By George Faraday, Legal & Policy Director
Right now it looks as if Trump and the GOP Senatorial leadership is so impatient to ram through Brett Kavanaugh’s appointment to SCOTUS that they won’t allow the allegations of sexual assault hanging over him to be investigated.
Why are they so eager to rush through the confirmation of such a potentially flawed nominee?
Well one answer may be that whatever doubts Kavanaugh’s extra-curricular past may raise about his fitness for the Court, his record on worker rights is spotless — at any rate from the Trump-GOP point of view.
As a George W. Bush appointee to the DC Federal Circuit Court, Kavanaugh has been in a unique position to demonstrate his anti-worker credentials. The DC Circuit hears appeals against the federal agencies tasked with protecting the rights and safety of American workers like OSHA and the National Labor Relations Board.
In his majority decisions and dissents Kavanaugh has consistently aimed to undermine the authority of these agencies. He approved the right of a casino owned by right-wing billionaire and political donor Sheldon Adelson to call the cops on union protestors; he held that the State Department may legally discriminate against older workers; and that Defense Department can abolish collective bargaining for its hundreds of thousands of civilian employees.
But Judge Kavanaugh’s most troubling positions may be his dissenting opinions in Agri Processor v NLRB, and Seaworld v Perez In Agri Processor Kavanaugh broke with decades of precedent to write that undocumented workers (whom he insisted on referring to as “illegal”) have no union organizing rights. If a conservative-dominated SCOTUS adopts his view, a major part of the American workforce will be permanently excluded from labor law protections, with disastrous results for all American workers.
In Seaworld Kavanaugh argued that OSHA exceeded its authority by requiring the theme park to protect its employees after Seaworld trainer Dawn Brancheau was killed by an orca whale. Kavanaugh took the opportunity offered by Brancheau’s death to launch a full-throated attack on government “paternalis[m]” and the right of “eager and willing” workers to sign up for even the most dangerous jobs.
Kavanaugh’s belief that government should respect individual workers’ freedom to subject themselves by contract to even the worst labor conditions mirrors the Supreme Court’s refusal to allow government to regulate wages, hours, and safety in its infamous 1905 Lochner decision. At his confirmation hearing Kavanaugh disavowed Lochner, but his judicial opinions say otherwise.
America still doesn’t know whether the young Kavanaugh exploited his privileges as a young, white man at an elite DC prep school and Ivy League college to assault his female peers. But based on his adult record as judge we already know that he – and the President who appointed him – is looking toward a Supreme Court that will green-light the exploitation and abuse of American workers on a scale we have not seen in almost century.