Judges with Disabilities — and Lawyers with Disability Rights Law Experience — Belong on the Federal Bench

On July 13, 2022, President Biden nominated Jamal Whitehead to serve on the U.S. District Court for the Western District of Washington. The nomination of Mr. Whitehead, a Black civil rights lawyer, represented the kind of appointment that has become a hallmark of the Biden administration — a nominee who would bring to the bench both underrepresented lived and professional experiences.

Significantly, he was also the first nominee from this administration known to be living with a disability.

When now-Judge Whitehead — who uses a prosthetic leg — was confirmed in February 2023, he joined an extremely small number of federal judges known to be living with a disability. Seven months later, the Senate confirmed Judge Rita Lin to the U.S. District Court for the Northern District of California — making her the second Biden appointee with a known disability. Judge Lin lost her hearing due to a childhood illness and has used hearing aids in both ears since age 5.

During her confirmation hearing before the Senate Judiciary Committee, Judge Lin recognized that her disability was “formative” and taught her to “listen to every word of necessity.” As she stated, “I think both of those mental habits — listening closely and recognizing the possibility that I might be missing critical information — those mental habits have served me well throughout my professional career as a civil litigator, as a federal prosecutor, and most of all now as a superior court judge. And I hope that they will serve me well on the federal bench as well.”

Maya Wiley, president and CEO of The Leadership Conference on Civil and Human Rights, discussed the importance of disability representation on the bench during a recent virtual panel on judicial diversity. “We know that we are still underrepresented by so many Americans whose experiences need to be given voice on this bench. I’m just going to name one, because we’ve been fighting for this at The Leadership Conference as well,” Wiley said. “Twenty-six percent of Americans have some form of disability…What would it mean to have people who really represented the experiences, the diverse and varied ones of people with disabilities, when these kinds of decisions are getting decided?”

Judge David Tatel, who is blind and a former judge of the U.S. Court of Appeals for the D.C. Circuit, has also discussed the importance of having role models in the judiciary. “Role models were very important in my life, but I had no blind role models. And I wonder whether I would have been more open and comfortable with it had I known that blind people could succeed at the highest levels,” he said.

For decades, our coalition has worked to build a federal judiciary that is fair and provides justice to all. That has meant advocating for the appointment of diverse judges who are highly qualified, fair-minded, and committed to civil and human rights. This includes judges with disabilities. But for far too long, our nation’s judges have disproportionately been white, male, have possessed narrow legal backgrounds — and have not represented the incredible diversity of the nation’s disability community.

The Biden administration and leaders in the Senate have helped to set a new expectation — the same expectation our coalition has been fighting for — that judicial nominees have diverse lived experiences and a demonstrated commitment to our rights. Still, not enough progress has been made to ensure that people with disabilities are represented in our federal judiciary. We need lawyers with these experiences, and so many more, to be included in our judiciary. This improves decision-making by diversifying the decision-makers, which builds public trust and in so doing strengthens our democracy. It also helps more people know that a path to the federal bench is possible. This is crucial at a time when so many of our communities — and the very notion of diversity — are under attack.

Beyond selecting, nominating, and confirming more people with disabilities to the federal bench, our judiciary also needs more lawyers with critical experience protecting the civil and human rights of people with disabilities. We are making progress on that front, and we must keep going.

For example, a number of President Biden’s nominees to the bench, including Justice Ketanji Brown Jackson and Sixth Circuit Court of Appeals Judge Stephanie Davis, worked to uphold to the rights of people with disabilities in their roles as judges. On the U.S. District Court for the District of D.C., Justice Jackson repeatedly upheld the rights of people with disabilities. She ruled in favor of William Pierce, a deaf person who was unlawfully denied accommodations while in prison, and she ruled that Uber may be held liable for failing to provide transportation services that can be fully and equally enjoyed by people who use wheelchairs. As a magistrate judge for the Eastern District of Michigan, Judge Davis recommended that an incarcerated person with a mobility disability pursue a claim against Gus Harrison Correctional Facility after he was repeatedly injured from the prison’s ongoing failure to accommodate his needs.

Judge Susan DeClercq, appointed by President Biden to the same Michigan district court where Judge Davis served, advocated extensively while a federal prosecutor for those who have been discriminated against based on their disability. She successfully brought suit against the University of Michigan for violating the Americans with Disabilities Act (ADA) after the school refused to reasonably accommodate an employee’s disability. Her work on this case identified a pattern of discrimination by the university, and she successfully negotiated a settlement that included a change in university policy. In another case, she successfully represented a family who had been denied service at a restaurant because of their children’s genetic skin disorder, securing a generous monetary settlement for the family as well as a change in company policy.

And Judge Whitehead and Judge Lin, in addition to living with disabilities, have also worked to protect disability rights. While serving as a trial attorney with the U.S. Equal Employment Opportunity Commission, Judge Whitehead successfully represented a man who was fired because he used a vocal prosthetic, in violation of the ADA and the Washington Law Against Discrimination (WLAD). He also defended the rights of a man with bipolar disorder whose company refused to allow him time off from work and eventually fired him, in violation of both the ADA and WLAD. While in private practice, Judge Lin represented pro bono plaintiffs in a class action lawsuit seeking to make the roadside call boxes in California accessible to deaf people. The favorable settlement that Judge Lin negotiated included implementation of accessible call boxes on California highways, giving deaf motorists better access to emergency assistance.

No matter who we are or where we live, we all deserve fair-minded judges who recognize the needs of our communities, who understand how their decisions impact the daily lives of people across the nation, and who have a demonstrated commitment to civil and human rights — including disability rights.

Representation on the bench — both of people with disabilities and lawyers with disability rights experience — matters deeply. As we commemorate Disability Pride Month, we continue to urge the White House and our senators to fill every judicial vacancy with federal judges who reflect our nation, who represent our communities, and who respect the rights of all of us.