What Seniors Should Know About Conservative Activist Judges
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America's seniors have long made their political views heard and their votes count. That's why Congress enacted vital legal protections like Social Security, Medicare, Medicaid, and federal laws banning discrimination based on age or disability.
But in recent years these guarantees have become targets for a stealth assault from an unlikely quarter - the federal courts. Since the middle 1990s, certain federal judges, including at times a bare 5-4 majority of the Supreme Court have systematically undermined federal safety net and anti-discrimination laws, cut back Congress' authority under the Constitution to enact them, and obstructed citizens' access to court to enforce their rights. This campaign, which proceeds under the banner of "states' rights," will accelerate if some judicial candidates whom President Bush has proposed to add to the federal bench have their way.
Consider these real-life examples:
In 1993, Florida State University reneged on an agreement to implement a market-based salary plan that would have particularly benefited senior faculty members and other employees. In response, Professor Daniel J. Kimel and a number of his colleagues sued, alleging that FSU had violated the federal Age Discrimination in Employment Act of 1967 (ADEA).
Professor Kimel's complaint typifies ubiquitous challenges that confront Americans as they age. As workers become more seasoned and experienced, as they accumulate seniority that should bring higher payor benefits, as they encounter increasing health problems that make them more costly to employers or insurers, or as they near retirement eligibility, they -perversely - face more risk and less security: risk of losing out on promotions or new jobs, or of losing their existing jobs outright. Congress enacted the ADEA precisely to give older workers a shield against this pervasive work-place hazard.
But however common their grievance, the Supreme Court threw Professor Kimel and his colleagues out of court, without even letting them prove that FSU had violated the ADEA. In January 2000, a 5-4 Supreme Court majority held that age discrimination is not important enough to justify subjecting "sovereign" state governments to the "indignity" of a suit for damages for violating the ADEA. The reason, the five justices asserted, is that, "older persons, unlike those who suffer discrimination on the basis of race or gender, have not been subjected to a history of purposeful unequal treatment."
How could a sentient person embrace such an upside-down picture of the every-day reality known to millions of Americans? One judicial critic has pointedly observed that the five justices "judged the possible inconsequentialness of forced retirement with the serenity of observers who would never undergo it." The Constitution, he noted, conveniently immunizes federal judges against removal from their jobs or reduction of their pay.
However that may be, one year later the same Alice-in-Wonderland logic was invoked by the same 5-4 majority to bar the courthouse door to Patricia Garrett. She had lost her Director of Nursing job at the University of Alabama in Birmingham Hospital after taking medical leave for breast cancer treatment. Once again, the justices--scorning the judgment of the overwhelming Congressional majority that voted to enact the ADA--dismissed disability-based discrimination as less sympathetic than race or sex discrimination; they stripped citizens with disabilities of the right to enforce federal nondiscrimination guarantees against state government violators.
Undermining the ADA is no less a problem for seniors than undermining the ADEA. Few older Americans are immune from fear of the double whammy that hit Patricia Garrett -a temporary encounter with disability that then leads to long-term economic catastrophe. According to the AARP, 60% of the US population with disabilities are 50 and older.
The victims of the Kimel and Garrett cases are not marginal castaways at the fringes of American society. On the contrary, they are solidly mainstream and middle-class. And it is precisely the "ordinariness" of their grievances that makes this new judicial obsession with "states' rights" such a broadly dangerous threat.
That threat could worsen, and soon. President Bush has repeatedly pledged to model his judicial nominees after Supreme Court justices Antonin Scalia and Clarence Thomas. They advocate an even harder line than their other "conservative" colleagues on cutting back humanitarian programs like Medicaid and ADEA. So far the President has been as good as his word. Among his nominees to date are the two ideological firebrands who led the fights against Daniel Kimel and Patricia Garrett, former Alabama Attorney General William Pryor and his retained outside counsel, Jeffrey Sutton.
For the uniquely powerful District of Columbia appellate court, the White House has nominated Janice Brown, who believes that "Today's senior citizens blithely cannibalize their grandchildren because they have a right to get as much 'free' stuff as the political system permits them to extract." Brown's scorn is not mere idle chatter. In one of her numerous lone dissenting opinions on the California Supreme Court she argued for a rule that could require government agencies to compensate nursing home owners for the costs of compliance with nursing home safety standards -thereby paralyzing Federal and state nursing home safety enforcement. Brown believes that Supreme Court decisions made in 1937 upholding New Deal programs - including Social Security - ¬constituted a "disaster of epic proportions."
How could a President, who, after all, must run for office, nominate individuals so disdainful of a major group of voters? How could senators vote to confirm such nominees to powerful, life-tenured judgeships? Obviously, the politicians must believe that not many of those voters are paying attention. It is time that senior citizens sit up and take note of goings-on in the courts, and especially of judicial candidates seeking to go to the courts. Otherwise, the constitutional clock could be turned back a century, in ways profoundly harmful to older Americans.
By Simon Lazarus, Public Policy Counsel, NSCLC