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A critique of Judge Kavanaugh's appointment


September 24, 2018

Elections have consequences. It’s frustrating to hear people say differently, despite the mountains of evidence to the contrary. One of the consequences, if not the most momentous, is who elected officials nominate and confirm to sit on our nation’s courts. Amongst these nominations and confirmations, the single most important decision is who sits on the Supreme Court. Not only is this the highest court in the land, but justices serve for life. 

The 2016 election outcome means that President Trump has already, less than two years into his term, nominated two of the nine justices that sit on the court. Neil Gorsuch was confirmed in April 2017 to fill the seat of Antonin Scalia. This did not upset the ideological and legal philosophy balance on the court, with both justices being solidly on the right. However, with Anthony Kennedy retiring in June 2018, President Trump has now nominated Brett Kavanaugh to replace him.

We cannot know for sure how Kavanaugh would lean, but his record suggests it would be more solidly to the right than Kennedy. More worrisome is that liberal leaning Ruth Bader Ginsberg is 85 years old and Stephen Breyer is 80. The right-leaning justices are all much younger. The upcoming elections in 2018 and 2020 are critical to our long-term future.

There are many grounds to oppose Kavanaugh’s nomination. We write here from our positions within the labor union movement and as part of a recently formed effort by seniors to help elect good people to office. We are gravely concerned for all those that have been and will continue to be adversely affected by court decisions that rule in favor of large corporations and the wealthy at the expense of low- and middle-income Americans. 

Since 2006, Kavanaugh has served as a judge on the U.S. Appeals Court for the District of Columbia Circuit. His judicial record leaves little room to doubt the biases he would take to the highest court in the land. His record unambiguously demonstrates a careless disregard for maintaining law that protects and promotes the well-being of the less wealthy and powerful in an ongoing struggle with the privileged and advantaged. 

Several of his decisions in key cases on the D.C. court are indicative of his judicial philosophy. His dissent in Agri Processor Co., Inc. v. NLRB shows his brazen willingness to side with the powerful against the vulnerable. The majority ruled, consistent with previous Supreme Court decisions, that the employer had an obligation to bargain with its employees regardless of their immigration status. As the Supreme Court has previously ruled, immigrant communities are not, nor should they be, Constitution-free zones. Evidently, Kavanaugh disagrees. This portends bad things to come should he be confirmed.

  Other cases abound. In NLRB v. CNN, in which Kavanaugh took an aggressive stance when he refused to hold CNN responsible for flagrant violations of a collective bargaining agreement. In Verizon New England v. NLRB, he wrote a majority opinion that denied the right of workers to display pro-union signs in their cars. In American Federation of Government Employees v. Gates, Kavanaugh voted to allow the Department of Defense to unilaterally decide that employees no longer had the right to collective bargaining, despite statute that explicitly guaranteed that right! In Miller v. Clinton, Kavanaugh dissented, arguing in favor of the State Department’s right to impose a mandatory retirement age. This opens the door to employers deciding to discriminate based on disability, ethnicity, religious affiliation or sexual orientation. In other words, get ready for the real possibility of reversing already hard-won victories should he or someone like him replace Kennedy.

A Reuters/Ipsos poll earlier this month found that Kavanaugh is supported by just 31 percent of those surveyed while 36 percent opposed his confirmation, a number that has risen six points in the last month, presumably due to the allegations of sexual misconduct by Kavanaugh while in high school. Sexual assault should, of course, be grounds for denying a seat on the court. But, grounds for voting against Kavanaugh’s confirmation need not rely on the veracity of these allegations.

We write here to urge all citizens and elected officials, concerned with balance on our highest court to raise their voices against this nomination. We are in severe danger of losing a critical balance on the court for many years to come.

We need the highest court in the land to be guided by justices who will decide in favor of justice. Regardless of how the Kavanaugh nomination is decided, we should be concerned going ahead about balance on our highest court. Future elections will determine who appoints and who confirms future appointments. It matters.


Paul Haber

President, University Faculty Association, University of Montana Founding board member, Big Sky 55+

Jim Murry

Former executive secretary, Montana AFL-CIO, former program director, United Steelworkers of America and former Montana commissioner of political practices Founding Board Member, Big Sky 55+


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