JUDGE ROBERTS, HURRICANE KATRINA AND AMERICANS WITH DISABILITIES:
Building a Supreme Court to Excuse Our Nation's Neglect of the Poor and Disenfranchised  
By Jim Ward, Founder and President, ADA Watch/National Coalition for Disability Rights

New Orleans is America's canary in the mineshaft. Ideologies of  privatization that incapacitate effective government—permitting the privileged to save themselves while leaving the poor clinging to roofs—must now be challenged. This disaster is a chilling reminder of what happens when government fails to protect its citizens, and it is imperative that Americans demand accountability. ——Terry Lynn Karl, Professor of Political Science, Stanford University, September 8, 2005

(Washington, DC) We did not see news reports on Hurricane Katrina showing mass looting by people with disabilities, did we?

Given the chance, perhaps this would have been so.

Instead, we witnessed people without legs—unable to reach the rooftops—floating in the storm waters; Americans in wheelchairs "rescued" and then left to fry and die in the scorching sun; people with epilepsy and diabetes separated from vital medications; and citizens in nursing homes left behind to drown.

And we saw many, many poor people.

Louisiana has a shameful poverty rate of 24 percent. There and throughout the United States, people with disabilities are among the poorest of the poor. According to the 2000 Census, people with severe disabilities comprise roughly half of all working-age Americans living in poverty. A staggering one third of adults with disabilities live in households with total income of $15,000 or less.

Hurricane Katrina has blown the cover off of America's crumbling physical infrastructure and our weakened ability to respond to the needs of even our most vulnerable citizens. Those quick to write off the results of this storm as a blameless natural disaster fail to grasp how our Country has been weakened by the Free Market "solutions" of economic Libertarianism. Katrina has dramatically illustrated the failure of a "privatized," "outsourced," and "downsized" government to protect its citizens from a storm—let alone from the poverty and decaying infrastructure that proceeded it.

Americans were rightly angry to learn of the lack of experience and credentials held by Michael Brown, the head of the Federal Emergency Management Agency (FEMA). But, rather than the incompetence of one, we are witnessing the impact of an ideological scheme to undo the federal safety net and roll back basic protections for those most in need. This was made all too clear by the words of Brown's predecessor at FEMA and former campaign manager for President Bush, Joe Allbaugh, who while initiating steps towards the privatization of FEMA, declared it an "oversized entitlement program" and said that the "business of government is not to provide services." 

In the aftermath of this tragedy, critics of the President fail us when they rail about political cronyism or the length of his summer vacation. During a time of crisis, these arguments seem partisan, petty and opportunistic to most Americans. These criticisms especially distract from seeing New Orleans as the end result of Mr. Bush's carefully calculated plans to gut the Federal government by filling it with ideologues who despise its very existence. In this context, the problems of FEMA, which tragically and disproportionately are impacting people with disabilities, African Americans, and the poor, illustrate just what has gone wrong with our government—and they neither begin nor end with Hurricane Katrina.

People with disabilities are among the many who have been awaiting the expression of outrage from our elected leaders, the Media—and our fellow citizens—about the systematic plundering of Medicaid, Medicare, Social Security, public housing, public education, and other vital programs at the direction of this Administration and Congress—all in the name of doing away with "Big Government."

The appointment of individuals who share contempt for our government—if not of the citizens they serve—has been pervasive in this Administration. The result has been the proliferation of Federal agencies—and a Federal judiciary—which operate to grease the skids of Free Market libertarianism and to release government from any responsibility to its own citizens.  

A few examples specifically impacting people with disabilities include:

• John Ashcroft, who as Senator took a lead role in trying to weaken the due process protections afforded children and youth with disabilities by the Individuals with Disabilities Education Act (IDEA), was appointed Attorney General and led the Justice Department in siding with big business and against workers with disabilities.
   
  
• Gerald Reynolds, recess appointed by President Bush to run the Office of Civil Rights at the Department of Education (60 percent of OCR cases are disability-related). Reynolds told the U.S. Civil Rights Commission that the Americans with Disabilities Act (ADA) is one of those "statutes and regulations [that] are going to retard economic development in urban centers across the country."  (April 5, 1997)
   
  
• Jeffrey Sutton, nominated by Mr. Bush to a lifetime position on the Sixth Circuit Court of Appeals. Sutton successfully argued before the Supreme Court that state employees who suffered discrimination could not sue under the ADA to seek damages from the state.  
   
