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It took John Roberts Jr. 11 years and three separate nominations to the federal bench to get his confirmation hearing. The Hogan & Hartson partner was first chosen in 1992 by President George Bush. His nomination, along with dozens of others that year, died a quiet political death. He was renominated again in 2001 by President George W. Bush, but the Democratic-controlled 107th Congress never gave him a hearing. Roberts was tapped again by Bush on Jan. 7 for the U.S. Court of Appeals for the D.C. Circuit, and last week the appellate litigator finally got his audience with the Senate Judiciary Committee. But Roberts was not the main attraction at what turned out to be a tumultuous hearing last Wednesday — an outcome that bodes well for Roberts. The fire was aimed instead at 6th Circuit nominee Jeffrey Sutton, who was grilled for hours, while Roberts and Deborah Cook, like Sutton a nominee for the 6th Circuit, watched and waited. Although Senate Democrats aren’t likely to prevent the confirmation of many judicial nominees this year, last week’s hearing gave solid hints about the minority party’s strategy for slowing down what they see as a confirmation steamroller. The Democrats’ plan appears to be to portray the nominees as extremists who are well outside the mainstream of the law. If Democrats can make that label stick, they hope to hold their party together on the Senate floor and quash Republican efforts to block a filibuster and bring the nominees to a vote. This strategy was evident when Roberts, Sutton and Cook faced off against a skeptical group of Democrats who repeatedly assailed committee Chairman Orrin Hatch, R-Utah, for leading a “rush to judgment.” “Many see this as part of a partisan effort to pack the courts,” said Sen. Patrick Leahy, D-Vt., at the outset of the hearing, which lasted well into the night. “This is not the way to discharge our constitutional duty to advise and consent.” But Hatch, at the helm of a nominations hearing for the first time in nearly two years, fended off the Democrats’ complaints, saying that the nominees had already waited too long for their hearings. The Republican majority won a key nomination victory the very next day, Jan. 30, as the committee approved by a 10-9 party-line vote the president’s choice of Gibson, Dunn & Crutcher D.C. partner Miguel Estrada for the D.C. Circuit. The Estrada nomination now heads to the Senate floor, where some Democrats are considering a filibuster. It is not known when a floor vote will occur. As tempers flared Jan. 29, Sen. Charles Schumer, D-N.Y., threatened in early evening to seek a committee vote to overrule Hatch’s decision to finish the hearing in one day rather than continue it at a later date. The threat fizzled, and the hearing went on until 9:30 p.m. Roberts is opposed by some groups because of the conservative views he pressed in court while a lawyer in the Reagan and first Bush administrations. Cook, a justice of the Ohio Supreme Court nominated for the 6th Circuit, has drawn flak for allegedly taking reflexively pro-business and anti-employee stances on that court. Finally, Sutton’s nomination drew strong opposition from disability rights organizations and others because of his role in arguing Supreme Court cases that exempted states from having to pay damages under the Americans with Disabilities Act and other civil rights laws. Several dozen disabled people, many of them in wheelchairs, attended the session, wearing buttons that read “Stop Sutton.” The vast majority of the questioning was focused on Sutton, a partner at the Columbus, Ohio, office of Jones, Day, Reavis & Pogue. Sen. Edward Kennedy, D-Mass., took aim at Sutton for his successful argument on behalf of the state of Alabama in University of Alabama v. Garrett, a 2001 Supreme Court case that held that a disabled person cannot obtain money damages from a state in a discrimination lawsuit. “A large number of groups have raised serious issues about you,” Kennedy said. “I was here during the passage of the ADA, and we spent weeks building a record [about discrimination against the handicapped]. Yet your views have been embraced by narrow 5-4 majorities of the Court.” Sutton responded, “Take the time to read my brief in the Fischer case [in which he represented a blind woman denied admission to a medical school]. There would be no thought that I have any hostility to disability rights.” In addition, Sutton said, “the client’s position can’t be ascribed to the lawyer. That is a dangerous thing to do.” Leahy later followed up on Kennedy’s question, pointing to a 1998 Legal Times article in which Sutton said he “believes in this federalism stuff” and was “always on the lookout” for cases upholding states’ rights. Sutton replied that he was just trying to develop a clientele after he left government service for private practice at Jones Day. “I was indeed on the lookout for any Supreme Court cases, not just federalism cases. I wanted to develop a Supreme Court practice, which is not easy to do in Columbus, Ohio,” he told Leahy. “And, yes, I do believe that we have a system with vertical checks and balances between the state and federal governments.” In response to a question from Sen. John Cornyn, R-Texas, Sutton said he did not regard any of his Supreme Court arguments as “outside the judicial mainstream.” Roberts, the D.C. nominee, agreed, saying it is “not appropriate to criticize any lawyer for making an argument that the Court accepts.” Later, in response to questions about briefs he had written as deputy solicitor general, Roberts said that in being part of the first Bush administration’s efforts to limit federal funding of abortion, he was simply following administration policy. When Sen. Richard Durbin, D-Ill., asked him about racial profiling, Roberts said that racial disparities in arrests for drug violations reflected a serious problem that the justice system would need to confront. Democrats also tried to portray Cook, the Ohio judge, as out of the mainstream. Her opponents pointed out that in her eight years on the court, she has authored more than 300 dissents. “My intention in dissenting is to further the law,” Cook said. “On occasion, my dissent will result from my reading of the text at hand, or from a procedural matter, or my reading of the statute of limitations. It’s not a matter of any political bent of mine but a matter of principle.” Kennedy questioned her about Davis v. Wal-Mart, a 2001 case in which she asserted in dissent that the widow of a worker killed on the job could not refile a complaint against the employer. “You have consistently voted to shield corporations from the consequences of their actions,” Kennedy said. Cook replied, “My dissent in that case was based entirely on the principle of res judicata. The widow sued earlier and got a judgment. It’s a principle of finality.” At the hearing, the committee also heard briefly from three U.S. District Court nominees who did not elicit any controversy. They were John Adams Jr. for the Northern District of Ohio, Robert Junell for the Western District of Texas, and S. James Otero for the Central District of California.

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