Orrin Hatch

Mr. HATCH

Mr. HATCH. I have no objection if the Senator from Iowa would like to follow the Senator from New York.

Mr. HATCH. Mr. President, I understand the time is divided equally. Whatever is left, they would use.

Mr. HATCH. I have no objection if the Senator from Iowa wants to speak at this time.

Mr. HATCH. It is our understanding if we didn't take the floor, Senator Schumer would. He is not here, but I would be happy to yield to the Senator from Iowa. I reserve the remainder of our time.

Mr. HATCH. Mr. President, the distinguished Senator from Iowa is concerned that they have used up their time. I would have yielded him some time from my time if necessary. So there is no desire to mistreat him or to treat him unfairly. But let's just get the facts here. The nomination of Jeffrey Sutton has been sitting here for 2 solid years and now we hear complaints that we have to have a vote at 12:10 or 12? Come on. Plus, I get a little tired of hearing from the other side that they seem to be the only people who care about persons with disabilities. I can tell you that bill would not have passed had it not been for people on this side, and I was one of the leaders. I managed the floor for the Americans with Disabilities Act. I was in all the meetings. I helped to negotiate the compromise with the White House. I helped to resolve the problem. And I feel every bit as deeply about persons with disabilities, and so do all of my Republican colleagues, as do my wonderful friends on the other side, who seem to think they are the only ones who care about persons with disabilities, or civil rights. The fact is that had it not been for the Republican Party, the Civil Rights Act of 1964 wouldn't have passed. I get a little tired of this holier-than-thou attitude--that they are the only ones who understand and they are the only ones who feel deeply about it. I managed the floor the day we passed the Americans with Disabilities Act--and I went with the distinguished Senator from Iowa outside to meet with the folks who were suffering from disabilities, and we both broke down and cried because we were so happy to have passed that bill. I remember the day that I carried my brother-in-law through the Los Angeles temple in my arms with a great effort because he contracted both types of polio. He contracted polio and became a paraplegic who went on to finish his undergraduate, and went on to receive his master's in electrical engineering. He worked up to the day he died, although he came home every night and got into an iron lung. So I hope our colleagues on the other side quit suggesting that we don't seem to understand on this side the problems people have with disabilities. We do understand. Jeffrey Sutton worked for his father who ran a school for kids with cerebral palsy. To have him maligned here today and yesterday the way he has been, after 2 years of sitting here waiting to get a chance to have a vote up or down, goes a little bit beyond the pale. I support this nomination of Jeffrey Sutton to be a judge on the Sixth Circuit Court of Appeals precisely because he is a person of capacity, decency, and honor who cares for those with disabilities. He is one of the top appellate lawyers in the country. He has nearly the highest rating from the American Bar Association. They don't give that rating out easily. To have him presented here today as outside of the mainstream--that means outside of the way certain Senators on the other side believe--well, I have to say that isn't the description of the mainstream. Mr. Sutton is one of the top appellate lawyers in the country. He has argued over 45 appeals in this country--appeals for a diversity of citizens in Federal and State courts across the country, including an impressive number--12 cases--before the U.S. Supreme Court. And I hear that he is outside the mainstream because he wins his cases before the Supreme Court? In a couple of cases, he lost. They disagree with that, too. I happen to believe the Supreme Court decides what mainstream is, in many cases. They are not always right; I admit that. I was disappointed in some of their decisions. But the fact is he has been more in the mainstream than some of his critics. He understands what mainstream is. In 2001, he had the best appellate advocate record of any advocate before the Supreme Court, arguing four cases and winning all four of them. The fact that my colleagues on the other side do not like the results in those cases--a number of which were decided unanimously by the Supreme Court--shows they are outside the mainstream. On January 2, 2003, the American Lawyer named him one of the best 45 lawyers in the country under the age of 45. That doesn't sound like somebody who is out of the mainstream. He is an outstanding nominee. I urge all of my colleagues to support him. I am happy to yield time to the distinguished Senator from Ohio.

