AAPD Final Letter to Senate on Alito Nomination

AAPD Final Letter to Senate on Alito Nomination
January 23, 2006

By Facsimile
------------

United States Senate
Washington, DC 20510

Dear Senator:

I write on behalf of the American Association of People with 
Disabilities (AAPD) to express our ongoing concerns regarding
the Supreme Court's approach to Congressional power to protect 
individuals with disabilities and others against discrimination 
by states. In cases like University of Alabama v. Garrett,[1]
the Court under Chief Justice Rehnquist has second-guessed 
Congressional findings undergirding critical civil rights laws 
like the Americans with Disabilities Act (ADA) in a manner that 
Chairman Specter has described as "inexplicable." 

In light of these concerns, and taking into consideration the 
approach Judge Alito took in two Third Circuit rulings 
questioning Congressional authority to require medical leave and
regulate machine gun possession,[2] we encouraged the members of
the Senate Judiciary Committee to explore with Judge Alito his
views of Congressional power to protect the rights of people
with disabilities under the Constitution. Although we continue
to have questions about whether replacing Justice O'Connor with
Judge Alito will result in an improved understanding of the
unique and proper role of Congress to make findings and craft
remedies when the states are violating the civil rights of
their own residents with disabilities, we note some hopeful
signs from Judge Alito's response to questions from Senators
Coburn, DeWine, Specter, and Biden at his confirmation hearings.

When asked by Senator Coburn to comment about what is important 
to him personally and how that influences his approach to cases, 
Judge Alito made several observations, including the following: 
"When I have a case involving someone who's been subjected to 
discrimination because of disability, I have to think of people 
who I've known and admire very greatly who've had disabilities, 
and I've watched them struggle to overcome the barriers that 
society puts up often just because it doesn't think of what it's 
doing  the barriers that it puts up to them." This statement 
gives us some hope that Judge Alito has a better appreciation of 
the nature of disability discrimination than some of the members 
of the current Court.

When asked by Senator DeWine to provide assurance that he would 
show appropriate deference to Congress when it makes the kinds
of findings that were found lacking in the Garrett decision,
Judge Alito stated that he thinks the judiciary should have
"great respect" for findings of fact that are made by Congress,
and noted that "the judiciary is not equipped at all to make
findings about what's going on in the real world" and that
"Congress  is in the best position to do that" because members
can hear directly from constituents, hold hearings, gather data
and expert testimony, and synthesize that information into
findings. Responding to a similar line of questions from
Chairman Specter, Judge Alito characterized Justice Scalia's
approach as representing "a very narrow interpretation of
congressional power." These statements provide some reassurance
that Judge Alito will not second-guess Congressional findings
regarding disability discrimination like Justices Scalia,
Thomas and O'Connor did in the Garrett case and like Justice
Scalia and Thomas have tried to do in subsequent cases.[3]

Finally, in discussing Judge Alito's analysis in the Chittister
case striking down part of the medical leave provisions in the
Family and Medical Leave Act, Senator Biden asked Judge Alito
if his analysis might have been different if he had taken into
consideration the disparate impact that inadequate medical leave
policies have on women because of maternity-related disability,
Judge Alito acknowledged that that argument had not been raised
or discussed when the case was considered, and Judge Alito
seemed open to how this argument might have resulted in a
different opinion in that case. We found Judge Alito's openness
to this alternate analysis as a hopeful sign that he will not
be rigid in his approach to Congressional authority if he
becomes a justice.

Before Judge Alito's confirmation hearings, we analyzed his 
record in the area of disability rights, and we found his record
to be mixed. We noted a number of positive rulings, particularly
interpreting the ADA and the Individuals with Disabilities 
Education Act.[4] Also noted are some rulings under the ADA and
the Fair Housing Amendments Act that we viewed as problematic.[5]
The confirmation hearings called attention to an additional 
positive ruling interpreting the Social Security Act raised by 
Senator Hatch, and a negative ruling under the ADA raised by 
Senators Durbin and Schumer.[6] Viewed as a whole, Judge Alito's
statutory interpretation of disability laws does not reflect an
overarching bias or sustained effort to restrict the scope or 
effect of critical laws like ADA or IDEA. His positive 
jurisprudence in this area gives us some hope that he might 
represent an improvement over Justice O'Connor, who was openly
critical of the ADA as a law that she viewed as having been 
"drafted too hastily" and "too vague."[7]  

Based on our analysis of Judge Alito's rulings and his answers
to questions at his confirmation hearings, AAPD has decided not
to oppose his confirmation. We note that a number of our sister 
organizations in the disability rights community are opposing 
Judge Alito, and we appreciate how their analysis of his record 
has led them to a different conclusion regarding what his 
confirmation would mean for the Supreme Court's future approach 
to disability rights. We share many of the concerns that have 
been expressed by some of our colleagues in the disability 
community. For us, however, there are enough positives in Judge 
Alito's record and responses to give us hope that he will move 
the court in a positive direction for our community.

