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Judicial politics in 2001 is something of a fun house mirror. What makes one nominee for the federal bench look good can make another look bad. Take the Bush administration’s efforts to rebut claims that Jeffrey Sutton, a nominee for the 6th U.S. Circuit Court of Appeals, is a threat to the rights of disabled people. In a bid to show Sutton’s compassionate side, the administration pointed to his arguments on behalf of a blind woman. Now, the administration has to defend a ruling against the woman in the same case by its other 6th Circuit appointee, Ohio Supreme Court Justice Deborah Cook. Back in May, disability rights advocates marched against Sutton’s nomination at the White House and at his Jones, Day, Reavis & Pogue office in Columbus, Ohio. “Sutton is an affront to justice,” read one sign at the White House. Sutton won three recent decisions from the Supreme Court scaling back civil rights laws, including a case limiting the reach of the landmark Americans With Disabilities Act. The cases were about federalism: He argued on behalf of states’ challenging federal authority. But their targets were anti-discrimination laws, including the ADA — the controversial and oft-litigated act of Congress supported by members of both parties on Capitol Hill. Needing to paint a more-balanced picture of Sutton, the Bush administration launched a campaign pointing to some of his good works benefiting disabled people. In high school, Sutton helped his father run a school for children with cerebral palsy. As a lawyer, Sutton serves on the board of the Equal Justice Foundation, an Ohio group that has invoked the ADA to force the city of Toledo to place curb ramps on its sidewalks. But perhaps the best argument that Sutton was no enemy of the disabled community came from Cheryl Fischer, a Cleveland woman who was refused admission to medical school because she is blind. As state solicitor in 1996, Sutton urged the Ohio Supreme Court to hold that Case Western Reserve University had violated the state’s disabled rights law by denying Fischer entry. Sutton lost the case by a 4-3 vote, but a senior administration official says Sutton’s representation “shows his compassion.” Indeed, Sutton did earn the admiration of Fischer, who in May sent a letter to senators endorsing his nomination. Fischer, who could not be reached by telephone, did not weigh in on Cook. But one might expect her to be less than enthusiastic. Cook wrote the majority decision against Fischer. She held that a trial court, which had ordered Case Western to admit Fischer, had abused its discretion by relying on evidence that another university had once trained a blind physician. Cook wrote that “the accommodations suggested by Fischer would … impose an undue burden upon [the school's] faculty.” Writing for the three dissenters, Justice Alice Robie Resnick argued that the school had a higher duty to investigate whether reasonable accommodations could have been made for Fischer, who wanted to become a psychiatrist. “This is a case of prejudice, pure and simple,” Resnick wrote. The Bush administration official rejects the suggestion that while the Fischer case shows Sutton’s compassion for people with disabilities, it makes Cook a fair target for disability rights advocates. “The decision is an example of [Cook's] ability to follow the law,” says the official. Civil rights advocates say they are not familiar enough with the case or Cook to comment. Cook has been on the Ohio Supreme Court for seven years and is generally regarded as a conservative and pro-business jurist. Liberal interest groups have engaged in a substantive debate with the administration over Sutton, however. In the past two years, Sutton has won, by identical 5-4 votes, decisions that have struck down parts of the Age Discrimination and Employment Act and the ADA and limited the reach of the 1964 Civil Rights Act. Curt Decker of the National Association of Protection and Advocacy Systems says his group opposes Sutton because it fears he “is out there aggressively looking for states to challenge civil rights.” Marcia Kuntz of the liberal Alliance for Justice says, “I wouldn’t say [Sutton] is trying to undermine the rights of the disabled. His agenda is broader than that,” referring to his role helping states win decisions holding that the 11th or 14th amendments do not allow Congress to subject states to some federal civil rights suits. The Bush official says criticism of Sutton’s representation is misplaced. The groups opposing Sutton “should engage in the substantive quarrel with the Supreme Court,” says the official, pointing out that it’s the justices — not Sutton as a lawyer — who are responsible for decisions angering the civil rights community. Sutton, adds the administration official, merely represents “a client based on constitutional principles.” Kimberly Skaggs, who heads the Equal Justice Foundation, an Ohio group that represents needy clients, supports Sutton despite an admitted disagreement in political philosophy. Skaggs asked Sutton to join the board of directors of her liberal group last year as a way to balance the board’s politics. “He’s just a states’ rights guy,” she says. “I don’t think he’s got anything against people with disabilities.” Sutton, like other nominees in line for confirmation, declines to comment. Cook could not be reached for comment. BATTING LEADOFF The Senate Judiciary Committee will host its first hearings for judicial nominees on July 11, but it doesn’t promise to be the political gunfight that Democrats have threatened when it comes to the president’s most controversial nominees. Appearing before the committee, now controlled by Democrats as a result of Sen. James Jeffords’ defection from the GOP in May, are Judge Roger Gregory for the 4th Circuit and Sam Haddon and U.S. Magistrate Judge Richard Cebull for District Court seats in Montana. Gregory, until last year a Richmond litigator, already serves on the 4th Circuit as a result of a controversial recess appointment by former President Bill Clinton last December. Clinton said at the time he was placing Gregory directly onto the bench because the Senate had dragged its feet in confirming several nominees to be the first black judge on the appeals court. Both Virginia’s senators, Republicans John Warner and George Allen, support Gregory’s nomination. The American Bar Association’s Standing Committee on the Federal Judiciary rated Gregory “qualified” for the post. If the Senate does not confirm him by the end of the year, he would have to leave the bench, because recess appointments last only until the end of the next session of Congress. President George W. Bush’s decision to include Gregory in his first batch of appointments in May was seen as an effort to mollify Democrats who might oppose other nominees, but now it seems Gregory will be considered before any of the expected firefights commence. Sutton, Cook and John Roberts Jr., a Hogan & Hartson partner nominated for the D.C. Circuit, were set for confirmation hearings in May, just before the Senate was taken over by Democrats. They have not yet been rescheduled, although the ABA committee has rated all three as either “qualified” or “well-qualified.” Haddon and Cebull are also supported by both of their home-state senators, Democrat Max Baucus and Republican Conrad Burns. The ABA rated both men “well-qualified.” If confirmed, they would significantly ease the caseload of Chief Judge Donald Molloy, currently the only active trial judge in the state. A senior administration official says, “I was hoping for one or two circuit court nominees and three or four for district courts, but this is a step in the right direction.” A spokesman for Leahy says nominations hearings usually include just one circuit court nominee, and Gregory was a good choice because he is a sitting federal judge and has strong bipartisan support, having been nominated by both Presidents Bush and Clinton. NEW KID ON THE BLOCK As a result of the Senate reorganization, there will be a one-vote Democratic majority on the Judiciary Committee. The plan will not be finalized until this week, when Congress returns from the holiday recess. But Sen. John Edwards of North Carolina is expected to be the new Democrat, giving the committee 10 Democrats and nine Republicans. A plaintiff’s lawyer before his 1998 election, Edwards is highly experienced in the judicial nominations battle. For several months, he has been in on the on-again, off-again negotiations with the White House over his support of U.S. District Judge Terrence Boyle, a Bush nominee for the 4th Circuit. Edwards has said he would like Bush to nominate one of President Bill Clinton’s former 4th Circuit picks-state appeals court Judge James Wynn or others blocked by his Republican colleague from North Carolina, Sen. Jesse Helms.

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