Mr. HATCH. Mr. President, I also compliment my esteemed colleague from Ohio for his excellent remarks. Nobody knows this man better than the distinguished Senator from Ohio. And, frankly, I know him quite well myself. We ought to pay attention to the people who know him and not make up stories about him, which I think is what is happening. I have seen more and more of a vindictive approach against President Bush's judgeship nominees than I have ever seen in my 27 years in the Senate. To malign these people who have the highest rating from the American Bar Association, as though they are not in the judicial mainstream, I think is hitting below the belt. And everybody suspects the reason why this hitting below the belt is occurring is because, No. 1, they think he might be pro-life. I do not know what he is as far as that particular issue. The fact is, no single issue should stop somebody who is otherwise qualified from serving in the Federal Government and serving his fellow human beings in this country. But No. 2 is, they are afraid this fellow has Supreme Court potential, as many of President Bush's nominees have who have such high ratings. So there is a deliberate attempt to damage him on his way up to the Sixth Circuit Court of Appeals so he will never be nominated for the Supreme Court. Mr. President, I support the nomination of Jeffrey Sutton to be a judge on the Sixth Circuit Court of Appeals because he is worthy of it. Mr. Sutton, like I say, is one of the top appellate lawyers in the country today. There is no question about it. I have mentioned how many cases he has argued, appellate cases, and at least 12 before the Supreme Court, winning most of them. I spoke yesterday at length about Mr. Sutton's extremely accomplished legal record and the numerous letters of support I have received on his behalf. Let me just take a few minutes today to discuss some additional points my colleagues on the other side have raised. Specifically, I would like to respond to the points raised on the topic of federalism. It is as though they do not believe in federalism, they only believe the Federal Government should have total control over everything. It is one reason I left the Democratic Party long ago, because I realized there is a principle of federalism that is hallowed in this country, constitutionally hallowed. Mr. Sutton has argued three very important cases that have resulted in hotly debated U.S. Supreme Court opinions concerning the scope of Congress's power under section 5 of the 14th amendment to regulate State governments. Some of his critics--and a number of them, almost all of them--have suggested his involvement in these cases should somehow disqualify him from the bench. I think everyone here knows I have worked hard to enact some of the very laws Mr. Sutton argued against on behalf of his clients as an advocate, which is his responsibility as an attorney. Together with my good friend and colleague, the senior Senator from Massachusetts, and others, I worked very long hours on the Religious Freedom Restoration Act, which was struck down in the City of Boerne case. I was one of the principal sponsors of and managed the floor for the Americans with Disabilities Act, a small portion of which was limited by University of Alabama v. Garrett, a case argued by Jeffrey Sutton. I also worked closely with the distinguished Senator from Delaware on another law that the Supreme Court, in the Morrison case, found, in part, to be beyond Federal authority--the Violence Against Women Act. It is important to understand that, notwithstanding the suggestions of some of my Democratic colleagues yesterday, the arguments Mr. Sutton advanced on behalf of his clients in Garrett and Morrison did not advocate an outright repeal of the ADA or the Violence Against Women Act, nor did those arguments suggest the purposes of those laws were not worthwhile. Ultimately, the Supreme Court's decisions in those cases did limit certain aspects of those pieces of legislation, and I will admit it was disappointing to see that happen after I put so much time and energy into their enactment. Under these circumstances, it would be relatively easy for me to take cheap shots and criticize Mr. Sutton for the role he played as an advocate in those cases. But I am certainly not going to do so, for the simple reason that ascribing to Mr. Sutton the positions of his clients is wrong, it is unfair, it is not right, it is beneath the dignity of those who are attorneys who understand that advocates are advocates, and they should carry the best argument for their clients they can. This principle is so fundamental that it hardly merits mention, and yet you hear these arguments like he should not have done that. If we should not do things as attorneys, maybe there will not be any advocates to advocate for various positions. Moreover, as a substantive matter, none of Mr. Sutton's arguments can fairly be characterized as outside the mainstream--not one. In the City of Boerne v. Flores, a 6-to-3 decision he won, dealing with the Religious Freedom Restoration Act, none--none--of the Supreme Court Justices disagreed with the position Mr. Sutton advocated in that case--none. All nine agreed with him. So he is outside the mainstream of American jurisprudence? Guess who is outside the mainstream. It isn't Mr. Sutton. It is this desire that everybody think in lockstep, and do in lockstep, what some on the other side think ought to be done. No Justice disagreed with him. Now, as much as my colleagues do not like the Supreme Court, I have to tell you, they are a coequal branch of Government, and they do help us to know what the law really is. And none of them disagreed with Mr. Sutton. The same was true in Kimel v. Florida Board of Regents--not one Justice on the Supreme Court disagreed with the interpretation of the 14th amendment Mr. Sutton advanced in that case--not one. Who is outside the mainstream? It certainly isn't Mr. Sutton. Now, I will concede the Garrett case was a bit narrower, but it was still a 5-to-4 decision. Five of the Justices voted with Mr. Sutton's argument in that case. Nevertheless, almost by definition, I think legal arguments which garner that kind of support in the Supreme Court simply cannot be pegged as outside of the mainstream of American legal thinking as to be somehow unworthy of an advocate--or a judicial nominee. I agree. My colleagues don't agree with him or didn't agree with his arguments. I didn't in some ways. But that disagreement should not stop us from voting for a person who, as an advocate, had an obligation to make those arguments and who won on his arguments. I would also like to discuss Mr. Sutton's comments in the media mentioned during the course of this debate. Much ado has been made about his comment reported in the Legal Times that: It doesn't get me invited to cocktail parties, but I love these issues. I believe in this Federalism stuff. Tell me what is wrong with that. Federalism is a hallowed principle of constitutional law. I believe in it, too. I believe deep down some of my colleagues on the other side believe in it, although I have to admit, I think a number of them don't. They are wrong not to. They are outside of the mainstream of American jurisprudence. Well, federalism is not a bad word or an unpopular concept. It is a well-established part of our system of government. As the Supreme Court noted in its 1995 decision in U.S. v. Lopez: Just as the separation and independence of coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front. The court also noted that: This constitutionally mandated division of authority ``was adopted by the framers to ensure protection of our fundamental liberties.'' Who is outside of the mainstream of American jurisprudence? Certainly not Mr. Sutton. Some of these arguments made against him are outside. I admit that. That is what federalism means. Like Jeffrey Sutton, I believe in it, too. I think anybody who understands constitutional law must believe in it. We could differ as to how it should be applied in all cases, but those are political arguments. Frankly, an advocate has an obligation to represent his client and do the best he can for them, which Sutton did, and he won. Just as I believe in the separation of powers of the three branches of the Federal Government, believing in federalism does not mean you always believe States should prevail in any given dispute. Mr. Sutton doesn't believe that; neither do I. As I have stated before, I am disappointed any time the Supreme Court holds unconstitutional any legislation for which I fought and bled, that I vigorously worked to enact. However, I do believe in the Federal system that our Founders created and the courts have protected over the years. I cannot derive from Mr. Sutton's quote that he meant anything more than he believed in federalism as a structural component of our American system of government, something I think is certainly true. I want to make a few points about Mr. Sutton's record which has been attacked, I believe, unfairly. We are getting used to that in the Senate. Some suggest that the few cases in which Mr. Sutton has represented States, in what some consider unpopular causes, demonstrates a bias towards States rights. However, Mr. Sutton has represented a wide range of clients in his legal practice. In those cases where he represented States, he was either acting in his official capacity or was hired by the State and paid a full fee. However, he has represented a significant number of clients with very diverse interests on a pro bono basis. These clients include death row defendants, prisoner rights plaintiffs, the National Coalition for Students with Disabilities, the NAACP, the Center for Handgun Violence--to name a few. I notice some of my colleagues on the Judiciary Committee on the Democrat side have sent out a letter criticizing him, saying he has never done anything for civil rights. What are those cases? In addition, I recently received a very supportive letter from Mr. Riyaz Kanji, a former law clerk to Supreme Court Justice David Souter and Judge Betty Fletcher of the Ninth Circuit, neither of whom would be considered conservatives by any judicial measure. He said that he contacted Mr. Sutton in advance to ask for assistance on an amicus brief for the National Congress of American Indians and an Indian law case pending before the U.S. Supreme Court. Mr. Kanji wrote: Mr. Sutton took the time to call me back from vacation the very next morning to express a strong interest in working on the case. In our ensuing conversations, it became apparent to me that Mr. Sutton did not simply want to work on the matter for the small amount of compensation it would bring him (he readily agreed to charge far below his usual rates for the brief), but that he instead had a genuine interest in understanding why Native American tribes have fared as poorly as they have in front of the Supreme Court in recent years . . . I think it is fair to say that most individuals who are committed to furthering the cause of State's rights without regard to any other values or interests in our society do not evidence that type of concern for tribal interests. I would also like to share a letter from a good friend, former colleague to all of us in this body, Senator Robert Dole. Senator Dole was also in the meetings when we were able to arrive at a final conclusion on the Americans with Disabilities Act. He was instrumental in passing the Americans with Disabilities Act. Senator Dole is a well- known advocate for the rights of disabled Americans. He wrote a letter to the Judiciary Committee strongly supporting Jeffrey Sutton because of his ``demonstrated commitment to safeguarding the rights of all Americans, especially those of persons with disabilities.'' I ask unanimous consent to print a copy of the Dole letter in the Record, along with some of the copies of other letters of support for Jeffrey Sutton's nomination that the committee has received.

