By Facsimile: 202-224-9102

United States Senate Judiciary Committee Members
Dirksen Senate Office Building, Room 224
Washington, D.C. 20510

Dear Chairman Specter, Ranking Member Leahy, and Committee Members:

We write on behalf of the American Association of People with Disabilities (AAPD) and the National Association of the Deaf (NAD) to encourage you to use next week’s confirmation hearings to clarify Judge Alito’s views regarding Congressional authority to protect disability rights under the Constitution. We also write to thank you for your leadership in posing a number of questions during Judge Roberts’ confirmation hearings last September exploring how he would approach disability-related legal issues as a member of the Supreme Court.

AAPD is a national non-partisan membership organization working to promote the political and economic empowerment of the more than 50 million children and adults with disabilities and their families in the U.S. With more than 100,000 members, AAPD is the country’s largest cross-disability membership organization. Founded on the fifth anniversary of the Americans with Disabilities Act (ADA), AAPD has a strong interest in promoting full enforcement and implementation of the ADA and other key disability rights laws.

NAD is a national non-partisan membership organization working to promote, protect, and preserve the rights and quality of life of deaf and hard of hearing individuals in the U.S. Established in 1880, NAD is the oldest and largest constituency organization safeguarding the accessibility and civil rights of 28 million deaf and hard of hearing Americans in education, employment, health care, and telecommunication.

After carefully reviewing Judge Alito’s record, AAPD and NAD issued separate statements on December 21 (copy attached) and December 27 (copy attached) expressing concerns about how Judge Alito might approach issues of federalism and states’ rights in the context of the ADA and other disability rights laws. We share the concerns expressed by Senators Specter, DeWine and Kennedy during the Roberts confirmation hearings that the U.S. Supreme Court in cases like University of Alabama v. Garrett has interpreted the Constitution in a manner that makes it unnecessarily difficult if not impossible for Congress to establish a record of unconstitutional discrimination against disabled state residents sufficient to abrogate state sovereign immunity under the Eleventh Amendment.

Our concerns regarding Judge Alito derive primarily from two opinions he authored while serving on the Third Circuit, Chittester v. Dept of Community & Econ Devt and U.S. v. Rybar. In the Chittester case, Judge Alito wrote an opinion stiking down Congress’ ability to make a state agency comply with the Family and Medical Leave Act’s (FMLA’s) guarantee of up to twelve weeks of unpaid leave for personal illness. In his opinion, Judge Alito noted that Congress had intended to abrogate the states’ Eleventh Amendment immunity when it passed the FMLA. Evaluating the challenge under the Equal Protection Clause of the Fourteenth Amendment, Judge Alito found that Congress had failed to make findings sufficient to abrogate the state’s immunity under the Equal Protection Clause. He went on to find that, even if such findings had been made, the FMLA provisions requiring unpaid leave for illness would not be congruent or proportional to unconstitutional conduct by state employers.

Three years after the Chittister ruling, Chief Justice Rehnquist wrote a majority opinion for the Supreme Court upholding a related FMLA provision requiring up to twelve weeks of leave to care for a family member with a serious health condition. Chief Justice Rehnquist’s opinion emphasized that the state employers’ failure to provide for family leave implicated the right of women to be free from gender-based discrimination in the workplace.

We encourage you to question Judge Alito regarding his views of Congressional authority to protect people with disabilities against discrimination by states. We are concerned that the analysis he espoused in Chittister might be used to overturn favorable ADA decisions like Tennessee v. Lane on the grounds that either Congress did not make adequate findings regarding discrimination by states in the administration of justice, or that the ADA’s requirements of access to state courthouses are not a congruent and proportional response to the findings before Congress when it enacted the ADA. Does he recognize that the failure to provide leave for personal illness might lead to unconstitutional disability discrimination, just as the failure to provide for family leave might lead to unconstitutional gender discrimination?

More broadly, we encourage you to explore Judge Alito’s view of the appropriate balance of power between Congress and the States. Although the Garrett decision addressed Congressional power under §5 of the Fourteenth Amendment, federalism concerns have lead to similar efforts to narrow Congressional authority to protect disabled individuals against discrimination by states under the Commerce Clause and the Spending Clause. In U.S. v. Rybar, Judge Alito dissented from a Third Circuit opinion finding that Congress had the authority to regulate and ban intrastate possession of machine guns under the Commerce Clause. Judge Alito argued that Congress needed to have made factual findings that the matter regulated had a link to interstate commerce. We are concerned that Judge Alito’s proposed Congressional requirement in Rybar, which goes beyond the holdings of the Rehnquist Court’s Commerce Clause rulings, could become another vehicle for second-guessing Congressional findings and striking down important civil rights laws if his views were to prevail on the Supreme Court.

We encourage you to question Judge Alito to determine whether he would hold Congress to the same high standards for findings of unconstitutional conduct by states and congruence and proportionality under the Commerce Clause and the Spending Clause as has been applied under §5 of the Fourteenth Amendment. Judge Alito’s approach to these issues can have a dramatic effect on Congress’s ability to provide for accessibility and non-discrimination in areas ranging from education to voting to communication access to participating in community life.

As AAPD noted in its December 21 statement, Judge Alito’s record in the area of statutory construction of disability laws is mixed. Although we disagree with the holdings of some of these decisions, we also note a number of positive rulings interpreting key laws like the ADA and the Individuals with Disabilities Education Act. On balance, we believe his approach to federalism and states’ rights deserves the greatest attention at the hearings, and will be a determining factor as we decide whether to oppose, remain neutral, or support his nomination. If you would like to discuss any of the issues raised in this letter or our statement further, please contact Andrew Imparato of AAPD at 202 457-0046 or ImparatoA@aol.com, or Kelby Brick, NAD’s Director of Law and Advocacy, at brick@nad.org.

Sincerely yours,

Andrew J. Imparato President and Chief Executive Officer American Association of People with Disabilities (AAPD) 1629 K Street NW, Suite 503 Washington, DC 20006 202-457-0046 (V/TTY) www.aapd.com

Nancy J. Bloch Chief Executive Officer National Association of the Deaf (NAD) 814 Thayer Avenue Silver Spring, MD 20910 301-587-7730 (V/TTY) www.nad.org

1. 121 Sup. Ct. 955 (2001) (5-4 decision with Justice O’Connor in the majority striking down parts of the ADA protecting the rights of disabled state employees); cf. Tennessee v. Lane, 541 U.S. 509 (2004) (5-4 decision with Justice O’Connor joining the dissenters in Garrett to form a majority upholding the ADA’s requirements of equal access for parties to state judicial proceedings).
2. 226 F.3d 223 (2000) (Alito, J., writing for the panel).
3. 103 F.3d 273, 286-294 (1996) (Alito, J., dissenting).
4. Nevada Dept of Human Resources v. Hibbs, 538 U.S. 721 (2003).
5. 103 F.3d 273, 286-294 (3d Cir. 1996).
6. See, e.g., Gonzales v. Reich, 125 S.Ct. 2195 (2005) (accepting arguments rejected by Judge Alito in a Commerce Clause challenge to Congress’s authority to regulate possession and cultivation of marijuana within states.