New Jersey Employment Attorneys Blog
Trump’s judicial nominee to fill the open seat on the Supreme Court of the United States (SCOTUS) is District of Colombia Circuit Court of Appeals Judge Brett Kavanaugh. This should be of great concern to workers throughout the country especially after the Court’s 5-4 decision in Janus v. AFSCME, Council 31, which stripped away decades of settled law when it ruled government workers can’t be forced to contribute to labor unions to help pay for the costs of representing them. Richard Trumka, President of the AFL-CIO, observed, “Kavanaugh routinely rules against working families” and denies “employees’ relief from discrimination in the workplace.” In 2012, a Washington Post columnist described Kavanaugh as “nothing more than a partisan shock trooper in a black robe waging an ideological battle against government regulation.” A look at Judge Kavanaugh’s judicial record suggests that if confirmed by the Senate, he would be far more conservative than Justice Anthony M. Kennedy, the seat he would replace. This means that should Judge Kavanaugh’s nomination be approved by the Senate, he would likely push SCOTUS further in the direction of favoring Big Business over the rights of workers to unionize, and to have a safe workplace free of harassment, discrimination, and retaliation.
American Fed. Of Gov’t Employees, AFL-CIO v. Gates, 486 F.3d 1316 (D.C. Cir. 2007), Kavanaugh authored the majority opinion that reversed the lower court’s partial blocking of Department of Defense (DOD) regulations, which had found that many of the Pentagon’s regulations would “entirely eviscerate collective bargaining.”
Agri Processor Co. v. N.L.R.B., 514 F.3d 1 (D.C. Cir. 2008) Kavanaugh dissented from a decision that ordered a company to bargain with a union, reasoning that the employees were ineligible to vote as undocumented immigrants.
SeaWorld of Fla., LLC v. Perez, 748 F.3d 1202 (D.C. Cir. 2014). Kavanaugh dissented from a majority opinion upholding a safety citation against SeaWorld following the death of a trainer who was working with a killer whale.
Venetian Casino Resort, LLC v. N.L.R.B., 793 F.3d 85 (D.C. Cir. 2015). Kavanaugh reversed and remanded a NLRB decision that the hotel engaged in unfair labor practices when it requested police officers to issue criminal citations to union demonstrators who were legally protesting.
Miller v. Clinton, 687 F.3d 1332 (D.C. Cir. 2012). Kavanaugh dissented from the majority, which found the U.S. State Department violated the federal Age Discrimination in Employment Act when it fired an employee because he turned 65.
Howard v. Office of the Chief Admin. Officer, 720 F.3d 939 (D.C. Cir. 2013). Kavanaugh dissented from the majority ruling which found that under the Congressional Accountability Act, a black woman could pursue her race discrimination suit after she was fired from her position as the deputy budget director at the U.S. House of Representatives.
Seven-Sky v. Holder, 661 F.3d 1 (D.C. Cir. 2011). Kavanaugh dissented from a three-judge panel decision affirming the lower court’s conclusion that the court had jurisdiction to decide the constitutionality of the ACA and that the ACA was constitutional.
United States Telecom Ass’n v. FCC, 855 F.3d 381 (D.C. Cir. 2017). Kavanaugh dissented from the denial of rehearing en banc in a challenge to the FCC’s 2015 net neutrality rule. In his dissent, Kavanaugh argued against court deference to the expertise of administrative agencies when matters involve “major rules.”
United States v. Anthem, Inc., 855 F.3d 345 (D.C. Cir. 2017). Kavanaugh dissented in an antitrust opinion in which the majority upheld a district court’s decision to block the multibillion dollar merger of health insurance companies Cigna and Anthem.
For the employment lawyers at Mashel Law who have devoted their careers to representing employees victimized by workplace discrimination and retaliation, the idea that laws and regulations protecting workers may be further eviscerated and stripped away by a far more conservative Supreme Court is extremely disheartening. That is why we oppose the nomination of Judge Brett Kavanaugh to the U.S. Supreme Court and ask you to do the same by contacting members of the United States Senate Judiciary Committee and requesting them to reject Judge Kavanaugh’s nomination.
Majority Members (11)
Grassley, Chuck (IA), Chairman
Hatch, Orrin G. (UT)
Graham, Lindsey (SC)
Cornyn, John (TX)
Lee, Mike (UT)
Cruz, Ted (TX)
Sasse, Ben (NE)
Flake, Jeff (AZ)
Crapo, Mike (ID)
Tillis, Thom (NC)
Kennedy, John (LA)
Minority Members (10)
Feinstein, Dianne (CA), Ranking Member
Leahy, Patrick J. (VT)
Durbin, Richard J. (IL)
Whitehouse, Sheldon (RI)
Klobuchar, Amy (MN)
Coons, Christopher A. (DE)
Blumenthal, Richard (CT)
Hirono, Mazie K. (HI)
Booker, Cory A. (NJ)
Harris, Kamala D. (CA)