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Sutton Wins Bruising Confirmation Fight

The Columbus Dispatch
Wednesday, April 30, 2003
Jack Torry and Jonathan Riskind

WASHINGTON After one of the most intense struggles ever for a lower court nominee, a deeply divided U.S. Senate yesterday confirmed former Ohio Solicitor Jeffrey S. Sutton for a seat on the federal appeals court in Cincinnati.

By a vote of 52 41, the Senate closed a two year battle over Sutton's nomination, one that produced passionate arguments between supporters who argued he was uniquely qualified and opponents who insisted he would threaten federally guaranteed liberties for the disabled, women and minorities.

Sutton, 42, will fill one of six vacancies on the 16 member 6th U.S. Circuit Court of Appeals, where he will rule on weighty federal issues from Ohio, Kentucky, Michigan and Tennessee. His elevation to a federal appeals bench at such a young age also makes him a potential nominee to the U.S. Supreme Court, one of the reasons liberal activists were so fervent in opposing his ascension to the 6th Circuit.

"That's one of the reasons that, at the least, people wanted to make sure there was a strong vote against him to send a message he would be vigorously opposed for the Supreme Court," said Eleanor Smeal, president of the Feminist Majority.

The appeals court is the middle step between federal district courts and the U.S. Supreme Court.

Sutton could be joined as early as next week by Ohio Supreme Court Justice Deborah L. Cook, who, like Sutton, was nominated in 2001 by President Bush for the 6th Circuit. Cook, while regarded as a solid conservative vote, has not provoked the level of opposition as Sutton.

The two year struggle over Sutton assumed the epic proportions of a Supreme Court battle, as opposed to the minor frays surrounding most nominations to the federal appeals bench. But in recent years the struggle for the appeals courts has intensified, with Republicans refusing to vote on a number of President Clinton's nominees in the last year of his presidency.

For example, the Senate in 1999 rejected the nomination of Democrat Ronnie White to the federal appeals bench, and Democrats currently are blocking Miguel Estrada for an appellate seat.

But Sutton seemed to earn a special dose of enmity.

Democrats see him as part of an effort by Bush to fill the federal appeals bench with young conservatives who can influence the law for decades to come. And they worry that a future Republican president might turn to Sutton to fill a vacancy on the highest court.

"He has a chance of being on the Supreme Court someday, and why not damage him now so he can't be there," Senate Judiciary Committee Chairman Orrin Hatch, R Utah, said of Sutton's opponents.

Bush yesterday issued a statement predicting that Sutton will be an outstanding court of appeals judge and will serve the American people well." Bush also called on Senate Democrats to stop blocking votes on some of his other nominees, including Estrada.

Cook's nomination was approved by the Senate Judiciary Committee last February by a 13 2 vote as she won support from Democrats Joseph R. Biden of Delaware, Herbert H. Kohl of Wisconsin and Richard J. Durbin of Illinois. Four Democrats either voted present or did not vote to protest what they regarded as heavy handed GOP tactics in the judicial confirmation process.

While Allan Reuther, a lobbyist for the United Auto Workers, warned in a letter last month to lawmakers that "Cook has consistently ruled in favor of big business," environmental and disability organizations have yet to stake out a strong stance against her.

"The environmental case against Justice Cook is simply not as overwhelming as the environmental case against Jeffrey Sutton," said Douglas T. Kendall, executive director of the Community Rights Counsel, a nonprofit law firm that supports environmental laws.

Sutton, who was in New York City yesterday, did not learn of his confirmation until after his plane landed in Columbus at 2 p.m. He said he was "extremely grateful to President Bush and my two Ohio senators Sens. Mike DeWine and George V. Voinovich who have been so supportive. I look forward to being a good judge."

Seven senators missed yesterday's vote, including Democratic presidential candidates Joseph Lieberman of Connecticut, John Kerry of Massachusetts, and Bob Graham of Florida. The only Democrats to vote for Sutton were Dianne Feinstein of California and Ben Nelson of Nebraska.

Proponents and opponents agreed that Sutton's legal credentials are impeccable. As state solicitor and a private lawyer, he has argued 12 cases before the nation's highest court, ranked first in his law class at Ohio State and was named one of the nation's top 45 lawyers under the age of 45 by American Lawyer Magazine.

But he often has advocated strict curbs on federal authority to enforce laws protecting the disabled. In 2000, he persuaded the Supreme Court that an Alabama state worker who lost her job because of treatment of breast cancer could not sue for punitive damages under the 1990 Americans with Disabilities Act.

"Mr. Sutton is another example of nominees who have been nominated that are not simply mainstream conservatives, but way over to the right side," said Sen. Charles Schumer, D N.Y.

Complaints from Schumer and Sen. Tom Harkin, D Iowa, prompted a testy response from Hatch. He characterized Sutton as "one of the top appellate lawyers in the country," one who has won nine cases before the Supreme Court and argued more than 30 others before state and federal appeals courts.

"And I hear he's outside the mainstream because he wins his cases before the Supreme Court?" Hatch asked in apparent astonishment.


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