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Senate Judiciary Committee Holds Confirmation Hearing on Pending Judicial Nominations

Location: Washington, DC

Congressional Hearings
Jan. 29, 2003

Senate Judiciary Committee Holds Confirmation Hearing on Pending Judicial Nominations


... Justice Cook in all five of those cases. Let me repeat that, the United States Supreme Court has agreed with Justice Cook in all five of those cases. Of those cases, one of those cases was simply unanimous Ohio Supreme Court decision affirmed by the U.S. Supreme Court eight to one. But, in the other four (inaudible) Cook had dissented in the underlying Ohio case. She was the dissenter. In each of these four cases, the U.S. Supreme Court reversed, reversed Ohio Supreme Court's majority opinion and reached the same conclusion, the same conclusion as Justice Cook did.

Now, these were not all just a close five to four decision that we sometimes see in the U.S. Supreme Court. In a Fifth Amendment self-incrimiation case, the Supreme Court sides with Justice Cook nine to nothing. Another case went eight to one against siding with Justice Cook's dissent. So, it's clear from these statistics that Justice Cook's decision when we was dissenting in these cases was well founded.

Now, Mr. Chairman and members of the committee, another useful gage of a sitting judge is the evaluation she gets from the Deputy Observers who watch the court on a day-to-day basis. In Ohio the major newspapers closely watched our high court.

After observing Justice Cook on the Ohio Supreme Court for a full six-year term, Justice Cook was endorsed by all the major newspapers in the state of Ohio for her 2000 reelection campaign. These newspapers included the Cleveland Plain Dealer, the Columbus Dispatch, the Cincinnati Enquirer, the Akron Beacon Journal, the Dayton Daily News and the Toledo Blade.

And, let me just say, someone who has a lot of experience with these newspapers, that covers the entire political spectrum in the State of Ohio. Since the election in the past few weeks, several Ohio papers have endorsed her nomination to the Sixth Circuit.

The Cincinnati Post wrote on January 8 of this year, and I quote, Mr. Chairman, "Cook is serving her second term on the Ohio Supreme Court where she has been a pillar of stability and good sense. Her role on that court, one which in the last few years has repeatedly marched on four to three votes into the realm of policymaking, has often been writing sensible dissents."

On December 29, 2002, insisting that the Judiciary Committee act on Justice Cook, the Cleveland Plain Dealer wrote, and I quote, "Cook is a thoughtful mature jurist, perhaps the brightest on the state's highest court." The Akron Beacon Journal wrote on January 6, 2003, and I quote, "Those who watched the Ohio Court know Cook is no ideologue. She has been a voice of restraint in opposition to a court majority determined to chart and aggressive course, acting as problem solvers more than jurists. In Deborah Cook, they have a judge most deserving of confirmation, one dedicated to judicial restraint."

And, the Columbus Dispatch wrote on January 6, 2003, and I quote, "Cook's record is one of continuing achievement. Since 1996, she has served on the Ohio Supreme Court where she has distinguished herself as a careful jurist with a profound respect for judicial restraint and the separation of powers between the three branches of government."

Now, Mr. Chairman, these quotes are from papers across the political spectrum, all of which endorse Justice Cook. As these comments make clear, Justice Cook is a talented, serious judge who works diligently to follow the law. And, at the same time she also dedicates, though, a great deal of her time to volunteer work and community service. Justice Cook has served on the United Way Board of Trustees, the Volunteer Center Board of Trustees, the Akron School of Law Board of Trustees and the Women's Network Board of Directors. She was named Woman of the Year in the 1991, by the Women's Network. She has volunteered for the safe landing shelter and for mobile meals. And, she has served as a board member and then president of the Akron Volunteer Center.

Furthermore, Mr. Chairman, Justice Cook has served as a commission on the Ohio Commission for Dispute Resolution and Conflict Management, where she focused on, among other things, truancy, mediation for disadvantaged students. She has chaired Ohio's commission on public legal education and has taught continuing legal education seminars on oral argument and brief writing.

