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Sutton Nomination Threatens to Wall Out People with Disabilities
by Eve Hill, Western Law Center for Disability Rights
November 1, 2001
Former President George H. Bush signed the Americans with Disabilities Act (ADA) into law on July 26, 1990, declaring "Let the shameful walls of exclusion finally come tumbling down." Nearly 11 years later, his son, George W. Bush, is creating a federal judiciary that is poised to rebuild those walls, using "federalism" as a battering ram. In theory, federalism represents a balance between federal regulatory power and the states' power to regulate themselves. In recent judicial practice, it represents an activist effort to cut back individual rights by claiming the states have the right to decide how to treat their citizens without federal intervention.
The Senate will soon conduct hearings on Jeffrey Sutton's nomination to the Sixth Circuit Court of Appeals, which covers Kentucky, Michigan, Ohio, and Tennessee. Sutton is slated to be one of the leaders of the judicial attack on the ADA. He is an avowed "federalist" and supporter of "states' rights." He is also the man who, in October 2000, led the successful effort of state governments to cut back the ADA in University of Alabama v. Garrett.
Sutton has devoted his career to advancing a theory of federalism that places the rights of state governments above the rights of individuals. Under this theory, the states have a constitutional right to carry on their business without federal government interference. Because federally recognized individual rights, such as civil rights, impose limits on state action, Congress should not be allowed to enact them. Instead, Sutton would let states determine what rights their citizens should have.
Sutton's theory, applied just 40 years ago, would have allowed Southern states to keep public schools, pools, buses, and bathrooms segregated. Applied 140 years ago, it would have allowed states to continue enforcing slavery. Today, it will allow state governments to refuse to hire people with disabilities, to deny services to the elderly, and to deny public benefits to people because of their religion.
In Garrett, Sutton claimed that Congress lacked the constitutional power to sanction disability-based discrimination by state governments. Mr. Sutton argued that prohibiting disability discrimination by state governments was "not needed," that state government discrimination was not serious enough to arise to a constitutional violation, and that discrimination on the basis of disability was reasonable. Mr. Sutton even claimed there was no evidence of discrimination by state governments against people with disabilities. He dismissed state sponsorship of the eugenics movement, which forcibly sterilized people with disabilities, as insufficient evidence of discrimination.
Nor was Mr. Sutton simply taking the position required by his client. Rather, Mr. Sutton has made his career by seeking out opportunities to limit individual rights and broaden federalism. As Mr. Sutton, himself, has said, "I love these issues. I believe in this Federalism stuff." (Tony Mauro, An Unlikely High Court Specialist, Legal Times, Nov. 2, 1998 at 8).
This is not his first, or his last, attack on disability rights. In Olmstead v. L.C. Sutton represented the state of Georgia trying to keep people with mental disabilities in institutions, even when all their doctors agreed that community-based treatment was more suitable and less expensive. Sutton argued to the Supreme Court, unsuccessfully, that unnecessary institutionalization was not a form of discrimination.
In Alexander v. Sandoval, Sutton argued that individuals should not be allowed to enforce their rights under federal funding statutes. Therefore, recipients of federal funding would be free to discriminate on the basis of race, disability, religion, and national origin, in spite of the federal laws that prohibit them from doing so. The Supreme Court accepted this argument in the context of race. We will soon see whether Sutton's analysis is applied to disabilities, education, and Medicaid.
Unlike most political acts, this one cannot be undone when the administration changes. With life tenure, Jeffrey Sutton will enforce his anti-individual rights opinions from the bench for as long as he lives. He and his federalist friends will rebuild the walls - and stairs and gates - that exclude people with disabilities and others from their communities. And those barriers may never come down again.
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