UPDATE (8 AM Pacific time, Thur., Sept. 13)
The Senate Judiciary Committee this morning voted to delay — until Thursday, Sept. 20, at 1:45 PM Eastern time — its vote on whether to confirm Judge Kavanaugh’s nomination to the Supreme Court. According to the Washington Post, “The move was expected — senators routinely delay committee business for one week, which is allowed under the panel’s rules.”
Senate Must Not Confirm Nominee Who Disregards the Rights of the Most Vulnerable
THE TORCH: CONTENTSBy Jessie Hahn, Patrick O’Shea, and Josh Rosenthal
SEPTEMBER 13, 2018
Today the Senate Judiciary Committee will vote on Judge Brett Kavanaugh’s nomination to serve on the U.S. Supreme Court. This Court nomination is arguably the most consequential in at least a generation, given the likelihood that, if he’s confirmed, Kavanaugh will be the deciding vote on many critical issues currently working their way through our court system. Gaining a seat on the Supreme Court confers a lifetime duty to uphold the rights and values of our democracy, including the responsibility to protect the rights of everyone living in the United States. Kavanaugh’s judicial record shows a troubling disregard for the rights of women, workers, and immigrants, a disregard that will be dangerous for families — immigrant and native-born alike — all across our country.
One case that vividly illustrates Kavanaugh’s views on the rights of immigrants and workers, as well as his views on settled law and precedent, is Agri Processor Co., Inc. v. National Labor Relations Board, in which Kavanaugh filed a dissenting opinion as a judge on the U.S. Court of Appeals for the DC Circuit. In this case, a notoriously unscrupulous and exploitative meatpacking company had refused to bargain with the union its employees had voted to form, and it fired several employees in retaliation. The company claimed it did not have to recognize the pro-union votes of immigrant employees who didn’t have work authorization, but the company chose to investigate those workers’ employment eligibility status only after they voted to form a union. (Some employers “weaponize” their workers’ immigration status to silence those who attempt to unionize.) With one exception, every judge who heard this case rejected the company’s arguments and recognized that undocumented workers are protected by the National Labor Relations Act (NLRA). The one exception: Brett Kavanaugh.
In his dissenting opinion, Kavanaugh held that an undocumented worker “is not an ‘employee’” and should not be protected under federal labor laws. To reach this result, Kavanaugh deviated from decades of established law and precedent.
During Kavanaugh’s Supreme Court confirmation hearing, Sen. Dick Durbin (D-IL) asked him why he disagreed with every other judge who had found that federal labor law does, in fact, cover undocumented workers. Kavanaugh argued that section II(B) of a related Supreme Court case, Sure-Tan, Inc. v. National Labor Relations Board, required him to interpret the NLRA as conflicting with the “employer sanctions” provisions of the immigration statute, which require that employers who knowingly hire undocumented workers be penalized. But that section of Sure-Tan does not squarely address the question in Agri Processor, and when Congress established (in 1986) the employer sanctions referenced by Kavanaugh, it did not amend the NLRA to exclude undocumented workers from its protections.
Kavanaugh stretched the Sure-Tan opinion to achieve the result he wanted, and he got that opinion wrong. The Supreme Court reinforced this when it refused to take up Agri Processor’s appeal. By choosing not to accept the appeal, the Court left the Agri Processor majority’s decision in place; therefore, all immigrants fall within the NLRA’s coverage, all a company’s employees’ votes count in a union election, and it’s unlawful for an employer to fire its workers in retaliation for voting to form a union.
The justices who sit on the Supreme Court should work to protect the rights of all of us. If Kavanaugh was willing to depart from settled law in this case, what other precedents would he contort or ignore to reach a particular result?
Another, more recent, Kavanaugh opinion further reveals how he (mis)understands the rights of immigrants. This past October, in Garza v. Hargan, he disregarded the constitutional right of a 17-year-old girl in immigration detention to seek a safe abortion. After being raped on her journey to the U.S., Jane Doe was eight weeks pregnant when she entered the country. Due to her age and immigration status, she was placed in the custody of the Office of Refugee Resettlement (ORR), where she decided to terminate her pregnancy. She followed Texas state law and was granted a judicial bypass to receive the abortion, but federal officials in the ORR blocked her from accessing the procedure. Kavanaugh initially upheld the government’s interference with her exercise of constitutional rights, a ruling that was reversed by the full DC Circuit only four days later. Notably, Kavanaugh again dissented. He would not affirm that the U.S. Constitution’s Due Process Clause protects “any person” in the U.S, as the Constitution states, and he insisted that Jane Doe should be able to exercise her rights only if she could get herself out of immigration detention.
The role of the Supreme Court is to defend everyone’s rights under the Constitution, regardless of what we look like, where we were born, or what our immigration status may be. The Constitution’s Due Process and Equal Protection Clauses protect all “persons” in the U.S. Jane Doe’s fundamental, constitutional rights didn’t disappear simply because she was placed in a government facility. The workers at the meatpacking plant continue to be workers, regardless of their immigration status — workers who continue to be protected by the law from exploitation and abuse. Kavanaugh’s past disregard for the rights of the most vulnerable members of our society should serve as a warning to all of us who believe in a fair judiciary for all.
This confirmation vote will reverberate for generations. The publicly available aspects of Kavanaugh’s record make clear that his extremist views would turn back the clock on some of our most cherished rights. The Senate has an important role to play — it must not confirm someone who could cause irreparable damage to our rights for decades to come. Call your senators at 1-202- 224-3121 and ask them to vote “no” on Kavanaugh’s confirmation.
Jessie Hahn is NILC’s labor and employment policy attorney, Patrick O’Shea is NILC’s research and narrative strategist, and Josh Rosenthal is a NILC staff attorney.