Content Warnings: Ableism in Politics, Mention of Sexual Assault
When Supreme Court Justice Anthony Kennedy retired earlier this year many people feared that the Court, upon the appointment of a judge by President Trump, would be positioned to be more conservative than it has been in generations. Those fears were largely confirmed when Donald Trump announced Brett Kavanaugh as his nominee for Supreme Court. Kavanaugh previously worked in the DC Federal Circuit court with former Obama Supreme Court nominee Merrick Garland serving as his boss. Kavanaugh graduated from Yale and was known as a staunch conservative and member of the Federalist Society, a group which promotes conservative thinking in legal settings.
Kavanaugh has written several troubling opinions that would concern the Disability community, but nothing compares to his decision in the case of Doe Tarlow vs. District of Columbia. The case, which was brought originally in 2003, sought to compel the District to use what is referred to as the “known wishes” standard versus what was then the standard, a “best interest” standard that the District should use when deciding what surgeries an intellectually disabled adult should have. The “known wishes” standard would try to explain the surgery in language that an intellectually disabled adult could understand so their wishes and desires would be taken into account. The “best interest” standard in this case only meant that two doctors would have to agree that the surgery was in the best interest of the intellectually disabled adult, and would not be compelled to even discuss the surgery with the intellectually disabled adult who was going to undergo the procedure. The DC court initially ruled that the “known wishes” standard was most appropriate. During the case’s 2007 appeal, Kavanaugh made the argument that the “best interest” standard was sufficient for the legal rights of intellectually disabled adults. Many groups have come out against the nomination of Brett Kavanaugh, including but not limited to the American Association of Disabled People (AADP), The Bazelton Center for Mental Health, The Arc, The Association of University Centers on Disability (AUCD), The National Council on Independent Living (NCIL), and the Disability Rights and Education Defense Fund (DREDF). It’s clear to see why. It’s dehumanizing and unfair for Kavanaugh to have made a legal case that an adult who may not be competent to make a medical decision shouldn’t even have wishes about their care followed. Why are intellectually disabled folks being treated so unequally? The Disability Community was not satisfied to only protest the nomination of Brett Kavanaugh. They were going to be a part of this conflict.
History was once again made on September 7th when Elizabeth Weintraub, a Senior Advocacy Specialist at AUCD who lives with cerebral palsy and also served in a recent Senate Fellowship, became the first intellectually disabled person to speak at a Supreme Court Nomination. She spoke for nearly six minutes before her articulate opposition to the Kavanaugh nomination ended because the the nominee was (supposedly) done answering questions. C-SPAN broadcast her speech, and while some mention of her was heard, it was not much more than a murmur. Unfortunately, her careful words were soon drowned out by the other negative coverage of Kavanaugh.
When Judge Kavanaugh addressed his confirmation hearings, it became clear that the vote to confirm or deny him a lifetime appointment could lie squarely with Maine’s Senator Susan Collins, a moderate pro-choice Republican who has voted in the past to oppose the dismantling of the Affordable Care Act. While Collins was weighing her options before making a decision, the citizens of Maine made it increasingly clear that they were willing to crowdsource a candidate to run against her and had already raised over a million dollars. It was then that Collins’ staff, who were fielding a constant barrage of phone calls, reported that the messages were turning into threats of violence. Soon after, Dr. Christine Ford came out with sexual assault allegations against Kavanaugh.
While Senator Collins was tweeting about the need for Dr. Ford to be heard by the Judiciary Committee, I noticed on Facebook that Andy Imparato, Executive Director of AUCD, had shared an op-ed opposing the nomination of Kavanaugh. It had been written by Tom Harkin, a retired former Senator and disability rights advocate considered to be the father of the ADA. His op-ed was fantastic, but it wasn’t until I’d finished it that I realized it had been published in my hometown paper from Lewiston, Maine. Upon contact, representatives from both the Lewiston Sun-Journal and the American University Centers on Disability explained that the letter was submitted to several state media outlets, but that the Sun-Journal was the first to accept and publish the piece. The Sun-Journal has an exclusive first run clause with any opinion piece they accept for publication, which means that the work cannot be published elsewhere.
While it was a heartening moment to see such a strong and effective piece in my hometown paper, the nomination of Brett Kavanaugh would become far more about the many other allegations against him rather than his unacceptable opinions about the rights of those living with disabilities. Ultimately, Senator Collins did not listen to the wishes of her constituents. After some very intense partisan fighting and a lengthy nomination process, it seems that the elite power class will always support the elite power class, regardless of if it means alienating a large percentage of your constituent base. The Disability Community has been let down by Senator Collins and her lack of regard for our wellbeing, and we’re far from the only people impacted negatively by her horrendous vote in support of Kavanaugh. One can only hope her decision and the decisions of others would have changed against him had more voices like Elizabeth Weintraub been given a platform to be heard.
Author’s Note: This story was conceived and almost completely drafted before the world knew who Dr. Ford was, and I’ve been struggling to address Dr. Ford’s allegations while maintaining focus on Kavanaugh’s opinions of the Disability Community. Dr. Ford’s testimony was incredibly riveting and she should be celebrated for her bravery, but she is instead reportedly living in her fourth safehouse out of fear for her and her family’s safety, and the many issues brought up in his confirmation hearings have largely seemed to disappear since Kavanaugh’s confirmation. I strongly encourage you to read further about the Supreme Court nomination of Brett Kavanaugh and stay informed on the developments surrounding him.