Pending Judicial Nominations (part 5)

SEN. LEAHY: You may think that the Democratic senator would take comfort in the fact that often when you have dissented—the Republican majority in your own court though has been quite critical of your view of the law. In Bunger v. Lawson, the majority called your interpretation of the law nonsensical. They said that leaves an untenable position that's unfair to employees. And they said your opinion would be, quote, "an absurd interpretation that seems borrowed from the pages of 'Catch-22.'" In Russell v. Industrial Commission of Ohio they stated "your dissent lacked statutory support for its position, that you were unable to cite even the slightest dictum from any case to support your view, and your argument, which had not been raised by the commission, the bureau, the claimant's employer in any of their supporting -- (inaudible) -- entirely without merit." In Ohio Academy v. Sheward, the majority held the tort reform law is unconstitutional because it severely limited an injured party's ability to recover from wrongdoers, no matter the type of injury. And then they responded to a dissent you joined stating that, quote, "The dissenting judges mischaracterize our findings, misconstrue prior decisions of this court, selectively extrapolate portions of the legislation at issue, While ignoring its overall tenor and content, disassociate themselves from a decision which one of them concurred, suggested we create a new theory of minimizing the magnitude and scope of the legislation in the importance of separation of powers, accuses us of language unbecoming a judicial opinion, and questions our faith and our quotes of record—all in an obvious effort to distort our opinion into a form susceptible to (confident ?) criticism and protect this legislation from any timely, meaningful and inclusive judicial review."

Now, I don't know about Ohio, but in Vermont that would go beyond understated New England criticism as pretty strong criticism. And I read this because I worry, one, as I said, a polarized Sixth Circuit, whether you would be not one to help bring people together but one to further polarize it; that you overwhelmingly favor employers in complaints brought by workers. In fact, I haven't found a case where you dissented in favor of an injured employee in a claim brought against his or her employer. So I raise this, Justice Cook—these are all things you've heard. I mean, you read the opinions. Please help us here: Why such strong words by the majority, mainly Republicans, for your dissents?

MS. COOK: The court is nominally five-two, Republican, but there are, as you will note from some of the newspaper stories, there are a number of Republicans on the court who are labeled, as everyone is labeled, they are labeled as liberal. And I am labeled so-called conservative. So I am not sure we can draw too much from --

SEN. LEAHY: Is this a liberal vendetta against you?

MS. COOK: No, not at all. I think it was a—you know, I'm sorry for the tone. It does appear to be a tone of a little beyond what we expect but it was a reasonable difference in Sheward. In fact, that's the case where you find that language. I am not—I think it might be stirred somewhat by the fact that this case was a very unusual—in fact it was exceedingly unprecedented and really an untenable procedural posture by which the case came to us. It wasn't an individual bringing a case to right a wrong or to achieve a remedy. In fact, it was an organization, the Ohio Academy of Trial Lawyers. So that's where the standing issue came in—that's not typically what we see. And, beyond that, the case was brought as an effort to get a writ—to ask the court to issue a writ to tell the judges in the state to not enforce this newly-enacted legislation on tort reform. And my dissent frankly was only on the issues of standing and the procedural posture that simply wasn't tenable. And, nevertheless, the court did issue a writ—even though the standard for issuing a writ couldn't possibly been met in this case. But—so I am --

SEN. LEAHY: But there are --

MS. COOK: I can't really defend the language in the majority --

SEN. LEAHY: -- pretty strong in more than one case. I mean, they're pretty strong in their criticism of your dissent. And when you've had well over 300 dissents in eight years, you know, I assume that you can pick and choose whether they are critical. But in the areas that I've read, the criticism is—seems to go way beyond the collegiality one normally sees in a court. And the numbers of your dissent of course go way beyond anybody else in the court. It's one thing to joke that your name is "Deborah Cook Dissenting," but again in a polarized Sixth Circuit it creates a problem to me. I am concerned that as an appellate judge you've repeatedly voted to overturn a jury's determination—the employees before them were victims of discrimination. Now, I have tried an awful lot of jury cases. I know all the effort that goes into getting a jury verdict, and I know that courts are very reluctant to overturn a jury verdict. They only have got a cold record. They haven't seen the witnesses, they haven't heard them. But your—I think your dissent in Gliner v. Saint-Gobain. That's troubling—four women sue their employer for gender discrimination. They received a jury verdict. It's overturned by the appellate court. And then a majority of the Supreme Court of Ohio ruled that the appellate court erred in overturning the jury verdict. Under the proper legal standard, they could not uphold the appellate court's ruling unless reasonable minds could come to only one conclusion—the employer was not liable. And --

MS. COOK: I think that's the case—if I may, senator?

SEN. LEAHY: Sure.

MS. COOK: I believe that's the case where the Court of Appeals initially ruled that the verdict should be overturned on insufficiency, and in fact wrote a 97-page very detailed opinion. And when the case reached our court it actually was a very short decision that said there was some evidence. And it seemed to me in my—and I voiced this in my dissent—that the court had really not applied any analytical rigor, nor applied the standard set forth in Civil Rule 50, for directed verdict. And that was the basis for that dissent. And I don't—I think collegiality is very important on a court. I have had a very good reputation for improving the collegiality at the Court of Appeals, where I formerly served. And --

SEN. LEAHY: But collegiality aside, Justice Cook, it seems that time and time again if somebody has sued his employer, and they've gotten a jury verdict, you seem very comfortable in overturning that jury verdict. Now, I've seen runaway juries where the appellate court should overturn it. But it's rare. It's extraordinarily rare. You seem to find them a lot. But I think in most states that's pretty rare that a jury that was a finder of fact gets overturned.

