I’ve been reading and studying a lot about Watergate recently (which I’m sure a lot of people interested in American politics are doing right now), and something sort of caught my attention.
Trump really is playing this Russia investigation like it is Watergate verbatim.
It’s not really surprising, he did surround himself with a few Nixon people (Roger Stone comes to mind immediately), so the stuff about trying to demonize the media, the paranoia around a “deep state” conspiracy and trying to purge out political opponents, the emphasis on “law and order” while everyone around you commits felonies, all that is there and comes straight from Nixon.
But what really grabbed me was trying to figure out why Trump keeps trying to refer to Mueller and his team as “13 angry Democrats” when most of them (Rosenstein, McCabe, Mueller) are Conservative Republicans themselves.
Then it hit me. Archibald Cox, special council investigating Watergate, was a liberal professor from Harvard Law and he brought in many young Harvard Law grad who were also liberals to help him. He’s trying to play this like it is Cox, not lifelong Republican Mueller, investigating him.
I write to supplement existing accounts of the disability community’s concerns surrounding Doe ex rel. Tarlow v. District of Columbia. Judge Kavanaugh’s opinion in Tarlow was not only damaging to the rights of people with intellectual and developmental disabilities – as existing accounts suggest – but display a disregard for norms surrounding judicial factfinding at the appellate level. I have serious concerns that, if placed on the Supreme Court, Judge Kavanaugh would continue this pattern of playing fast and loose with the facts of the cases before him.
Background
Three Jane Doe plaintiffs brought the underlying action in 2001. They challenged the DC government’s policy of authorizing elective surgeries, including abortions, on people who were receiving developmental disability services (DD services), without first considering the patients’ expressed wishes. Two of the Jane Does had received abortions without their consent.Another had undergone surgery to correct exotropia, a misalignment of the eyes that often causes only minor symptoms. Although all three plaintiffs had been deemed unable to independently provide informed consent to medical treatment, they could – and did – express clear desires regarding their care.
The Jane Does sought a court order requiring the District to consult with similarly situated people receiving DD services, prior to authorizing surgery. In 2005, the federal district court granted the plaintiffs’ request for a permanent injunction. Thedistrict court specifically found that the District’s “updated” policy on consent, which was issued in 2003, had not resulted in any meaningful changes to the District’s practices. Instead, the district court noted that it was “undisputed” that the District “continues to provide consent without making any subjective inquiry into the patient’s wishes or values, and without attempting to ascertain what the patient would do if competent.”
The judge ordered the District, when consenting to elective surgeries for people receiving DD services, to use the “substituted judgment” standard. This standard required the District to consider an individual’s expressed wishes and preferences in order to determine what the individual would want if he or she had the capacity to consent to the procedure.This standard does not, however, require the District to follow the individual’s expressed wishes and preferences in all cases.
The District appealed the injunction.
JudgeKavanaugh’s 2007 Opinion
In a 2007 opinion, Judge Kavanaugh reversed the district court, holding that the District had no obligation to consider the expressed wishes or preferences of people receiving DD services prior to consenting to elective surgery. As disability attorney Robyn Powell explained in her article in Rewire, this holding by itself is outside of the mainstream. It is so far outside the mainstream that it contradicts the recommendations of the National Conference of Commissioners on Uniform State Lawsregarding from 1998 with respect to decisions by guardians.
However, a review of the record in this case shows that, in addition to his alarming disregard for the rights of people with intellectual and disabilities to have their wishes considered, Judge Kavanaugh also disregarded important parts of the record, engaged in inappropriate fact–finding at the appellate level, and dramatically mischaracterized the lower court record.
Judge Kavanaugh inappropriately found that the District used the “best interest” standard for decisions.
Judge Kavanaugh’s 2007 decision includes repeated statements that the District used the “best interests” standard for its medical decisions on behalf of class members. However, the parties did not actually agree that the District was following the “best interests” standard. Instead, plaintiffs argued that the District’s admitted failure to consider the wishes of class members failed to live up to either the “best interests” or “substituted judgment” standard. Typically, even the application of the “best interests” standard requires some inquiry into an individual’s known wishes, feelings, and desires. For example, it is impossible to determine whether it is in the “best interest” of a patient to receive surgery to correct eye alignment, without knowing whether the symptoms of the underlying condition are actually bothering the individual.
It was undisputed that District employees made no independent attempt to ascertain the wishes of class members prior to consenting to elective procedures. Moreover, although the District claimed that class members’ wishes were considered by the doctors who recommended the procedure, this claim was also disputed. Yet in his decision, Kavanaugh claimed that MRDDA had a policy of discussing proposed treatment with the class members.
