High court nominee seen as mostly employer-friendly votePosted On: Jul. 17, 2018 8:00 AM CST
U.S. Circuit Judge Brett Kavanaugh, President Donald Trump’s nominee to the U.S. Supreme Court, is generally likely to be a reliable pro-employer vote, according to many observers.
They also predict Judge Kavanaugh’s conservatism will extend to ruling Title VII of the Civil Rights Act of 1964 does not protect LGBT rights, although others say that is not necessarily pre-ordained.
A key element in Judge Kavanaugh’s judicial philosophy is he is an “originalist” who will closely hew to statutory language in interpreting the law, experts say.
Observers generally praise Judge Kavanaugh, who is now a justice on the District of Columbia Circuit Court, while noting he is likely to move the court further to the right should he succeed in replacing the retiring Justice Anthony Kennedy.
Gerald L. Maatman Jr., a partner with Seyfarth Shaw L.L.P. in Chicago, said, “When it comes to workplace issues, class action issues, the expansive interpretation of workplace rights, I think he will be a judge who falls more on the (Antonin) Scalia side of the line than on the Judge Kennedy side of the line” and is probably “a more reliable vote for business interests than Justice Kennedy might have been in the past.”
But he will not necessarily be predictable, observers say. “Based upon his decisions, he seems to have a pretty healthy skepticism towards the administrative state,” said Michael Lotito, co-chair of Littler Mendelson P.C.’s Workplace Policy Institute in San Francisco.
“But on the other hand, he’s not afraid to rule, whether it’s on behalf of a union, or on behalf of an employee, when the facts warrant it, and that’s exactly what you’re looking for in a jurist.”
“I think he will be very fair to employers,” said Robin E. Shea, a partner with Constangy, Brooks, Smith & Prophete L.L.P. in Winston-Salem, North Carolina.
“He’ll be receptive to their point of view on things,” but “I don’t think he’s going to be just a rubber stamp for employers.”
Many observers point to Judge Kavanaugh’s concurring 2013 opinion in Magloire K. Placide Ayissi-Etoh v. Fannie Mae et al., in which he held that a single instance of being called a racial epithet “might well have been sufficient to establish a hostile work environment.”
Pointing to that ruling, Brian D. Pedrow, a partner with Ballard Spahr L.L.P. in Philadelphia, said this shows there is no guarantee “that his conservative leanings will necessarily result in pro-employer decisions in the discrimination area.”
However, Jordan Barab, who was deputy assistant secretary at the Occupational Safety and Health Administration during the Obama Administration, said, “Everything we’ve seen about him in terms of his decisions, and his past history, indicate he will be very pro-business, anti-workers and anti-union.”
Experts say one ruling illustrative of Judge Kavanaugh’s judicial philosophy is his dissent in 2014’s SeaWorld of Fla. L.L.C. v. Perez, which concerned a SeaWorld’s trainer’s death by a killer whale during a performance in Orlando.
In discussing the issue of whether OSHA should fine SeaWorld $70,000, Judge Kavanaugh said OSHA had “departed from tradition and stormed headlong into a new regulatory arena.” Judge Kavanaugh concluded OSHA had stretched its authority under the general duty clause, which says employers must maintain a workplace free of recognized hazards.
“In the real world, it is simply not plausible to assert that Congress…intended to authorize the Department of Labor to eliminate familiar sports and entertainment practices,” including SeaWorld’s whale show, said his dissent.
“He’s going to be guided by strict statutory interpretation,” said Mr. Lotito. “He has a very healthy respect for the division of powers…. He recognizes that legislators are expected to legislate,” and not the courts.
This could be a factor in his views when the Supreme Court, as expected, rules on the issue of whether Title VII protects LGBT rights. Observers point out Title VII does not explicitly address sexual orientation.
“If he’s a true textualist, and he’s not going to take into account the changing times in society in which we live, he would conclude that Title VII doesn’t say sexual orientation,” said Eric Meyer, a partner with FisherBroyles L.L.P. in Philadelphia, noting there is nothing in its legislative history to suggest “the drafters of the law were thinking about sexual orientation” when the law was passed.
“My sense would be that it will be an uphill battle for the plaintiffs to convince him to come around to their view,” although “it is very difficult to read the tea leaves” on this issue, said Mr. Maatman.
Ron Chapman Jr., a shareholder with Ogletree Deakins Nash Smoak & Stewart P.C. in Dallas, said one school of thought says Judge Kavanaugh will observe that Title VII is silent on the issue of LGBT rights and rule against its coverage under the law.
“On the other hand, judges are loath to make dramatic changes in society or the law, so part of him may realize that there’s a wide and growing acceptance of LGBT rights, and he may go along with it, so we’ll just wait and see.”