MS. COOK: Yeah, I don't know if we went through all the cases I don't know that we'd find it's done a lot. I know a case that's been cited is the Burns case. But that was as majority opinion that overturned that verdict in an employment case.

SEN. LEAHY: Well, Reeves—the Reeves case, the Burns case, the Saint-Gobain case.

SEN. LEAHY: I can tell you, senator, I've been on the receiving end of that, and I know it's no fun. I actually made some law in Ohio on discrimination, representing a woman in an age discrimination case—and it's the Jean Baker case that is cited as authority in the Burns decision. And, as I say, didn't write that decision. But Jean Barker—we had a verdict at the trial level, and it was overturned by the Supreme Court, but—so it's precedent that pops up in some of these cases.

So I certainly don't take it lightly—and verdicts are not to be overturned unless there is—in some of these cases it's insufficiency of the evidence. We all know the standards where a verdict can be overturned, and it's not done without the right facts or the absence of facts that warrant reversing a decision. But in a lot of these cases I think you'll find that my—if I were the dissenter, I wasn't writing just for myself, and moreover quite often you will find that it's the Court of Appeals—a unanimous Court of Appeals that felt likewise. So it—I am not sure I can easily be said to have missed the boat inasmuch as sometimes at least three other judges, and perhaps as many as five, agreed—six agreed.

SEN. LEAHY: Justice Cook, my time is up, and I'll—we'll come back—but I did not want you feeling neglected and feel that Professor Sutton was hogging all the questions.

SEN. HATCH: How considerate of you, senator. (Laughter.)

SEN. LEAHY: I tried.

SEN. HATCH: Senator DeWine for just a few minutes.

SEN. DEWINE: Thank you. Justice Cook, Senator Leahy has indicated that you seem to always rule in favor of the employer. I have got at least 23 cases here where you have ruled in favor of the employee in employment cases—Ahern (ph) v. Technical Construction, Broward (ph) v. Narvis Construction (ph), Boyd (ph) v. Chippewa Local School District, Connelly v. Brown, Douglas (ph) v. Administration. I'll go on and on. I would submit these for the record, Mr. Chairman.

SEN. HATCH: Without objection, we'll put those in the record.

SEN. DEWINE: Justice Cook, I want to discuss with you for a moment Senator Leahy's comments about you being labeled a dissenter—and you certainly have dissented in a number of cases. Let's first start with the cases that—five cases that were appealed from the Ohio Supreme Court to the United States Supreme Court. One of the cases was simply unanimous Ohio Supreme Court decision which was in fact affirmed by the U.S. Supreme Court. But in the other four cases, you disagreed with the majority of your colleagues. You dissented. You dissented. Your colleagues were on the other side. In each one of those cases, the United States Supreme Court said you, Justice Cook, were right, and your colleagues were wrong. Is that correct?

MS. COOK: Yes, it is.

SEN. DEWINE: So, being a dissenter in that case, it may not have been right, but at least it's what the U.S. Supreme Court thought was right.

MS. COOK: That's right. It was good enough for me.

SEN. DEWINE: So, being a dissenter is not always the worst thing in the world. In the State of Ohio, Mr. Chairman and members of the committee, we do have, right or wrong—right or wrong, we do have what at least the Ohio newspapers—and as I said earlier this morning, and it seems like it's been a long, long time ago, I guess it was a long time ago, what the Ohio newspapers have labeled to be a very activist Ohio supreme court. And whether you think that's a good idea or not a good idea, that's is not what we're debating today. But the Ohio newspapers, which run the gamut of the political spectrum, and I can say this as someone who has run for political office in Ohio for a long, long time, we have everything from the liberal to the conservative in the State of Ohio as far as the newspapers—but each newspaper, major newspaper in the State of Ohio has labeled the Ohio supreme court as being a very, very activist Supreme Court.

I will not take the time of the committee at this point to read the different editorials that make this point, but I am going to hand out to the different members of the committee, and I'll also make—ask the chairman to make it a part of the record --

SEN. HATCH: Without objection.

SEN. DEWINE: -- this document, which basically talks—these are different quotes from different editorials, which talks about how active the supreme court is. And I would tell members of the committee that it is on a bipartisan basis that it is active, this activist, very sweeping activist opinions. And I'm just going to read a couple of the—take just a moment to read a couple of the comments from the court—from the newspapers.

"The Ohio supreme court"—this is from the Toledo Blade—"The Ohio supreme court simply is not well regarded around the country. And it's the meddling tendencies of this four-judge super legislature that deserves most of the blame. The people of Ohio elect a legislature and a governor to make laws and govern, but their intent has been thwarted by this activist court."

SEN. JOSEPH BIDEN (D-DE): Excuse me—Senator, I didn't hear what he is quoting from.

SEN. DEWINE: This is a Toledo Blade editorial.

SEN. BIDEN: Okay. Thank you.

