[Hpn] Action Alert!

Thomas Cagle nh-adapt@juno.com
Mon, 27 Jan 2003 08:26:32 -0500

 From: ADAWatch@aol.com
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 Jim Ward, ADA Watch/National Coalition for Disability Rights  
 1201 Pennsylvania Avenue, NW, Suite 300
 Washington, DC 20004
 January 25, 2003
 Next Wednesday, Former Ohio State Solicitor Jeffrey Sutton will receive
 hearing before the Senate Judiciary Committee to determine if he 
 should be confirmed to a lifetime seat on the 6th Circuit Court of
 just one step away from the Supreme Court. More than 400 nonpartisan
 disability and civil rights organizations -- and many more individuals
 from all across the Nation -- have united in opposition to Sutton's
 confirmation. Sutton's career has been highlighted by aggressive -- 
 and often successful -- efforts to dismantle federal disability rights 
 and civil rights protections. He has actively worked to weaken Federal
 protections for people with disabilities, minorities, seniors, women
 victims of violence, Medicaid recipients and others. Sutton -- like too
 many of the Bush judicial nominees -- has targeted the New Deal, the
 Great Society, Medicaid, the ADA, Olmstead, and the authority of a
 democratically elected Congress to legislate remedies when 
 petitioned by American citizens. The 6th Circuit includes Kentucky,
 Michigan, Ohio, and Tennessee and its decisions frequently rise to
 the Supreme Court and impact all Americans. This is why we are
 asking for your help!
 Action Needed:
 1. Go to www.adawatch.org and sign the electronic petition against
 Sutton's confirmation by the Senate.
 2. Call and Fax your Senators now and tell them to vote no on Sutton.
 Capitol switchboard is (202) 225-3121 and the Fax number for the Senate
 Judiciary Committee is 202-228-0861. (Organizations should Fax their
 opposition on their organization's letterhead.) Send us a copy as 
 well at
 Fax #202-318-4040.
 3. Contact the media. Write letters-to-the-editor and Op Ed articles
 using info at www.adawatch.org
 4. Come to Washington for the Official Hearing on January 29th at 9:30
 and the "People's Hearing" on the 30th at 11 AM. Schedule visits to your
 Senators! For travel and housing information contact: 
 5. If you cannot make it to Washington, organize or attend local events,
 visit the local offices of your Senators, hold a vigil to voice
 opposition to Sutton and other extremist judicial nominees.      
 Action Schedule:  
 January 27 - 9:30 a.m. ADA Watch joins coalition partners at National
 Press Club for press conference opposing extremist judicial 
 January 28 - National Call-In Day to Senate: Vote No on Confirmation 
 Sutton, Cook, others!
 January 29 - National and Local Events; Sutton Hearing (9:30 AM, 
 Dirksen SOB Room 226); Hill visits, phone calls.
 January 30 - "People's Hearing" (Dirksen Senate Office Building Room
 138); Hill visits, phone calls continue all day.
 Jeffrey Sutton has an extremist record, has been a leader and ideologue
 with the Federalist Society, and has actively worked to weaken Federal
 protections for people with disabilities, minorities, seniors, women
 victims of violence, Medicaid recipients and others. He is among those
 who have influenced the current trend of viewing the ADA as an
 entitlement benefit rather than a civil rights law. This trend, with
 judges sitting as benefits managers determining who is among the
 "deserving disabled," has led to more than 92% of all ADA cases being
 dismissed on summary judgment -- without any judge or jury review of 
 the alleged discriminatory behavior of employers. 
 Sutton, as an officer in the Federalist Society, has led the "States'
 Rights" agenda of the unelected undoing the work of a democratically
 elected Congress. Their threat is not just to people with disabilities,
 but as described in a recent Washington Post column, Sutton, Cook,
 Pickering, Kuhl and other Bush nominees selected for their Federalist
 credentials are targeting the New Deal, the Great Society, Medicaid, the
 ADA, Olmstead, and Congress itself as they micromanage public policy 
 in the federal courts. In fact, regardless of which party the electorate
 chooses to control Congress or the White House, these extreme ideologues
 -- not Conservatives but judicial activists -- seek to weaken and
 eliminate federal protections concerning health, safety, welfare,
 privacy, and the environment. Theirs is a commitment to ideology not 
 to justice. 

