I’m glad I’m not the only

September 28, 2005 at 2:48 PM (Uncategorized) (, , )

one who went ‘Huh?’ when this communication came out from www.aapd.com

“September 23, 2005 Dear Senator:

We write on behalf of the American Association of People with Disabilities(AAPD) and the National Council on Independent Living (NCIL) to express ourserious concerns about the nomination of John G. Roberts Jr. to replace thelate William Rehnquist as Chief Justice of the Supreme Court of the UnitedStates.

Previously, we wrote to Senate Judiciary Committee members on September 1,2005 to urge that they closely scrutinize the record of Judge Roberts in the area of disability rights at his confirmation hearings. We appreciate the bipartisan efforts to obtain a deeper understanding of Judge Roberts views concerning the rights of persons with disabilities and the recourse available to persons with disabilities when they encounter discrimination. In particular, we appreciate:1) The attempts by Senator Feingold to obtain clarification about JudgeRoberts approach to issues around definition of disability in the Americanswith Disabilities Act (ADA);2) Efforts by Senators DeWine and Specter to impress upon Judge Roberts theimportance of not second-guessing Congresss prerogative to develop legislation to remedy discrimination, as the Supreme Court unfortunately did in the 5-4 University of Alabama v. Garrett decision. 3) Senator Kennedy’s efforts to ascertain Roberts views on the precedent established in Tennessee v. Lane and to impress upon him the importance ofthe courts affirming the civil rights of persons with disabilities.

However, a number of questions remain unanswered. Does Judge Roberts agree with Justice Clarence Thomas that the Individuals with Disabilities Education Act is not a civil rights law? To what degree will Judge Roberts grant deference to Congresss legislative findings, rather than treating our elected legislature like a subordinate court? Does Judge Roberts agree with or reject the Olmstead majority holding that reasonable accommodationis sometimes necessary to achieve equal opportunity? Why did JudgeRoberts consider the lower court decisions in favor of a deaf student in theRowley case to be examples of judicial activism, and does he continue tohold the attitudes towards disability rights litigation that he expressed inthe memos about the Rowley and Wyatt cases? After four days of hearings, westill dont have the answers.We remain deeply troubled by Judge Roberts record on access to justiceissues. If he insists that Congress needs to explicitly declare a right tosue, it would undermine the right of individuals to hold authorities accountable for violations of their civil rights under the Medicaid statute and other federal laws. We are disturbed by the fact that his interventionsin and comments about a number of civil rights cases tend to reflect a desire to restrict legal remedies under a wide range of civil rights laws.We are further concerned that his references to judicial modesty and restraint could actually suggest that he is reluctant to impose federalenforcement upon states for violating the civil rights of individuals with disabilities.However, we do note on the positive side that in WMATA v. Barbour, Judge Roberts cast the deciding vote in favor of a decision written by DC Circuit Judge Merrick Garland upholding the constitutionality of the Section 504 requirement that state entities receiving federal funding not discriminateagaint persons with disabilities under the Spending Clause. Though we have no assurance that he would rule the same way at the Supreme Court level, weare encouraged by his willingness to affirm the validity of Section 504 inthe Barbour case.”

Here comes the “cave” moment. What did the two signatories or their organizations gain by saying this?

“If Judge Roberts were still being nominated to replace Justice Sandra Day OConnor, a perennial swing vote on disability and civil rights cases, our concerns about his disability record would take on even greater weight. But this is not the case. Though we continue to harbor serious concerns andmisgivings about Judge Roberts, he is now being nominated to replace the late Chief Justice Rehnquist. Since replacing Chief Justice Rehnquist with Judge Roberts is unlikely to result in a decisive alteration in the SupremeCourts ideological balance, we have decided, after considerable deliberation, that our serious concerns do not rise to the level of opposing his nomination.As you decide your vote, we urge you to give serious consideration to our concerns about Judge Roberts views and record on disability rights. Thankyou.

But, over at ADA watch:

“So because Roberts’ represents “business as usual” from a Court that has repeatedly ignored the intent of Congress and greatly weakened the ADA, we should not oppose him?
And never mind that Roberts has declared that the Rehnquist Court – despite repeatedly narrowing the scope of the ADA and weakening the civil rights of millions of Americans with epilepsy, diabetes, and other disabilities – was “not conservative enough.”
As a community, it is when we act as advocates rather than political strategists that we are truest to our cause. We must expect the same from those organizations whose mission it is to give voice to our movement.
Deciding that we will give a nominee a pass because he is of the same mold as his predecessor is simply an endorsement of the status quo of a Court that has repeatedly undermined the rights of Americans with disabilities.
Our greatest strength is the bipartisan nature of the ADA. If we stay true to the vision and values of the ADA – rather than political strategy and posturing – we will fight a stronger fight.
Many of us hoped that this nomination – especially juxtaposed with the failings of our government in responding to the poor as well as people with disabilities in New Orleans – would create the opportunity to start a national dialogue about the role of government in creating equal opportunity for all.
Fortunately, many Senators – both Republicans and Democrats alike – used the Roberts hearings as an opportunity to speak out against the Rehnquist Court’s savaging of the Americans with Disabilities Act and other civil rights protections. Sadly, however, the majority of their votes did not match their rhetoric.
With so much at stake for people with disabilities, the passing of the torch from one ideologue to another is not the time for silence from our community.
So – again this is not your usual action alert – continue to contact your Senators. Tell them what we have already lost and what continues to be at stake for us. (Contact info at http://www.Congress.org)
Use this process as a time to educate Senate staffers about our issues and about what we are facing in the courts.
Oppose Roberts and use his record to demonstrate the crucial need for a more moderate nominee to replace Justice O’Connor.
Contact your national disability organizations. If they don’t take positions on judicial nominations, tell them to do so. (IRS rules show that taking positions on judicial nominations is no different than advocacy on legislation).
If they do take positions, tell them to ignore the political strategy games in Washington and to simply support nominees who support disability rights and oppose those who don’t. ” [italics mine]

Next post I’ll grab a distillation of his record from ADA Watch


  1. ChrisWoznitza said,

    Hi I´m Chris. Greatings from Germany Bottrop !!

  2. ChrisWoznitza said,

    Hi I´m Chris. Greatings from Germany Bottrop !!

  3. imfunnytoo said,

    Guten Tag Chris! (I think.) I wish I knew more German. My stepfather is German.

  4. imfunnytoo said,

    Guten Tag Chris! (I think.) I wish I knew more German. My stepfather is German.

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