SEN. DEWINE: The point is that I think you will find, again, whatever you way come down on these issues, that the disputes on the court and the disagreement that Senator Leahy was quoting from in these cases pretty much comes down to where Justice Cook was dissenting based—based on her strict interpretation of the law versus the court's more activist interpretation of the law.

And I will reserve the balance of my time, Mr. Chairman. I reserve the balance of my time.

SEN. HATCH: Thank you. Senator Biden has not had his first round, so if it's all right with everybody, we'll --

SEN. BIDEN: Thank you, Mr. Chairman. I apologize to the committee and the witnesses. This has been a pretty busy day, and I've been spending my whole day dealing with issues relating to Iraq. And I have a lot of questions. I hope we're going to have a chance to have this panel over, because I for one have a—not a lot—I have about a half-hour's—an hour's worth of questions that I—I'm, because of the schedule today, not able to do, and --

SEN. HATCH: We're happy to give you the time now, Senator Biden. You're former chairman --

SEN. BIDEN: Well, let me—I won't—I won't take that time now because in large part I can't—I have another commitment relating to the Foreign Relations Committee I have to do at 6:18, but let me start off by just asking one or two questions in a few minutes here.

Professor Sutton, I—I'm a little concerned that with the nature and the way in which the Supreme Court is necessarily has cut back significantly the number of cases it reviews to about 80 cases a year, and that most of the significant cases, whether we're talking about the decisions relating to Roe v. Wade or any other case, there is enough ambiguity and significantly less review that the circuit court of appeals has a—in every circuit—has a significant impact beyond what they had 20 years ago in making law. And so I have a number of questions for you, Professor, relating to your notion of the role of the court and your assertion, I'm told—and correct me if I'm wrong—that you've indicated, and I quote, that "federalism is a zero-sum situation in which either the state or the federal law-making prerogative must fall." That is a constitutional view that I have an overwhelming disagreement with, and I suffer from the fact that I spent a lot of time teaching the separation of powers doctrine, and I think it's not inconsistent with where the majority of the Supreme Court has gone, but I think it's—I think it's fundamentally flawed constitutional methodology. And that's not to say that it is not intellectually defensible. It is to say that I have fundamental disagreement with it.

And I want to be straight up with you. I know this is not for the Supreme Court. But based on what I have read, assuming it's consistent with what you would respond to, if you were a nominee for the Supreme Court, I would not—even though you're intellectually and morally and in every way capable of sitting on the court, I would do all in my power to keep you off the court because it appears as though we have such a fundamentally diverging view of the 10th Amendment, the 11th Amendment, and the role of federalism, that I just want to be up front with you about that.

And so for me, I will not get an opportunity to go into any great detail tonight, obviously, but I have some questions I would like you to respond to. And let me begin by suggesting that—and I do not ask this out of parochial interest, although I have great pride in being the person who drafted the Violence Against Women Act—but I'd like to understand your reasoning beyond the fact that you were an advocate here, if there is a reason beyond your advocacy representing a client. And you filed a brief in the Supreme Court on behalf of the State of Alabama, arguing against the constitutionality of the federal civil remedy of victims of sexual assault and violence. Now, this is not a question of whether or not you were confirmed or not confirmed by the court, whether your view prevailed or not. It's a question of my trying to figure out how you approach these issues.ong other things, your brief in Morrison stated that gender- based violence does not substantially interstate commerce. Now, prior to the Violence Against Women Act, I literally held nine hearings and received testimony from over a hundred witnesses, at the end of which those long and thorough exploration, the Congress concluded, not just me, that gender-based violent crimes, in fear of these—I must leave in one minute? Wonderful.

I'm going to have to submit this question to you in writing, but the bottom line is, what I'm trying to get a sense of is how you approach the—what you consider to be the prerogatives of the Congress, Section 5 of the 14th Amendment, the significant change in the way in which—which this court, which I think is a bright court, but it is the most activist court in the history of the United States of America. No court has overruled as many national pieces of legislation, including the New Deal Era, as this court has.

And I want you to know, to be blunt with you, I come from sort of the Souter school of—in his dissents in the Florida pre-paid cases and their progeny, where Souter said, "The fact of such a substantial effect is not the issue of the courts in the first instance, but for the Congress's institutional capacity for gathering evidence and taking testimony far exceeds ours." Going on, Souter says, "I'm left wondering, where does the court's decision leave Congress's former plenary power to remove serious obstructions to interstate commerce, from whatever source." It is reminiscent of the Lockner (sp) era, when they said, by the way, you have those labor standards having to do with mining. Mining is not interstate commerce. Then they came along and said production is not interstate commerce. Then they said manufacturing is not interstate commerce. Until midway in the New Deal, with the end of the Lockner (sp) era, they said, "Whoa, whoa, whoa, wait a minute, wait a minute."

What I'm really trying to get at—and I'll submit these questions in writing—is at what point does the court decide to become the federal traffic cop? At what point does the court—does the court's authority to intervene in what I believe constitutionally has been left to the Congress under the Constitution to make judgments about? And you seem to have an incredibly restrictive view of the Congress's prerogatives. This is not Lopez, where the court did not have sufficient finding—where the court did not find sufficient findings. Even this court said there is no question that there was an extensive record, but we, as they did in—in Alton (sp) Railroad, years earlier said, but we don't think that's sufficient. And I wonder who the hell the court is to make that judgment that we don't think the remedy you chose is effective?

