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
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
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
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,
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
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
"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,
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.