Recipient: U.S. Senate
February 11, 2003
The Honorable Orrin G. Hatch
Senate Judiciary Committee
224 Dirksen Senate Office Building
Washington, D.C. 20510
The Honorable Patrick J. Leahy
Senate Judiciary Committee
433 Russell Senate Office Building
Washington, D.C. 20510
Dear Chairman Hatch and Senator Leahy:
On behalf of the Leadership Conference on Civil Rights, the nation’s oldest, largest, and most diverse civil and human rights coalition, we write to express our grave concern about the Judiciary Committee’s review of the nominations of Deborah Cook to the U.S. Court of Appeals for the Sixth Circuit and John Roberts to the U.S. Court of Appeals for the D.C. Circuit, and to urge that each receive a second hearing in order to afford Committee members a fair opportunity to adequately fulfill their constitutional duty to advise and consent on nominations to the federal bench.
Though the practice in the Judiciary Committee for many years has been to consider no more than one court of appeals nominee per hearing, the January 29, 2003, hearing included nominations for three individuals to the courts of appeal – Jeffrey Sutton, Deborah Cook, and John Roberts — as well as three district court nominees. Given that the federal appeals courts are often the last word on points of law within each circuit, nominations to these courts are often subjected to extensive and time-consuming questioning by committee members. The time necessary to adequately question nominees to the courts of appeal is even greater when, as in this case, the nominees in question are controversial; i.e., have records that raise serious questions about their legal philosophy.
Jeffrey Sutton, nominated to the Sixth Circuit, has a record that raises serious concerns about his legal philosophy in a number of areas, particularly his views on Congress’ authority to enact laws protecting civil and other individual rights. Mr. Sutton has become, over the last several years, a leading activist in the so-called “states’ rights” movement. In fact, Sutton has personally argued key Supreme Court cases that, by narrow 5-4 majorities, have undermined Congress’ ability to protect Americans against discrimination based on race, age, disability, and religion. Mr. Sutton’s work on behalf of limiting Congress’ power to enact protective legislation has had a particularly devastating impact on the rights of individuals with disabilities. Justice Deborah Cook, nominated to the Sixth Circuit, has a troubling record on the Ohio Supreme Court. Her numerous dissents reflect a reluctance to support enforcement of a number of legal and constitutional rights, particularly those affecting workers and consumers. Among her more than 300 dissents as a state Supreme Court justice, Cook has shown a disturbing pattern of siding with business or corporate interests over those of individual workers and/or consumers. Further, we are troubled by Justice Cook’s insensitivity in other civil rights areas, specifically regarding religious liberty. John Roberts, nominated to the D.C. Circuit, has a record that raises serious concerns about his commitment to civil rights and equal opportunity. As a political appointee in the Reagan administration, Roberts worked to oppose both busing and affirmative action as means of desegregation. He was also involved in the Administration’s highly controversial efforts to make it nearly impossible for Voting Rights plaintiffs to prove violations, as well as efforts to limit Congress’ ability to pass legislation regulating state conduct in the name of “states’ rights.”
Thus, all three court of appeals nominees who shared the hearing on January 29 are controversial, with a number of progressive organizations expressing either serious concern or outright opposition to their confirmation. Indeed, holding a hearing for three such controversial nominees contradicts an agreement signed more than fifteen years ago by the chair and ranking members of the Senate Judiciary Committee and the Senate majority and minority leaders that “no more than one so-called controversial nominee” would be “scheduled at any one time.” In addition, it was clear from the outset that Professor Sutton in particular would draw a large number of questions from members, given his extensive record and the widespread opposition to his confirmation expressed by scores of disability rights, civil rights, and women’s groups. However, because of the Committee’s unprecedented move to hear three controversial courts of appeal nominees at a single hearing, the price of an adequate review of Professor Sutton’s record was little opportunity to question Justice Cook or Mr. Roberts.
Given the concerns outlined above regarding the records of Justice Cook and Mr. Roberts, it is crucial that the Committee be given a full and fair opportunity to ask questions probing their legal philosophies and judicial interpretations, to ensure that the nominees have a demonstrated commitment to civil rights and equal justice. That opportunity did not occur on January 29, and we therefore urge that a second hearing be held on both of these nominees and that the Committee refrain from passing judgment on their nominations until that inquiry is complete. If you have any questions or need further information, please contact Nancy Zirkin, LCCR Deputy Director/Director of Public Policy at (202) 263-2880, or Julie Fernandes, LCCR Senior Policy Analyst at (202) 263-2856.
Dr. Dorothy I. Height