The Honorable Richard J. Durbin

February 13, 2003

In the cases that he has chosen to take and the legal arguments he has chosen to advance, Jeffrey Sutton has shown a pattern of insensitivity to civil rights, human rights, and the rights of minorities, women, and the disabled in America. He has urged federal courts to strip Congress of its powers and citizens of their remedies.

His hearing was held on January 29, 2003, and while I appreciated the candor and comprehensiveness of many of his answers, his record speaks for itself. I have never seen a hearing where we had so many disabled Americans come forward to protest the nomination of a judicial nominee. At least 23 disability rights and civil rights organizations in Illinois oppose him, as do hundreds more throughout the country. This tells me that many people are concerned about what is in Mr. Sutton's heart.

In our history, seldom do people announce publicly that they are prejudiced. The primacy of states' rights has historically been a shield for discrimination in America. Only a few people are bold enough to state forthright that they oppose civil rights and the rights of women, minorities, or the disabled. Instead, most have asserted that they were not opposed to civil rights but only to the power of the federal government to protect them. History has not been kind to those who concealed their sentiments in this legal distinction.

While Mr. Sutton's record is devoid of obvious manifestations of prejudice, his vision of a federal government with diminished power to enforce civil rights would achieve the goals of those who oppose equality.

Mr. Sutton has been front and center in some of the most important Supreme Court cases of our generation. He has asked the Supreme Court to restrict the rights of the disabled, women, the elderly, the poor, and ethnic minorities - and the Supreme Court has assented.

For example, in the case Board of Trustees of the University of Alabama v. Garrett (2001), the Supreme Court accepted Mr. Sutton's arguments and held that disabled Americans cannot sue states for money damages under the Americans with Disabilities Act of 1990 because there is inadequate evidence of historical discrimination by states against the disabled. Mr. Sutton claims that he was just being an advocate on behalf of Alabama. He says he just wanted to develop a Supreme Court litigation practice. While I accept the principle that it is wrong to ascribe the views of a client to their attorney, I believe it is appropriate to consider which clients an attorney chooses to represent. This is particularly true with an individual like Mr. Sutton, whose legal credentials are so impressive that he can pick and choose where to work and whom to represent.

Mr. Sutton's legal career has been spent practicing in the shadows of states' rights. He has said repeatedly how much he values federalism. Time and time again, he has argued important cases on the side of states' rights, not individual rights. He has become a predictable, reliable, legal voice for seeking to limit the rights of Americans in the name of states' rights. That is why I oppose the nomination of Jeffrey Sutton for a lifetime appointment to the U.S. Court of Appeals for the Sixth Circuit.