Judges! HOO! What Are They Good For? Absolutely Something. Say it Again. (Redux)

If you are a voter (and if you are a CCDC member, you darn well better be), it is incredibly important when voting to recognize the role Presidential politics plays in the appointment and confirmation of Federal Court Judges. MOST PEOPLE DO NOT KNOW WHAT I AM ABOUT TO SAY!  All federal Court Judges are appointed by the Presidents of the United States and confirmed by the Senate. Nearly everyone who votes and follows politics realizes this is true for the United States Supreme Court.[1] We bring our civil rights cases in federal court. That is because the cases are all based on federal law.

I want to elect a President who might actually appoint judges who understand the importance of protecting the rights of people with disabilities. But what a lot of people don’t know or they forget is that Presidents appoint, and the Senate must confirm, all federal Judges, no matter whether they are District Court Judges, Justices on the Tenth Circuit Court of Appeals or Justices on the Supreme Court (or any federal judge, for that matter). The Appointments Clause of the United States Constitution empowers the President of the United States to appoint all federal judges, among other positions, with the “advice and consent” of the U.S. Senate (meaning confirmation). So what in the world does the following mean? 

He [or she, the President — hey, I didn’t write it; it was written a long time ago] shall have the Power, . . . [p]rovided two-thirds of the Senators present concur; and he[/she] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established . . . [.]

 See Article II, Section 2, Clause 2 of the United States Constitution (emphasis added). So what does all this silly language by those dudes who wore those funny outfits mean? Just what I said. Were you paying attention?

 On the left is an image of Thomas Jefferson. On the right is an image of Benjamin Franklin.

Not only does the President of the United States get to appoint the Judges who sit on the United States Supreme Court, but the President gets to  appoint all federal judges — the District Court Judges and the Judges who sit on the Tenth Circuit Courts of Appeals (which is the Circuit Court of Appeals that hears appeals from our United District Court of Colorado, as well as those of Kansas, the Districts of Oklahoma, New Mexico, Utah and Wyoming). This is the process by which all Federal Judges get their jobs. And, if you haven’t been paying attention, they usually hold onto those jobs for a long time (e.g. the Honorable Senior District Court Judge John L. Kane, Jr. was nominated by President Jimmy Carter on November 2, 1977, to the United States District Court to a seat vacated by Alfred A. Arraj; he was confirmed by the United States Senate on December 15, 1977, and received his commission on December 16, 1977. He is still there today.)

Now, far be it from me to interject politics into this discussion, but it has been my personal observation and experience that those judges who have been appointed by — let’s call them conservative — Presidents and confirmed by — let’s call them conservative — Senators, have a tendency to be less likely to want to enforce disability rights laws with the same vigor and gusto as those Presidents and Senators who tend to be more — shall we say– progressive. Of course, neither I nor CCDC would ever suggest who we think you should vote for. I just wanted to let you know how things have happened for 22 years. So, when the CCDC Legal Program lawyers, Andrew Montoya and myself, file lawsuits and argue cases, we do so approximately 99% of the time in federal court in front of these judges. That is pretty much the same for all the great lawyers we work with at the Civil Rights Education and Enforcement Center, Disability Law Colorado, etc.

Let’s break it down. Statistically, this is what has happened. If a Democratic President and a Democratic Senate approves our federal judges, this means that all of the judges that the civil rights lawyers in Colorado who argue under the ADA, Section 504 of the Rehabilitation Act, the IDEA, and all other laws pertaining to disability civil rights must bringing cases before these judges, are more likely to get a good outcome than if the opposite is true. Again, this is a generalization, but it has been my experience after 20 years of disability rights practice.

An example might be appropriate. We received a lot of publicity around the lawsuit that we filed against the owners and operators of Hollister Co. stores. Our District Court Judge was United States Senior District Court Judge Wiley Daniel (appointed by President Bill Clinton). During that long case, Judge Daniel ruled in our favor on:

A motion to dismiss, a renewed motion to dismiss, a motion for summary judgment, a motion for partial summary judgment, a motion for class certification, a motion for injunction and judgment, a motion for a  permanent injunction, and a motion for plaintiffs’ attorneys’ fees.

We also obtained two Statements of Interest by the United States Department of Justice supporting our positions. That means the United States government said we were right, and they were wrong.

If I haven’t completely lost your attention, here’s the deal: WE WON EVERYTHING!). That was at the federal District Court level.

The owners and operators of Hollister stores appealed to the Tenth Circuit Court of Appeals. After we won all of those motions I listed above and the United States Department of Justice agreed with us in the District Court, we lost a very important issue In the Court of Appeals.

Two of the three judges on the Tenth Circuit Court of Appeals panel ruled against us on the issue of discrimination. Essentially, the two judges said the ADA does not prohibit store owners and operators from designing and constructing separate, very different entrances for people who use wheelchairs, even when the evidence shows that the main entrance with steps is the entrance the company wants customers to use.

The two Judges who ruled against Plaintiffs, Judge Paul J. Kelly, Jr., and Timothy Tymkovich, were appointed by President George W. Bush. The Judge who dissented and ruled in our favor on the discrimination issue was Carolyn B. McHugh, appointed by President Barack Obama. (There were other issues in the case, but one of the key issues was whether the steps in the center of the store that store executives testified were the most important distinguishing attraction that gave the store the feeling of the beach surf shanty, making it different from all other stores in the mall as opposed to the side entrances — the only entrances people who use wheelchairs could use — that District Court Judge Daniel recognized did not even look like entrances at all and instead looked like windows with shutters around them constituted discrimination under the ADA).