Mr. HATCH

Mr. HATCH. Mr. President, I ask unanimous consent that the Special Committee on Aging be authorized to meet Tuesday, April 29, 2003, at 10:00 a.m. in Dirksen 628 for the purpose of conducting a hearing.

Mr. HATCH. Mr. President, I ask unanimous consent that the Committee on Health, Education, Labor, and Pensions be authorized to meet for a hearing on The Severe Acute Respiratory syndrome Threat, SARS, during the session of the Senate on Tuesday, April 29, 2003, at 2:00 p.m. in SD-106.

Mr. HATCH. Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on Tuesday, April 29, 2003, at 9:30 a.m. to hold a hearing on An Enlarged NATO: Mending Fences and Moving Forward on Iraq.

Mr. HATCH. Mr. President, I ask unanimous consent that the Committee on Commerce, Science, and Transportation be authorized to meet on Tuesday, April 29, 2003, at 9:30 a.m. on the future of intercity passenger rail service and Amtrak.

Mr. HATCH. Mr. President, I ask unanimous consent that the Committee on Energy and Natural Resources be authorized to meet during the session of the Senate, on Tuesday, April 29, 2003, at 10:00 a.m. to consider comprehensive energy legislation

Mr. HATCH

Mr. HATCH. I don't know if that is true or not. All I can say is I was the one who put them through. I also have to correct the record because there has never been a true filibuster against President Clinton's nominees or any other Democrat President's nominees--never. There have been cloture votes. In most of the cloture votes, those were time management approaches. Yes, we had a few people over here who wanted to filibuster, but we were able to stop them. There was no case--none, zero, nada, not ever--where a Democrat nominee who was brought to the floor was not ultimately voted on up or down--never--until this year with Estrada and now Priscilla Owen, and I presume, from what you have said, perhaps Judge Pickering. My contention is this. I know the distinguished Senator from New York is a good lawyer. He is a good friend. I value his friendship. But the fact is, I think there is much merit in having healthy debate, raising the difficulties you have with a judge, but then having a vote up or down. Vote whichever way you want to, for or against. But it is unseemly to start clogging up the Senate with true filibusters for the purpose of trying to stop these people from having a vote up or down. That was never done, not at any time during my tenure as chairman, and I made sure it wasn't done because I don't believe that is constitutionally a sound thing to do.

