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 opposition to the confirmation of Jeffrey Sutton to the United States Court of Appeals for the Sixth Circuit. Mr. Sutton’s record as a lawyer and advocate reveals him to be an extremely ideological and conservative activist with a particularly troubling record in many areas important to our communities.
We have serious concerns about Mr. Sutton’s 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, Mr. 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 devastating impact on the rights of individuals with disabilities. Over the past several years, Mr. Sutton has been involved in a targeted effort to challenge and weaken the Americans with Disabilities Act (ADA), a popular and important bill enacted by a bipartisan Congress and signed into law by President George H.W. Bush. Mr. Sutton represented the University of Alabama in the case of University of Alabama v. Garrett, 531 U.S. 356 (2001), in which the Court ruled 5-4 that it was unconstitutional for the ADA to permit state employees to bring lawsuits for damages to protect their rights against discrimination. In fact, Mr. Sutton’s arguments went even further than the Court’s decision. During oral argument, Mr. Sutton told the Court that the ADA was “not needed.” In another case, Olmstead v. L.C., 527 U.S. 581 (1999), Mr. Sutton argued that it should not be a violation of the ADA to force persons with mental disabilities to remain institutionalized without proper justification, despite clear congressional findings to the contrary. In a third case, Pennsylvania Dep’t. of Corrections v. Yeskey, 524 U.S. 206 (1998), Mr. Sutton filed an amicus brief arguing that the ADA does not apply at all to state prison systems. The Supreme Court rejected Mr. Sutton’s arguments in Olmstead and Yeskey, which would have further weakened the ADA had they been accepted.
Mr. Sutton has also argued for a narrow view of Congress’ ability to provide a means for individuals to vindicate their rights. In Alexander v. Sandoval, 532 U.S. 275 (2001), he argued against allowing private individuals to sue to enforce the disparate impact regulations of Title VI of the 1964 Civil Rights Act, which prohibits discrimination based on race, color, or national origin, by recipients of federal financial assistance. He has also argued for severe limits on the ability of state employees who are victims of age discrimination to recover damages, and against a federal remedy for victims of sexual assault and violence, positions adopted by the 5-4 Supreme Court majority. And, as in other areas, Mr. Sutton’s arguments in several of these cases sought to restrict federal civil rights protections even more severely than has the Supreme Court.
In addition, Mr. Sutton has advocated for other specific steps by the courts to limit federal civil rights protections. In an article for the Federalist Society, Mr. Sutton praised a concurring opinion by Justices Thomas and Scalia in Holder v. Hall, 512 U.S. 874 (1994), which would have severely restricted the application of Section 2 of the Voting Rights Act (prohibiting state and local conduct that has a racially discriminatory purpose or effect), and would have required overturning or reconsidering at least twenty-eight previous Supreme Court voting rights decisions. Mr. Sutton has even suggested that the Thomas-Scalia concurrence provided a blueprint for broadly reconsidering and overturning court decisions that right-wing advocates do not like in civil rights and other areas.
Based on his record as a lawyer and legal advocate, it is clear that Mr. Sutton’s legal philosophy is focused on limiting Congress’ historic role in protecting the civil rights of all Americans and ensuring that with regard to federal statutes that continue to hold the promise of meaningful relief, individuals are barred from vindicating their rights. Therefore, given Mr. Sutton’s record of hostility to important civil rights and equal opportunity principles, we urge the Judiciary Committee to reject his confirmation to the U.S. Court of Appeals for the Sixth Circuit. 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