Jeffrey S. Sutton, President Bush's nominee for a lifetime
position on the U.S. Court of Appeals for the Sixth Circuit,
is one of the country's leading advocates for an extreme and
virulent form of judicial activism that would limit citizen
access to justice and seriously undermine the ability of the
federal government to protect the environment.
In his writings and speeches, Mr. Sutton has advanced a view
that pits the federal government against the states, doing
violence to notions of cooperative federalism that underlie
most environmental, health, and safety legislation. He has
characterized a string of cases challenging the federal government's
authority to regulate as "invariably a battle between
the states and the federal government over legislative prerogative"
and a "zero-sum game-in which one, or the other law making
power must fall." Mr. Sutton's views on states' rights
are not even shared by the vast majority of states. For example,
thirty-six states advocated in favor of the federal Violence
Against Women Act in United States v. Morrison. Only
one state, Alabama, represented by Mr. Sutton, advocated against
federal authority. Likewise, nine northeastern states recently
sued the Bush Administration for not aggressively enforcing
the Clean Air Act. These states clearly do not share Mr. Sutton's
view that federal rules "invariably" and improperly
encroach on state legislative prerogatives.
Mr. Sutton's positions on federal constitutional power and
citizen access to the courts are extreme and go far beyond
the already disturbing 5-to-4 Rehnquist Supreme Court rulings
on these topics. For example:
- Mr. Sutton argued to the U.S. Supreme Court in Solid
Waste Authority of Northern Cook County (SWANCC) v. U.S.
that the federal government did not have authority under
the Constitution's Commerce Clause to prevent destruction
of waters and wetlands that serve as critical habitat for
migratory birds. No less an authority than Justice Oliver
Wendell Holmes writing for a 7-2 majority of the Supreme
Court in 1920 called the protection of migratory birds a
"national interest of very nearly the first magnitude"
and held that "[i]t is not sufficient to rely upon
the States." By contrast, Mr. Sutton called these concerns
"uniquely a matter of local oversight." The
SWANCC Court decided the case on statutory grounds,
declining to decide Mr. Sutton's constitutional argument.
- Mr. Sutton has been a leading advocate for aggressively
limiting private causes of action that permit citizens to
bring civil rights and environmental justice claims to the
courts. In Alexander v. Sandoval, he convinced a
deeply divided Supreme Court that regulations under Title
VI of the Civil Rights Act, which form the primary source
of rights to ensure environmental justice, did not permit
citizens to sue the states directly. Mr. Sutton asked the
Sandoval Court to go much further: his position would have
also prevented vindication of environmental claims under
§ 1983 of the Civil Rights Act, a question specifically
left open by the Sandoval Court.
- Mr. Sutton has also advocated for a dramatic narrowing
of the category of federal rights that can be enforced under
the Court's landmark 1908 ruling in Ex Parte Young.
Effective, enforceable, cooperative federalism in environmental
laws is dependant upon Ex Parte Young, which permits
suits to enjoin state officials from violating federal law
even where the Eleventh Amendment would bar a suit against
the state seeking money damages. In Westside Mothers
v. Haveman, Mr. Sutton took the extreme position that
federal legislation passed under the Constitution's Spending
Clause never creates a federal mandate that can be enforced
under Ex Parte Young.
Another disturbing aspect of the briefs Mr. Sutton filed
in the cases discussed above is his tendency to cavalierly
disregard precedent that is unfavorable to his position and
his willingness to instruct judges to ignore such precedent
in ruling in his favor. For example, in his opening brief
in Westside Mothers, Mr. Sutton ignored a landmark
Supreme Court case on point, Maine v. Thiboutot, and
in a reply brief, admitting his error, advised the district
judge not to "be overly concerned with whether its decision
can be reconciled with the facts-as opposed to the rationale-of
Thiboutot and its progeny." In that same brief, he argued
that Spending Clause legislation creates a federal/state "contract"
despite a 1985 Supreme Court ruling in Bennett v. Kentucky
Dep't of Education to the contrary, which he again failed
to cite. After convincing a district court to adopt his position,
the Sixth Circuit reversed, finding that "binding precedent
has put the issue to rest."
Mr. Sutton's extreme views on federal authority and environmental
access to courts, coupled with his apparent disdain for unfavorable
precedent, strongly suggest that Mr. Sutton's nomination to
the Sixth Circuit poses a threat to the Constitution and enforcement
of our nation's core environmental protections.