Trump Supreme Court Pick Bad News for Workers, Unions, Women

Mark Gruenberg Editor, Press Associates Union News

Going by his past rulings on federal appeals courts, GOP President Donald Trump’s nominee to fill Justice Anthony Kennedy’s vacant U.S. Supreme Court seat – federal appellate judge Brett Kavanaugh -- will be bad news for workers, unions and women if Kavanaugh makes it to the High Court.

And Kavanaugh, who now sits of the U.S. Circuit Court of Appeals for D.C., would also be bad news for any investigation of Trump’s involvement in Russian interference in the 2016 U.S. presidential election, too. Kavanaugh took the position that a sitting president can’t be indicted, or even questioned, in a criminal probe. He can only be impeached, the judge says.

Trump unveiled Kavanaugh as his choice to succeed Kennedy in a nationally televised speech on the evening of July 9. The other contenders were Judge Raymond Kethledge of the Cincinnati-based 6th U.S. Circuit Court of Appeals, Judge Amy Barrett, a former Notre Dame University law professor who joined the Chicago-based 7th U.S. Circuit Court of Appeals last year, and Judge Thomas Hardiman of the Philadelphia-based 3rd Circuit Court.

All four upset unions, workers, women and their allies. Several progressive groups immediately launched campaigns against Kavanaugh in states of undecided senators (see separate story, including AFL-CIO statement).

“While an independent voice on the High Court is important, fundamentally the next Supreme Court justice must have experience advocating for working people,” Jobs With Justice said. “The Supreme Court has had far too few champions for working people,” since former Labor Secretary and CIO and Steelworkers General Counsel Arthur Goldberg left after only three years, in 1965, JWJ said.

The recent Janus case “is just the latest Supreme Court case contributing to policies and laws chipping away at men and women’s ability to stick together in strong unions. It is time for a justice who will interpret the Constitution and U.S. laws in a way fair to working people and allows them to negotiate collectively. Jobs With Justice will oppose any nominee that is in the pocket of corporate CEOs rather than supporting the working people’s right to a level playing field.”

Trump’s litmus test is for a judge who will overturn the Supreme Court’s Roe v Wade ruling which set up legal conditions for abortions nationwide. But Kavanaugh’s rulings in workers’ rights cases are bad, too, said AFL-CIO Associate General Counsel Donna Euben, who dug up the list of relevant cases for Trump’s three initial nominees. Senate Majority Leader Mitch McConnell, R-Kent., pushed Hardiman onto the list.

“President Trump’s first appointment drastically shifted the court towards one that protects privileges of the wealthy and powerful at the expense of working people. The reported finalists for his next nomination have all demonstrated a record that puts the rights of working people at serious risk,” Euben warned. Details of Kavanaugh’s rulings include:

In 2007, Kavanaugh gave the Defense Department a temporary win against its 700,000 civilian workers, represented by an union coalition led by the Government Employees (AFGE). Kavanaugh wrote that the 2004 Bush-era Defense Department law gave Bush’s DOD temporary authority, through November 2009, to curb civilian defense workers’ collective bargaining rights. AFGE and its allies later persuaded Congress to dump that.

Dissenting congressional Democrats, led by Sen. Edward Kennedy, D-Mass., have no weight with the courts, Kavanaugh said. “The plain language” of the 2004 law “authorizes DOD to curtail collective bargaining” for its civilian workers. The “relevant terms” of the law are “plain.” Dissenting justices said Kavaaugh would let the government “abolish collective bargaining altogether.”

• Kavanaugh also said undocumented workers can’t unionize under the National Labor Relations Act. In a 2008 case involving Agri Processor, Inc., a Brooklyn kosher meat packer, the appeals court majority said they could.

The United Food and Commercial Workers won an organizing drive among all the plant’s workers – documented or not -- three years before. The firm said the court should toss the vote because the undocumented workers decided it. That “ignores the (National Labor Relations) Act’s plain language” and a 1984 Supreme Court ruling, the court majority said.

Kavanaugh called that result “somewhat peculiar.” He added “an illegal immigrant worker is not an ‘employee’ under the National Labor Relations Act for the simple reason that, ever since 1986, under federal immigration law, an illegal immigrant worker is not an ‘employee’ in the United States.”

• In 2015, Kavanaugh gave the Venetian Casino in Las Vegas one small win in a long-running battle – dating back to 1999 – with union organizers over the right to picket on a public sidewalk. The National Labor Relations Board ruled they could, under their constitutional rights to freedom of expression and freedom assemble peaceably. It also tossed out the casino’s claims the sidewalk, which was temporary due to road construction, was private property. The walk was on the Venetian’s land.

The casino also called the cops on the demonstrators. The NLRB was silent on that. Kavanaugh ruled the U.S. Constitution protected not just the demonstrators, but the casino’s right to call the police. He termed it “a petition to government” protected by the 1st Amendment.

“Where employers assert a private property right and ask the police to enforce that right against demonstrators, the employers are ‘seeking redress of wrongs committed against them.’” And that’s legal, Kavanaugh added, unless the request is a sham.

• Kavanaugh also said the government went too far in regulating sports and entertainment when the Occupational Safety and Health Review Commission came down hard on SeaWorld in Florida in a notorious case where a supposedly trained killer whale pulled the trainer under water, drowning her.

The court majority’s 2014 decision, for the commission and against Sea World, “green-lights the department to regulate sports and entertainment in a way Congress could not have conceivably intended” when it enacted the Occupational Safety and Health Act in 1970 and gave OSHA “general authority to regulate safety and health in workplaces,” Kavanuagh said. Under that logic, he added, OSHA could regulate football tackling and NASCAR races.



Posted In: Allied Approaches

Stronger Together

Stronger Together