Appoint a Justice Who Understands Disability

AUSTIN, TX - MARCH 11:  President Barack Obama speaks at the opening Keynote during the 2016 SXSW Music, Film + Interactive F
AUSTIN, TX - MARCH 11: President Barack Obama speaks at the opening Keynote during the 2016 SXSW Music, Film + Interactive Festival at Long Center on March 11, 2016 in Austin, Texas. (Photo by Neilson Barnard/Getty Images for SXSW)

As a blind American who leads an organization of blind Americans, I know that there are many issues affecting the blind and others with disabilities that our courts, including the Supreme Court, must decide.

As just one example, lower federal courts are split on the critically important issue of how the Americans with Disabilities Act applies to Internet websites and the content and services that they provide. Because of the lower court split, this issue may well be considered by the Supreme Court in the future. Therefore, the National Federation of the Blind, of which I serve as President, believes that the Senate should consider and vote upon President Obama's Supreme Court nominee, when selected.

The failure of the Senate to consider a nominee before the next election will leave the seat empty for more than a year. During that time, the court will have only eight justices; should they be divided equally on any case, the Court will be unable to decide it. It is unacceptable that the court should be unable to reach decisions for so long.

Equally important to us is the question of whether or not the nominee has the understanding that disability is one of the diverse characteristics found among Americans, and that people with disabilities deserve to enjoy the same rights and responsibilities as other citizens.

In a recent guest post on the website, President Obama wrote about the factors that he will consider in choosing his nominee. In addition to an eminently qualified jurist, and one who understands the limits of judicial power, President Obama said that he would seek a judge with "a keen understanding that justice is not about abstract legal theory, nor some footnote in a dusty casebook.

It's the kind of life experience earned outside the classroom and the courtroom; experience that suggests he or she views the law not only as an intellectual exercise, but also grasps the way it affects the daily reality of people's lives in a big, complicated democracy, and in rapidly changing times." I agree with this criterion.

People with disabilities well know that while laws like the Americans with Disabilities Act theoretically support our equal participation in society and protect us from discrimination, courts too often engage in cramped interpretations of these laws that defeat their purpose. This is because too many judges do not yet see disabled individuals as equal.

Our laws have not, by themselves, fundamentally changed old attitudes, stereotypes and misconceptions about the disabled. Most people do not hate us or bear us ill will, but some have low expectations for our ability to learn, to work, and to participate in the everyday life of our communities and of the nation. It often seems that civil rights are meant for the non-disabled, while the disabled are subject to limitations of those same rights.

As a general rule, those who have a disability themselves, or who have a family member (such as a child) with a disability, are in the best position to comprehend our full capacity, as well as the mostly artificial barriers that prevent us from reaching it. I hope that President Obama will duly consider this fact as he selects a nominee.

There are highly qualified judges serving in local and state courts across the nation who have disabilities, and at least one on the federal bench (Judge David Tatel of the U.S. Court of Appeals for the District of Columbia) who is blind. President Obama could nominate any of these judges, assuming they meet his other criteria.

Alternatively, he could appoint someone with experience advocating for individuals with disabilities, or a jurist with a family member who has a disability. Even if he does not nominate any of the above, he should consider whether the judge's life experience or prior jurisprudence includes an understanding of the barriers and discrimination that we still face.

The laws and policies that are intended to help people with disabilities live the lives we want must be interpreted in light of legislative intent and of the experiences of disabled Americans. President Obama should nominate a judge who understands that people with disabilities seek, and deserve, an equal place in American life.