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Supreme Court work at issue as judge debated
THURSDAY, JANUARY 30, 2003

In defending his record to skeptical members of a Senate committee yesterday, one of President Bush's judicial nominees pointed to his work on a case that tribal leaders consider one of the most important to reach the U.S. Supreme Court.

As an attorney in private practice, Jeffrey Sutton and his Ohio law firm authored an amicus brief for the National Congress of American Indians (NCAI). The largest inter-tribal organization supported the Navajo Nation's $600 million breach of trust claim against an attack by Bush administration lawyers.

"It does not take a law degree to appreciate that a most fundamental breach of trust occurred in this case," Sutton wrote in the brief. "It does not take much common sense to reach the same conclusion."

Riyaz Kanji, a Michigan attorney who has represented several tribes, had nothing but praise for Sutton's involvement. In a letter to the Senate Judiciary Committee, he endorsed the controversial nominee for the 6th Circuit Court of Appeals.

Writing to Sens. Orrin Hatch (R-Utah) and Patrick Leahy (D-Vt.) last month, Kanzi said: "Mr. Sutton did not simply want to work on the matter for the small amount of compensation it would bring him . . . but that he instead had a genuine interest in understanding why Native American tribes have fared as poorly as they have in front of the Supreme Court in recent years, and in trying to help improve that record."

What was left out was Sutton's hand in creating that dismal record. During the Supreme Court's 2000-2001 term, when tribes lost five out of six cases, he helped carry the state of Nevada to victory in the Hicks case, widely regarded as an intrusion on tribal rights for its expansion of state police powers on reservations.

In a brief for the state, Sutton called for a limit to tribal sovereignty. "This case exposes --and, we respectfully submit, should establish-- an additional divestiture of tribal power," he wrote.

Sutton's work on the case was not brought up at his confirmation hearing yesterday. But Democrats raised others like it and said they outweighed his advocacy for clients that included tribes and a blind woman who was denied admission to an Ohio public college.

"We know you've advocated in different positions," said Sen. Chuck Schumer (D-N.Y.), who pressed Sutton to explain some of his views. Schumer in particular took offense at a brief he said was filled with "contemptuous" language.

Sutton was quick to note that the positions he advocated in the briefs were those of his client and were developed at earlier stages in the case, when he wasn't involved. He said it was "dangerous" for critics to assume otherwise.

Hatch, the chairman of the committee, rushed to Sutton's defense when Schumer said he wasn't satisfied with the nominee's "sophistry." "He's making the point that his views are irrelevant when he becomes a judge," Hatch argued.

Should he be confirmed, Sutton would have little chance to prove that, at least in terms of Indian law cases. The 6th Circuit covers Michigan, Ohio, Kentucky and Tennessee but only Michigan has federally recognized tribes.

Sutton Briefs:
NCAI: Navajo Nation v. U.S. | Nevada: Nevada v. Hicks

Today on Indianz.Com:
Appeals court nominees draw fire (1/30)

Relevant Links:
The Senate Judiciary Committee - http://judiciary.senate.gov
Federal Judicial Nominees, DOJ - http://www.usdoj.gov/olp/nominations.htm

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