  
• Eugene Scalia, Bush's controversial recess appointee and former Solicitor at the Department of Labor. Scalia has made a career out of representing big business against employees and has sought to limit the scope of the ADA. He has called federal ergonomics regulations proposed to prevent disabilities in the workplace "junk science."
   
  
• Linda Chavez, Bush's first pick for Secretary of Labor, ridiculed the ADA as "special treatment in the name of accommodating the disabled." (AP, Jan. 5, 2001)
   
  
• D. Brooks Smith, a conservative activist nominated by Bush to the 3rd Circuit Court of Appeals, dismissed charges against institutions in Pennsylvania where horrific care of individuals with mental disabilities included flies and ants on food, maggots and ants on residents, residents sitting in wheelchairs for hours without having their diapers changed, injuries due to neglect, overmedicating, and more. Judge Smith concluded that the State had no constitutional obligation to "enhance the resident's level of functioning."   

Enter Judge John Roberts.

President Bush's nomination of Judge John Roberts to Chief Justice of the Supreme Court is in so many ways consistent with his pattern of filling government agencies and the courts with those who will aid in the dismantling of our Federal government—and of the laws protecting people with disabilities, women, and other minorities.    

For more than 20 years, from cases including a deaf 8 year-old trying to get a school to provide her an interpreter, to an adult with a serious disability trying to keep her job on a Toyota assembly line, Judge Roberts has consistently advocated for the weakening of legal protections under the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, the Child Welfare Act, the Medicaid Act and more.   

Because so many of Roberts' documents are being withheld from the public—and from the Senators who will vote on his nomination—we can only assume that more evidence exists that would tie Roberts to this campaign against the Federal Government's role in protecting its citizens. Recently released documents, in fact, revealed his role in attempting to undermine the Equal Employment Opportunity Commission (EEOC) and describe how he uncritically passed along demands that the Reagan administration repeal a requirement of government contractors to hire the "handicapped." 

We also know that the Administration attempted to cloud Roberts' association with the Federalist Society—an organization whose leading members have led the charge against the ADA and other civil rights protections—presumably because its members are at the forefront of the movement to narrowly interpret the constitutional powers of Congress and to decimate New Deal protections they deride as symptoms of the "Nanny State."         

Judge John Roberts previously declared that the Rehnquist Court was "not conservative enough"—this after the term in which the Court struck down laws such as the Violence Against Women Act and refused to hear complaints under the Age Discrimination Act. If this right-wing judicial activism was not enough for Judge Roberts, just how far will a "Chief Justice Roberts" go in dismantling protections passed by our elected representatives in Congress?  

Many will claim that ideology does not matter in the selection of judges. Clearly, however, President Bush's choice of judicial nominees to the lower courts, and now to the Supreme Court, reflect this Administration's contempt for government and for Congress' role in passing protections for the disadvantaged. In fact, those seeking to remake the court from a protectors of the people to protector of the powerful, do believe that ideology is important. A 1988 report of the Reagan Justice Department affirmed that:    

"There are few factors that are more critical to determining the course of the Nation, and yet are more often overlooked, than the values and philosophies of the men and women who populate the third co-equal branch of the national government—the federal judiciary."

For many, the confirmation of Judge John Roberts is already a done deal. It is not enough, however, for our elected leaders and others to stand aside and say that Roberts is a conservative replacing a conservative on the Court. We must examine how the Rehnquist Court has already stripped us of civil rights protections under laws like the Americans with Disabilities Act and determine—in the midst of the failings related to our government's response in New Orleans—what kind of America will result from Judge Roberts' record and ideology.

Indeed, Americans should call on the U.S. Senate Committee on the Judiciary to make this confirmation process a national debate on the role of government in America. New Orleans has uncovered the results of 20 years of a prevailing political ideology that has denigrated government's role in meeting the needs of its citizens.

Now is the time to openly debate the values that are going to shape our government for the next 20 or 30 years. 

Jim Ward is the founder and president of ADA Watch and the National Coalition for Disability Rights, both based in Washington, DC. We are an alliance of hundreds of disability, civil rights and social justice organizations united to defend and promote the human rights of children and adults with physical, mental, cognitive and developmental disabilities.