That's a very rapid attempt to summarize my concerns so that you have a context in which to understand the questions that—why I'm asking the questions, just straightforwardly.

MR. SUTTON: No, I appreciate that. I appreciate your being straightforward. I—there's not doubt that the criticism you just levied against the Morrison decision is the strongest criticism, and it was clearly the most difficult part of the case for the court, and exactly where the five-four line was, and that line was how much deference to give to these findings. And, you know, I—you were kind enough to mention I was involved in that case on behalf of a client. I was working as an advocate, and I was doing my best by them. And I, you know, what I would have done in that case, God only knows.

The one thing I would say, though, about your concern about court of appeals judges—I agree with you, I wish the U.S. Supreme Court would take more cases. It made my U.S. Supreme Court practice very difficult to sustain, they take so few cases. But, I'm not aware of too many, in fact, none, court of appeals decisions that struck a federal law—in other words, your handiwork, that weren't eventually, and usually quite promptly, reviewed by the U.S. Supreme Court.

SEN. BIDEN: Well, I think that's true. Most have been. But there are case, and I'm compiling this—I think there were—I think we'll be able to show there are roughly, there are over 200 cases the circuit court of appeals has found enough leeway in the existing law where they have changed the basic law without any review by the Supreme Court because the Supreme Court never took the cases.

And I'm—and I have my staff in the process of preparing that for some time now, which is, quite frankly, unrelated to you or any one of you, is beginning to make me review my standard for review of nominees. I have a very different standards for 30 years reviewing Supreme Court nominees because they are not bound by stare decisis than I do reviewing district and circuit court judges, but I am moving to the view that there should be in effect, to, quote, steal a phrase from the court, "an intermediate standard," for circuit court of appeals judges because they have become so much more significant in being the final arbiters—and they are not legally, the court, the Supreme Court is—but because of the review process they have become the final arbiters in areas where I used to be able to say, "Now, I know the court will review this." If you are bound by stare decisis, I—you will, and I trust your judicial temperament that you mean that, then in fact I'll take a chance on you even though I fundamentally disagree with your constitutional methodology because you'll abide by the decisions.

But there are enough—there are enough discrepancies, or differences, or holes in the reasoning. I mean, look at all the cases that have flown—and I don't—this is not my major concern—but look at all the cases that have been the progeny of Roe v. Wade. They're very, very, very complicated, whether it's Casey, or whether it's the issue of parental notification—all these issues. And in the past, I never doubted that the court would review those. But now what's happening is the court's in a position where it does not review a significant portion of the circuit court of appeals decisions that change state law, or uphold state law, that are never reviewed. And that's the only generic point I wish to make with you.

And one of the questions is going to be, you, as an advocate—I assume it's your answer, but I'd appreciate an honest answer if it's not—you argued in your brief that even the Congress did not show that—that sexual violence, violence against women had no impact on interstate commerce. Whether or not we get into the question of what constitutes commerce, that it had no impact, by the old standard on what constituted commerce, as I read—as I read your brief.

MR. SUTTON: Well, maybe I'm not understanding the question but the point I think we were trying to make was in all of the commerce clause cases, high watermark cases, Wickard v. Filburn, Jones and Laughlin, Lopez even, there's been a consensus that the court does have a role in determining whether something does impact --

SEN. BIDEN: It is interstate time.

MR. SUTTON: --interstate commerce. And I thought that was meant to be the main theme of the brief, that the court did have a role here whether it decides to uphold now or not.

SEN. BIDEN: But did not you argue that it does have a role of making a judgment whether it impacts, but in order for you to reach the conclusion that it did not impact interstate commerce you had to fundamentally disregard the hundred hours of hearing that the Congress held and concluded that it did, correct?

MR. SUTTON: I can certainly understanding someone taking that view, but I would say --

SEN. BIDEN: Is there any other view to take?

MR. SUTTON: -- at my client, the client is the one that took that position and I did everything I could to advocate that position. And I do --

SEN. BIDEN: Do you believe that? Do you believe that? I'm not suggesting it was inappropriate for you to—for example, if you were teaching it, would you teach that the Congress, the facts presented in the case and the congressional record did not warrant—did not warrant the court's concurrence because, as my good friend Justice Scalia says, everybody knows they never read this stuff and they never write this stuff, those senators, it's done by staff so dismissively it's taken out of the record. I mean, is that a view you share?

MR. SUTTON: No, it is not a view I share. I guess the point I would make is that there was a voluminous record, no doubt about it, and, of course, there was just one provision of that law at issue. The rest --

SEN. BIDEN: Well, I know that.

MR. SUTTON: -- were not even implicated much less attacked. And I think the issue in the case, it's a difficult one, is whether there is a sufficient amount of findings that no matter how much they are, no matter how much better equipped this body is to make these findings than the court is, whether there's still a role in the responsibility of the court to examine them to determine whether they do constitute under the Constitution interstate commerce. And what would I have done? I have no idea as a court of appeals judge. I'm sorry, I can't argue that. I've not looked at the issue.