Sincerely,

Andrew J. Imparato
President and CEO
American Association of People with Disabilities
_______________________________________________________________

[1] 121 Sup. Ct. 955 (2001) (5-4 decision with Justice O'Connor
    in the majority striking down parts of the ADA protecting
    the rights of disabled state employees).

[2] See Chittister v. Dept of Community & Economic Development,
    226 F.3d 223 (3d Cir. 2000) (striking down Congress's
    ability to make a state agency comply with the Family and
    Medical Leave Act's guarantee of up to twelve weeks of
    unpaid leave for personal illness), and U.S. v. Rybar,
    103 F.3d 273, 286-294 (Alito, J., dissenting) (arguing that
    Congress lacked authority, in the absence of specific
    findings, to regulate and ban intrastate possession of
    machine guns under the Commerce Clause).

[3] See, e.g., Tennessee v. Lane, 541 U.S. 509 (2004) (5-4
    decision upholding the ADA's requirements of equal access
    for parties to state judicial proceedings, with Justices
    Scalia and Thomas in dissent).

[4] See, e.g. Fiscus v. Wal-Mart Stores, 385 F.3d 378
    (3d Cir. 2004) (holding that cleansing blood and
    eliminating bodily waste is a major life activity for
    purposes of coming within the ADA's definition of
    disability, joined by Judge Alito); Mondzelewski v.
    Pathmark Stores, 162 F.3d 778 (3rd Cir. 1998) (ruling that
    supermarket meat cutter with limited education, training,
    and skills created triable issue of fact on the question of
    whether he was substantially limited in working due to his
    back injury, written by Judge Alito); Shore Regional H.S.
    v. P.S., 381 F.3d 194 (3d Cir. 2004) (reinstating ALJ
    decision that public school district failed to provide a
    free appropriate public education to disabled student who
    had been subjected to severe and prolonged harassment
    written by Judge Alito); Ridgewood Bd. of Educ. v. N.E.,
    172 F.3d 238 3d Cir. 1999 (overturning lower courts
    decision in favor of a school board, and holding that the
    IDEA imposes "more than a trivial educational standard,"
    and that compensatory damages under the IDEA not require
    bad faith or egregious circumstances, joined by Judge
    Alito; Beth V. v. Carroll, 87 F. 3d 80 (1996) (holding that
    express right of action exists under IDEA to challenge a
    state education department's failure to promptly
    investigate and resolve complaints, joined by Judge Alito).

[5] See, e.g. Katekovich v. Team Rent-A-Car of Pittsburgh,
    36 Fed. Appx. 688 (3d Cir. 2002, unpublished) (affirming
    the dismissal of an employee's ADA and FMLA claims after
    the employee's three-week hospitalization for depression
    and a sleep disorder, in part on the grounds that she did
    not meet the ADA's definition of disability, joined by
    Judge Alito); ADAPT v. U.S. Department of Housing and Urban
    Development, 170 F.3d 442 (3d Cir. 2002) (holding that
    HUD's failure to enforce the Fair Housing Amendments Act
    and related regulations is not subject to judicial review,
    joined by Judge Alito).

[6] See Thomas v. Commissioner of Social Security, 294 F.3d 568
    (3d Cir. 2002) (overturning lower court ruling denying
    disability benefits to a woman because of her ability to do
    her previous job as an elevator operator where that job no
    longer existed); Pirolli v. World Flavors, No. 99-2043
    (3d Cir. 2001) (unpublished opinion filed June 11, 2001,
    where Judge Alito dissented from opinion allowing claims of
    worker with intellectual disability who alleged same-sex
    harassment to survive motion for summary judgment).

[7] See Charles Lane, "O'Connor Criticizes Disabilities Law as
    Too Vague," Washington Post, March 15, 2002 at A-2, at
  www.washingtonpost.com/wp-yn/nation/specials/socialpolicy/ada/

    See also the George Washington University website:
    http://hermes.circ.gwu.edu/cgi-in/wa?
    A2=ind0203&L=vewaa&T=0&F=&S=&P=1822 for online article.
_______________________________________

Article can also be found on AAPD's website at:
http://www.aapd.com/News/SCvacancy/AAPDalito.htm

# # #

DISCLAIMER: The JFA Listserv is designed to share information 
of interest to people with disabilities and promote dialogue 
in the disability community. Information circulated does not 
necessarily express the views of AAPD. The JFA Listserv is 
non-partisan. 
 
JFA ARCHIVES: All JFA postings from 1995 to present are 
available at: http://www.jfanow.org/jfanow/
 
Gwen Gillenwater, Moderator, JUSTICE FOR ALL -- A Service of 
the American Association of People with Disabilities.
 
JOIN AAPD! There's strength in numbers! Be a part of a national
coalition of people with disabilities and join AAPD today at 
http://www.aapd.com.

                  Justice-For-All FREE Subscriptions
                     To subscribe or unsubscribe,
                send an email to majordomo@JFAnow.org
            with subscribe justice OR unsubscribe justice
                 in the body of your email message.