Mr. HATCH. Will the Senator yield?

Mr. HATCH. Remember, on Judge Paez, I was the one who moved Judge Paez admittedly in the 4 years. But in that 4-year period he issued a number of hearings that were highly suspect, not only by people on our side but some on your side. We had other investigations that had to be conducted. Admittedly, it was too long; there is no question in my mind. That is a glaring example. In the case of Judge Berzon, I was the one who pushed her through. With regard to cloture votes----

Mr. HATCH. I don't recall how long she waited.

Mr. HATCH. Will the Senator yield?

Mr. HATCH. Will the Senator yield?

Mr. HATCH. Sure. But I am saying if you don't approve of them, vote against them. We didn't obstruct yours. We voted. Everybody who came to the floor was voted upon, and there was no filibuster conducted by us.

Mr. HATCH

Mr. HATCH. Mr. President, I ask unanimous consent the order for the quorum call be rescinded.

Mr. HATCH

Mr. HATCH. Mr. President, I have been listening with a great degree of interest at the comments of my colleagues. I, for one, as one of the prime authors of the Americans with Disabilities Act, contend that Mr. Sutton does agree with the bill and that he is an advocate for those who are suffering from disability, in spite of what has been said. I rise today in support of the nomination of Jeffery Sutton to be a Judge on the Sixth Circuit Court of Appeals. Mr. Sutton is one of the top appellate lawyers in this country today. He has argued over 45 appeals for a diversity of clients in Federal and State courts across the country, including an impressive number--12--before the U.S. Supreme Court. We have not had nominees like this for years, who have the ability, experience, capacity, knowledge and the decency that some of these nominees of President Bush have. In 2001, he had the best record of any advocate before the Court, arguing 4 cases and winning all of them. On January 2, 2003, the American Lawyer named him one of the best 45 lawyers in the country under the age of 45. He is an outstanding nominee, and I urge all of my colleagues to support him. Mr. Sutton served as a law clerk for United States Supreme Court Justices Lewis Powell and Antonin Scalia. Like his mentor Justice Powell, Sutton is a moderate who favors judicial pragmatism: According to Sutton, Justice Powell ``believed in people more than in ideas, in experience more than ideology and in the end, embraced a judicial pragmatism that served the country well.'' Mr. Sutton served as State Solicitor for the State of Ohio and currently is a partner in the prestigious law firm of Jones, Day, Reavis and Pogue. He also serves as an Adjunct Professor at Ohio State University School of Law. During his legal career, he has not only demonstrated keen intellect, strong advocacy skills and a commitment to the rule of law, but has dedicated a substantial amount of his time to providing pro bono legal services to a variety of individuals and groups. He enjoys strong support from lawyers in Ohio and across the country, who have written to praise not only his first-rate legal abilities, but also his fairness, open-mindedness, and personal integrity. There can be no serious question as to Mr. Sutton's qualifications for this position. He represents the best of the legal profession and it is shameful to indicate otherwise. Unfortunately, some of my colleagues seem to be looking past his unassailable credentials in search of issues that could be used to disparage him. I would like to address those points and explain why my colleagues need not be concerned--maybe that is a nice word to use here. There have been suggestions that Mr. Sutton's record somehow demonstrates a bias against Americans with disabilities. However, there is no evidence in his record to suggest that he has a personal bias against those with disabilities or any other group of individuals. In fact, even the People for the American Way has conceded that ``No one has seriously contended that Sutton is personally biased against people with disabilities.'' I think that is a very important point. When he was young, Mr. Sutton regularly assisted at his father's school for children with cerebral palsy, and a closer look at his legal record demonstrates that Mr. Sutton has taken up the causes of disabled Americans several times. He represented a talented young woman named Cheryl Fisher, who sought to get into medical school, but was turned down because she was blind. In a letter of support of Mr. Sutton, Ms. Fisher wrote: I recall with much pride just how committed Jeff was to my case. He believed in my position. He cared and listened and wanted badly to win for me . . . I realized just how fortunate I was to have a lawyer of Jeff's caliber so devoted to working for me and the countless others with both similar disabilities and interests. In National Coalition of Students with Disabilities v. Taft, he successfully argued that Ohio Universities were violating the federal motor-voter law by failing to provide disabled students with voter registration materials. Again he received high praise from someone involved in the case. Benson A. Wolman, former Director of the ACLU for Ohio and currently a member of its National Advisory Council, who recruited Mr. Sutton to work on the case, wrote: Mr. Sutton's commitment to individual rights, his civility as an opposing counsel, his sense of fairness, his devotion to civic responsibilities, and his keen and demonstrated intellect all reflect the best that is to be found in the legal profession. Mr. Sutton also served on the Board of the Equal Justice Foundation, a public interest organization that provides pro bono legal services to the disadvantaged. During his tenure on the board, the Foundation has sued three Ohio cities to force them to build curb cuts to make their sidewalks wheelchair accessible, sued an amusement park company that banned disabled individuals from their rides, represented a mentally disabled woman in an eviction proceeding against her landlord who tried to evict her based on her disability, and represented a girl with tubular sclerosis in a case alleging that the school was not properly handling her individual education plan. There are also many in the disabled community who, though not directly involved with Mr. Sutton's cases, understand that he is committed to the law and support his nomination. Francis Beytagh, Legal Director of the National Center for Law and the Handicapped wrote: I believe Jeff Sutton would make an excellent federal appellate judge. He is a very bright, articulate and personable individual who values fairness highly . . . I do not regard him as a predictable ideologue . . . I recommend and support his confirmation without reservation. We should pay attention to this person. James Leonard, co-director of the University of Alabama's Disability Law Institute, writes: In my opinion, Jeffery Sutton is well-qualified to sit on the Sixth Circuit Court and should be confirmed . . . I also see no ``agenda'' on Mr. Sutton's part to target disabled citizens. . . . Just as I would not infer an anti-disabled agenda from Mr. Sutton's participation in Garrett, neither would I assume from his role in the Fisher case that he had the opposite inclination. Rather, he seemed to be a good lawyer acting in his client's interest. Gee, that is what he is, a good lawyer who represents clients and wins. Beverly Long, Immediate Past President of the World Federation of Mental Health and former Commissioner of President Carter's Commission on Mental Health writes: I have followed news reports of the intense lobbying against Mr. Sutton by various people who advocate on behalf of the disabled. This effort is unfortunate and, I am convinced, misguided. 