Detroit Free Press: Sutton Judicial Nomination

High-profile media attention and a U.S. Senate filibuster continue to spotlight the appeals court nomination of Miguel Estrada, but many other controversial Bush nominees are waiting in the wings.

While Democrats are urging the Bush administration to release more information illuminating Estrada's judicial philosophy, there is no mystery about the legal principles that guide another of President George W. Bush's judicial nominees, Jeffrey Sutton.

Indeed, an extensive record sheds ample light on Sutton's constitutional philosophies. It's a record that should lead ordinary Americans -- especially millions of Americans with disabilities -- to fear the consequences of Sutton's confirmation to the U.S. 6th Circuit Court of Appeals, which reviews the decisions of federal trial courts in Michigan, Ohio, Kentucky and Tennessee.

Appeals courts are the last stop before the U.S. Supreme Court, which takes only a fraction of the cases on which the appeals courts rule. Appeals court confirmations are lifetime appointments and have long-lasting impact on civil rights, workplace safety, privacy rights and other freedoms and protections that Americans cherish. Unfortunately, the ability of ordinary citizens to enforce these rights through federal law would be seriously threatened by Sutton's confirmation. Just ask Patricia Garrett.

Garrett had worked at a state-funded Alabama university for 17 years when she was diagnosed with breast cancer. Returning from medical leave, Garrett was demoted, even though she could still perform the requirements of her job. That's when Garrett sought damages under the federal Americans with Disabilities Act.

In 2001, Garrett's case reached the Supreme Court. Sutton argued the state of Alabama's case, urging the high court to disallow suits against states that violated the Americans with Disabilities Act. In a 5-4 decision, the court narrowly ruled to uphold Alabama's -- and Sutton's -- position.

Sutton's hostility toward the Americans with Disabilities Act isn't based on some technicality of the law. When asked whether his position was meant to challenge only limited portions of the law, Sutton called his argument "a challenge to the ADA across the board." This stand places Sutton far outside of the mainstream and at odds with bipartisan supporters of Americans with Disabilities Act, including both the first President Bush, who signed it into law, and former Senate Majority Leader Robert Dole.

The Alabama case is only one of many instances in which Sutton has chosen ideology over justice.

In another case, for example, he argued that unnecessarily keeping people with disabilities in institutions was not a form of discrimination and that states had no duty under the Americans with Disabilities Act to serve individuals in integrated settings.

Sutton and his defenders claimed he was simply representing his clients' positions and that he could have been on either side of these arguments. But this explanation is unconvincing, especially considering Sutton's adherence to an extreme states' rights ideology as voiced in his own writings and speeches.

Furthermore, the record shows that Sutton has repeatedly been hostile to individuals seeking remedies for discrimination based on disability, age or other grounds. Indeed, despite his attempts to convince Senators otherwise, Sutton has consistently argued to limit or invalidate federal protections against discrimination and injury.

At his Senate hearing, Sutton's supporters spoke of his "compassion" for people with disabilities. But this message was sadly reminiscent of what the disability community heard during the pre-Americans with Disabilities Act years when many elected officials expressed how "sorry" they felt for people with disabilities, but then declined to ensure their full legal rights.

Sutton's radical states' rights philosophy has helped undermine the Americans with Disabilities Act and falsely portrays it as an entitlement benefit rather than a civil rights law. This explains why more than 400 national, state and local disability and civil rights organizations are opposing Sutton's nomination.

Yet people with disabilities aren't the only casualties of Sutton's extreme agenda.

In a Florida case, he argued that states should not be covered by the federal Age Discrimination Act. In another case, Sutton argued that Medicaid recipients cannot sue to protect their rights under the law. Just two years ago, he voiced frustration that states were "not rising up together and defending their authority" against such federal laws.

As the Senate prepares to vote on Sutton's nomination, its members should think twice about handing a lifetime appointment to one of the nation's highest courts to someone who consistently places his states' rights ideology above the needs of disenfranchised Americans.

JIM WARD is president of ADA Watch/National Coalition for Disability Rights. Write to him in care of the Free Press Editorial Page, 600 W. Fort St., Detroit, MI 48226.