SEN. BIDEN: No, I'm not asking you what you would have done but I do want to explore these issues with you and I have questions as well for the other nominees. Like I said, I hope we have more time. I understand my name was invoked when someone raised the issue of whether or not we had three not unqualified but controversial nominees all in one hearing, and Biden did it. The three that Biden put together had a vote of I think 98 to nothing so they were not controversial.

I thank you all. I apologize for going on. Thank you, Mr. Chairman.

SEN. HATCH: Senator Kennedy.

SEN. KENNEDY: Thank you, Mr. Chairman and I thank our witnesses. It's been a long day for all of you and we appreciate your patience.

I regret that I was unable to be hear earlier today. This afternoon I attended a memorial for a former congressman, Wayne Owens, who was a congressman from the state of Utah and I had thought that perhaps we could have had a brief recess where several of us who knew Wayne Owens and had a lot of respect for him, he actually worked for me, worked for my brother Bob, had a chance to go there.

So unlike most of the other hearings where members are able to stay and go through it, we come in here not sure whether some of these areas have been covered in the past or not, but nonetheless I will move ahead and we'll do the best we can.

I must say I just again want to register with the chairman at the opening of the session if this is the way the committee is going to be conducted I'm not sure that this accelerates the goodwill of the committee or the action of the committee in the long term or even in the short term, but that's an issue for another time.

Justice Cook, I want to come back to this issue in terms of your dissents and who you've been finding for. I pick up a little bit of the comments that my friend Senator DeWine raised in response to some of Leahy's questions, but I'd like to come back to this issue with you, if I could, please, and that is there is at least an argument that is made that your decisions come down in protecting the more powerful against the weak, that you've worked hard to make it more difficult, for example, for those who are injured in the workplace to get rightful compensation. You've made it more difficult for victims of discrimination to get justice. You've made it easier for large corporations to avoid paying for the harms that their defective products have caused. I know these are not new to you but I want to hear from you.

In fact, some have said that your views have marginalized you even on a conservative court, that you authored at least 313 dissents, many of them lone dissents. This number is extraordinary, is, in fact, more than any other justice on your court.

Now, what's more, even with all of these dissents you have never dissented from any decision of the court that was favorable to the employer. You stand up for the big business all the time. You've never stood up for the rights of the individual. To the contrary, you've dissented 23 times in cases in which the court ruled in favor of the employee at 79 percent of the time. You've only voted for an employee six times and in five of those cases the court was unanimous and in the other case the other court voted six to one in favor of the employee.

All of this is why your rating by the Ohio Chamber of Commerce is not surprising they say you rank first in voting for the employer in employment cases. You also rank first in voting with the defendant in product liability cases. You even scored a perfect 100 percent in insurance cases and on issues affecting the environment, voting with the corporate defendant 100 percent of the time.

Now, all of us are aware about these percentages and I want to give you an opportunity to respond to those and to the other observations that I made about your holdings.

It seems that you're in dissent so often because you are consistently and militantly pro-business, anti-worker, anti-civil rights, and I want to hear from you what conclusions you think we ought to draw from those percentages and from that record about how balanced you can be and how either workers or those people again who are left out, behind, those that care about the environment and other issues that are in conflict between employer and employee, how they could look to you and in your court and feel they're going to get a fair shake?

MS. COOK: Thanks, Senator. I'll address that. First of all, I think to say, as you acknowledge, the percentages are nothing I can ever check or know how they arrive at those, so I sure don't vouch for those sorts of things. But, if you will, I tried to just gather cases—I think Senator DeWine put out a listing of the cases that show that, frankly, I'm not a reliable vote for anyone, that my decision- making, and I hope you'll find this if you actually read the cases and read the dissents, you'll find, I hope, that it's a matter more of my precise reading of the law, looking for the actually text of the statute and when the cases, the results of the cases go against an employee or in the general civil rights kind of ideas I frankly don't think I deserve any blame for the legislation that I am apt to construe or interpret.

And so as in many of the cases there's a Doe case, which involved allowing insurance for negligent hiring in molestations cases.

In Hanes v. City of Franklin there was an edge drop off a road and though the majority of the case thought that the city was immune and not liable for damages, in that case I dissented and said indeed the city was because the city created a nuisance.

In Ritchie Produce I upheld a minority business set-aside.

In Nakov (ph) v. Fairview General Hospital it was a tragic case of medical malpractice where an individual came in with a fracture of the leg. In the setting of that leg the circulation was cut off, which ultimately resulted in amputation. I upheld the verdict of $2.4 million.

In Buckeye Hope case I dissented from the court's decision that a referendum could deny minority housing in a city in Ohio. Ultimately the court reconsidered that case and my dissent then became part of the majority.

In Ballish (ph) v. Copley Board of Education I upheld a verdict for a parent who came on school property. Again, the majority found that that individual, that the school was immune under our sovereign immunity law and I ruled the other way.

In Rice versus Certainteed there's a case about whether or not punitive damages can be awarded in discrimination cases and in that case I interpreted the language of the statute. The word "damages" I found was not limited by context or any modifiers and therefore allowed, ruled that that word included the whole panoply of pecuniary remedies.

In Wallis v. Ohio Department, Gibson v. Meadow Gold, I don't want to bore the committee but I have more, Senator.