I find it, Mr. Chairman, remarkable that Justice Cook has found time for this level of commitment to her community. And, I have yet to describe the most amazing to me, commitment Justice Cook has made helping the underprivileged in Ohio. Like many of us, Justice Cook believes that the ticket out of poverty is a quality education. And, over the years, Justice Cook and her husband, in their everyday lives have come across hard working young people who are making an effort to improve their lives through education. Tasha (ph) Smith is one of those people. Justice Cook met her when she was struggling to put herself through college at Kent State by working as a waitress. Justice Cook assisted her with tuition for several years. And, today this woman is in her final year of nursing school carrying a 3.8 grade point average.

Tara King is another of these students. With Justice Cook's help she recently graduated from the University of Akron and she just enrolled in graduate school at Cleveland State. After helping several students in this manner, Justice Cook and her husband decided they should structure their assistance so they could help more young people early on in their education.

Four years ago they started the College Scholars Program with a group of 20 disadvantaged third graders from an inner-city school. The students were selected to participate based on teacher recommendations, financial need, and level of family support. Justice Cook matched each of the students with a mentor in the community. The students met with their mentors weekly and participated in other program activities. If the student maintained good grades and conduct through secondary school, Justice Cook and her husband will pay for four years of their tuition in any public university in Ohio. Let me repeat that, Justice Cook is going to pay for four years of college tuition for 20, 20 disadvantaged children.

Now, Mr. Chairman, and members of the committee, these activities demonstrate a commitment to the community and dedication to helping the disadvantaged that we would like to see in everyone. And these are qualities that help make Justice Deborah Cook a fine judge.

Now, Mr. Chairman, and members of the committee, let me turn my attention to another one of our fine nominees from Ohio, Mr. Jeff Sutton. Mr. Sutton, who is from Columbus is here today with his family. And I'd like to introduce the committee to his wife, Peggy, and their three children, Margaret, who is six years old; John, who is nine years old; and Nathaniel, who just today is turning 11.

Happy birthday, Nathaniel.

I'd like also to welcome Jeff's parents, Nancy and David Sutton, his sister, Amy; his brothers Craig and Matt and several additional friends and family. We're very pleased that all of you could be here on this very important day.

Mr. Chairman, Mr. Sutton's legal and life experiences are extensive. A couple of years ago, before high school, his father took over—a couple of years before high school his father took over a boarding school for children with severe cerebral palsy. Over six years, Mr. Sutton spent much of his time around the school, doing odd jobs for this father. He was deeply affected by this experience and by the interactions that he had with these students during his formative years. It reinforced what he had been taught by his parents, that serving others is an important calling and virtue.

Mr. Sutton attended Williams College where he was a laymen scholar and varsity soccer player. He graduated with honors in history. And, after college from 1985 to 1987, Mr. Sutton was a seventh grade geography teacher and tenth grade history teacher, as well as a high school varsity soccer coach and the middle school baseball coach.

From there he went on to law school and graduated first in his class from the Ohio State University College of Law where he served as Issue Planning Editor of the Law Review. Mr. Sutton clerked for Judge Thomas Meskill on the U.S. Court of Appeals for the Second Circuit. He clerked for two U.S. Supreme Court Justices, retired Justice Powell and Justice Scalia.

In 1995 to 1998, Mr. Sutton was the State Solicitor of Ohio, which is the state's top appellate lawyer. During this service, the National Association of Attorneys General presented him with the best brief award for practicing in the U.S. Supreme Court, a recognition he received an unprecedented four years in a row.

Mr. Sutton is currently a partner in the Columbus law firm of Jones, Day, Reavis and Pogue. He's a member of the Columbus Bar Association, the Ohio Bar Association and the American Bar Association. He has also been adjunct professor of law at the Ohio State University College of Law since 1994, where he teaches seminars on federal and state constitutional law. And, recently, Mr. Chairman, the American Lawyer rated him one of its 45 under 45. That is, they ranked, named him as one of the top, one of the 45 top lawyers in the country under the age of 45.

He's appeared frequently in court, I think argued 12 cases before the United States' Supreme Court, where he has a nine and two record, with one case still pending. In the Supreme Court's 2000-2001 term, Mr. Sutton argued four cases, that's more cases than any other private practitioners in the entire country.

Can we imagine preparing to argue one case before the Supreme Court, much less than four? And, to no one's surprise, Jeff Sutton won all four.

