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August 24, 2005
Yoohoo! Where are you, gimp groups?
An Associated Press article in this morning's Washington Post headlined Specter Plans to Probe 'Judicial Activism' is one of the few stories I've seen that says anything about Supreme Court nominee John Roberts's views on disability rights. Actually the paragraphs in question aren't so much about Roberts's views on disability rights as about Senate Judiciary Chairman Arlen Specter's desire to hear the nominee on what Specter calls the Court's "judicial activism." The Court's 2001 ruling against the Disabilities Act in the Garrett case is, in Specter 's opinion, a prime example of that.
Congress had held hearings around the nation to support the ADA's passage, but the court said in the 2001 case that the legislative record simply "fails to show that Congress did in fact identify a pattern of irrational state discrimination," Specter said....
"Isn't there a lack of respect for Congress demonstrated by the Supreme Court...?" Specter asked.
Many members of Congress have been hot under the collar about this issue ever since the 2001 ruling. Good for Specter for taking it on! It's a chance to get Roberts's views on the ADA out in the open. And there's been way too little of that.
This news article is a good example of why that is. The part about the ADA cases comes fairly far down in the story, even though it's the "meat" of the story, and the news which occasioned the headline. The first part of the story -- the bulk of the story, in fact -- is devoted to women's groups' worries about the Roberts agenda:
Women's groups say Roberts should also face questions on their issues. Several groups scheduled briefings this week to highlight areas in Roberts' record they say are particularly troubling to women.
Note the "also" in that sentence. Although the meat of the story is about Specter and the ADA, in fact so many women's groups are out there yelling, holding news conferences, issuing statements, that their activism becomes part of the issue, even though in fact Specter's concern is about the ADA. AP reporter Jesse Holland devotes 5 of her 14 paragraphs to comments from women's groups. And she ends her story with this: "The liberal group People for the American Way was expected to announce its opposition to Roberts' nomination at a press briefing Wednesday."
Missing from the story, despite the meat, was anything about any disability group's worries. Why? Because they have no worries? Because Holland doesn't hear from them? Because they've issued no statements?
From where I sit it seems that no disability group has yet jumped into the fray about Roberts, even though, as I've written elsewhere, Roberts is very troubling for disability rights. The Bazelon Center has provided an analysis, but nobody to my knowledge has held a press conference or even called a reporter.
Unfortunately, this is just more of the same: when a bonafide national issue comes along which begs for crip groups to speak out, crip groups are mostly... missing.
I've never been able to figure out why this is. I'm sure Sen. Specter and the other Senators angry at the Court's snubbing of their ADA work would love to appear at a press conference organized by... ADA Watch, maybe? But so far, not much of a peep from any disability group. What are they waiting for?
COMMENT-AUTHOR:Anonymous
COMMENT-DATE:8/25/2005
COMMENT-BODY:A excellent point which is clearly stated.
COMMENT-AUTHOR:Lawrence
COMMENT-DATE:8/25/2005
COMMENT-BODY:See the following from the AAPD:
http://www.aapd-dc.org/News/SCvacancy/updateroberts.html
COMMENT-AUTHOR:Alan Toy
COMMENT-DATE:8/26/2005
COMMENT-BODY:Mary,
Thanks for asking. I have sent (email) letters to about a dozen key Senators, Republican and Democrat, detailing my fears about Judge Roberts. I asked them to present very specific disability related questions to him during the hearings. To date, only one - Senator Biden - has responded.
I'm pleased that Senator Specter is paying some attention to our issues and Roberts' dismal, but brief record in disability discrimination law.
But, you should also know that i am diligently sharing my knowledge about his rulings in cases that impact our community members with my colleagues on the board of the ACLU. Without getting too specific, the ACLU is fully including his track record on disability issues, along with a plethora of other shortcomings, in their briefs and statements, which are soon to be made public.
Some of us are on this, but, like you, I fear most of our community either doesn't get it, or doesn't care.
Keep up the good fight,
Alan Toy
COMMENT-AUTHOR:Keith Kessler - DAC
COMMENT-DATE:8/26/2005
COMMENT-BODY:I tend to disagree that no groups have spoken out and I'll enclose the last Press Release that a group my org belongs too has issued.
Keith Kessler - disabled Action committee (DAC)
VIRGINIAN'S FOR MAINSTREAM COURTS
FOR IMMEDIATE RELEASE: Contact: Ben Greenberg
AUGUST 5, 2005 804-467-8212
WHO IS JOHN ROBERTS?
Virginia Coalition urges release of all requested documents
Virginians for Mainstream Courts (VFMC), a diverse coalition of over a dozen organizations, urges Senators Warner and Allen to demand a full release of the documents pertaining to Judge John Roberts' years in the Reagan and Bush '41' Administrations. VFMC believes we have a right to know whether a Supreme Court nominee is committed to protecting the rights, freedoms and legal safeguards of every American. Judge Roberts' legal philosophy is of particular concern given his nomination to succeed Sandra Day O'Connor, a frequent swing vote on the Court.