SEN. KENNEDY: Well, the reason I raise this—you mentioned some and I'll review those cases—I was thinking of some of those, I guess Esponja (ph) v. Lawson and in that case, as I understand it, called Cook's interpretation law nonsensical, said that it leads to an untenable position, unfair to employees, adopting the lower court's interpretation or taking the position adopted by Justice Cook in her dissent would be, as the majority clearly stated, an absurd interpretation that seems to borrow from the pages of "Catch 22."

MS. COOK: And actually, Senator, in that case it was interpreting the statute in the usual mode but what the majority really was concerned about was that the law in Ohio is pretty plainly expressed that someone who's injured in the course of employment, that the compensability can be narrower than the immunity. Employers are immune from suit and therefore there are occasions where someone can be injured but their injuries not compensable and that's exactly how the law is written and that is my job to read it precisely.

SEN. KENNEDY: In the Russell v. Industrial Commission the court stated that your dissent lacked statutory support for its position and has been unable to cite even the slightest dictum from any case to support her view.

MS. COOK: Well, like so many dissents --

SEN. KENNEDY: No, I didn't have an opportunity to give these cases to you before, so I'm glad to let you give whatever response or the time to do it, because it's --

MS. COOK: In that case there was, number one, a statutory, a new enactment, so a statutory change in the language. My dissent was joined by the chief justice and so I think it's well reasoned. I think it's based on the statutory text.

SEN. KENNEDY: Well, now in the Russell case, as I understand, you argued that the workman's compensation benefit should terminate without a hearing as soon as the non-attending physician says the benefit should stop. You argued that in spite of the statutory language that couldn't be more clear. This is what the statutory language says: "Payments shall be for a duration based upon the medical reports of the attending physician. If the employer disputes the attending physician's report, payments may be terminated only upon application and hearing by a district hearing officer."

MS. COOK: That's right.

SEN. KENNEDY: And you interpret that statute entirely differently. You argue that the compensation base should be terminated without a hearing as soon as the non-attending physician said the benefits should stop.

Now, if, as I understand it, the employer disputes the attending physician, payment may be terminated only, as I said, upon the hearing officer and the majority stated your dissent lacked statutory support, unable to cite even the dictum for the case.

MS. COOK: Right and we really disagreed in that case, as people in good faith can always disagree about the meaning of words but in that case the majority and the dissent disagreed about which statute to read. So I was construing—my dissent construed an analogous statute and a parallel statute that had to be read in conjunction with the one that the majority was relying upon.

SEN. KENNEDY: I'm not an expert on the Ohio law but it seems that in the citation it's fairly clear that "payment shall be for a duration based on the medical reports of the attending physician."

MS. COOK: That's right.

SEN. KENNEDY: "If the employer disputes the physician, payments may be terminated only upon application hearing by a district hearing officer." And you made the judgment that it could be terminated without a hearing. And you have another statute.

MS. COOK: Yes. The issue really surrounded --

SEN. KENNEDY: Could you reference that, the other statute?

MS. COOK: Yes, I will.

SEN. KENNEDY: This is the concern about in light of the persistent dissents and your consistent siding with the large corporations against the individuals and departures from the clear language of the law, how are we going to be assured that you won't overreach in order to reach a conservative result?

Now, let me give you another example. As you know, one of the real best weapons that we have in the struggle to improve the lives of those who are left behind in our society is education and when we educate our children well we give them an opportunity to take part in the American dream. You, however, have taken the Ohio Constitution's provisions guaranteeing a thorough and efficient public education and voted to basically interpret it out of existence. This is the (Duralt ?) v. Ohio case.

You were confronted with overwhelming evidence that state funding of public schools was woefully inadequate. In fact, much of the evidence in that case showed that children were attending schools that were in dangerous repair with poor sanitation and few, if any resources for education.

The majority of the court followed Ohio Supreme Court precedent that said, "Where a school district is starved for funds or lacks teachers, buildings or equipment, the right to an education is violated." It found that "the woefully under-funding of such important state function as education violated the Ohio Constitution." You dissented.

You would have denied the right of children of Ohio the right to a thorough and efficient state education. In fact, your dissent was harshly criticized and particularly said that if your position had prevailed it would have turned 200 years of the constitutional jurisprudence on its head.

I understand in your personal life you acknowledge that education is important but we're talking about this particular case. How do you explain your decision on this issue that is so important and is an issue that is common to my state and states across the country and in which there is such a challenge in order to try to provide some quality funding for children? And Ohio has such a very strong statute I find it very difficult to understand your dissent.

MS. COOK: Senator, my dissent was first of all grounded on no member of the court, and there were two other members of the court who joined me in dissent about the constitutional bases that the majority was using to order a coequal branch of government to enact new funding statutes.

So actually I never did in any way vote to reduce educational spending or in any way voted to say that the sorry state of some schools in Ohio was okay. Instead, I had a limited role, as the court has an assigned limited role, and that I exercised my role appropriately I think in saying that the phrase that the court was hanging its hat on did not justify its ordering a coequal branch to enact new funding laws, because the Department of Energy had certified that every county in the state had met the minimum standards for providing an education.

So my view was beyond the minimums. It was the general assembly's role to decide what level of funding should be allocated to schools versus every other required funding at every other aspect of state government that required funding was a policy decision to be made by the legislative branch.