Mr. Sutton also has argued 12 cases before the Supreme Court, six cases before various U.S. Courts of Appeals and numerous cases before the State and federal trail courts.

And, over the years Mr. Sutton has been the lawyer for a range of clients on a wide range of issues. Some of these cases are quite well known. For example, he represented the State of Ohio on Flores versus the City of Boerne, the State of Florida in Kimel versus Florida Board of Regents; and the State of Alabama in the University of Alabama versus Garrett. But, Mr. Chairman, I would like to tell the committee about some less well-known cases.

He represented as my colleague, Senator Voinovich has indicated, Cheryl Fischer, a blind women who was denied admission to a state-run medical school in Ohio because of her disability. He represented the National Coalition of Students with Disabilities in a lawsuit alleging Ohio universities were violating the federal motor voter law by failing to provide their disabled students with voter registration materials.

He filed an amicus brief in the Ohio Supreme Court defending, defending Ohio's hate crimes statute. And he filed it on behalf of the NAACP, the Anti-defamation League and other civil rights groups.

He defended Ohio's minority set-aside statute against constitutional attack. He filed an amicus brief in the Sixth Circuit on behalf of the Center for the Prevention of Handgun Violence, defending, defending an assault weapon ordinance. He represented two capital inmates in state and federal court. And he represented an inmate who brought a prisoners' rights lawsuit in the United States Supreme Court.

Mr. Chairman, I'm sure we'll have the opportunity to go through these cases in some detail and many other cases, but I'm confident the committee will be impressed by Mr. Sutton's ability in representing these various clients in these cases.

Like Justice Cook, and consistent with his upbringing, Mr. Sutton has found an extraordinary amount of time to give back to his community. Between a demanding law practice and time with his very young family, he serves on the Board of Trustees of the Equal Justice Foundation, a non-profit provider of legal services to disadvantaged individuals and groups, including the disabled. He has spent considerable time doing pro bono legal work, averaging between 100 and 200 hours per year.


He is an elder and deacon in the Presbyterian Church, as well as a Sunday school teacher. He participates in numerous other community activities, including, I Know I Can, which provides college scholarships to inner-city children and Pro musica (ph), the chamber of music organization. He also coaches soccer and basketball teams.

Finally, Mr. Chairman, I was struck by something I once read that Mr. Sutton wrote in the Columbus Dispatch about former Supreme Court Justice Powell. In describing Justice Powell's practical voice in the court, he wrote the following, and I quote, "Justice Powell never lost sight of the context in which each decision was made and the people, the people that it would affect. He believed in people more than ideas and experience, and experience more than ideology, and in the end embraced a judicial pragmatism that served the country well."

Mr. Chairman, I believe the same description applies to Mr. Sutton. He will approach the bench in the same pragmatic tempered and very thoughtful well. I appreciate the chairman's time and I yield the floor.



Probably is right. Absolutely.

Mr. Sutton, I don't pretend to be a legal scholar. But I did have the opportunity to look at a lot of the cases that have gotten the bulk of the publicity in regard to the cases that you've argued before the Supreme Court. And I was here in the Congress when we passed the ADA.

And I must be candid and tell you that I think if I was on the Supreme Court I would have decided these cases differently. I don't agree with the decisions. I don't agree with the bulk of the decisions that you argued in front of the Supreme Court, at least on the controversial ones.

But I'm not sure how relevant that is. In fact, I don't think it's relevant at all.

I want to follow up the line of questioning from my good friend Senator Durbin. I wish he was here. I know he had to go to another meeting.

But I think as we go down and start down a very dangerous path when we probe deeply into the clients and the causes that nominees have either advocated or represented. I think it's legitimate. I think we look at them. But I think when we start down that path it is rather dangerous.

It's dangerous if we conclude that a person cannot go on the federal bench because of certain clients that they have represented or because of certain positions they may have taken in arguing a case before the Supreme Court of the United States or any other court. If we follow that position, it would be many principled lawyers in our history who never would have served on the federal bench.

