“Vote as If Your Life Depends on it, Because it Does!!!” – Justin Dart
Last week, at a Missouri rally for Republican Vice Presidential Candidate Sarah Palin, whose rhetorical commitment to be a voice for families with “special needs children,” has gained a great deal of public attention, Senator Kit Bond (R-MO) unwittingly called attention to a very important disability policy distinction between Senators McCain and Obama: Whereas Obama has committed to appointing judges who inform their interpretation of the law with a real-world sense of empathy for the societal barriers faced by disadvantaged groups such as people with disabilities, Senator McCain has vowed to appoint so-called “strict constuctionists” such as Antonin Scalia, who claim to apply the law and the constitution as they are written, but often go to great lengths to interpret the law in the manner that most drastically limits civil rights protections.
Just this past week, we saw what Barack Obama said about judges. He said, ‘I’m tired of these judges who want to follow what the Founding Fathers said and the Constitution. I want judges who have a heart, have an empathy for the teenage mom, the minority, the gay, the disabled.’ … He thinks this country should be a government—not a government of laws, but a government of compassion and empathy, not of laws.
Here’s what Obama actually said when spoke to Planned Parenthood in the Summer of 2007, "We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old. … I am absolutely convinced that Culture Wars are just so ’90s. Their days are growing dark." He didn't say judges shouldn't follow the law, he simply said that they should apply the law with a sense of empathy... I wholeheartedly agree!!!
The Federal Judiciary and ADA Restoration
Why, some may ask, is it important to have judges who apply the law with empathy for people with disabilities? Because all too often in recent years, when left to their own devices, judges, invoking the mantra of strict constructionism have invented doctrines out of thin air, twisted the language of the Americans with Disabilities Act beyond recognition and substituted their own interpretations of the law in place of Congress’ original intent. This necessitated the passage of the ADA Amendments Act earlier this year to restore the original protections of the landmark 1990 disability rights legislation. As Senator Tom Harkin (D-IA) explained at the July 26th National Forum on Disability Issues in Columbus, Ohio:
There are powerful forces that want to take us backward, and that are, indeed, taking us backward. A series of Supreme Court decisions have greatly narrowed the scope of who is protected by the ADA. As a result, people with conditions that common sense would tell us are disabilities are being told by courts that they are not, in fact, disabled, and, therefore, not eligible for the protections of the law.
When I explain to people what the Supreme Court has done, they're shocked. They can't believe it. Well, you've got to believe it. What the court says are not to be considered disabilities under the law are these…. Under the Rehabilitation Act that we're all familiar with, it listed certain disabilities -- and under the ADA of 1990, things like amputation, epilepsy, intellectual and developmental disabilities, muscular dystrophy, multiple sclerosis, diabetes, vision loss, cancer, depression, asthma, heart disease, are all listed as disabilities.
But because of the Supreme Court decisions, they are no longer. Amputation is no longer a disability. Epilepsy is no longer a disability. Intellectual and developmental disabilities are no longer a disability. Diabetes, vision loss, cancer, depression, asthma, heart disease, all of which were disabilities before now no longer, according to the Supreme Court, are disabilities. It boggles the mind that any court would rule, for instance, that multiple sclerosis or muscular dystrophy are not disabilities but that's where we are today, my friends. And, why, because of an activist conservative majority on the Supreme Court that in ruling after ruling has been gutting key elements of the Americans with Disabilities Act.
When asked by Moderator Judy Woodruff for his reaction to Harkin’s warning about right wing judicial activism against disability rights, Senator McCain deflected blame from the conservative judges he admires to Congress:
Well, I think that the problem is not with the United States Supreme Court, no matter what their inclinations; the problem is the way we wrote the legislation. The job of the United States Supreme Court is not to make laws; their job is to make sure that the constitution of the United States is adhered to and that laws passed are in adherence to the constitution of the United States. So, in all due respect, I would put the blame right back on us for not writing legislation that is strong enough and specific enough so that the Supreme Court wouldn't even have to consider these cases.
Since McCain did not and has not identified any specific drafting flaws in the original ADA or deviations from constitutional principles, his contention falls flat. Though it is commendable that he joined Senators Obama and Harkin in supporting the ADA Amendments Act, his declaring judges who have undermined the Americans with Disabilities Act to be models for his future judicial appointments is an ominous indicator that these hard-won gains could soon come under attack.
McCain’s Model Judges
This brings us full circle to the issue of the type of judges McCain has said he would consider as models when making future nominations as President. And one stark example tells us all we need to know: McCain has said that his model judge is Supreme Court Justice Antonin Scalia.
Scalia’s hostility to disability rights is well documented: He was part of majorities that made the ADA Amendments Act necessary by gutting the definition of disability in the 1999 Sutton trilogy of cases with the finding that people with disabilities who were making use of “mitigating measures” to address their conditions were not covered by the ADA . He was also part of the Supreme Court majority in 2002 that ignored the original intent of the ADA by ruling in Toyota v. Williams, the definitions of disability and major life activity had to be “interpreted strictly” and by redefining the term “substantially limited” to make it far harder for persons with disabilities to be covered by the ADA in employment cases. Ignoring the legislative language of the ADA, Scalia and his colleagues ruled that “to be substantially limited in performing manual tasks, an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives.”
However, Scalia set himself apart from his colleagues in his flagrant display of his hostility to disability rights during the oral arguments of Tennessee v. Lane, a 2004 case in which Tennessee contended that people with disabilities could not sue states for damages under the ADA even when they were denied the fundamental right of access to the courts. According to the Los Angeles Times account,
Scalia said he saw no constitutional reason why state agencies cannot discriminate against persons he referred to as "handicaps."
Scalia went even further, contending that states denying people with disabilities accessible polling places was not a fundamental violation of their rights. Read this passage from the transcript
Inaccessible voting place proves nothing at all. It just proves that the state did not go out of its way to make it easy for the handicapped to vote, as it should, but as it is not constitutionally required to do. To simply say many voting places are inaccessible proves nothing at all.
Scalia was no less callous in these oral arguments when it came to matters of access to education for children with disabilities. In fact many media observers were shocked and appalled by Scalia’s open contempt for the rights of people with disabilities and his perjorative language.
No wonder that the fact that McCain identified Scalia in an March 5, 2007 interview with the National Review Online, when asked "Are there any members of the current Supreme Court that you particularly admire or regard as a model?" is distressing to disability advocates across the nation. It is profoundly disturbing that McCain would characterize a Supreme Court Justice who has been documented to display such contempt for the rights of Americans with Disabilities, and who claims it is perfectly acceptable for states not to make polling places accessible for people with disabilities as “a model” or someone whom he particularly admires. This should trouble any member of the disability rights community who thinks that McCain considers the needs of Americans with Disabilities as a priority.