Judge Kavanaugh’s statements that the District’s policy and practice actually followed the “best interests” standard, and that all medical procedures were discussed with class members, are inappropriate. “Fact-finding” by an appellate judge is not normal; such findings are usually left to the district court. Strong judicial principles prevent appellate judges – who do not have the benefit of juries or other means of weighing competing evidence – from issuing findings on disputed facts outside of exceptional situations (such as situations in which the evidence is so overwhelming that no reasonable person would disagree).
This was not one of those situations. In fact, the parties had not even finished collecting evidence on this issue before Kavanaugh imposed his own take on the case.
The consequences of Judge Kavanaugh’s inappropriate fact–finding were significant. On remand, the district court was unable to consider plaintiffs’ evidence that the District was failing to meet the “best interests” standard, an issue that had not previously been considered relevant to the case. All further attempts to seek injunctive relief against the District were therefore foreclosed.
Kavanaugh repeatedly mischaracterized the district court’s order
As noted above, the district court had ordered the District to use a “substituted judgment” standard when consenting to medical treatment on behalf of class members. This standard requires the District to consider – but not necessarily adopt – the known wishes of the patient. Moreover, the district court’s order was limited to elective surgeries and did not cover decisions about urgent, life-saving treatment.
Nevertheless, at oral argument, Judge Kavanaugh repeatedly insisted that the District was being required to follow the wishes of class members. This assumption contradicted not only the district court’s order but also the statements of the District’s own counsel.
Judge Kavanaugh also repeatedly suggested, both at oral argument and in his opinion, that the district court’s order would affect decisions on life-saving, urgent care. At oral argument, Judge Kavanaugh posed hypotheticals involving surgeries that were urgent and life-saving, prompting plaintiff’s counsel to clarify that those decisions were not relevant to the case.
Despite these clarifications, Judge Kavanaugh’s written opinion continued numerous misstatements about the lower court’s order. He repeatedly stated that the lower court would require the District to follow a “known wishes” standard – even though this standard is dramatically different from the “substituted judgment” standard. He further opined that such “[c]onsideration of the wishes of a patient who lacks mental capacity to make healthcare decisions could lead to denial of essential medical care to a patient who purportedly did not want it.”
Conclusion
Instead of carefully evaluating the plaintiffs’ arguments and the record, Judge Kavanaugh went into the oral arguments in this case with a predetermined assumption that greater self-determination rights for people with intellectual and developmental disabilities were unreasonable and dangerous. He was unable to adjust those assumptions in light of plaintiffs’ counsel’s arguments at oral argument or careful review of the record and procedural history of the case. Instead, he substituted a careful understanding of the record with inappropriate findings of fact and significant mischaracterizations of the lower court record. This careless approach to the record is extremely disturbing and is likely to manifest in his future decisions, including other high-stakes decisions about the civil rights of people with disabilities.
Our substantive concerns about Judge Kavanaugh’s decisions – as discussed in further detail in the articles cited at the introduction and in ASAN’s statement on Judge Kavanaugh’snomination – remain vital and principal in our objection to Judge Kavanaugh’s nomination. However, his careless approach to appellate jurisprudence also poses a significant concern, which has the potential to affect cases outside the realm of disability rights as well.
Thank you for your consideration,
Samantha Crane, J.D.
Legal Director, Director of Public Policy
Autistic Self Advocacy Network
Because some of the righties who follow me were yelling at this and saying it’s not a big deal
alexa the DWP putting the lives of disabled people at risk is so sad play despacito
(sorry, I couldn’t resist.)
as of 22nd June, have been denied any PIP (personal independence payment) by the dwp. It has been taken from me completely, despite me sitting for an hour and a half with their private company assessor (not a doctor) and describing every single aspect of my ailments and trauma in excruciating detail, and supplying a letter from my doctor declaring me categorically unfit for work.
I am physically disabled with ehlers danlos syndrome – a connective tissue disorder that causes agonising pain in all my joints and makes me prone to dislocating major ones at any given time (most recently my jaw).
I am also severely mentally ill. I have bipolar disorder, ptsd, and GAD (generalised anxiety disorder), which are a hellish combination. I’m prone to self harm in manic spells, pacing, panic attacks, and vivid abuse flashbacks that have made it impossible for me to work. It’s exhausting and I’m tired all the time. I suffer constantly from suicidal ideation, even medicated properly.
Anyone who follows me/has looked at my uk politics tag will know that it’s been a constant and frustrating struggle for me to even get my pittance, but losing my pip would mean I have just 200£ a month.
That’s to cover all my bills. My food, my phone, cat food, my rent, and most importantly my travel. My home is severely abusive. I leave the house at 6.30am and stay out until I’m nearly falling asleep with pain and exhaustion. I’ve been beaten before. My parents gaslight me constantly and are homophobic or ableist depending on what mood they’re in. They blame me for this, and will not help. Not even in the slightest way.
