism," a euphemism for a rigid states'-rights legal philosophy. Although federalism commands a narrow majority on the Supreme Court, advocates like Mr. Sutton are taking the law in a disturbing direction, depriving minorities, women and the disabled of important rights.
Mr. Sutton argued a landmark disability rights case in the Supreme Court. Patricia Garrett, a nurse at an Alabama state hospital, asserted that her employer fired her because she had breast cancer, violating the Americans With Disabilities Act. Mr. Sutton argued that the act did not protect state employees like Ms. Garrett. His states'-rights argument narrowly won over the court, and deprived millions of state workers of legal protection. He also invoked federalism to urge the court to strike down the Violence Against Women Act. It did so, 5 to 4, dismantling federal protection for sexual assault victims. Mr. Sutton has said that he was only doing his job, and that his concern was building a law practice, not choosing sides. But throughout his career, he has taken on major cases that advance the conservative agenda. He has left little doubt in his public statements that he supports these rulings.
At his confirmation hearing, Mr. Sutton faced protesters with guide dogs and wheelchairs, who were upset about his role in rolling back disability law. Naturally, they urged the Senate to reject him. But the senators' duty to advise and consent goes beyond their vote on any particular nominee. They must make it clear that in a nation brimming with legal talent, it is unacceptable to focus the search for federal judges on a narrow group of ideologues.
http://www.nytimes.com/2003/04/28/opinion/28MON2.html?ex=1052527731&ei=1&en=6c28dff02bafc6d0
The GOP's Judiciary Showdown
Saturday, Apr. 26, 2003
Time MagazineThe mother of all battles never materialized in Iraq. But flip on your TV this summer, and you may catch the Senate in hand-to-hand combat over the future of the Supreme Court
By VIVECA NOVAK
At least two debates this coming week over controversial nominees to the lower courts will preview what's to come. A full Senate vote on the nomination of Jeffrey Sutton - whose states' rights advocacy has helped limit the scope of disability, age and race discrimination statutes - to the 6th Circuit Court of Appeals is expected Tuesday. Then Thursday, the Judiciary Committee is scheduled to vote on Carolyn Kuhl, whom George Bush wants to seat on the appellate court in California. As a Reagan administration lawyer, Kuhl argued hard for tax-exempt status for the racially discriminatory Bob Jones University, and for the reversal of Roe v. Wade. Sutton and Kuhl have run up against heavy Democratic opposition, and the Dems have filibustered another appellate nominee, Miguel Estrada, for nearly two months, blocking an up-or-down vote.
But stay tuned. "These are just the opening salvos of what will be a colossal conflict," said Ross Baker, a presidential historian at Rutgers. Both Chief Justice William Rehnquist, 78, and Sandra Day O'Connor, 73, have told friends they'd like to step down. And both know that if they want George Bush to name their successor, they should leave this year. In 2004, with an election in the offing, confirmation of a replacement will be all but impossible.
Bush appears to have focused on the judiciary - with lifetime appointments that will far outlast him - as a top domestic priority far more intently than did the Clinton White House. To that end, the president has put up one highly conservative nominee after another, even recycling two that the Judiciary Committee, under Democratic control last year, rejected: Mississippi's Charles Pickering, whose civil rights stances were questioned, and Priscilla Owen of Texas. Democrats are counting votes to see if they have the 41 needed to filibuster Owen, whose rulings they view as being anti- worker, anti-abortion and to the right of even her conservative colleagues on the Texas Supreme Court; Republicans may try to force the issue next week. But Democrats have held strong through four GOP attempts to break their filibuster of Estrada, with accompanying charges of being anti-Hispanic, on the grounds that he's refused to answer their questions or turn over legal memos he wrote.
For an administration bent on keeping its conservative base happy, though, tacking way right on judicial nominees and clashing with the opposition has no real downside. Proof that Bush isn't changing course: his nomination earlier this month of Alabama Attorney General William Pryor to an appellate court seat. Pryor, besides being vigorously anti-abortion and plenty willing to smudge the line separating church and state, last year criticized a Supreme Court ruling that state corrections officers could be sued for tying prisoners to hitching posts for long periods because they should have known that it was cruel and unusual punishment. Pryor is close to top Bush adviser Karl Rove.
Even a Republican, Sen. Arlen Specter of Pennsylvania, has asked for more time to study one of Bush's nominees, J. Leon Holmes of Arkansas. Holmes, a past president of Arkansas Right to Life, has asserted that "conceptions from rape occur with the same frequency as snow in Miami." In fact, according to a study published in the American Journal of Preventative Medicine, about 25,000 pregnancies each year are the result of rape.
Former White House Counsel C. Boyden Gray, who heads a group that's run ads supporting Bush's nominees (with fundraising help from Bush's father), complains that the Democrats have taken obstructionism to new lows. "If 51 senators want to vote down an Estrada or Sutton or whoever, they're entitled to do that," he said. "But when Democrats say you need 60 votes? - which is what's required to end a filibuster - that's beyond fair play."
Democrats, for their part, say the filibuster is practically the only weapon they have left in the face of what they assert is a brazen attempt to stuff the nation's federal courts with highly ideological lawyers. Since most cases, while precedent-setting, never make it to the Supreme Court, they seem to have decided it's worth the fight even in the lower courts. "Never in recent memory has their been such an affront to the balance of the judiciary," said Sen. Edward Kennedy of Massachusetts, a Democratic member of the judiciary panel, where inter-party relations have sunk to a new low. "This is really an attempt to roll back any progress toward equality for all Americans."
In reality, though, the filibuster is akin to a weapon of mass destruction; it's not something to be used often. That's why most of Bush's picks, controversial or not, have been getting through, and the number of nominees confirmed is about the same as in the first two years of the Reagan and Clinton administrations.
But there's no doubt that with Estrada - and possibly Owen - Democrats are sharpening their skills with that weapon. And when it's a high court seat that's at stake, they hope to be battle-ready.
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