Trump made waves this week when he named D.C. Circuit Appellate Judge Brett Kavanaugh as his pick to replace retiring U.S. Supreme Court Justice Anthony Kennedy. Pundits immediately jumped to the big questions. Will Republican Senators Collins and Murkowski support Trump’s pick? Will Kavanaugh give the court an impenetrable conservative majority? Will the High Court have enough votes to overturn Roe vs. Wade? While these debates continue, very few pundits asked what the nomination of Judge Kavanaugh means for employers and the business world.
It’s an important question. It’s hard to predict how a Supreme Court nominee will rule by watching their confirmation hearings. Most will say that judges must be independent and must interpret the laws, not make the law (which is exactly what Judge Kavanaugh said when he was confirmed to the D.C. Circuit Court of Appeals 12 years ago). But, unlike a number of recent nominees, Judge Kavanuagh has a long history of issuing employment-related decisions.
For instance, Judge Kavanaugh recently said that the structure of the Consumer Financial Protection Bureau is unconstitutional. That could have a huge impact if matters involving the Consumer Financial Protection Bureau come before the Court. Several labor unions oppose Kavanaugh’s nomination and have called him anti-labor. They cite cases like The National Labor Relations Board v. CNN America, Inc. where he found that the broadcaster was not liable for violating the NLRA after 300 technicians lost their jobs and union protections. But Judge Kavanaugh has also found that a single verbal incident can be enough to establish a hostile work environment, which tends to favor employees in discrimination lawsuits.
These aren’t idle considerations. Judge Kavanuagh is only 53 years old. If confirmed, his Supreme Court legacy could span more than 40 years. You should expect to see more fireworks as his confirmation hearing draws closer.