But I must say that that case has a fairly sorry history. It's lasted some six years and the court never, though it had some I think very well intentioned—it was a well intentioned effort but actually the court never was able to—it continued to order the general assembly to do more and do more and, frankly, finally the case faded away.

SEN. KENNEDY: Well, that's a sad conclusion that's happened. In some states, states have different Constitutions. In Massachusetts John Adams drafted our Constitution in Massachusetts and made it very specific with regards actually on the responsibility of the state in education. It is interesting that every state constitution has a guarantee on education. They're interpreted in different ways.

But let me come back to Ohio. The Ohio constitution requires a thorough and efficient education. These words have meaning. They can be interpreted, enforced by a court willing to take its responsibility seriously. In fact, a number of the states have found similar clauses in their constitutions enforceable. Your unwillingness to interpret and enforce this clause of the constitution I find disturbing. I understand you believe the clause is too vague for judicial enforcement. In your dissent you had compared it to another provision of the Ohio constitution that says that all citizens possess inalienable rights to life, liberty, property, happiness and safety, but even that clause has much the same language of the 5th and 14th Amendments of the Constitution clauses, which have been analyzed and enforced for many years.

And I'm just wondering how much assurance we can have here that you're going to interpret these statutes in ways that they were intended to and that reasonable people would feel that they should be intended.

MS. COOK: That would be my goal, Senator, that that would be my effort.

SEN. KENNEDY: If I could, Mr. Chairman, I have one additional query.

SEN. HATCH: That would be fine, Senator Kennedy. We'll give you the additional time.

SEN. KENNEDY: Thank you.

Much of the last two years have been spent recovering from corporate malfeasance that has hurt our economy, and naturally I'm talking about our country, and undermined the public's trust in big business. The laws play an important role in restoring the confidence of the American people, preventing this abuse in the future.

Unfortunately, in looking over y our record, and I want to give you a chance to respond, one could conclude that you have consistently voted to shield corporations from the legal consequences of their actions. In the Davis v. Wal-Mart, Mrs. Davis alleged that Wal-Mart instructed its employees to lie to her after her husband was killed while working for Wal-Mart. Wal-Mart allegedly told its employees to lie about the way in which Mr. Davis had been killed in order to encourage Mrs. Davis to settle out of court. The majority understandably found this sort of deception reprehensible and allowed Mrs. Davis to sue Wal-Mart. You would have prevented her from doing that, thereby allowing Wal-Mart to reap from the benefit of the lies and encouraging other corporations to do the same thing.

MS. COOK: My decision in that case does not suggest that I too don't find that behavior reprehensible. My dissent actually was based on a fundamental principle of jurisprudence, and that is res judicata and it was based on really well settled law that the fact that Mrs. Davis sued Wal-Mart, got a judgment for negligence and then years later came back with a spoliation case my view was that it was res judicata and in favor of finality of judgments. As we all know, that's why that principle is there and why it's accorded importance by judges.

SEN. KENNEDY: But the majority didn't find that.

MS. COOK: No, they did not.

SEN. KENNEDY: They reached a different conclusion.

MS. COOK: Yes, that's right.

SEN. KENNEDY: In Norgard v. Brush Wellman, the defendant corporation withheld information concerning how much it was exposing its employees to beryllium, including withholding the fact that it knew its air samplings were flawed and that it had ventilation problems and it gave the plaintiffs in this case a skin disorder, so he had ulcers. He suffered from protracted periods of dizziness, coughing and had difficulty breathing. The company just told him not to worry and continue to withhold the information about the problems with beryllium. The majority found that the employee's time to file a suit started running from the time he found out about the information his employer had been withholding, but you would have allowed the corporation again to reap the benefits by barring this suit.

MS. COOK: Senator, actually --

SEN. KENNEDY: What can we draw from that?

MS. COOK: I hope that the only thing you'll draw from that is that I look at the law on statute of limitations and the particular—my decision was simply a statute of limitations decision.

SEN. KENNEDY: Well, wait a minute, that's the --

MS. COOK: As a lawyer, Senator, and so many people on the committee are, this individual had knowledge of his injuries and the expected cause but didn't file suit until some five years later when the statute of limitations in Ohio is two years. So I just viewed, and perhaps I was the one who was mistaken, but I viewed the majority decision as contorting the law of statute of limitations beyond the scope of its justification there.

SEN. KENNEDY: Well, you're right, the majority differed with you. I mean, the corporation withheld information concerning how much it was exposing the employees and so since the defendant didn't know about this effectively by the time they found out and brought the case you ruled that they really didn't have—that the statute had run on it and they were denied any opportunity.

This is enormously important. We have a lot of workers, miners, we have a lot of occupational health and safety issues involving lung damage and increasingly so with regards to the dangers of toxic substances that are being used in industry all of the time on this. It's a very serious, serious kind of matter I know for great numbers of workers.

MS. COOK: I think so, too, Senator.

SEN. KENNEDY: I'm concerned that if the employer is denying them the information about the dangers of this and then they only find out about it later, to have their opportunity to get some kind of remedy of this is being denied to them, I mean, I have difficulty understanding how you reach the conclusion that the statute ran.