Already, the Bush White House has said it will not turn over key documents related to Roberts' tenure as deputy to Solicitor General Ken Starr during the first Bush Administration. VFMC would argue that it is the Senate's duty to conduct a thorough and independent review of John Roberts, and that the Administration's refusal to be forthcoming with these documents severely undermines their ability to do so.
Precedents
Releasing internal Solicitor General and similar documents while considering the appointment of judicial and executive branch nominees is not unprecedented. As Senator Patrick Leahy stated on March 18, 2003 during Senate consideration of Miguel Estrada's nomination to the U.S. Court of Appeals for the District of Columbia, "Past administrations have provided such legal memoranda in connection with the nominations of Robert Bork, William Rehnquist, Brad Reynolds, Stephen Trott and Ben Civiletti, and even this Administration did so with a nominee to the Environmental Protection Agency."
Some examples of documents released to the Senate while considering confirmation of particular nominees include:
Robert H. Bork nomination to be Associate Justice of the Supreme Court
’ ¨¢ Memo from Solicitor General to the Attorney General on pocket vetoes (Bork nomination hearing record: S. Hrg. 100-1011, Pr. 1, at page 177).
’ ¨¢ Memo to the Solicitor General from the Assistant Attorney General, Civil Rights Division regarding appeal of Omaha school desegregation case. See Confirmation Hearings on Federal Appointments, Hearings before the Senate Committee on the Judiciary, Part 5, 107th Cong. 2nd Sess. (August 1, September 18, September 26, and October 7, 2002).
’ ¨¢ Memo to the Solicitor General from the Assistant Attorney General, Civil Rights Division regarding appeal of Demopolis City (Alabama) school desegregation case. See Confirmation Hearings on Federal Appointments, Hearings before the Senate Committee on the Judiciary, Part 5, 107th Cong. 2nd Sess. (August 1, September 18, September 26, and October 7, 2002).
William Bradford Reynolds nomination to become Associate Attorney General
’ ¨¢ Memo by William Bradford Reynolds, Assistant Attorney General, Civil Rights Division to the Solicitor General in a discrimination case (Reynolds nomination hearing record: S. Hrg. 99-374, at page 983).
Justice William H. Rehnquist nomination for Chief Justice
’ ¨¢ The Congressional Research Service (CRS), in its May 31, 2005 report titled "Congressional Oversight of Judges and Justices," indicates that several documents that William Rehnquist authored on controversial subjects when he headed the Office of Legal Counsel were released to the Judiciary Committee.
Despite White House claims that the documents from Roberts' time as deputy Solicitor General are protected from release by attorney/client privilege, history shows that to be false. Senators from President Bush's own party pushed for release of similar kinds of documents during the Whitewater investigation of the Clinton administration by Special Counsel Kenneth Starr.
In a Senate floor speech delivered on December 20, 1995 (Congressional Record at S18972) Senator Fred Thompson said:
[A]n invocation of the attorney-client privilege is not binding on Congress. It is well established that in exercising its constitutional investigatory powers, Congress possesses discretionary control over witnesses' claims of privilege. It is also undisputed that Congress can exercise its discretion completely without regard to the approach that courts might take with respect to that same claim. ’ ¨¶The Senate ’ ¨¶ has rejected invocations of attorney-client privilege on numerous occasions.
Senator Thompson continued:
Under Article I, section 5 of the Constitution, each House determines its own rules. And the rule of this body in connection with attorney-client privilege claims is longstanding and consistent: We balance the legislative need for the information against any possible injury.
That same day, Senator Orrin Hatch, during a Senate floor speech (Congressional Record at S18962), said:
No statute or Senate or House rule applies the attorney-client privilege to Congress. In fact, both the Senate and the House have explicitly refused to formally include the privilege in their rules’ ¨¶This body cannot simply take the President's claim of privilege against Congress at face value. To do so would be to surrender an important constitutional obligation.
VFMC is calling on the White House to give the Senate the tools it requires to do its job and provide access to all relevant documents. It is up to the Senate to determine whether Roberts will be a worthy guardian of Americans' rights and liberties. If the White House is truly committed to a fair confirmation process, it will play fair with the American people. The stonewalling must end.
Among the members of VFMC are: American Association of University Women of Virginia, Americans United for Separation of Church and State (Northern Virginia Chapter), Disabled Action Committee, National Council of Jewish Women ’ ¨ Virginia Sections, Planned Parenthood Advocates of Virginia, Sierra Club Virginia, Virginia National Organization for Women, Virginia Women Attorneys Association, Alliance for Justice, People For the American Way, and Religious Coalition for Reproductive Choice, as well as religious leaders and organizations from the labor community, the civil rights community, and the environmental community.
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COMMENT-AUTHOR:Mary Johnson
COMMENT-DATE:8/27/2005
COMMENT-BODY:In addition to your comments here, I've heard from ADAWatch and others who have told me what they're doing. See my blog entries here and here.
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Posted by mjohnson at August 24, 2005 10:07 AM