The Kavanaugh Nomination and Labor

Last week, President Trump nominated Brett Kavanaugh to replace retiring Justice Anthony Kennedy on the Supreme Court.  Kavanaugh currently serves as a judge on the United States Appeals Court for the District of Columbia Circuit. He was nominated to the DC Circuit by President George Bush in 2003 but was not confirmed until 2006.  Prior to coming to the bench, Kavanaugh held a number of positions that brought him into the partisan fray, including serving on Ken Starr’s Whitewater Special Counsel team, working for President Bush on the Florida recount, and serving in the Bush White House as the staff secretary.  He clerked for Justice Kennedy, overlapping with Justice Gorsuch’s tenure in Kennedy’s chambers.  He attended Yale University for both college and law school. Kavanaugh’s nomination was met with swift and strong opposition from the labor movement. AFL-CIO President Rich Trumka described Kavanaugh as having a “dangerous track record protecting the privileges of the wealthy and powerful at the expense of working people.”  SEIU tweeted that “confirming Kavanaugh would tip the scales of justice against working people.”

Opposition to the nomination by the labor movement is no surprise.  Kavanaugh’s record demonstrates consistent support for the interests of employers and a lack of concern for the interests of workers and the government agencies that come to the DC Circuit to protect workers’ rights.  Below, I will provide an overview of his record and attempt to make the case that his record reflects a sustained and, at times, aggressive hostility to the role of the law in protecting the vulnerable and less powerful.

An appropriate starting point in conveying the character of his record is his dissent in Agri Processor Co., Inc. v. NLRB.  There, the majority held that the employer had a duty to bargain with its employees, despite the fact that many of the employees were undocumented workers. The majority relied on the Supreme…

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