MS. COOK: Actually, the plaintiff admits that he knew that he was sick and that he knew it probably was the beryllium from the plant. I mean, he was inhaling gross amounts of this and, of course, it is a horrible scenario but it wasn't my personal view about whether this individual deserved to recover; it was simply an application of the well-settled law that it's not all the elements of a claim, which is what the majority held here. Until this individual knew all the elements of their claim, they couldn't bring the case, but indeed this gentleman unfortunately both knew that he had an injury and he knew the likely cause. It was later when he saw a Web site some five years later that he chose to bring the action and my considered judgment and I think reasoned judgment was that that was beyond the discovery rule and the particular statute of limitations here.

On the other hand, I can tell you of another case on the discovery rule involving NCR where I wrote the majority opinion that extended the discovery rule in that case and it was I think the first time in the country. So there are occasions, there are always occasions where cases are decided differently based on the facts presented, and if you're a jurist who attends to the law and tries to be diligent and conscience about that I think that you'll find the decisions.

I can't do anything about which person wins or loses because I must be impartial.

SEN. KENNEDY: Well, I agree that that has to be the desired standard. The majority, of course, found that the employee's time to file suit started running from the time he found out the information his company had been withholding and that the company doctors were misleading the worker. So you were in the dissent in making the judgment and the matter is that there is a pattern. My time has is just expiring. I mentioned several of these cases; there are many others. And when it comes out to the bottom line it has virtually 100 percent on one side. I agree that those figures aren't always necessarily absolutely accurate but what we have is a pretty significant pattern on here in these cases involving workers in the cases that I've mentioned here and others that your dissents always seem to be at the expense of individuals, workers, in these cases workers' rights and it's troubling.

My time is up. I want to thank you and I want to say to Ms. Cook that if you want to provide other kinds of cases that show a different side I'd welcome them, too. I always try if I'm going to ask a nominee about cases to indicate what they're going to be beforehand. I didn't have the chance just because of the way this is sort of we're working on this, so if there are other cases that support you I'm more than glad to take a look at them.

MS. COOK: Thank you.

SEN. HATCH: Thank you, Senator Kennedy.

Here's what we're going to do. Senator Schumer wants to ask some questions and he will be here at 8:00. So we're going to—I apologize to you that this is taking so long but I do want to get this completed today for a variety of reasons but especially for you and I want you to be treated fairly and this committee I think is attempting to do that.

But what we're going to do is we're going to discontinue this part of the hearing till 8:00 and that will give you a chance—by the way, I've ordered some food. If you can stick around I'd like to chat with you for a minute. And what we'd like to do at this point is to proceed to the three district court nominees and see if we can resolve them at this point and then we'll resolve you after 8:00.

SEN. KENNEDY: Could I just, Mr. Chairman, just again how we proceed is not up to all of you, you've been gallant witnesses today. Mr. Roberts, I have not had a chance to question you. We have others, I guess Senator Schumer and others. I will submit questions to you. I appreciate your patience, all of our nominees, their patience with us. It's been a long day for you and these are complicated and very important issues and I thank them.

SEN. HATCH: Thank you, Senator Kennedy, for your kind remarks.

SEN.: Mr. Chairman, I just wanted to say I think you have been generous. You did something very unusual in having 15-minute rounds. I'm not sure we've ever done that before. Senator Kennedy, I just noticed he was 13 minutes past his 15, which is all right, and you've been generous on that.

And I would just this, that when President Clinton's nominees were coming by and there was a hearing set, if I had other committees or other responsibilities I knew I had to either be there or not. I didn't come in and expect the committee to adjust itself totally to my schedule, but you've been generous and fair I believe and I wanted to say that for the record.

SEN. HATCH: Well, thank you, Senator. Let's take five minutes—excuse me, I'm sorry, Senator Leahy.

SEN. LEAHY: Mr. Chairman, you and I discussed this procedure and I think it is a wise way to do it. I'm going to put in that we have some other letters, I know Mr Sutton will be happy to know, regarding him and we'll put those --

SEN. HATCH: Without objection, we'll put those in the record.

SEN. LEAHY: I would also note, Mr. Chairman, that you have been very fair on the clock. I would also I think that the Senator from Alabama and others would agree that President Bush's nominees during the time I was chairman that if anyone of them had any questions at any time on either side of the aisle they got whatever time they wanted or time to introduce or anything else and several times we arranged the schedule so that home state senators could introduce President Bush's nominees.

SEN. SESSIONS: I think that's a large truth and sometimes we just had to resort to written questions because they work too.

SEN. HATCH: Yeah, there were many times we did written questions because of the time constraints and we've tried to be fair here and I think we have been and you folks have been more than stalwart in being with us this long and you're going to have to be here a little while longer and I apologize to you, but this is an important hearing and my colleagues have felt like all three of you are, quote, "controversial," end quote. So I don't agree with that assessment but some feel that way and they have a right to feel that way if they want to.

So what we're going to do is we'll recess for just five minutes. I want everybody back in five minutes and we'll start with the three district court nominees and we want you here promptly at eight.

SEN. KENNEDY: The court of appeals nominees can take off if they want, right?

SEN. HATCH: Yeah, till 8:00 but I'd like to see the three of you just for a minute in this five-minute period. Thank you.

With that, we're recessed for five minutes.