Kavanaugh Nomination Is Dangerous for Disability Rights Community
By Katherine Perez | Sep 07, 2018
As an attorney and judge, Brett Kavanaugh has done everything in his power to limit the rights of people with disabilities. As a Supreme Court justice, he would have the ability to do even more damage, rolling back decades of progress in the field of disability rights—and civil rights more broadly.
As a disabled Latina, I’ve watched these hearings with my life and personal autonomy at stake. The disability community shudders at the possible elevation of Kavanaugh to the nation’s highest court. In these times, disability advocates are fighting to fully obtain and keep the most basic of our rights—such as health care and personal autonomy. People with disabilities continue to experience cuts to Medicaid, a program that means the difference between living in the community and being institutionalized (and for some, life or death) and threats to the Affordable Care Act, including the provision protecting individuals with pre-existing conditions.
The ADA Education and Reform Act of 2017, which passed the House this earlier year, would significantly weaken the Americans with Disabilities Act (ADA). Although the vast majority of Kavanaugh’s records have not been made public, his jurisprudence offers a glimpse into his philosophy.
In Doe Tarlow v. District of Columbia, a 2007 D.C. Circuit Court of Appeals case, three people with intellectual disabilities living in an institutional setting in Washington, D.C., believed their due process rights were abridged when doctors would not consider their wishes in elective surgeries. This case highlights the attacks against disabled individuals’ dignity in medical decision-making and gives doctors and others sole authority over people’s lives. Kavanaugh’s opinion undermined the self-determination of people with intellectual disabilities to consent to elective surgeries.
Disability groups also point to Kavanaugh’s record of giving deference to employers in disability discrimination cases Disability groups worry in particular about his dissent in Miller v. Clinton, a 2012 Age Discrimination in Employment Act (ADEA) case that ruled against a mandatory retirement age for State Department workers.
Kavanaugh disagreed with the majority that “extremely important” federal statutory proscriptions against age, disability, race, religion, and sex discrimination prevented the termination of a 65-year-old employee. Additionally, Kavanaugh dissented in a ruling upholding the ACA, which is crucial to the well-being of disabled people, and has demonstrated his aversion to administrative regulations and enforcement of civil rights laws. Administrative agencies—such as Health and Human Services, the Departments of Justice and Education, and the Equal Employment Opportunity Commission—play large roles in the interpretation, implementation, and regulation of disability rights laws.
Itis no surprise that Kavanaugh’s nomination to the high court comes from a scandal-plagued president who went along with the Federalist Society’s choice of a white male judge—one who is on record as stating that a sitting president should not be subject to investigation. This is a judge who will assuredly undermine Roe v. Wade and the Affordable Care Act, weaken federal civil rights regulations, defer to corporations, and set American democracy back.
Advocates for people with disabilities do not know much more about Kavanaugh’s views on disability. I am not persuaded by his statements that he is the type of judge who puts himself in others’ shoes and is deeply impacted by his work giving food to the homeless, many of whom have mental disabilities.
People with disabilities do not need charity from those who would go on to dismiss our opinions. What the disability community needs more than leaders who purport to empathize are leaders who are disabled themselves—and we need them at every level of the judiciary, including the Supreme Court.
Progressives fighting the Kavanaugh nomination should be appalled by the fact that the professional track to the Supreme Court weighs heavily against disabled individuals. The National Association for Law Placement reported last year that there are on average 0.6 percent or fewer attorneys with disabilities in American law firms. Individuals with disabilities are underrepresented as attorneys, judges, politicians, and countless other professions that ultimately decide the fate of people with disabilities.
There are a number of good initiatives and programs designed to support law students and attorneys with disabilities, including the ABA Commission on Disability Rights Internship. There are scholarships for law students with disabilities and the ABA Pledge for Change: Disability Diversity in the Legal Profession, which calls on law firms to affirm their commitment to disability diversity in the profession.
In November, the Loyola Law School in Los Angeles, part of Loyola Marymount University, also will launch a Center for Disability Law, Policy, & Innovation that I will head. The center seeks to increase the numbers of attorneys with disabilities. This is progress. Still, more needs to be done.
Whether or not Kavanaugh moves to the high court, his confirmation hearings give Americans the opportunity to take stock of how far we have come and how far we have to go: What kind of investment is being made in our next leaders in disability rights—disabled law students, attorneys, and judges? A decade from now, when we are litigating disability rights at the highest court, will Kavanaugh—and all the other attorneys and judges being groomed for the Supreme Court—understand our experiences?
I don’t know about you, but I want at least one disabled judge on the high court who believes that disabled people deserve equal rights. This is the time that matters. The disability rights movement continues to pursue fairness and equality, especially in the court system where the laws that affect our lives are made.