Republicans push court nominees through hearing

Effort to hasten approval upsets Senate Democrats

January 30, 2003|By NEW YORK TIMES NEWS SERVICE

WASHINGTON - Senate Republicans adopted a new procedure yesterday to hasten the confirmation of President Bush's judicial candidates: Instead of separate hearings, they simply lumped several nominees together to make it more difficult for opponents to take aim at them.

The committee held a single hearing featuring three appeals court nominees, each of whom had drawn opposition of varying degrees. Seated together at the witness table were Jeffrey S. Sutton, an Ohio lawyer, and Deborah L. Cook, a justice of the Ohio Supreme Court, both nominated to the 6th U.S. Circuit Court of Appeals, based in Cincinnati, and John G. Roberts, a Washington lawyer named to the appeals court for the District of Columbia Circuit.

The notable departure from past practice drew complaints of unfairness from Democrats, which in turn were briskly dismissed by Republicans. Taken together, the day's activities were a demonstration that the committee is one of the places in Washington where the angry rhetoric is rarely mistaken for political posturing but widely recognized as reflective of genuine partisan animosity.

"I cannot recall a time when three such controversial circuit court nominees were listed simultaneously," said Sen. Patrick J. Leahy, a Vermont Democrat, who had been committee chairman until the Republicans regained control of the Senate this month. "The process imposed by the majority is cheating the American people of the scrutiny these nominees should be accorded."

Sen. Edward M. Kennedy, a Massachusetts Democrat, said, "This is a cramped process. I resent it."

Sen. Orrin G. Hatch, the Utah Republican who is now the chairman, replied that the three candidates had never been given hearings under Leahy's chairmanship and that the 6th Circuit, in particular, had many vacancies. Sen. Charles E. Schumer, a New York Democrat, jumped in to complain that the 6th Circuit had many vacancies because the Republicans refused to move on any of President Bill Clinton's nominees to that court, saving the openings for when a Republican occupied the White House.

After the establishment of this foundation of mutual resentment, the Democrats concentrated their fire mostly on Sutton, who has played a leading role in bringing litigation, mostly successful, that has defined what legal scholars have called "the new federalism."

He has increased the power of states by challenging the authority of Congress to enact laws that impose obligations on the states. In one celebrated 2001 case, he persuaded the Supreme Court to rule that state employees may not bring actions for violations of the Americans with Disabilities Act.

The two other nominees appeared to benefit from the arrangement of the hearing; they sat as interested spectators for much of the day, listening to Sutton alternatively field aggressive questions from Democrats and bask in the praise of Republicans.

The debate about Sutton's fitness to be a judge swirled around the complex issue of whether a lawyer's views are defined by the cases he takes up as an advocate.

Hatch said that it was unfair to portray Sutton as opposing handicapped rights as he was only presenting a lawyer's argument on behalf of his clients. He also noted that Sutton grew up in a boarding school run by his father for students who had cerebral palsy.

When Kennedy challenged Sutton to offer assurances that disabled people and others would not suffer if he were a judge, the candidate said that he has argued both sides of the disability issue. "In all of those cases, I was an advocate, not a scholar," he said.

Sutton said that he had also successfully represented a woman who was denied admission to medical school because she was blind and said that he had "no animus to disability rights."

Leahy questioned the idea that Sutton's positions were merely those of an advocate and noted that he was referred to in publications as "the leader of the states' rights revolution."

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