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. I assume, after listening to my colleagues on the other side, what they are trying to do is beat up Mr. Sutton now so that he will bend over backwards in every way for persons with disabilities. I don't think they have to worry about that. But I think it is unfortunate that they are beating up on a man who basically understands the disability community and who has long fought for it, but who has represented some clients with interests that my friends on the other side don't like. I agree with Ms. Long, and I have no doubt Mr. Sutton would rule fairly in all cases, including those cases involving disabled Americans. Mr. Sutton's critics hold up the Garrett case as evidence to his insensitivity to the disabled community. I want to take just a few moments to discuss why that criticism is misguided. Mr. Sutton did not seek to represent the State of Alabama in that case out of any desire to curb the Americans with Disabilities Act. Instead, he was approached by Alabama's attorney general to represent Alabama at the appellate stages of the litigation. He was approached because he is an excellent lawyer and one of the best appellate lawyers in the country. As an attorney looking to build a practice before the Supreme Court, Mr. Sutton accepted that representation. I do not see anything wrong with a young lawyer accepting cases in order to gain more experience before our Nation's highest tribunal. I concur with my distinguished colleague, the senior Senator from the State of California who pointed out that she hears from lawyers all the time that they were trying to build Supreme Court practices and picked up cases to do so. It is a common practice for those who are fortunate enough to try cases before the Supreme Court. I give Mr. Sutton marks for candor for explaining that reason at his hearing. Mr. Sutton did nothing wrong in accepting that representation--State governments are certainly entitled to representation under our legal system. Yet, I can understand the frustration that some of my colleagues may feel to see the protections of the Americans with Disabilities Act limited by the Supreme Court. I worked many long hours to see that piece of legislation enacted. However, I do not blame Mr. Sutton for the Supreme Court's decision--he is guilty of nothing more than being a very good lawyer for his client. The principle of judicial review is very well-established in American jurisprudence. If anything, we should be thankful that there are lawyers as able as Mr. Sutton to ensure the effective working of our system of checks and balances. It was the Supreme Court that made the decision; Mr. Sutton was simply representing his client. And, by the way, that is what attorneys do. He had a right to do it. It was legitimate to do it. He did a very good job. There is no evidence that Mr. Sutton was motivated by a personal agenda when he represented those State governments. In fact, former Clinton Solicitor General Seth P. Waxman, and Sutton's opposing Counsel in the Garrett case, wrote, ``I argued the case against Mr. Sutton, and I discerned no such personal antipathy. Mr. Sutton vigorously advanced the constitutional position of his client in the case, the State of Alabama; doing so was entirely consistent with the finest traditions of the adversarial system.'' It is important to note that the ABA Model Rules of Professional Conduct state that no inference about a lawyer's personal views should be gleaned from the positions of his client. The rule states, ``A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities.'' My distinguished colleague, the junior Senator from New York, seems to agree. Back in February, on the Senate floor she noted, ``A long time ago, I used to practice law. I represented a lot of clients of different kinds, all sorts of folks. Their views and positions were not necessarily mine. I won some and I lost some in the trial court, in the appellate court, and in the administrative hearing room, but I do not believe that any of my clients spoke for me. My advocacy on behalf of clients was not the same as my positions about the law, about constitutional issues, and about many other matters.'' I personally think that was very well said by the distinguished junior Senator from New York. Obviously, I do not think anybody in this body would seriously consider voting against a nominee because of a dislike of the nominee's clients. All of those of us who practice law and try cases represent clients with whom some in the Senate might disagree. We had an important discussion about clients in connection with the nomination of Marsha Berzon, now a judge on the Ninth Circuit, and the Senate decided not to hold her responsible for her clients' views and confirmed her. I advocated for her even though I probably disagree with her philosophy in many respects. Judge Berzon is well qualified. Judge Berzon had been a long-time member of the ACLU, serving on the Board of Directors and as the Vice President of the Northern California Branch. She testified that: ``[I]f I am confirmed as a judge, not only will the ACLU's positions be irrelevant, but the positions of my former clients, indeed, my own positions on any policy matters will be quite irrelevant and I will be required to and I commit to look at the statute, the constitutional provisions, and the precedents only in deciding the case.'' Mr. Sutton made similar assurances at his hearing that he will follow the law as an appellate court judge. He stated, ``. . . there's no doubt that when a Federal statute is passed, as the U.S. Supreme Court has made clear, there's a heavy presumption of constitutionality. And there's no doubt that a Court of Appeals judge has every obligation to follow that presumption.'' We accepted Judge Berzon's answer and we should do the same for Mr. Sutton instead of trying to destroy his reputation. If there are members of this body who nevertheless try to hold Mr. Sutton responsible for the views of the states that he represented, I ask that they at least judge Mr. Sutton on his entire record and not just on a select handful of cases--or here a case, there a case, once in awhile another isolated case, and not just a select handful of cases. Mr. Sutton has represented a wide range of clients in his legal practice. Most of the clients in the cases that displease his critics paid him to represent