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Trump’s Justice Nomination May Affect Administrative Agencies’ Interpretations of Workplace Statutes

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Much of the national political debate is focused on how President Donald Trump’s nominee for the U.S. Supreme Court, federal appeals judge Brett Kavanaugh, might rule on various issues if he is confirmed by the Senate.

But Kavanaugh’s track record as a judge gives little indication to how he stands on workplace-related issues. Kavanaugh was nominated by Trump after Justice Anthony Kennedy announced his retirement on June 27. Kennedy has served as the crucial swing vote in several landmark cases, including rulings that legalized same-sex marriage and preserved abortion rights.

Kavanaugh, who worked for George W. Bush on the 2000 presidential vote recount in Florida, then served in the Bush White House before becoming a judge in the U.S. Court of Appeals for the District of Columbia. Nominated in 2003, Kavanaugh was not confirmed until 2006, a precursor to a Senate battle over his Supreme Court nomination.

His deep ties with the Republican Party will be met with resistance, as Senate Democratic Leader Chuck Schumer of New York declared that he will oppose Kavanaugh’s nomination with “everything I have.”  

Observers are uncertain what Kavanaugh’s potential confirmation would mean for the workplace.

“Although Judge Kavanaugh has a great deal of experience on the bench, his opinions in labor and employment cases do not shed much light on how he might rule on some of the workplace issues he may face at the Supreme Court,” said Mark Phillis, shareholder at Littler Mendelson, a law firm that represents management in employment issues. “He, like Justice Neil M. Gorsuch (whom Trump picked earlier), however, has questioned the degree of deference the courts should give to administrative agencies’ interpretation of the statutes that they are charged with enforcing.

“In the employment context, his view on deference may affect how much weight he would give, for example, to the EEOC’s interpretation of Title VII of the Civil Rights Act of 1964 that the prohibition of discrimination based on sex prohibits discrimination based on a person’s sexual orientation,” Phillis said. “It also could affect how he views regulations issued by the Department of Labor and the National Labor Relations Board. This viewpoint is likely to be explored in the confirmation process.”

Replacing Kennedy will likely thrust Chief Justice John G. Roberts, whose voting record has been more conservative than Kennedy’s, into the median role on the court.

“Chief Justice Roberts is going to play a more critical role here in trying to manage and reconcile the competing views of the court,” Phillis said. “Whether he will be the swing vote or whether he will be doing a lot of that work back in chambers between the justices themselves will remain to be seen. But I think his role is definitely going to increase and be felt as the shift in the court takes place.”  

About the Author

Brett Christie is a staff writer at WorldatWork. 

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