Monday, January 23, 2006 3:46 PM 

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

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 under girding 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