them, but he has represented a significant number of clients with very diverse interests on a pro bono basis. These clients include death row defendants, prisoner rights plaintiffs, the National Coalition for Students with Disabilities, the NAACP and the Center for Handgun Violence--to name a few. In 2001, he was appointed by the U.S. Supreme Court to represent--pro se--Dale Becker in a prisoner rights complaint. Opposing counsel, and former General Counsel of the National Security Agency during the Bush and Clinton Administrations, Stewart A. Baker, wrote in support of Mr. Sutton stating, ``If Mr. Sutton is to be judged by the positions he takes on behalf of his clients, the Becker case suggests that he favors increased inmate litigation in federal courts as well as a broad and flexible reading of the courts' rules, at least when a literal reading does harm to pro se litigants. In fact, the Becker case illustrates the fallacy of claims that Mr. Sutton's judicial philosophy can be gleamed from the positions he has advocated in court. Although he has apparently taken conservative positions on behalf of some clients, Mr. Sutton has also championed left-liberal positions when his client's welfare called for such arguments.'' Take for example, Mr. Sutton's defense of Ohio's minority set-aside statute when he was Solicitor General. Fred Pressley, Ohio attorney and Democrat who worked with Sutton on the case wrote, ``As Solicitor General, Mr. Sutton was a tenacious defender of all Ohioans, regardless of their race, gender, disability or nationality.'' In addition, I recently received a supportive letter from Mr. Riyaz Kanji, a former law clerk to Supreme Court Justice David Souter and Judge Betty Fletcher of the Ninth Circuit. He said that he contacted Mr. Sutton in August to ask for assistance on an amicus brief for the National Congress of American Indians in an Indian Law case pending before the United States Supreme Court. Mr. Kanji wrote, ``Mr. Sutton took the time to call me back from vacation the very next morning to express a strong interest in working on the case. In our ensuing conversations, it became apparent to me that Mr. Sutton did not simply want to work on the matter for the small amount of compensation it would bring him--he readily agreed to charge far below his usual rates for the brief--but that he instead had a genuine interest in understanding why Native American tribes have fared as poorly as they have in front of the Supreme Court in recent years . . . I think it is fair to say that most individuals who are committed to furthering the cause of State's rights without regard to any other values or interests in our society do not evidence that type of concern for tribal interests.'' I could go on and on in discussing the numerous letters of support that I have received on Mr. Sutton's behalf, but I think the best spokesperson for Mr. Sutton is Mr. Sutton himself. In a 12-hour hearing, Mr. Sutton answered all questions put to him candidly and honestly. He was extremely considerate and deferential, displaying a respect for the process as well as his very impressive legal ability. Jeffrey Sutton is the best the legal profession has to offer. I urge my colleagues to examine his full and accurate record. I am confident if they do, my colleagues will vote overwhelmingly to confirm Mr. Sutton. Mr. President, let me just take a moment to address some of my colleagues' concern about the Americans with Disabilities Act and the Supreme Court's decision in Garrett. I was a prime cosponsor of the Americans with Disabilities Act, and I am very proud of it. But this debate is not about whether this body did the right thing in passing that legislation. I personally think we did the right thing, and I could talk for hours on how important that legislation is. However, in our system of checks and balances, the Supreme Court has a role here. And all parties before the Court deserve to have competent, in fact, zealous legal representation--States as well as individuals. In the Garrett case, the State of Alabama sought the representation of Jeffrey Sutton. Mr. Sutton argued zealously on behalf of the State. However, nowhere--nowhere--does Alabama's brief suggest that Congress does not have the power to protect Americans with disabilities. Mr. Sutton did not, as some have contended, argue the Americans with Disabilities Act as a whole was not needed or should be repealed. Statements to this effect are a mischaracterization of both the nature of the question before the Court in the Garrett case and the arguments Mr. Sutton advanced on behalf of the State of Alabama. In fact, Alabama's brief stated: The ADA advances a commendable objective--mandatory accommodation of the disabled. . . . Further, the brief stated specifically that: Alabama . . . has not challenged Congress' authority under the Commerce Clause to regulate State employees through the ADA, [or] an individual's authority to bring an injunction action against State officials in Federal court, or the Federal government's authority to bring a claim for injunctive or monetary relief against States in Federal court. Alabama's brief also specifically credited the Federal Government for prohibiting Government-based discrimination against the disabled, and affirmatively requiring all manner of employment and public-access accommodations designed to provide the disabled with the kind of equal opportunity and dignity all individuals deserve. Finally, at oral argument before the Court, Mr. Sutton clarified that his client was ``happy that the ADA was enacted.'' Even if his client's statements or sentiments are deemed his own--which they should not be-- Mr. Sutton's written and oral statements in the Garrett case dispel any credible notion that he believes the ADA is not needed. Mr. President, I have no doubt that every litigant appearing in Jeffrey Sutton's courtroom will get a fair shake. Now, some of my colleagues have tried to distort his record, have tried to imply he is not the man that he is, have tried to indicate he is against the Americans with Disabilities Act because he represented clients with which some of my colleagues disagree, and that he is not worthy to be on this court. The total record suggests and demands otherwise. We should be lucky if we can get other nominees, whichever party is in charge of the White House, who have the kind of abilities and capacities that Jeffrey Sutton has. I have no doubt every litigant appearing before Mr. Sutton will be treated fairly, with dignity, and that the laws will be interpreted appropriately. This is an honest man. This is a great lawyer, although young, and he is a person who will, I think, bring a great deal of balance, integrity, capacity, and ability to the Federal courts of this country and, in particular, the Sixth Circuit Court of Appeals. So I hope our colleagues in the Senate will ignore some of the, I think, disparaging remarks that have been made and look at the real record. And if they do, they will vote for Jeffrey Sutton. Mr. President, I suggest the absence of a quorum.

