Is Judge Amy Coney Barrett “Hostile” to Disability Rights?

Dozens of disability rights groups have publicly objected to Judge Amy Coney Barrett’s nomination to the Supreme Court. They claim that her record displays a “hostility” to rights important to those with disabilities. Will she be given an opportunity to address this charge during her confirmation hearing?

President Trump nominated Seventh Circuit Court of Appeals Judge Amy Coney Barrett to the Supreme Court following the death of Justice Ruth Bader Ginsburg. The early reporting highlighted that, if confirmed, Judge Barrett would be the first justice with school age children.

Indeed, Judge Barrett has seven children. The youngest happens to have Down syndrome. To my knowledge, if confirmed Judge Barrett would also be the first justice to have a child with Down syndrome. And, coincidentally, Judge Barrett’s confirmation hearings are being held in what has been recognized since the first proclamation by President Reagan as Down Syndrome Awareness Month.

So, it seems fitting at this time to give Judge Barrett the chance to respond to the accusation that she is hostile to disability rights.

Opposition by some disability rights groups

Dozens of organizations, including some whose publications I have been published in and who I serve in a professional capacity with, expressed their opposition in a public letter a week before Judge Barrett’s confirmation hearings commenced.

The first example from Judge Barrett’s record cited in the letter is a concern that she has criticized the constitutionality of the Patient Protection and Affordable Care Act AKA “Obamacare”, commonly referred to now as the “ACA.” Their concerns are that the ACA preserves health insurance coverage for those with preexisting conditions, a critical issue for those with disabilities.

The criticism is found in a book review Judge Barrett published in a law journal. The book was not focused on the ACA, but on a school of legal interpretation. Justice Roberts’ interpretation of the ACA’s “penalty” as a “tax” to allow for the ACA to be ruled within the constitutional powers of Congress was criticized for being too expansive of an interpretation. Judge Barrett agreed with this criticism in her book review.

Democratic Senators began Judge Barrett’s confirmation hearing expressing concern that Judge Barrett’s criticism suggested an inclination to find the entire ACA as constitutional. It was the subject of many of the questions asked on the second day of her hearing.

The second example from Judge Barrett’s record is a dissent from an appellate opinion ruling that the Department of Homeland Security’s “public charge” rule discriminated against those with disabilities. Judge Barrett dissented based on her interpretation of the “public charge” rule differing with that of the majority.

The third, and final, example from Judge Barrett’s written record was a decision she joined finding that Wisconsin did not discriminate based on disability for school children applying for placement in non-reside school districts based on their service needs.

Those are the only examples cited from Judge Barrett’s record. The letter does not acknowledge her joining the dissent that expressed an allowance within abortion jurisprudence for banning eugenic abortions based on Down syndrome and other disabilities. Further, for none of the cited examples did the disability groups opine on whether Judge Barrett’s reasoning was incorrect or unjustified. They simply disagreed with the result her decision would lead to.

The letter wraps up with blatantly political reasons for why the signatory disability groups expressed their opposition: [1] that her nomination seems rushed, which would apply regardless of who the nominee is; and [2] that the Congress should not consider judicial nominations until it has passed a COVID-19 relief bill, again a concern irrespective of who the nominee is or what their record expresses.

Right to confront an accusation

Enshrined in the Sixth Amendment is the right to confront your accuser. The purpose of the confirmation hearings is to clarify what a nominee’s views are and what their judicial philosophy is. Therefore, with two days remaining for the confirmation hearing, Senators should afford Judge Barrett the opportunity to confront this accusation that she is hostile to disability rights.

In perhaps the most emotional moment during the long second day of questioning, Senator Kennedy gave Judge Barrett an opportunity to address another accusation against her. Senator Kennedy represents Louisiana, the state of Judge Barrett’s birth. He asked her to respond to the accusation made by a university professor on Twitter that Judge Barrett’s adoption of two of her children from Haiti echoed the practices of racist colonists. Here is how Judge Barrett responded (beginning at the 12:00 mark):

Judge Barrett should be given the same opportunity to respond to the disability rights organization’s accusation. It would be all the more fitting for Judge Barrett to speak about what she has learned from being a parent to her son with Down syndrome. And, to give this testimony during Down Syndrome Awareness Month would be providential.

Hopefully, a Senator will give her that chance.

Update

I have not seen any reporting that Judge Barrett was given the chance to address the concerns raised by several disability rights organizations. On the fourth, and final, day of her confirmation hearing, however, Laura Wolk, an appellate attorney and former student who happens to be blind, testified in support of Judge Barrett’s nomination. Ms. Wolk’s testimony evinces Judge Barrett’s attitude towards those with disabilities: