The Arc of the United States is actively opposing the nomination of Judge Brett Kavanaugh to the Supreme Court. It is rare for the national Arc to oppose judicial nominations. The last time the United States Arc opposed a judicial nomination was more than 30 years ago.
Its Chief Executive Officer, Peter Berns, says Judge Kavanaugh represents values and a philosophy that are regressive for individuals with developmental or intellectual disabilities. He is urging Arc chapters across the country to speak out against the Kavanaugh nomination to their U.S. Senators, asking them for a “NO” vote on his Supreme Court nomination.
In this interview with Catherine Strode, Peter Berns cites specific decisions written by Judge Kavanaugh that are found to be offensive by the national Arc. Berns says these decisions in the areas of health care, education, and employment threaten the independence and well-being of individuals with intellectual or developmental disabilities.
Why is Judge Kavanaugh’s record opposed by The Arc of the United States?
We have reviewed Judge Kavanaugh’s decisions where he has expressed positions that are contrary to people with intellectual or developmental disabilities and their families.
One of the primary examples is a case that speaks to his views about self-determination. It was a class action lawsuit brought by three women who were institutionalized. These three women were subjected to non-emergency surgical procedures without having any input into the decision. They were determined not to be competent to make decisions about their own health care. The U.S. District Court held that the District of Columbia had to consider their wishes as expressed through people who knew them as to whether they should have these elective medical procedures. The U.S. Circuit Court of Appeals reversed that decision, in a decision written by Judge Kavanaugh. He concluded these individuals should have these procedures without even being asked about their wishes. That is one case that has caused us a great deal of concern about his judicial philosophy. It’s not the only decision, but it was one we found greatly persuasive in our review of his record.
Have his decisions in education been negative to our community?
Yes. He authored an opinion that reversed a District Court Order, which required the government to provide compensatory services to a student who had been incarcerated in a Maryland prison. The lower court had found in favor of the student. But Judge Kavaunaugh in the Court of Appeals reversed the decision. He applied contract law, reaching the conclusion that the District of Columbia was relieved of its obligation because it was not practical for the provider to enter the facility.
As an attorney in private practice before he came on the bench, he represented Florida Governor Jeb Bush in creating the Opportunities Scholarship Program. It was a student voucher program allowing students to take public school funds to use for private schools or religious schools; the private schools were not required to provide the IDEA (Individuals with Disabilities Education Act) services. Judge Kavanaugh was part of the legal team that supported the creation of this program. That program was later struck down by the Florida Supreme Court as a violation of the state’s constitution. There are actions he has taken both on and off the bench having to do with education that have caused us concern.
Which of his decisions in health care and employment do you take issue with?
In the health care arena, the biggest concerns we have about Judge Kavanaugh’s record are positions he’s taken about the Affordable Care Act. The Affordable Care Act is one of the most important developments in the law for people with disabilities since the enactment of the American Disabilities Act. It’s important in guaranteeing people with preexisting conditions cannot be denied insurance coverage. There are also provisions in the Act that are extremely important for people with disabilities. Judge Kavanaugh, on three different occasions, has taken positions contrary to the Affordable Care Act. In one case, he was questioning the magnitude of it and whether it was in the scope of authority of Congress to enact. That position is of great concern. Should he get on the Supreme Court, there is risk they would not uphold its constitutionality. In relation to employment, there have been at least five cases that he was involved in that had to do with disability discrimination. Each had different legal issues, facts, and circumstances involved. But in all five cases, he sided with the employer as opposed to the employee who was citing discrimination.
How do you sum up the impact his appointment would have on people with intellectual or developmental disabilities?
The Arc does not often take a position on judicial appointments. We did not take a position on the appointment of Judge Gorsuch. We try to confine our analysis to only what is going to impact individuals with intellectual or developmental disabilities, their families, and organizations that serve people with IDD. While we are aware of considerations about civil rights, we try to be laser-like in our focus. We concluded there is good reason to be concerned that if he were to become a justice of the Supreme Court, his judicial philosophy runs counter to many of the values we hold important as the Arc. There is a sense of disregard in his judicial philosophy of the lives of people with intellectual or developmental disabilities, a disregard for their basic human rights, their dignity, their existence as individuals.
AdvocacyDenver urges our membership to contact Colorado Senators to state your concerns/opposition to Kavanaugh’s nomination and possible appointment to the Supreme Court:
Catherine Strode is Advocacy Denver’s Communications and Policy Specialist. She holds a Masters degree in Public Administration with an emphasis in Health Care Policy. Catherine publishes Policy Perspective, featuring interviews with state policy makers on issues that affect the work and mission of Advocacy Denver.