Trump’s Supreme Court Pick Kavanaugh Has Pro-Business Record

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By Madison Alder

President Donald Trump ’s pick to be the next justice on the U.S. Supreme Court, Judge Brett Kavanaugh , has a strong history of siding with business in employment, labor, and benefits cases.

Trump named Kavanaugh, 53, as his official nominee July 9 to fill the seat of longtime Supreme Court swing vote Justice Anthony Kennedy . Kennedy, 81, announced his retirement from the court on the last day of the term June 27.

Kavanaugh currently sits on the U.S. Court of Appeals for the District of Columbia Circuit, commonly known as the second-highest court, and awaits Senate approval of his nomination.

Before becoming a federal judge, Kavanaugh was a staff secretary in the President George W. Bush White House. It took him three years to be confirmed to the D.C. Circuit, after Bush nominated him. He clerked for Kennedy, who later swore him in as a judge. Kavanaugh is a Yale Law School graduate. The addition of Kavanaugh to the court would likely result in a pro-business lean, if his record is any indication.

Kavanaugh, in a 2017 partial dissent, argued that a two-judge panel majority of the D.C. Circuit incorrectly held that CNN was the “successor employer” of about 100 workers it hired from a technical services company it cut ties with. CNN didn’t establish itself as the successor employer when it terminated its contract with the company and didn’t bargain with the workers’ union, Kavanaugh said. He concurred, however, with the majority’s opinion that the board had incorrectly analyzed its joint employer rule, and CNN and the technical services company weren’t joint employers of the workers.

In 2016, Kavanaugh wrote for the majority in a case overruling a pro-union National Labor Relations Board decision. The D.C. Circuit held the NLRB acted unreasonably when it ruled against Verizon New England Inc., which had ordered employees to stop displaying pro-union signs in their vehicles. The displays were a form of “picketing,” Kavanaugh said, which was prohibited by the collective bargaining agreement between the union and Verizon.

Kavanaugh also sided with U.S. Airways in 2013 when he joined an opinion limiting a retired worker’s access to court on his challenge to the termination of his disability benefits. The court ruled that the pilot’s disability benefits action was subject to the Railway Labor Act’s arbitration requirements and couldn’t be heard in federal court.

Kavanaugh has taken a somewhat restrictive view toward immigration in the few such cases he’s heard while on the D.C. Circuit.

In 2008, he dissented from a ruling that undocumented workers are “employees” who can form and join a union under the National Labor Relations Act. Kavanaugh also dissented from a 2014 decision that companies can sponsor immigrants for L-1B “specialized knowledge” visas if those workers have a particular “cultural knowledge.” The idea that cultural knowledge supports a special work visa supports the stereotypical suggestion that U.S. workers would never be able to learn the skills needed to perform the job, he said.

—Carmen Castro-Pagan, Laura D. Francis, and Porter Wells contributed to this report.

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