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In May they marched to the White House in protest. Three months later they were invited inside the gates to air their grievances. So it went for about 10 disability rights advocates who bitterly oppose the nomination of states’ rights expert Jeffrey Sutton to the 6th U.S. Circuit Court of Appeals. The Aug. 23 meeting was unusual because foes in the judicial nominations battle rarely meet face to face to discuss their differences. The ideological fights usually take place over the airwaves and on the Senate floor, and are not taken up in the Indian Treaty Room at the Old Executive Office Building. Sutton has drawn the ire of the disabled community for arguing a series of Supreme Court cases that scaled back civil rights laws, including the landmark Americans With Disabilities Act. Sutton’s arguments and the Court’s rulings were based on federalism, the principle that the Constitution limits Congress’ power over the states. The high court is deeply divided over the subject, splitting 5-4 in case after case, including last term’s ADA matter, Board of Trustees of the University of Alabama v. Garrett. From descriptions of the meeting, the disability rights advocates and the Bush administration sound similarly at odds over Sutton, a partner at the Columbus, Ohio, office of Jones, Day, Reavis & Pogue. But neither side expected to change the others’ minds. “We weren’t going in there for the purpose of convincing the disability rights groups to change their public position on any nominee,” says Brad Berenson, the associate White House counsel who argued the administration’s point of view. “The agenda was broader than that.” The two-hour meeting went beyond judicial selections and into the administration’s enforcement of the remaining parts of the ADA and other civil rights laws. Berenson also says he that he wanted to explain that while federalist principles may occasionally conflict with acts of Congress — and the policy goals of the disabled rights community — that does not mean that President George W. Bush or his judicial nominees are hostile to disabled people. “It’s just a matter of applying the law,” says Berenson, who once clerked for Justice Anthony Kennedy. Jim Ward of ADA Watch, an umbrella organization of disabled rights groups, says, “It’s great that they’re reaching out to us.” But, Ward adds, “We can’t have these intellectual debates about federalism without putting a human face on how people with disabilities are impacted” by Sutton’s victories. For example, Ward notes that Patricia Garrett, the plaintiff in the ADA case, sued the state of Alabama because she lost her job as a nurse at a state hospital after taking work off to get breast cancer treatments. Garrett lost her bid for redress when the high court majority said Congress overstepped the 11th Amendment by subjecting states to individual ADA lawsuits. Berenson told the group that neither Sutton nor other nominees are picked because they pass any litmus test — on anything from abortion to their views on federalism. Responds Ward: “They say ideology is not a factor, but they’re putting forth nominees who strongly support federalist views.” Other Bush nominees with particularly conservative reputations give the ADA community pause. Ward says he personally is concerned about Judge Terrence Boyle for the 4th Circuit, Judge Carolyn Kuhl for the 9th Circuit, Ohio Supreme Court Justice Deborah Cook for the 6th Circuit, and appellate advocate Miguel Estrada for the D.C. Circuit. None has received a hearing before the Democrat-controlled Senate Judiciary Committee. Sutton and Cook also have a separate problem: a fight over 6th Circuit nominees going on between the White House and the two Democratic senators from Michigan, which is one of the states covered by the 6th Circuit. Andrew Imperato of the American Association of People With Disabilities says he pressed Berenson and Alex Acosta, deputy assistant attorney general for civil rights, for the administration’s point of view of the Garrett decision. If Bush views Garrett as wrongly decided, says Imperato, “we can work together to build a fire wall around this decision.” However, Imperato says, Berenson and Acosta weren’t prepared to discuss the administration’s stance on that specific case. Further meetings with Acosta and Ralph Boyd, assistant attorney general for civil rights, are in the works. The contacts between the White House and advocates for disabled people started earlier this summer, when Berenson saw in The Washington Post that Imperato, a fellow alum of Beverly Hills High and Yale University, was a leading ADA advocate. Justin Dart, a longtime disability rights activist who helped get the ADA passed and signed by Bush’s father in 1990, calls the meeting “a very good example of democracy in action.” Nonetheless, he adds, “I’m deeply concerned about the possible appointment of people like Jeff Sutton and [Justices] Clarence Thomas and Antonin Scalia who don’t believe in … the authority of the government of the United States to protect the rights of its citizens no matter what state they live in.” RULES OF THE GAME Before getting to the business of confirming any more judicial nominees, senators last week argued again over how they should go about doing so. On Sept. 4, Sen. Charles Schumer, D-N.Y., held his second Judiciary Subcommittee hearing on the nominations process and declared that the nominees themselves bear the burden of proving their worthiness for lifetime appointments to the bench. “We require parties who appear in before a court to prove their case,” said Schumer. “It is not unreasonable to ask those who come before the Senate seeking a lifetime appointment to the federal bench to do the same.” Schumer and Sen. Dick Durbin of Illinois represented the Democrats at the hearing, which featured liberal and conservative scholars discussing how the Senate has and should approach confirmations. While the experts addressed the issue, the hearing was instructive mostly as an illustration of the partisan divide among Judiciary Committee members as the nominations process heats up. Five Republicans showed up — Sens. Jeff Sessions of Alabama, Strom Thurmond of South Carolina, Orrin Hatch of Utah, Mitch McConnell of Kentucky, and Jon Kyl of Arizona. Each declared in his own way that the Senate should generally defer to the president’s choice for nominees. “The most significant burden borne by a candidate for a judgeship is to convince the president that he or she is the best person for the job,” said Hatch. “In other words, the burdens of the judicial nomination process do not begin when the Senate Judiciary Committee receives the official nomination from the White House.” Schumer is expected to convene a third and final hearing on the nominations process later this session. The topic will be the “New Federalism,” referring to states’ rights decisions issued in recent terms by the Supreme Court. Schumer will get a chance to test out his new burden of proof on Thursday, when he presides over a Judiciary Committee hearing of U.S. District Judge Barrington Parker Jr., who’s been nominated for a seat on the 2nd Circuit. In 1994, then-President Bill Clinton nominated Parker to the federal trial court for the Southern District of New York. Bush tapped Parker for the 2nd Circuit in May, a move seen largely to placate Democrats who had beenpressing for the White House to moderate his judicial picks. On Sept. 6, the Senate Judiciary Committee moved ahead two Bush nominees — Sharon Prost for the Federal Circuit and Reggie Walton for a district court seat in the District of Columbia — for votes by the full Senate. If confirmed, they would be the fifth and sixth of Bush’s 48 nominees approved. One more has had a hearing, not including Parker and any other nominees who get a hearing this week.

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