On August 3, 2018, ANCOR sent a letter to the Senate Judiciary Committee, which has oversight over judicial nominees, expressing concerns with a legal decision the nominee for the Supreme Court, Brett Kavanaugh, wrote concerning people with I/DD. Specifically, ANCOR finds that his decision in the Doe ex rel Tarlow v. D.C. case – docket number 489 F.3d 376 (2007) - problematic for the self-determination and due process rights of people with I/DD. As a result, ANCOR asked the Judiciary Committee to bring attention to this case in Brett Kavanaugh’s nomination hearing so that he has an opportunity to address it.
As explained in our letter: “In finding for the District, Judge Kavanaugh wrote ‘accepting the wishes of patients who lack (and have always lacked) the mental capacity to make medical decisions does not make logical sense and would cause erroneous medical decisions-with harmful or even deadly consequences to intellectually disabled persons… Consideration of the wishes of patients who are not and have never been competent is therefore not required by the Supreme Court's procedural due process cases.’ Judge Kavanaugh expressed that people with I/DD by the nature of their disability ‘by definition lack ‘sufficient mental capacity to appreciate the nature and implications’ of the preference expressed.’
[…] ANCOR strongly endorses supported decision-making principles to ensure that people with I/DD and even those with significant communication challenges can still express their free will.
The reality of an American’s equality must not waiver based on the circumstances of that person’s birth. While Judge Kavanaugh has a thorough record and respectable history in our nation’s courts, we believe the decision in this case was misinformed and is problematic for an individual who is preparing to serve in the highest court of our land.”
According to CQ Morning Briefing, “A confirmation hearing for Supreme Court nominee Brett Kavanaugh is expected in September.” It is interesting to note however that CQ Morning Briefing has also reported that “[the] National Archives estimates that reviewing documents that Republicans asked for related to Supreme Court nominee Brett Kavanaugh could take until the end of October.” These are documents members of Congress asked for to inform their decision. Despite this hurdle, the Senate is planning on an October vote on Brett Kavanaugh’s nomination. ANCOR will keep members informed of the hearing and any additional developments as the nomination process unfolds.