7/10/2018
President Trump’s nomination of Judge Brett M. Kavanaugh to the Supreme Court, his second nominee, could further cement the high court’s pro-business tilt.
In his dozen years as a federal appellate court judge, Judge Kavanaugh has tended to side with business interests in resolving regulatory issues and employment disputes in cases involving the environment, consumer protection and technology.
“The Champagne corks are going to pop at the Chamber of Commerce and in the C.E.O. offices across America,†said Dennis Kelleher, president of Better Markets, a nonprofit group that advocates stringent financial regulation.
A graduate of Yale Law School, Judge Kavanaugh once served as a clerk to Justice Anthony M. Kennedy, whose retirement, announced less than two weeks ago, opened a seat on the court. Judge Kavanaugh has had a hand in writing some 300 judicial opinions for the Court of Appeals of the District of Columbia.
On Monday night, soon after Judge Kavanaugh’s nomination was announced, the White House began circulating to business leaders a one-page sheet promoting his pro-business rulings. The memorandum, reviewed by The New York Times, said the judge had overruled federal agencies some 75 times. It was unclear whether that figure included dissenting opinions.
“Judge Kavanaugh protects American businesses from illegal job-killing regulations,†the memo reads.
Business groups, for now, were careful not to strike an overly celebratory note in commenting on the nomination.
“We congratulate Judge Brett Kavanaugh and look forward to reviewing his record on legal issues important to the business community,†said Blair Latoff Holmes, a spokeswoman for the United States Chamber of Commerce.
Consumer Issues
In one of Judge Kavanaugh’s best-known rulings, he said the legal structure of the Consumer Financial Protection Bureau was unconstitutional because it was led by a single director, unlike other agencies with several commissioners. Judge Kavanaugh sought to remedy the problem by empowering the president to fire the director.
Judge Kavanaugh’s legal reasoning ultimately was rejected by a full panel of the appellate court for the District of Columbia.
In another ruling, in 2014, Judge Kavanaugh wrote that the federal Food and Drug Administration did not follow proper procedures when it issued an order that effectively forced a medical device manufacturer to pull from the market a product used in knee replacement surgeries. The judge’s ruling overturned a lower court decision that had sided with the F.D.A.
Much of the debate in the coming months is likely to focus on Judge Kavanaugh’s views on social issues and whether a sitting president can be subject to prosecution or other legal claims. But Mr. Kelleher said equal attention should be given to his track record in siding with business or in finding ways to strengthen the hand of the executive branch.
Net Neutrality
Judge Kavanaugh took a position favored by some big telecommunications companies when he wrote a dissenting opinion in an appellate case that had upheld the Obama administration’s so-called net neutrality regulation. The rule passed by the Federal Communications Commission required big internet providers to treat data equally and to not favor some data companies over others.
The judge said the rule violated the First Amendment by interfering with the editorial decision-making of internet providers.
Judge Kavanaugh’s view ultimately triumphed when the Trump administration and the F.C.C., under new leadership, rescinded the net neutrality rule.
The Environment and Employment
In other decisions, he has taken a tough line on environmental regulations. In one case he was part of a divided bench that struck down a provision of the Clean Air Act. The ruling was later overturned by the Supreme Court.
In 2013, Judge Kavanaugh and Merrick Garland, the appellate judge President Barack Obama unsuccessfully nominated to the Supreme Court in 2016, were on opposite sides of a case over the federal government’s procedures for storing nuclear waste. Judge Kavanaugh, writing for the majority, said the Nuclear Regulatory Commission had wrongly delayed licensing a nuclear waste storage facility in Nevada. Judge Garland wrote a dissenting opinion.
In employment-related cases, Judge Kavanaugh has a mixed record, sometimes siding with businesses and sometimes with employees.
In one case involving Fannie Mae, the government-sponsored mortgage firm, Judge Kavanaugh joined his colleagues on the appellate court in reinstating a lawsuit in which a black employee claimed his supervisor created a racially hostile workplace.
Judge Kavanaugh, according to Scotusblog, wrote that “being called the N-word by a supervisor†even a single time was enough to “establish a racially hostile work environment.â€
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