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From: "Griffin Clarence (Dick)" <[log in to unmask]>
To: "DisAbility. gov (E-mail)"
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        "disability-l (E-mail)"
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Subject: FW: Jeffrey Sutton's nomination
Date: Thu, 10 May 2001 10:18:49 -0400
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        From:   Gian-Carlo A. Peressutti, Whitehouse Liaison's Office
        Sent:   Wednesday, May 09, 2001 6:22 PM
        Regarding:      Jeffrey Sutton's nomination

        Ladies and Gentlemen,

        Many of you have written, emailed, phoned, visited etc. to express
your
        opinion regarding The President's intention to nominate Jeffrey
Sutton for
        a judicial appointment.

        The White House certainly understands many of the issues you've
raised in
        opposition to Mr. Sutton.  Indeed The President himself stood firmly
in
        support of ADA compliance and against  the position Mr. Sutton
argued in
        the Garrett case.  We would ask you, however, to consider the
following
        information before rendering final judgment on this experienced and
        qualified man of integrity.

        Here are some quotations from the opening brief in Garrett.  The
brief was
        authored by Sutton.  These quotations plainly indicate that Sutton
is not
        insensitive to the rights or interests of the disabled and indeed is
not
        unsympathetic to the overall goals of the ADA:

             "[A]ll 50 States prohibit government-based discrimination
against the
        disabled and, more, affirmatively require all manner of employment
and
        public-access accommodations designed to provide the disabled with
the kind
        of equal opportunity and dignity that all individuals deserve.  The
federal
        government, to its credit, does likewise.  The United States
Constitution
        places few if any limitations on the passage of such sensible
measures, be
        they Federal laws applicable to its employees and its services or
        equivalent State laws."  (at 2) (citation and paragraph break
omitted)

             "The ADA advances a commendable objective -- mandatory
accommodation
        of the disabled -- and does so at the end of a lawmaking process
that is as
        deserving of respect as each of the State lawmaking processes that
it
        purports to displace."  (at 3)

             "The States have not been alone in addressing these issues.  To
the
        National Government's credit, many Federal laws provide support and
        rehabilitation for disabled individuals, many others create civil
rights
        for the disabled, and still others provide extensive funding for
national
        and local efforts designed to remove barriers to full participation
by the
        disabled in a diverse array of public and private services."  (at
10).

        From the Garrett reply brief:

             "The Commerce Clause generally permits Congress to enact
national
        employment and public-access standards regarding the disabled.  And
no
        aspect of the Constitution, whether the Tenth Amendment, the
Eleventh
        Amendment, or any other, bars Congress from making these national
        requirements applicable to most government employees and to most
government
        services, if indeed not to all of them.  That means Congress may
make every
        affirmative-accommodation requirement, every disparate-impact test,
every
        public-access mandate, and every other standard established by the
ADA
        applicable to most if not all state employees.  And that means
Congress may
        authorize federal-court actions against state officials to enforce
these
        statutory standards, and may require non-complying States to fund
the costs
        and fees of bringing such actions."  (at 1)

             "At stake in this litigation then is not whether Congress may
enact
        'national legislation comprehensively prohibiting discrimination on
the
        basis of disability' in the private and public sectors.  It may, and
it
        has.  That is why petitioners do not challenge Congress's authority
to
        permit Ms. Garrett or Mr. Ash to file an action against state
officials to
        obtain their original job back or to obtain a reasonable
accommondation in
        their current one.  What separates the parties is not compliance
with a
        national standard, but whether claimants may obtain retroactive
relief from
        a state treasury above and beyond that compliance."  (at 2)

             "The fact is, society's vital quest for equality, integration,
and
        dignity of the disabled has never been about money damages.  To the
extent
        the disabled have ever asked for anything more than the government
already
        provides all citizens, it has always been about the forward-looking
        objective of removing barriers to access, not the backward-looking
        objective of erecting special private-damages actions."  (id.)

        On a related note, Jeff's father ran a school for children with
        cerebral palsy for ten years.

        And here are some excerpts from a brief that then-Solicitor Jeff
Sutton
        wrote
        arguing that Case Western Reserve University violated Ohio's
discrimination
        laws by denying medical school admission to a blind person.  The
case was
        Ohio Civil Rights Commission v. Case Western Reserve University.
Although
        the position Jeff advanced did not prevail (our other Ohio Sixth
Circuit
        nominee, Deborah Cook, wrote the opinion rejecting his position),
his
        arguments plainly
        illustrate sensitivity to challenges facing disabled persons.

        "At a time when legislatures and courts across the country are
facilitating
        the important strides that handicapped individuals are making to
overcome
        their physical limitations, Case Western invites the Court to
embrace its
        per se prohibition against the admission of blind medical students.
This
        invitation to undermine the goals of inclusiveness established by
the
        handicap-discrimination statutes should be flatly rejected.  Not
only would
        acceptance of this hard-nosed position set back impressive strides
that
        have already been made in this area, but it would also violate the
letter
        and spirit of the discrimination statutes."   (Reply Br.
introduction)

        "[If across-the-board statutory exemptions are permitted], blind
people
        will never receive the benefits of the handicap statutes when it
comes to
        medical school or the practice of medicine, a conclusion that is
        dramatically at odds with the liberal construction that this type of
        remedial statute should receive."  (Reply Br. at 7).

        "[The University] quickly jumped to the conclusion that it would be
        'ridiculous' to permit a blind student to go to medical school, no
matter
        how talented or how ambitious the student happened to be.   Having
rushed
        to this judgment, it comes as no surprise that the school did little
more
        investigation on this second application of what reasonable
accommodations
        could be made to allow Ms. Fischer to matriculate.  This glaring
failure to
        investigate is itself violative of the anti-discrimination laws, and
indeed
        bespeaks the very king of stereotypical attitudes that this statute
was
        designed to curb."  (Br. at 13)

        "Accommodations plainly exist that would allow [the applicant,
Cheryl
        Fischer,] to realize the principal benefit of Case Western's medical
school
        curriculum and that would not have imposed an undue burden on the
school."
        (Br. at 19)

        "The existence of 24 blind physicians is proof positive that blind
people
        can practice medicine and indeed reap the benefits of a medical
degree."
        (Br. at 23)

        Many thanks and I hope to see you all at the NCIL conference next
week.

        Gian-Carlo Peressutti
        Associate Director
        White House Office of Public Liaison