But more importantly, if this committee would be saying that and if this Senate would be saying that, I think it would have a chilling effect in the practice of law as we know it in this country. How many young lawyers would say to themself, "I can't take this case. I can't represent this client. I can't advocate this position because, you know, someday I may want to serve as a judge. Someday I may want to be on the federal bench"? And all the young lawyers I think at one point in time think that they would like to be a judge. Some of them get over it. But many of them feel that way at some point.

So I think it's a mistake. I don't fault any of my colleagues for engaging in that conversation, that give-and-take and trying to find out what is in Mr. Sutton or Mr. Roberts' or Justice Cook's heart and soul. I think that's legitimate.

But if we extend it to the natural consequence of that discussion and really say, "No, we can't put that person on the bench because they advocated that position," I think that is a very, very serious mistake. And whether it is, you look back in history and whether it's John Adams and the Boston Massacre or whether Thurgood Marshall representing rapists or whoever, whatever the case might be—and we can go back in history. I think it would be a very, very serious mistake. And if we had applied that law, we would have been denied some very great people on the federal bench and in politics and in government. And I think it would have been a mistake.

I think ultimately, Mr. Sutton and all of you, the question is, will you follow the law? Will you follow the Constitution? And will you follow the precedent? I assume from each one of you the answer is yes.

Mr. Roberts?



Mr. Sutton, let me read you the entire section of the 1990 Legal Times article that was quoted to you. It's only a part of the article, but I think it was excerpted a little bit and I want to read it to you.

Quote, "Sutton says he and his staff are always on the lookout for cases coming before the court that raise issues of federalism or will affect local and state government interests," end of quote.

What position did you hold at that point in time? And who was your staff? What were you talking about?


Yes, Senator, I was the state solicitor at that point.


At that time you were a state solicitor.


I was state solicitor.


Why were you looking for these cases?


Because Betty Montgomery, the attorney general, correctly realized—I think she had some vision in this area—that just because a case comes from another state, another set of courts, and goes to the U.S. Supreme Court doesn't mean it's not going to affect them. In fact, it's just the opposite. You could have a case coming from Arkansas, Alabama, California, and it will—once the U.S. Supreme Court decides that issue of federal statutory law, U.S. constitutional law, that decision is binding on every state, including Ohio.

And what the article was pointing out and what Betty Montgomery asked me to do and we did do was to look for cases principally in her area of interest. Her area of interest was of course criminal law. She's a former prosecutor. And we must have sought out and written—you know, I don't want to exaggerate—I'm sure it's several dozen, if not considerably more, briefs in U.S. Supreme Court cases generally advancing her perspective on criminal law issues, which was her interest and what she asked us to do.

And those were the types of case—in fact, I think the article was about one of those cases. It was not about a Section 5 case about City of West Covina v. Perkins, which involved the due process clause and return of property that was seized in a Fourth Amendment seizure and the procedural protections individuals have and their rights in getting it back.


Mr. Sutton, I'd like to clarify one point. And we've had a little discussion about this. Your name plate says "Professor Jeffrey Sutton." I think you're listed that way maybe because the committee put it down that way because you're an adjunct professor. This is a little different than a full-time professor.

I just state that because the articles you've written were written by you really, though, in your role as a lawyer, not as an academic; is that correct?


Oh, absolutely. In fact, the first articles that I mentioned were articles written while I was state solicitor and of course pursuing the job I was asked to do representing the state. I think one or two of them were written after I was state solicitor, but the commentary was principally about cases I argued.

And of course a lawyer would have an ethical obligation not to say publicly that his or her client in a given case had urged a position that was ultimately incorrectly decided by the U.S. Supreme Court. I mean, in those cases my clients happened to win. And it would have been not only unusual but I think ethically barred for me to publicly say the U.S. Supreme Court was wrong in those decisions.

And I was—if one reads those articles, one would see pretty quickly that they were simply recycling the briefs that I had written in those very cases, in fact, I hate to say it, word for word. I don't think one can plagiarize oneself. But if one can, I've just made an awful admission. But that's what you would see if you read those articles and compared them to the briefs.


I want to go back to the City of Boerne case and the discussion you had with Senate Schumer a few minutes ago. In that exchange he asked you about a supposed position that you took during oral argument. And I would like to clarify it. As I understand it, you argue that Congress does have the authority to enforce the Bill of Rights using Section 5 of the Fourteenth Amendment as those rights are incorporated in Section 1 of the Fourteenth Amendment.