 Rights not Charity:
 Word on the Hill is that Sutton will be joined at his hearing by Bob 
 Dole and that the focus will be on Sutton's "compassion" and 
 "sensitivity" to people with disabilities. It is troubling that this
 bipartisan effort in the disability community will be turned into a
 partisan fight by others, but more disturbing is the strategy of
 focusing on "charity" instead of civil rights.  What is in Sutton's
 heart is really of no concern to us and we have to do the job of
 directing public attention -- and that of the Senate -- towards his
 record and the records of other nominees who threaten disability
 rights. Attempts to focus on Mr. Sutton's "character" will only distract
 from the need for a national dialogue on Federal-State powers and
 Congress' intention that the ADA "provide a clear and comprehensive 
national mandate for the elimination of discrimination against people
 with disabilities."  
 His supporters will make the case that Sutton was just acting as a
 forceful advocate for his clients. It will be up to us to demonstrate
 that he is an activist who has aggressively sought out cases to 
 and advance his ideology. We must demonstrate that we oppose Sutton
 because he clearly has taken an ideological stance against providing
 effective remedies under federal law for disadvantaged persons in our
 society. His repeated and zealous advocacy for these positions, and 
 speeches he has given and the articles he has written on these 
 demonstrate that this would be a cornerstone of his judicial 
 if he were to serve on the federal bench. Indeed, Sutton told Legal 
 that he "loves this Federalist stuff" and that he and his staff are
 always "on the lookout" for such cases. Apparently disappointed that 
 mainstream does not share his radical views, he has also said: "It is
 frustrating that, in pursuit of particular political goals, the 
 are not rising up together and defending their authority against
 encroachments by Congress." (Federalist Society Webpage, May 18, 
 Sutton's Record: 
 And what does Sutton consider "encroachments by Congress?"  
 - In Garrett, Sutton argued that Congress had no authority to give 
 employees who have been discriminated against the right to sue 
 for damages under the ADA. (And did so by denying the existence of a
 massive record of state discrimination compiled by Congress including
 forced sterilization of people with disabilities, unnecessary
 institutionalization, denial of education, and much more.) 
 - In Olmstead v. LC, Sutton argued that unnecessarily keeping people 
 disabilities in institutions was not a form of discrimination and 
 states had no duty under the ADA to serve individuals in integrated
 - In Westside Mothers, Sutton successfully argued that Medicaid
 recipients cannot sue to protect their rights under the law.  States 
 begun citing this decision to persuade courts to rule that people 
 disabilities have no right to enforce their rights under Medicaid,
 Section 504, IDEA and the Rehabilitation Act. 
 - In Alexander v. Sandoval, Sutton argued that individuals cannot
 privately enforce regulations under Title VI, a race discrimination
 statute. States have since used Sutton's arguments in efforts to 
 courts that people with disabilities should not be allowed to enforce
 regulations under Section 504 and Title II of the ADA requiring
 reasonable accommodations and integration of individuals with
 These are just a few of the many cases that Sutton has sought out to
 advance the extreme Federalist agenda that places him well outside 
 mainstream. There are numerous other cases in which he argued to 
 or eliminate federal protections addressing age discrimination, 
 against women, religious discrimination and more. These statutes
 represent years of congressional findings and bipartisan compromises 
 establish greater fairness in the workplace and provide effective
 remedies for discrimination.
