(The Return of) Ignatz, by Sam Heldman

Wednesday, January 29, 2003

Sixth Circuit nominee Jeffrey Sutton
If the Associated Press's reporting of his testimony in his confirmation hearing can be believed, Sixth Circuit nominee Jeffrey Sutton is not being quite honest with the Senate. According to the AP, which is paraphrasing rather than quoting, Sutton told the Senate Judiciary Committee that "he was only arguing for his clients' views and not for his personal positions" in the cases where he has driven the anti-civil rights "federalism" train in the Supreme Court. How would he square this with his earlier statement to noted legal reporter Tony Mauro, quoted (e.g.) here, that he "loves" and "believes in" the arguments that he's making in these cases and that he seeks the cases out? Which Senator will cross-examine him on this? As I've said before, there's nothing wrong with being a "cause" lawyer; I'm one, when I can be. It just matters what causes you advocate, and (now) whether you're candid about it.

UPDATE: This story from the NYT confirms the impression that Sutton's posture -- on his own, and through helpful Republican Senators -- was "I was just being an advocate." And it seems that Senator Leahy, to his credit, knows that this is inconsistent with Sutton's past statement(s). But none of this seems to matter -- except possibly when it comes to filibuster time on the Senate floor -- because the Republicans have escalated even the already-high partisan manouevering to ensure that they get their nominees to the floor without even a good hard look in a hearing. Surely no one can claim, now, that Senator Hatch is anything other than a deeply partisan warrior.

Let me make clear, also, that "I was just being an advocate" is sometimes the truth for lawyers. Some cases I have worked on, I have done so for reasons other than a belief that my client was demonstrably "right" in a moral sense; I did what lawyers do, which is to provide zealous representation to achieve the client's lawful goals. But by the same token, when I represent labor unions, year after year, in case after case, I don't pretend to anyone that I am "just being an advocate". Some lawyers are "cause" lawyers, others are not. Sutton is one, by his own (past) admission. And -- just as Justice Scalia now feels comfortable giving a speech indicating how he'd vote on future First Amendment religion cases -- Sutton should be candid enough to say, "yes, I am a true believer in this stuff, just as I said a few years ago." Then the Senate could have an honest vote over whether we need more true believers like that on the federal bench.

posted by sam 1:30 PM 0 comments


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