Bush Appellate Nominee Sutton Wins Senate OK

Times Staff Writer

The Senate on Tuesday confirmed one of President Bush’s first judicial nominees, elevating to the federal appellate bench an Ohio lawyer whom conservatives consider a legal star but whom many disability-rights advocates vehemently oppose.

The 52-41 vote confirming Jeffrey S. Sutton as a judge on the U.S. 6th Circuit Court of Appeals gave Bush a significant victory in his push to remake the lower courts.

Sutton, 42, is a former clerk to U.S. Supreme Court Justice Antonin Scalia -- known for his strong conservative views -- and a leading advocate for states’ rights in a number of high-profile cases testing the limits of federal power. He became the 20th judicial nominee confirmed this year under the new Republican Senate majority.

A combination of factors propelled Sutton through the Senate, after a wait of nearly two years, while approval of some of Bush’s other judicial nominees -- most recently Washington lawyer Miguel Estrada -- has been blocked. Advocates noted that Sutton has a distinguished record arguing before the U.S. Supreme Court, winning nine of 12 cases. They also called him forthright and even-handed.


Sen. Dianne Feinstein of California was one of just two Democrats to back Sutton. The other was Sen. Ben Nelson of Nebraska.

“I sincerely believe he is bright, well-qualified, knows the law,” Feinstein said after the vote. “I don’t think this man is going to be a biased judge.”

Such praise enabled Sutton to sidestep the political difficulties that have thwarted Estrada’s nomination to the U.S. Circuit Court of Appeals for the District of Columbia. Using parliamentary tactics, Senate Democrats have so far stalled a floor vote on Estrada.

The Democrats are also threatening a similar filibuster against the nomination of Texas Supreme Court Justice Priscilla R. Owen to the U.S. 5th Circuit Court of Appeals, which is based in New Orleans.


Democrats have complained that Estrada, Owen and many of Bush’s other judicial nominees are part of an effort to pack the courts with conservative ideologues. But they have acknowledged privately that they can only sustain a filibuster a limited number of times.

Bush commended the Senate for approving Sutton, whom he called “a man of great integrity, intellect and experience.”

But he scolded Democrats for filibustering other nominees, saying, “The delays in the Senate confirmation process deter good people from seeking to serve on the bench and create a vacancy crisis in the federal courts that harms the American people.”

Liberal opponents of Sutton rued that his nomination wasn’t blocked. “As far as I’m concerned, he should have been filibustered,” said Ralph G. Neas, president of the People for the American Way.

Before the vote, more than 100 disability-rights advocates crowded into a room just off the Senate chamber to vent their opposition to Sutton, provoked by his record of arguing to limit the scope of the Americans with Disabilities Act. In one recent Supreme Court case, he argued for -- and won -- protections for states against claims from employees with disabilities.

He also persuaded the high court to side with states against state employees claiming to be victims of age bias.

Linsay Darnall Jr., a student at Gallaudet University in Washington, who is deaf, called Sutton “a threat to our rights.”

Sen. Tom Harkin (D-Iowa), who led the opposition to the nomination, declared: “A vote for Jeffrey Sutton is a vote to undo the Americans with Disabilities Act.”


Republicans took offense at such attacks. “I feel every bit as deeply about persons with disabilities,” said Senate Judiciary Chairman Orrin G. Hatch (R-Utah). “I get a little tired of this holier-than-thou attitude.”

Sen. Barbara Boxer (D-Calif.) and independent Sen. James M. Jeffords of Vermont joined 39 Democrats in opposition. No Republicans voted against Sutton. Six Democrats and one Republican missed the vote.

The court Sutton is joining, based in Cincinnati, reviews appeals from federal district courts in Kentucky, Michigan, Ohio and Tennessee.

Sutton is the sixth of 11 initial nominees Bush announced for the appellate bench on May 9, 2001, to win confirmation.