Federal appeals judge is swing vote on key issue

AP News
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Posted: Nov 07, 2014 11:08 AM

CINCINNATI (AP) — Once again, Judge Jeffrey S. Sutton was the unpredictable man in the middle on a major national issue.

The 2003 George W. Bush appointee who stunned some conservatives three years ago by ruling in favor of President Barack Obama's health care overhaul also wrote the majority opinion Thursday in a 2-1 decision by the 6th U.S. Circuit Court of Appeals that upheld anti-gay marriage laws in Ohio, Michigan, Kentucky and Tennessee.

Sutton wrote that such a major social change as redefining marriage should be decided through the political process, not the courts.

He said it is better to have change "in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way."

The decision was at odds with rulings by four other federal appeals courts, creating a split that dramatically increases the likelihood the U.S. Supreme Court will take up the issue.

The 54-year-old Ohio State University law school graduate has a reputation among lawyers and court-watchers as a thoughtful and thorough jurist whose conservatism doesn't automatically mean conservative rulings.

Sutton was the first Republican-appointed federal appeals court judge to give support to the Obama health care overhaul.

"By most accounts, he's considered a conservative judge, yet he ruled against us in the Obamacare case," said Robert J. Muise, attorney for the American Freedom Law Center. "I think it showed he's a judge of integrity in the sense that he's going to rule on the way he thinks the law is, not based on what somebody thinks he should rule."

University of Richmond law professor Carl Tobias said Thursday's ruling again shows Sutton "tries to call them as he sees them," and demonstrates a belief that "the voters and elected branches, rather than unelected judges, should make changes like marriage equality."

During Aug. 6 arguments in Cincinnati, in which the panel heard six cases from four states in the biggest hearing of its kind on the issue, Sutton's questions and comments made it apparent he would be the swing vote, if not which way he was headed.

Judge Deborah Cook, also a George W. Bush appointee, appeared clearly in favor of the states' arguments, while Judge Martha Craig Daugherty, appointed by Democratic President Bill Clinton, insisted that it is right for the courts to intervene when people are being deprived of their constitutional right to equal treatment.

Some of Sutton's questions signaled his eventual ruling, as he asked attorneys for same-sex couples whether the courts are the best place for legalizing gay marriage.

"I would have thought the best way to get respect and dignity is through the democratic process," Sutton said during the arguments.

Sutton expressed a similar philosophy in the 2011 health care ruling, concluding Congress had the right to require people to buy health insurance or face a penalty. He wrote that time would show the strengths and weaknesses of the mandate, "allowing the people's political representatives, rather than their judges, to have the primary say over its utility."

Sutton, state solicitor for Ohio in the late 1990s when Republican George Voinovich was governor, got his bachelor's degree from Williams College and his law degree in 1990. He clerked for Supreme Court Justices Lewis Powell and Antonin Scalia. The conservative Scalia a few years ago called Sutton "one of the very best law clerks I ever had."

Bush nominated him to the federal bench in 2001, but because of liberal opposition, he wasn't confirmed until 2003.

California Sen. Dianne Feinstein, was one of only two Democrats to support his appointment to the appeals court, praising him as "bright, well-qualified."

"I don't think this man is going to be a biased judge," she said at the time.

One of his former 6th Circuit clerks, Harvard Law School lecturer Leah Litman, said Sutton was tireless in working out his opinions, spending countless hours reading old rulings and seeking feedback from clerks and colleagues on arguments and counter-arguments.

"He really is everything you would want a judge to be," she said. "He made me believe in the law."

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