Filibustering Priscilla Owen

Jon's right, no one person should have to counter all the propaganda in this editorial. I mean, did the NYT accidentally replace its editorial with a press release from the Democratic Party? Have they hired Comical Ali as the new Editorial Page Editor? Seriously.

Here's my contribution to countering this editorial. Among the outlandish accusations is this one:

The White House has culled the legal profession to find nominees with aggressive conservative agendas [including] Jeffrey Sutton, a lawyer who has severely set back the rights of the disabled

It is outrageous to accuse Jeff Sutton of pursuing an agenda to set back the rights of the disabled. It is even more outrageous to contend that such an agenda is a conservative agenda. The case for Sutton's antipathy to the disabled is almost entirely based on his argument in University of Alabama v. Garrett. To base the discovery of an "agenda" on a single case argued by a lawyer is foolhardy. To base it on that case is even worse.

First, this case had a limited effect on the rights of the disabled. As Justice Kennedy explained,

what is in question is not whether the Congress, acting pursuant to a power granted to it by the Constitution, can compel the States to act. What is involved is only the question whether the States can be subjected to liability in suits brought . . . by private persons seeking to collect moneys from the state treasury without the consent of the State.

The case, in other words, was only about lawsuits against the states, only about lawsuits by private persons against the states, only about lawsuits against the states by private people who wanted money. It allows a disabled person to get a court to stop discrimination by a state or anyone else. It allows a disabled person to sue a private company for money damages if the company discriminated against her. It even allows Congress to override this decision -- to allow private persons to get money from the states if the states discriminated against them because they are disabled -- if Congress shows some evidence that the states were discriminating against the disabled.

But beyond the limited reach of the opinion on the rights of the disabled, there is a more important reason this case does not demonstrate an antipathy to the rights of the disabled: it was an important case for other reasons. This case did not have large implications for the rights of the disabled, but it was part of the fight over how the Supreme Court is defining the relationship of the states and the national government. Federalism is what this case was about. Even Senator Leahy, who voted against Sutton, recognized that this case, and Sutton's "agenda," are about federalism and limited national government, not about antipathy for the disabled.

One can certainly, as Senator Leahy does, believe that Sutton's view of federalism is wrong. Many smart, educated, thoughful people do. And that, it seems to me is a good reason to vote against his confirmation. It can even be called part of a "conservative agenda." Mabye even an "aggressive conservative agenda." But accusing Sutton and consevatives in general of having an aggressive agenda of setting back the rights of the disabled is irresponsible and wrong. Especially for the "Paper of Record."
- posted by Tom Sawyer @ 9:46 AM