Stay up to date on the latest news and legislative alerts in mental health law: Email   ZIP For RSS readers

Judicial Nominations Update

Push to Seat Controversial Nominees Continues

May 21, 2008--As the Bush Administration draws to a close, the White House continues to push controversial judicial nominees for the federal courts.  Over the past seven years the White House has nominated and the Senate has confirmed federal judges who then issue hostile decisions weakening the Americans with Disabilities Act (ADA) and other protections for people with disabilities.  Some Senators are now urging the quick confirmation of a number of new nominees for the judiciary whose records exhibit a similar callousness regarding disability rights. 

Under longstanding Senate tradition, these controversial nominees should not be confirmed during this presidential election year.

Judges Chip Away at Disability Rights

Over the past decade, federal judges have chipped away at core protections that are of extraordinary importance to people with disabilities.  The courts’ attacks on the ADA have been so damaging that members of Congress on both sides of the aisle have introduced the ADA Restoration Act (ADARA) in an effort to restore rights that the courts have taken away.  Even if the ADARA passes Congress, however, it will address only one of the problems created by the courts – the shrinking of the group of people protected by the ADA.  Many other rights under the ADA, Section 504 of the Rehabilitation Act, the Fair Housing Act and the Medicaid Act have been rolled back by hostile federal judges. 

To date, President Bush has won Senate confirmation of nearly 300 judges to the federal courts, including 58 appeals court judges and two Supreme Court justices.  Many of these judges have gone on to author decisions that are of grave concern to the disability community.  For example:

• Bush appointee Michael McConnell recently found that a man with serious heart disease requiring two open heart surgeries and implantation of a prosthetic valve that prevented him from working during his postoperative period could not bring an ADA claim to challenge his termination because he had not produced sufficient evidence that he had a disability.  Zwygart v. Board of County Comm’rs of Jefferson County, 483 F.3d 1086 (10th Cir. 2007).

• Bush appointee William Pryor held that a woman with a mobility disability did not suffer retaliation when a state agency employee drove into her car after she had filed a complaint challenging that employee ’s refusal to accommodate her disability.  The employee had refused to permit her to wait in a shorter line designated for people with disabilities.  Higdon v. Jackson, 393 F.3d 1211 (11th Cir. 2004).

• Bush appointee Edith Brown Clement held that an employee with HIV disease was not a person with a disability and so was not entitled to any protection under the ADA.  Judge Clement refused to follow Supreme Court precedent holding that even asymptomatic HIV is a disability because it substantially limits reproduction, reasoning that the employee in this case was unable to have children.  Blanks v. Southwestern Bell Communications, Inc., 310 F.3d 398 (5th Cir. 2002).
• Bush appointee Michael McConnell held that the Medicaid Act’s requirement that states furnish medical assistance to all eligible individuals means only that states must pay for medical services, but not ensure that they are provided.  McConnell’s ruling meant that people with disabilities who were on waiting lists for home-based services for months and even years had no recourse under the Medicaid Act because the state had no duty to furnish the services promptly.  The ruling leaves all Medicaid recipients in Tenth Circuit states without any effective way to ensure that their rights to health care through the Medicaid program are protected.  Mandy R. v. Owens, 464 F.3d 1139 (10th Cir. 2006).

Current Controversial Nominees

As the Bush presidency comes to an end, there are now 12 federal appellate vacancies and 36 district court (trial court) vacancies.  The White House has submitted 31 nominations to the Senate to fill these seats.  Some Senators are urging the Senate to confirm several candidates with extremely controversial records on disability rights and other civil rights. 

• For example, the Bush Administration has nominated Gene E.K. Pratter, currently a district court judge, to the Third Circuit Court of Appeals. In one controversial case, Judge Pratter dismissed a disability rights group’s claims seeking to require the Philadelphia area transit authority to comply with the ADA by making two major subway stations accessible to people with disabilities. Judge Pratter held that the plaintiff’s ADA claims were barred because they were filed too late.  Disabled in Action v. Southeastern Pa. Transp. Auth., No. 03-CV-1577, 2006 WL 3392733 (E.D. Pa. Nov. 17, 2006).  Her ruling has been opposed by the United States Department of Justice on appeal, as it ignores the clear language of the ADA.  As a result of this ruling, individuals who use wheelchairs and other individuals with mobility impairments remain unable to use these critical transit access points.
• For the Fourth Circuit Court of Appeals, the administration has nominated Robert Conrad, who has never ruled for a plaintiff in an employment discrimination case while serving as a district court judge.  In one of his employment cases, in which an employee alleged that her supervisor verbally abused, humiliated and intimidated her, causing her to develop post-traumatic stress syndrome, Judge Conrad found for the employer, holding that “even if Roper intentionally caused a disability to frustrate Boggess’s performance,” the employee had not attempted to address the issue or request a reasonable accommodation.  Boggess v. Roper, No. 3:04-cv-92, 2006 WL 2569206 (W.D.N.C. 2006).
• President Bush has also nominated corporate lawyer Steve Matthews for the Fourth Circuit.  Matthews has no judicial experience; instead, he selected judges for the Reagan Administration and served on the board of an organization that nominated Rush Limbaugh for the 2007 Nobel Peace Prize.  He received a partial “Not Qualified” rating from the American Bar Association on his nomination.  

The “Thurmond Rule”:  A Senate Tradition

Some senators have threatened to “shut down” the Senate unless the nominations of Conrad and Matthews are processed.  Under longstanding tradition, however, the Senate has practiced the “Thurmond Rule,” whereby nominations are not processed in a presidential election year unless they are uncontroversial or otherwise have bipartisan support.  There are ample reasons to follow the Thurmond Rule this year: If the Senate continues to allow more judicial vacancies to be filled with controversial nominees, the courts will be packed with even more judges who are dismissive of or hostile to disability rights.  At the same time, the opportunity to fill these vacancies in 2009 under a new President – a President committed to strong disability rights laws – will be lost.  Appeals court judgeships, for example, become available only rarely.  Rather than risk filling a vacancy with the lifetime appointment of a nominee hostile to disability rights, the vacancy should be held open to help ensure that the rights of people with disabilities under the ADA and other disability rights laws are not weakened further.

Federal courts have inappropriately rolled back many important rights of people with disabilities.  The confirmation of controversial nominees who are hostile to disability rights must come to an end.  This year the Senate should follow its longstanding policy that nominations are not processed during a presidential election year unless they are uncontroversial or have bipartisan support.