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Senate Judiciary Committee Holds Confirmation Hearing on Pending Judicial Nominations

Location: Washington, DC


Mr. Sutton, I was instructed to refer to Mr. Leahy as his honor. So, don't—we all do that.

Let me just make a general comment about all the nominees we've got today. I having looked at your bios and knowing the background of all six nominees, it's a pretty impressive group. And, also, having been recommended by colleagues in this body that I have such great respect for, it's good to see legal minds of the caliber that all six of you have to be up here today to be nominated. And, I commend all of you for that.

I'm a little bit disconcerted by some of the criticism that I've heard today and that I've read about with respect to our nominees, and that is, having practiced law for 26 years myself and having argued both sides of cases and particularly early in my career, having been appointed to criminal cases that I didn't necessarily want to be appointed to. But, those of us who practice law, which I think is by far the greatest profession in the world, there are positions which we have to take that are in the best interest of our clients, irrespective of what your personal feelings are. And, it's pretty obvious that when all six of our nominees have been in that same position, you've done a heck of a job of representing your client, whatever the position that your client was in. So, I think that kind of criticism really doesn't do justice to you.

I want to first of all, Judge Cook, ask you about some of this criticism that's been directed at you. It's been said that you dissent an awful lot and opinions that are rendered by the Ohio Supreme Court. Well, again, having argued an awful lot of cases on appeal and having lost some of those cases, I was kind of glad to see that there some dissenting opinions that agreed with me.

I want to ask you about one case in particular, though, the state ex rel. Bray v. Russell (ph). In that you declared in your dissenting opinion that in order for the court to declare a statute unconstitutional, and I quote, "It must appear beyond a reasonable doubt that the statute is incompatible with particular provisions." And in this particular case you're dissent from the court's ruling meant that you would have allowed state prison boards to sentence convicted criminals to extra time for bad time violations. Would you please elaborate on your decision in that case and tell me generally what your views are on the constitutionality of statutes enacted by the general assembly in Ohio in your case and at the federal level by the Congress?


Thank you, Senator. The case to which you refer, indeed, I was a dissenter in that case. But, the matter involved a statute that permitted the executive branch to impose what is called bad time on inmates for their behavior or conduct during incarceration. And the disparity between the majority and the dissent regarded the—just differing views on the interpretation of the statute.

In that case, one of my colleagues, who is, if you'd look at percentages, typically is on the other side that I'm on, he's typically not with me to join the dissent. And, the standard of review that you mentioned that it has to be unconstitutional—or beyond a reasonable doubt is the accepted standard in Ohio. And the statute made—this was all about—it all concerned separation of powers. The majority felt that the—that allowing the executive branch to impose additional time was a violation of the separation of powers doctrine. I merely opined that the doctrine regarded those situations where one branch interfered with another branch and in as much as the statute at hand allowed bad time as part of the original judicially imposed sentence. There was no separation of powers impediment to this statute.

And, therefore, I would have upheld it. But, as I say that was a dissenting view. Yet, it was joined by one of the members of the court who is often said to be at odds with me. So, I think it was a well-supported decision.


OK. Thank you.

Mr. Sutton, it appears that a lot of your criticism, or a lot of criticism that's directed at you has to do with your work on disability cases. And, obviously, from the questions that have been directed to you today that is a very prominent area of law in which you have practiced. I was particularly concerned about a case which you handled for my state, the State of Georgia, or I say you handled, you were involved in and I want to first of all before I ask you a question about it for my colleagues I want to sort of set the stage for that.

In 1978 the State of Georgia adopted a program for treating mentally disabled citizens through what was called community placements instead of institutions. Due to limited resources the State of Georgia resisted assigning these plaintiffs in the case that arose out of the situation existing regarding these placements to a community placement.

The State of Georgia was sued by these plaintiffs, the actual person sued was the Director of DHR, Mr. Tony Olmstead. So, it's been referred to as the Olmstead case, which I know you remember very clearly. They claimed that the State of Georgia discriminated against them under the Americans with Disabilities Act. In this case the State of Georgia was sued by this group on an issue that all of us are extremely sensitive to and that's the issue of a mental disability, and how and where those mentally disabled patients were to be placed.

If I recall correctly, you helped the State of Georgia argue this case before the Supreme Court or at least you participated in the preparation of the young lady who did argue that case before the Supreme Court. And the basic argument was that the ADA did not require states to transfer individuals with mental disabilities into community settings rather than institutions.

Would you please tell a little bit about your involvement in that case, the argument you put forth and the actual outcome of that case?


Yes, thank you, Senator.

The Olmstead case, I think went to the district courts, yes it did, the district court in Georgia, then the 11th Circuit and I did not have any involvement in the case at that point.


But when the U.S. Supreme Court decided to review the 11th Circuit's decision in Olmstead, I was hired by the state to help them write what was two briefs in the case at the U.S. Supreme Court and help prepare Trisha Downing for the oral argument. And, as you've acknowledged, the very—the institutionalization's a difficult issue. I mean, in fact, it's actually an easy issue in the states, every state supports it. In fact, Georgia has a law that requires the institutionalization for those who are capable of living in a community setting. So, the rub in the case was not that policy debate. That had long been decided in the late '70's and early '80's that everyone—that every state should move in this direction.

But, the problem I think Georgia must have run into was that they had a budget shortfall, something not dissimilar to what some states are having now and wasn't able to move individuals as quickly as they had in the past from state hospital settings to community settings. And, so, when that happened, when that budget crunch happened, they were sued under the ADA and the gist of the plaintiff's claim was that the state has to continue to move patients more quickly regardless of resources. And, of course, even that's a very tricky issue.

The position we advocated primarily was the position of whether that money, you know, whether, no matter the costs, the State of Georgia had to move every single patient as soon as they hired a lawyer and sued, or whether there was a reasonableness component to this. At the end of the day, all nine members of the court agreed there was a reasonableness component, eight members of the court said it needed to be sent back to the Court of Appeals and eventually the district court to determine whether, in fact, the state had acted reasonably in not moving these two plaintiffs into community settings.

And, you know, I did my best to help the client.


Well, the attorney general in Georgia is a gentleman named Thurbert Baker who happens to be an elected democrat and is a good friend of mine and, as I told you after I talked to you earlier, I was going to check on you. And I did. And Attorney General Baker had this to say about you, he said that "Mr. Sutton is extremely intelligent. He's a hard worker and he would have a great judicial temperament." And that temperament, particularly, I think obviously we know you're mental capabilities, but for somebody who has worked very closely with you to say that you have a good judicial temperament I think says volumes about you.

One other thing that I was impressed with about you, Mr. Sutton, is the fact that another constituent of mine, a lady named Beverly Benson Long, has written a letter to Senator Leahy with reference to your nomination. And I want to just—if this letter is not already in the record, Mr. Chairman, I would like to ask that it be made a part of the record.


Without objection we'll make it part of the record.


Mrs. Long is the immediate past president of the World Federation for Mental Health. She's been president of the Mental Health Associations of Atlanta, the State of Georgia and the National Mental Health Association. She was a commissioner on the president's commission on mental health, having been appointed by President Carter. She has an extensive background in this field.

And here's what she says about Mr. Sutton. "I have no doubt that Mr. Sutton would be an outstanding Circuit court judge and would rule fairly in all cases, including those involving persons with disabilities." She also says that she's familiar with the lobbying against Mr. Sutton by various person who advocate on behalf of the disabled. Her comment is that this effort is unfortunately and I am convinced is misguided. Again, I think that's a high compliment to you, Mr. Sutton. And I look forward to bringing all three of you to a vote in the very near future.

Thank you.

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