Normally, the Legal Program (and CCDC) avoid discussions of politics on the website and elsewhere, chiefly because we all need to and want to deal with members of both parties at all levels of government. Nevertheless, in my 22 years of law practice, I have had the same experience time and time again. That is that Presidents who are Democrats appoint Judges who tend to take an expansive view of the ADA and other laws protecting the rights of people with disabilities. This is exactly what the ADA was designed to do,[2]  Republican Presidents appoint Judges who tend to take a restrictive view of disability rights laws. That has been our experience. Recent news articles have suggested that the current administration is working very hard to get as many federal judges appointed and confirmed as possible.

 CCDC has no intention of telling anyone who to vote for in any election, but only to pass along this information concerning experiences had by its attorneys, one of whom has been practicing in the field disability law for over 20 years. You should vote your conscience, and if your conscience tells you that a particular candidate is strong on disability rights, you should take that into consideration. Who is President, which party holds the majority of the Senate, and what their views and ideas of disability rights are make a huge difference in the results of the cases that we bring on your behalf.  Although judges are supposed to be fair and impartial, and many are in much of their decision-making, there is simply no way to deny politics has an enormous impact on how judges decide cases. If you do not think your vote matters, you are simply wrong. The political thinking of the individual in the White House and those in the Senate make all the difference in the world. It has certainly made a difference in the last 22 years.

 Although disability rights claims can be brought in state court where judges are elected and reaffirmed on our ballots, under 28 U.S.C. § 1441, these claims can be removed to federal court. Very often they are. This means that the Defendant can convince the state court judge that because these cases are federal cases, they should be removed from state court to federal court. Many defendants’ lawyers do this because federal court tends to be more complicated, many lawyers are not as familiar with it as they are with the state court, and many of the judges are more conservative than state court judges for a lot of reasons. George W. Bush was in the White House for eight years and nominated many federal court Judges during that time. Many of those judges are still serving. there have also been nominations by President Barack Obama that were confirmed by the Senate, but you may want to Google the statistics about this. Also, the Senate did block the confirmation of Judge Merrick Garland who President Obama nominated for the United States Supreme Court. Currently, President Trump has already appointed,  and the Senate has confirmed one United States Supreme Court Justice, and the second appointment is pending before the Senate at the time of the writing of this blog. The midterm elections with many Senate races coming up in November, based on our experience, will make an enormous difference in the determination of how the United States courts will treat disability rights issues for the foreseeable future. 

That means nearly every case that is decided by a Judge and every decision regarding every issue, including things as seemingly simple as whether a letter from a doctor regarding the need for a service animal involves the politics of the Presidents and Senators we vote into office. Many of the Judges currently serving in the United States District Court of Colorado and the Tenth Circuit Court of Appeals are judges that were appointed by conservative Presidents. As a result, the results of their decisions do not do much to expand the law under the ADA or other laws that impact the rights of individuals with disabilities.

 The current composition of the Tenth Circuit Court Appeals:

The current Tenth Circuit Court of Appeals is split by twelve Republican Presidential appointments and ten Democratic Presidential appointments. Each panel of Justices who hear a case consists of three judges.

 The District Court of Colorado Judges are as follows:

There is still one appointment open.

We have had similar experiences with other Judges on the District Court and Justices on the Tenth Circuit Court of Appeals. Not all rulings end up corresponding directly with the political party of the appointing President and the confirming Senate, but it is not uncommon that they do. 

Therefore, when you consider voting, please remember that all state court judges are determined by election and retention. If you are unaware of whether to retain these judges when you vote, and you are concerned about the civil rights of people with disabilities, it is best to ask a civil rights lawyer who does practice in state court. Because the CCDC Legal Program attorneys do not practice routinely in State Court, we are not as knowledgeable about the DC visions of those judges. 

 If, for no other reason than having a hand in determining the outcomes of the cases the CCDC Legal Program (which specializes in civil rights cases for people with disabilities) brings on a regular basis, voting is critically important. 

Think for example, of a government-funded case manager that keeps an individual in a nursing home who does not need to be there and home care is readily available. Frequently, the individual and the individual’s friends, family and others do not know what the law requires. That individual’s life and quality of life and all of those who care about that individual including us) does depend on voting. That case would probably be brought in federal court and, if necessary, appealed to the Tenth Circuit Court of Appeals. It matters what judges hear those cases. It matters that you vote so the judges we need to enforce the civil rights of people with disabilities hear and decide these cases. Take the time to find out what the judge’ s position is on disability rights issues. And then, in the words of Justin Dart, “Vote as if your life depended on it. Because it does.”[3]

The original version of this blog was published on CCDC’s website on December 24, 2014. Edits and updates were made on August 1, 2018.

-Kevin W. Williams, CCDC Legal Program Director

[1} This is enough for this author personally to give serious consideration to not wasting my vote, despite the identities of the major party candidates, or — worse yet — not voting.

[2] Purpose

It is the purpose of this chapter–

(1) to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities;

(2) to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities;

(3) to ensure that the Federal Government plays a central role in enforcing the standards established in this chapter on behalf of individuals with disabilities; and

(4) to invoke the sweep of congressional authority, including the power to enforce the fourteenth amendment and to regulate commerce, in order to address the major areas of discrimination faced day-to-day by people with disabilities.

42 U.S.C. § 12101(b).

[3 ]http://www.disabilityhistory.org/people_dart.html.