Yes, Diabetes is Probably a Disability; A Response to Ed Morrissey

So this morning we get news via Kevin Drum that the Obama administration is claiming some kind of victory in giving us the first Supreme Court justice who was confirmed with a disability, which everyone takes as a reference to Sonia Sotomayor’s diabetes.  This led Ed Morrissey over at Hot Air to wonder if diabetes counts as a disability.  And he doesn’t say this uncaringly, but with indeed sympathy toward people with diabetes because, as he discloses, his wife had Type I diabetes up until recently.  But he felt that it was ridiculous to treat it as a disability even when she had it, because as long as she took her medicine, she is fine.  At least that is how I read his argument.

As a lawyer, speaking about statutory construction, I would say, that under the Americans with Disabilities Act (ADA) diabetes is “almost certainly” a disability.  But to talk about it and the policy behind this, I have to get a little philosophical about the ADA.

You see in a very real way, the ADA is an upside down law.  And it is the upside down nature of the law that has led to a lot of confusion.

Let’s start with the paradigmatic example of wrongful discrimination: skin color.  Most normal people (with the recent exceptions of John Derbyshire and Marion Barry) recognize that it is wrong to judge a person by the color of one’s skin; that one should be judged by the content of one’s character, to riff off of Dr. King’s immortal phrase.  Now why is it wrong to judge people by the color of their skin?  Because, most sane people will say, there is no significant* difference between the races.  So it is considered wrong to discriminate based on color because it truly doesn’t matter; it’s irrelevant.

(I have often said that the only relevance of race is the existence of racism, and nothing I am saying here is meant to contradict that or the implications of that.)

Life Imitates Monty Python (Example #475)

One of the more absurd moments in Monty Python and the Life of Brian was when one of the oppressed Jews complained that the Romans was suppressing his right to an abortion.  The retort was something to the effect of, “but you’re a man!  You can’t even get pregnant!”  The pro-male-abortionist went on to say that if he could have a baby, the Romans would deny him the right to abort it, so he was being oppressed and eventually he convinced his cell of radicals to complain about that, too.

Stupid, huh?  Well, then get a load of this: Spanish fathers entitled to breastfeeding leave.  Fortunately we are talking about Spain, but the situation is so stupid its worth reading it in full:

The Fallacy of Assuming Everyone Thinks Like You (or “Fisking Keith Olbermann”)

Yeah, several posts ago I wondered if it was necessary to fisk Olbermann, but I am compelled to, here.

But first let me tell you a story.  Now I have said that I support affirmative action in a limited sort of way, based on the present reality of racism and other forms of bigotry.  And I remember saying that once in a Constitutional History class back when I was an undergraduate and a man vehemently disagreed with me that racism was a real problem.  He said something like this:

I don’t think racism is so bad.  At my fraternity, a black guy wanted to join.  And one guy said we shouldn’t let him join because he was black.  So I stood up and said that the fact he was black didn’t matter.  And we voted to let him in.

That’s a paraphrase, of course.  And this is what I said in response.

Kamps v. Fried Frank Update (or “Some Lawyers who Represent Themselves Have Fools for Counsel”)

Really, I am using this as an excuse to dredge up a case that caught my eye before I started this blog.  Specifically Julie Kamps v. Fried Frank, Fried being a major law firm (and not a food).  In that case, Kamps alleges discrimination based on the fact she was gay, sexual harassment, and a few other issues.  The story first caught my eye in this blog post, and today we learned that they have responded, here.  Now I don’t want to talk the merits of the case directly; they will probably have a full trial to hash out these issues.  Instead I would like to talk about something else.

Sometimes lawyers, or aspiring lawyers, will seek to represent themselves in court in a matter in which their competency is relevant.  For instance here, Ms. Kamps is claiming that despite being a “top notch” lawyer, she faced discrimination based on gender and sexual orientation.  What I think a lot of lawyers (and aspiring lawyes) fail to understand is that then as they represent themselves, their actual performance in that case because part of the evidence.

For instance, I remember reading of a case where a young man sought accommodations for his disability on some state’s bar exam.  The State Bar refused, so he sued, representing himself in court and took the matter all the way up to the state supreme court.  There the court decided to make this even simpler.  They said, more or less, well, ultimately admission is determined by us, and you have done such an exemplary job representing yourself that we’ll grant you admission to the bar without requiring you to take the exam at all.