Mr. HATCH

Mr. HATCH. Mr. President, nations throughout the world, especially within Latin America, celebrate Dia De los Ninos on the 30th of April, in recognition and celebration of their country's future--their children. Many American Hispanic families continue the tradition of honoring their children on this day by celebrating Dia De los Ninos in their homes. The designation of a day to honor the children of the Nation will help affirm for the people of the United States the significance of family, education, and community. This special recognition of children will provide us with an opportunity to reflect on our future, articulate our dreams and aspirations, and find comfort and security in the support of our family members and communities. This resolution calls on the American people to join with all children, families, organizations, communities, churches, cities, and States across the Nation to observe the day with appropriate ceremonies and activities. I thank my colleagues for supporting America's youth by supporting this resolution designating April 30, 2003, Dia De los Ninos: Celebrating Young Americans.

Mr. HATCH

Mr. HATCH. Mr. President, it is my pleasure to introduce today the Federal Judgeship Act of 2003. This bill will alleviate some of the strain on the vastly overburdened Federal courts by creating a total of 57 new judgeships: Eleven new circuit judgeships and 46 new district judgeships. It also converts five existing temporary judgeships to permanent positions. In addition, the bill confers Article III status on the judgeships authorized for the Northern Mariana Islands and the Virgin Islands. The Judicial Conference of the United States endorses the provisions in this bill. I hope that my colleagues will join me in supporting it.

Mr. HATCH

Mr. HATCH. Mr. President, it is my pleasure to introduce today the Federal Judgeship Act of 2003. This bill will alleviate some of the strain on the vastly overburdened Federal courts by creating a total of 57 new judgeships: Eleven new circuit judgeships and 46 new district judgeships. It also converts five existing temporary judgeships to permanent positions. In addition, the bill confers Article III status on the judgeships authorized for the Northern Mariana Islands and the Virgin Islands. The Judicial Conference of the United States endorses the provisions in this bill. I hope that my colleagues will join me in supporting it.

