February 11, 2003
The Honorable Orrin G. Hatch
Senate Judiciary Committee
104 Hart Senate Office Building
Washington, D.C. 20510
Dear Senator Hatch:
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 serious concern regarding the nomination of Ohio Supreme Court Justice Deborah Cook to the United States Court of Appeals for the Sixth Circuit.
We are deeply troubled that Justice Cook’s numerous dissents as a state Supreme Court justice 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, 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.
In a large number of employment rights cases that have come before the Ohio Supreme Court, Justice Cook was the sole dissenter, siding with business or corporate interests a majority of the time. For example, in Johnson v. BP Chemicals, Inc., 707 N.E.2d 1107 (Ohio 1999), Justice Cook dissented from a majority ruling striking down a Ohio statute that made it nearly impossible for an employee to recover damages from his/her employer caused by an intentional tort committed by the employer. The Ohio legislature, which had originally enacted the statute to shield employers from liability in such cases, was criticized by the court majority for its efforts to ignore court precedent and provide employers with immunity from liability. Despite the majority’s harsh criticism of the statute, Justice Cook argued to uphold it, thereby shielding employers from liability to employees for their intentional wrongdoing.
In another case regarding workers’ rights, Genaro v. Central Transport, Inc., 703 NE.2d 782 (Ohio 1999), Justice Cook wrote a dissenting position that would have narrowed an Ohio law prohibiting employment discrimination. A majority of the Court held in Genaro that, unlike federal employment discrimination law (Title VII), state employment discrimination law requires that supervisors be held liable for their own discriminatory conduct. Cook both joined a dissent and authored one of her own, disagreeing with the majority, and looking to case law interpreting Title VII, despite the difference in language between state and federal law.
We are further concerned about Justice Cook’s unwillingness to uphold an Ohio Constitution statute in a case regarding religious freedom. Cook was the sole dissenter in Humphrey v. Lane, 728 N.E.2d 1039 (Ohio 2000), in which she advocated a position that would have undercut the religious liberty of a uniformed corrections officer, Wendall Humphrey. Humphrey, whose religious beliefs prohibited him from cutting his hair except on certain occasions, tucked his hair under his uniform cap while on duty. Although it was undisputed that Humphrey’s hairstyle had not interfered with his job performance, his employer – the Ohio Department of Rehabilitation and Correction (ODRC) – said it would fire Humphrey unless he cut his hair. Humphrey sued, claiming the ODRC violated his rights under the free exercise of religion clause of the Ohio Constitution. Although the trial court and later the Ohio Supreme Court held that Humphrey’s religious freedom had been violated, Cook – again as the lone dissenter – would have allowed ODRC to fire Humphrey unless he cut his hair. In her dissent, Cook argued for an effective nullification of the independent, more protective provisions of the Ohio Constitution. See Oregon Dept. of Human Resources, Emp. Div. v. Smith, 494 U.S. 872 (1990) (favoring the more restrictive rules under federal law).
We believe that Justice Cook’s record raises serious concerns about whether she should be given the enormous honor and responsibility of a seat on the U.S. Court of Appeals for the Sixth Circuit. We strongly urge the members of the Judiciary Committee to conduct a thorough investigation of Justice Cook’s record, including the areas of concern we have outlined above, and to refrain from passing judgment on Justice Cook’s nomination until that inquiry, and the record, is complete. Only then can a full and informed decision be made on this important nomination. 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