The prospect of struggling to be able to buy food is incredibly bad for my eating disorder too. I’ve tried so fucking hard to recover this past year, and something like this makes it so risky to relapse. I cannot survive on this little money, and I don’t say that lightly.
I am going to appeal, but that could take 6 weeks, and that’s the best case scenario. I’ve waited 12 weeks to even get the result of this assessment, and I do not have any money for however long this takes.
please, for the love of god, if you have any spare money that you can donate to help me, my paypal is tinykestrel@gmail.com
Even the smallest amount would help. If you can’t donate please please reblog.
Thank you so much, from my lesbian ass and miss agnez:
hey lads, I’m still not getting paid and I’m really scared, please reblog/donate if you can!!
In light of this “butch pal for the straight gal” nonsense please help this Actual Butch stay out of harm’s way!!
In exchange I can offer you tips on how to look just as tacky as me, a terrible drawing of a cat that is a lesbian, or other gay advice. I say this mostly as a joke but also I’m completely serious.
I haven’t heard a WORD since submitting my appeal 2 weeks ago, not even confirmation from them that they got it even though I knew full well they did (it was recorded post). I need money to live and to put aside enough to escape to a different country to be with my girl. obviously, that’s great news and I’m really happy about it, but in the meantime, I suffer ™
thank you to everyone who already donated – I’m emailing thanks individually but I’ve been really busy lately so I’m sorry if it takes a while!! thank you!
Force yourself not to give a fuck. Go for a short walk (no more than 15 min) to offset the feelings of oh no calories aaaaa and get a snack.
An unhealthy snack.
Yeah that’s right. A treat, bitch. A cookie, a cake, a big old sandwich. Something to throw yourself in at the deep end.
Don’t stare at yourself in the mirror beyond a quick 5 second check over of your outfit.
Stop caring about your clothes and how big or small they make you look. Make outfits by laying them out rather than putting them on your body.
Think of your body by means of what it can do rather than how it looks. You’re walking around and shit??? That’s great. Feel the breeze in your hair. Go out in the rain and listen to it fall against your umbrella and touch some plants and shit. You’re breathing and feeling stuff and your ed can’t take that.
Forgive yourself. I can’t emphasise that enough. Binging on food or having relapses doesn’t mean you’ve failed recovery. It’s less upward slope and more a wiggly slowly upwards line.
Take up a portable hobby. By that I mean something you can carry about in your backpack. A sketch book or knitting or a puzzle book. Make a point of doing it when you feel a bout of paranoia or Bad Feelings. Force yourself to concentrate really hard on it and not the intrusive thoughts.
But yeah, stop giving a fuck about your looks, your clothes. Work up to three meals a day. Treat yourself to delicious schnacks.
Wrestle your ed demons that take the form of vipers, and stamp on them as saints do, cast in plaster and crushed underfoot. Flatten them and be the saviour of yourself in your very own divine smiting.
i’m about to tell you the actual funniest thing i’ve ever heard.
i’m training to become a sign language interpreter, and today i asked my mentor about weird jobs she’s been on. like has there ever been one that when she left she was like “what the actual fuck just happened to me?” and i swear her soul transcended this plane of existence for a few minutes while she told me this story.
a few years back she and a colleague got an interpreting assignment from the agency that said “spice party”. so it was like a tupperware party where someone works for a company that sells a product, and they invite people into their home to show them the product and then the guests can place an order and buy the products and in this case it was spices.
they get there, and ring the doorbell. the host opens the door and tells them that the guests haven’t arrived yet but that they’re welcome to go into the other room to look at the products so they’ll know what will be discussed during the night.
so these two interpreters were like pfft spices?? lmao we don’t
need to look this up, there’s salt pepper and chilli like how hard can it
be. so they walk up to the door. open it. look into the room where this spice party is supposed to take place. and stop dead in their tracks.
flashback to when the interpreting agency got the order from the host of the party. apparently it said “it’s a party where they can order products from a company called something something spicy”. so this old little lady that handles the orders just thinks “hey, it says spicy, so that must mean spices right?” she rewords the order and sends it to the interpreters.
fun fact. that company did NOT sell spices. these two interpreters open the door expecting oregano or some shit and they get dildos. just. everywhere. dildos. lube. vibrators. condoms in 75 different sizes. it was a sex toy party.
the guests arrive. this is a small ass town. the interpreters know everybody at this party. throughout the night the guests can go into a private room with the host to place an order, and the interpreters have to come along because the host is the one who is deaf. to this day they see these people on the street and have to be like “hey :)” because it’s a small town, everyone knows everyone, and they have to say hi to people knowing that they have a two foot dildo and licorice flavoured lube at home.
anyway what i got from that story is that i picked the right profession.
Urocyon's Jaunts 2.0 
You must be logged in to post a comment.