Mr. HATCH

Mr. HATCH. Mr. President, I would like to respond to the comments made by my good friend from Iowa, Senator Harkin. I was also a cosponsor of the Americans with Disabilities Act, and I believe very much in that legislation and its goals. It is one of the most important pieces of legislation that I have worked on during my tenure in the Senate. I can certainly understand my distinguished colleague's concerns about the limitations that the Supreme Court placed on the Act in their decision in Garrett. However, I do not believe for one minute that Mr. Sutton's representation of the State of Alabama is in any way indicative of an agenda, personal or otherwise, against Americans with disabilities. Even the People for the American Way has conceded, ``No one has seriously contended that Sutton is personally biased against people with disabilities.'' Furthermore, Mr. Sutton's opposing counsel in the Garrett case, former Clinton administration Solicitor Seth P. Waxman, has written to me in support of Mr. Sutton. He stated: I know that some have questioned whether the position Mr. Sutton advocated . . . in the Garrett case reflected antipathy on his part toward the Americans with Disabilities Act. I argued that case against Mr. Sutton, and I discerned no such personal antipathy. Mr. Sutton vigorously advanced the constitutional position of his client in the case, the State of Alabama; doing so was entirely within the finest traditions of the adversary system. When Mr. Sutton was young, he regularly helped out at his father's school for children with cerebral palsy. As Ohio State Solicitor, he represented Cheryl Fisher, a blind woman who was refused admission to medical school. Ms. Fisher wrote of Mr. Sutton, ``I recall with much pride just how committed Jeff was to my cause. He cared and listened and wanted badly to win for me. It was then I realized just how fortunate I was to have a lawyer of Mr. Sutton's caliber so devoted to working for me and the countless of others with both similar disabilities and dreams.'' In National Coalition of Students with Disabilities v. Taft, Mr. Sutton successfully argued that Ohio universities were violating the federal motor-voter law by failing to provide disabled students with voter registration materials. Benson A. Wolman, former Director of the ACLU for Ohio and currently a member of its National Advisory Council, who recruited Mr. Sutton to work on the case, wrote: [Mr. Sutton's] commitment to individual rights, his civility as an opposing counsel, his sense of fairness, his devotion to civic responsibilities, and his keen and demonstrated intellect all reflect the best that is to be found in the legal profession. Mr. Sutton also serves on the Board of the Equal Justice Foundation, a public interest organization that provides pro bono legal services to the disadvantaged. During his tenure on the board, the Foundation has sued three Ohio cities to force them to build curb cuts to make their sidewalks wheelchair accessible, sued an amusement park company that banned disabled individuals from their rides, represented a mentally disabled woman in an eviction proceeding against her landlord who tried to evict her based on her disability, and represented a girl with tubercular sclerosis in a case alleging that the school was not properly handling her individual education plan. I have received other letters from those who work in the disabled community who support Mr. Sutton. Francis Beytagh, Legal Director of the National Center for Law and the Handicapped, wrote: I believe Jeff Sutton would make an excellent federal appellate judge. He is a very bright, articulate and personable individual who values fairness highly . . . I do not regard him as a predictable ideologue . . . I recommend and support his confirmation without reservation. James Leonard, co-director of the University of Alabama's Disability Law Institute, writes: In my opinion, Jeffery Sutton is well-qualified to sit on the Sixth Circuit Court and should be confirmed . . . I also see no ``agenda'' on Mr. Sutton's part to target disabled citizens . . . Just as I would not infer an anti-disabled agenda from Mr. Sutton's participation in Garrett, neither would I assume from his role in the Fisher case that he had the opposite inclination. Rather, he seemed to be a good lawyer acting in his client's interests. Beverly Long, Immediate Past President of the World Federation of Mental Health and former Commissioner of President Carter's Commission on Mental Health writes: I have followed news reports of the intense lobbying against Mr. Sutton by various people who advocate on behalf of the disabled. This effort is unfortunate and, I am convinced, misguided. 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. In addition, my good friend from Iowa mentioned that he sat next to Senator Robert Dole at the Garrett arguments. Senator Dole, who has always been a great champion of disability rights, has of course joined the chorus of those who have written in support of Mr. Sutton. There is simply no evidence to suggest that Mr. Sutton took the Garrett case due to any personal agenda. It is a well-established principle in the legal profession that lawyers should not be held responsible for the positions of their clients. The ABA Model Rules of Professional Conduct state, ``A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities.'' Lawyers from across the country have written suggesting that it is not appropriate to attribute a client's views to the attorney, and it is certainly not appropriate in Mr. Sutton's case specifically. My distinguished colleagues' own constituent and good friend Bonnie Campbell is included in those lawyers. She wrote, ``I strongly urge the Senate to reject any unfair inference that Mr. Sutton's personal views must coincide with positions he has advocated on behalf of clients. It is, of course, the role of the advocate to raise the strongest available arguments on behalf of a client's litigation position regardless of the lawyer's personal convictions on the proper legal, let alone policy, outcome of the case. I am confident that Mr. Sutton has the ability, temperament, and objectivity to be an excellent judge.'' In the Garrett case, Mr. Sutton was advocating for his client, the State of Alabama. Just as accused murderers are entitled to representation under the laws of this country, so are state governments. Mr. Sutton has represented them both. We cannot attribute the position of the State of Alabama to Mr. Sutton, and we should not disparage him for fulfilling his ethical duty of zealous advocacy to his client. If the Supreme Court chose to accept the arguments he put forth on behalf of his client, we must respect its decision. While some of us who worked so hard on that legislation understandably may be disappointed, that disappointment should not be directed at Mr. Sutton. The principle of judicial review is well-established; Mr. Sutton ethically and honorably was fulfilling his role as an advocate. He has no personal agenda against Americans with disabilities. I have no doubt that if confirmed, Mr. Sutton will give any disabled American that comes before him a trial that is fair, impartial, and consistent with all our notions of justice. I yield the floor and suggest the absence of a quorum.

Mr. HATCH

Mr. HATCH. I personally believe we can do that. We did have a hearing in 2000. The hearing was extensive and led to this legislation. By the way, the number on the chart excluded departure requests made by the prosecutors under Section 5K1.1 of the Guidelines, when a defendant provides ``substantial assistance'' to the government. We counted 4,098 downward departures excluding the so-called ``5K1.1 motions'' made by the government. The number of downward departures has risen from 1,241 in 1991. Any Senator should see that this increase is the reason for our concern. I do not disagree with the distinguished Senator. I think it would be good to find out what the Senator wants to know, and that is, if I understand him correctly, he is asking for a hearing on downward departures.