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Judges should stick to the law

By Thomas L. Jipping
web posted July 16, 2001

As the Supreme Court's 2000-01 term ended, rumors flew that one of the Justices would retire. It may happen soon, and the stakes are very high, but vacancies in the lower courts are already piling up and the Senate is refusing to consider President Bush's nominees.

Only one president this century, and just four presidents ever, made no Supreme Court appointments. Two of them did not serve a full four-year term. There has not been a longer span without an appointment since the 11-year stretch from 1812 to 1823.

Yet we can place too much emphasis on the Supreme Court. Though the Justices receive about 8000 appeals each year, they consider only about 1 per cent of them. It is the district and appeals courts that have the last word on virtually every case in the federal court system. And to top it off, while President Bush may not nominate anyone to the Supreme Court, more than 100 positions on those lower courts are vacant right now and he has already sent the Senate nominees to fill 29 of them.

Six of those vacancies are on the U.S. Court of Appeals for the Sixth Circuit which includes Michigan, Ohio, Kentucky, and Tennessee. In fact, six of the court's 16 positions, or a whopping 38 per cent, sit empty.

But wait. Not long ago, Democrats and their leftist allies decried judicial vacancies in general, and vacancies on this court in particular. In January 2000, the left-wing Alliance for Justice denounced the 72 total vacancies and the four that existed then on the Sixth Circuit. Senator Carl Levin of Michigan said in May 2000 that 80 total vacancies and those four on the Sixth Circuit had a "serious impact on the administration of justice." Today, with 109 total vacancies and Sixth Circuit vacancies up by a full 50 per cent, Senator Levin is actually threatening to block President Bush's nominees to that court and the Alliance for Justice is urging the Senate to slow down the entire confirmation process.

President Bush has nominated two outstanding individuals to Sixth Circuit vacancies. Democrat Senators and their leftist allies have singled out one of them, former Ohio solicitor Jeffrey Sutton, for defeat.

Making some kind of case against Mr. Sutton requires first simply ignoring his considerable qualifications. Even the liberal American Bar Association rated him "well qualified" for the job. A partner in one of the world's most prestigious law firms, Mr. Sutton has argued nearly two dozen cases before the Ohio and U.S. Supreme Courts. It is one of those cases his leftist attackers use as their sole case against him.

Mr. Sutton argued before the U.S. Supreme Court a case titled Trustees of the University of Alabama v. Garrett. If the same issue had been before the Court in a case involving, say, celery, no one would have noticed. But this case involved one of those politically correct topics, disability. Two state employees sued their employer under the Americans With Disabilities Act. Despite the sexy facts there was a single issue before the Court in this case, whether these plaintiffs could sue for money damages even though the Constitution's 11th Amendment prohibits such lawsuits.

The Supreme Court has long held that Congress can still provide for lawsuits against states, but only after meeting a very high burden. Congress must demonstrate a substantial national problem of disability discrimination by states. Congress did not do so; in fact, the plaintiffs were only able to identify a few dozen examples of disability discrimination by states.

The issue here was simply what the law required, not what the outcome would be or who would win or lose. Mr. Sutton argued that the Supreme Court should simply follow the law and for that, he is now being accused of being insensitive to the disabled, as if it is "sensitive" to disregard the law. How can the rights of the disabled, or anyone else for that matter, be protected if those "rights" exist at the whim of a judge? If the judge decides whose rights get protected today, and whose tomorrow, no one has any rights at all.

Mr. Sutton simply argued that judges should follow the law no matter what the outcome or the parties involved, precisely what federal judges already take an oath before God to do. Mr. Sutton's insistence that judges follow the law is the strongest argument for his confirmation, not a reason to oppose him.

Mr. Sutton's leftist attackers want judges to disregard their oath, abandon the law altogether, and simply deliver the goods. They want a political judiciary imposing a political agenda the people and their elected representatives have rejected. On the one hand, they insist that imaginary constitutional provisions prevent state governments from doing things such as banning abortion, but here object to an actual constitutional provision preventing the federal government from allowing lawsuits against states.

Judges should stick to the law and let the people handle the politics. Mr. Sutton was right and had the courage to stick to these principles even in a politically sensitive case. He should be confirmed immediately.

Thomas L. Jipping is Vice-President for Legal Policy at the Free Congress Foundation.

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