So as I understand it, you argued that federal authority was broader and that the federal government has the authority to protect more rights than some of the other parties in the case did. So in that case with regard to your position Senator Schumer's concerns were unfounded.


I think that's right, Senator. It was a very important issue in City of Boerne because until that decision U.S. Supreme Court had not clarified that critical point. If one looked at all of the Section 5 laws that had been reviewed for a hundred-plus years by the U.S. Supreme Court, you would have seen that they all involve, at least the ones that were upheld, racial discrimination remediation or voting rights remediation. They hadn't extended to the other Bill of Rights protections, whether it's free speech, criminal rights protections, or in the case of City of Boerne, free exercise of religion.

And the state was in a difficult position in that case because the party in the case, City of Boerne, had taken the position, because no case had held otherwise, that Section 5 only allowed Congress to correct race discrimination and voting rights discrimination. And we were in a difficult position.

Usually an amicus tends to agree with the party that you're supporting. But at the same time—not that reasonable minds couldn't disagree with this point. And Justice Scalia also gave me a very hard time on this—but took the view that by its terms the Constitution said Section 5 enforces the provisions of Section 1. Section 1 says due process. The U.S. Supreme Court had construed the due process clause to incorporate many, if not all of—well, most of the provisions of the Bill of Rights. And so we made that argument.

And Justice Scalia gave me a very difficult time. I mean, if you've ever seen him ask a question, my knees clearly quivered. But I mean my backbone did stiffen on this point. And we said, "That's wrong, Justice Scalia, by its terms. And you know, as a textualist, I have to—you should agree with this. By its terms it covers all rights protected by Section 1."

So while, you know, there's parts of that outcome of that case that one could be unhappy with and certainly reasonable minds could disagree with, we feel good about that part. The court did agree with us on this.



Justice Cook, you have been making appellate court decisions now for well over a decade. Obviously in that time you've developed a style and a way of making decisions, an approach to that job. Tell us how you approach the job, how you do that, and how you would approach the job as a circuit court judge.




Got to be a technique. There's got to be a way of doing it. Everyone's got their own style. How would you do it? How do you do it now?


My process is structured, and I hope you would find it principled. And it's the process I think most appellate judges engage in. It's first a review of the record of proceedings, a reading, a thorough reading and studying of the contesting briefs, then a review of the existing law, and then the application of logic, sometimes custom, and generally rules.

And this is done—you know, I give some credit to my counsel because every judge has talented law clerks and in my chambers—actually some of my clerks are still here, I think—in my chambers my clerks do serve as my counsel. And so I think with that process generally and with the inclusion of bright young minds to challenge any decisions that I come to, I think we achieve the impartiality and really the objective approach that fairness dictates.

And any good jurist engages in pretty much that same decisional process, I would say, Senator.


Do you go through a few drafts?


Oh, yes.

And then we exchange the drafts among the members of the court. And in that process we are also able to learn, you know, if any other member of the court writes a concurrence or a dissent that helps in our decision-making to double-check our reasoning, to double-check our research. And so it's a process. It's a learning process at its base.

And that's our job.


Good. Thank you very much.

Thank you, Mr. Chairman.



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


Without objection we'll put those in the record.


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 a 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.


That's correct.


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?


Yes, it is.


So, being a dissenter in that case may not have been right but at least it's what the United States Supreme Court thought was right.


That's right. That was good enough for me.


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, 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 not what we're debating today. But the Ohio newspapers, which run the gamut in the political spectrum, and I can say this as someone whose 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 also ask the chairman to make a part of the record...


Without objection.


...this document which basically talks—these are different quotes from the different editorials which talks about how active the Supreme Court is, and I would tell the 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—it will take just a moment to read a couple of the comments from the court—excuse me, 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 elected legislators are governed to make laws and govern but their intent has been thwarted by this activist court.

HATCH (?):

Excuse me, Senator I didn't hear what he's quoting from.


This is the "Toledo Blade" editorial.


OK, thank you.


The point is that I think you will find, again, whatever way you 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 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'll reserve the balance of my time.

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