 The human toll of Mr. Sutton's should not be underestimated. Patricia
 Garrett, for example had worked for the University of Alabama for 17
 years when she was diagnosed with breast cancer. Her supervisor made
 negative comments about her illness and repeatedly threatened to 
 her to a less demanding job because of her condition. Upon her return
 from medical leave, Garrett was demoted, even though she could still
 perform the requirements of her job. Under a divided Supreme Court’s
 ruling responding to Sutton's arguments, Garrett has no ADA remedy 
 for this discrimination.
 And in the wake of Sutton's arguments in the Kimel decision, about 30
 other age discrimination suits have been dismissed. In one case, the
 supervisor who terminated the plaintiff explained that the jury 
 should "think of it like this. In a forest, you have to cut down the
 trees so the little trees underneath can grow." The plaintiff in this
 case – who was fired at the age of 48 – has no federal remedy against
 this blatant discrimination by a state employer.
 Threats to Democracy:
 The dangers of having unelected insular Federal court judges -- or 
 Supreme Court Justices -- essentially making public policy cannot be
 overstated. In enacting the Americans with Disabilities Act, for 
 Congress compiled a vast legislative record which documented massive,
 society-wide discrimination against people with disabilities in such
 vital areas as employment, housing, transportation and public
 accommodations. The record included 13 Congressional hearings, 63 
 forums across the country attended by over 30,000 people, and 
 of letters documenting discrimination. In many of the cases, state
 employees were victims of the discrimination. The Court’s divided 
 in Garrett means, however, that victims of state employment
 discrimination cannot use the ADA to remedy it. That Sutton in his
 arguments, in order to protect powerful interests and advance his
 Federalist doctrine, could deny the existence of this vast record of
 discrimination again reveals his commitment to ideology over 
 Remarkably, Justice Breyer’s dissent in the Garrett case contained 40
 pages of specific examples of state-sponsored disability 
 In addressing such public policy issues, Breyer wrote, "Unlike 
 Congress can readily gather facts from across the Nation, assess the
 magnitude of the problem, and more easily find an appropriate remedy.
 Unlike courts, Congress directly reflects public attitudes and 
 enabling Congress better to understand where, and to what extent,
 refusals to accommodate a disability amount to behavior that is 
 or unreasonable to the point of lacking constitutional justification.
 Unlike judges, Members of Congress can directly obtain information 
 constituents who have firsthand experience with discrimination and
 related issues."
 "Moreover," Breyer continues, "unlike judges, Members of Congress are
 A February 22, 2001 New York Times editorial quotes Breyer and 
 echoes the
 concern regarding Congress' rightful constitutional authority to 
 what laws are needed to achieve a just society:  
 As it has before in similar cases, the majority cast its complaint
 against Congress in the lofty context of federalism and the 
 balance of power between the states and the federal government. But 
 Justice Stephen Breyer emphasized in a powerful dissent, the 
 impact of the court's ruling was to expand its own power at the 
 of Congress's rightful constitutional authority to decide which new 
 society requires. That is a strange kind of activism for a supposedly
 conservative bench. As Justice Breyer noted, "The court, through its
 evidentiary demands, its non-deferential review, and its failure to
 distinguish between judicial and legislative constitutional 
 improperly invades a power that the Constitution assigns to 
 It is too early to say where the court will strike next with its
 self-aggrandizing view of federalism. But as Justice Breyer correctly
 suggested, the new federalism jurisprudence has already inflicted
 significant damage on the nation's constitutional framework.
 Jeffrey Sutton has been at the forefront of the "new federalism" 
 that has
 mocked Congress' authority, ignored a carefully documented history of
 discrimination, undermined the democratic process, and rolled back 
 rights protections passed at the insistence of the People. The Senate
 should reject this nominee and the President should advance judicial
 nominees with a commitment to justice rather than ideology.   
 Jim Ward, President
 National Coalition for Disability Rights
> 1201 Pennsylvania Avenue, NW, Suite 300, Washington, DC 20004 
> V: 202.661.4722  F: 202.318.4040  E: adawatch@aol.com  W:
> www.adawatch.org

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