Another Bush Judicial Nominee Threatens Disability Rights
Jennifer Mathis
<jenniferm@bazelon.org> of the Bazelon Center shares the following summary
about another Bush nomination to the federal court system:
"Dennis Shedd's Record on Disability Issues"
Judge Dennis Shedd, a Bush nominee to the Fourth Circuit Court of Appeals, has a
striking record of hostility toward civil rights during his years on the federal
bench, including a consistent disregard for the rights of people with
disabilities. He has ruled against disability rights plaintiffs in almost every
instance, departing from settled law and adopting tortured interpretations of
disability rights laws. His opinions routinely ignore evidence, stating in
conclusory fashion that the plaintiff has failed to produce evidence to support
her claims. For example:
Judge Shedd effectively read the right of employees to "reassignment" out of the
Americans with Disabilities Act. Reassignment to a vacant position is a crucial
protection for individuals with disabilities who can no longer perform their
current jobs. Congress explicitly included reassignment as one type of
accommodation required by the ADA. The Equal Employment Opportunity Commission (EEOC)
and the courts have consistently interpreted the ADA to require an employer to
reassign a person with a disability to a vacant position for which he is
qualified, if such a position exists, when the person is no longer able to do
his current job. Judge Shedd drastically limited the right to reassignment in a
way that not only made no sense but was flatly contradicted by the EEOC, the
agency on whose interpretations Judge Shedd purported to rely. Judge Shedd's
decision stands out as both unique and bizarre.
Judge Shedd ignored the plain meaning of the ADA when he approved a state health
insurance pool's refusal of coverage for a man who was HIV positive. The pool
was designed to provide insurance for individuals whose medical conditions
disqualified them from private insurance. No other medical condition was
excluded, and the state had done no actuarial analysis to justify the exclusion
of individuals with HIV/AIDS. While many courts have held that the ADA does not
prevent insurance plans from providing lesser benefits for treatment of
particular types of disabilities, Shedd's ruling that the ADA permits the
complete exclusion from any benefits based on a person's disability goes way
beyond those decisions. The plaintiff who brought this case sought to have it
decided on an expedited basis, but died eight months later, before any decision
was rendered.
Judge Shedd rejected a discrimination claim of a man who was fired because of
his status as an alcoholic even though his alcoholism had no effect on his work
performance and he was not intoxicated at work. The employer discovered that the
man was drinking during a two-week period of leave approved by the employer, and
fired him on that basis alone. The man was fired before he returned to work. A
federal magistrate found no evidence that the man's alcoholism interfered with
his ability to do his job and recommended that his claim be permitted to
proceed. Nonetheless, Judge Shedd rejected the magistrate's recommendation and
threw out the man's discrimination claim. He concluded, without citing any
evidence, that the man's alcoholism rendered him unable to do his job, and
therefore was not protected by the Rehabilitation Act.
Judge Shedd exhibited troubling attitudes toward individuals with disabilities
in his courtroom. In a 1995 criminal trial, Shedd upheld the prosecutor's
request to require the defendant's wife to hide that she was blind. The
prosecutor was concerned that the wife's blindness would engender sympathy for
the defendant. The prosecutor asked that the wife keep her cane out of sight.
Shedd inquired of the defense attorney, "Does the cane have to be visible during
the court trial?" The defense attorney replied that the woman depended on it.
Shedd stated: "It is going to be down. I will stop the trial if she uses it for
anything other than access in and out."
What you can do:
Contact your senator to voice your opposition to the nomination of Judge
Shedd to the Fourth Circuit Court of Appeals. It is particularly important to
contact Senator Leahy, the Chairman of the Senate Judiciary Committee, and the
other senators on the Committee. The Committee members are:
Democrats:
Senator Patrick Leahy from Vermont, 202-224-4242
Senator Joe Biden from Delaware, 202-224-5042
Senator Richard Durbin from Illinois, 202-244-2152
Senator John Edwards from North Carolina, 202-224-3154
Senator Herbert Kohl from Wisconsin, 202-224-5653
Senator Russ Feingold from Wisconsin, 202-224-5323
Senator Dianne Feinstein from California, 202-224-3841
Senator Charles Schumer from New York, 202-224-6542
Senator Maria Cantwell from Washington, 202-224-3441
Senator Edward Kennedy from Massachusetts, 202-224-4543
Republicans:
Senator Orrin Hatch from Utah, 202-224-5251
Senator Charles Grassley from Iowa, 202-224-3744
Senator Arlen Specter from Pennsylvania, 202-224-4254
Senator Jon Kyl from Arizona, 202-224-4521
Senator Mike DeWine from Ohio, 202-224-2315
Senator Jeff Sessions from Alabama, 202-224-4124
Senator Sam Brownback from Kansas, 202-224-6521
Senator Mitch McConnell from Kentucky, 202-224-2541
Senator Strom Thurmond from South Carolina, 202-224-5972
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