If confirmed, the Court would have a solid pro-business, pro-employer majority
President Trump’s nomination on July 9, 2018 of District of Columbia Circuit Court of Appeals Judge Brett M. Kavanaugh to the U.S. Supreme Court – President Trump’s second nominee in just a year and a half – is likely to make the top U.S. court the most business- and employer-friendly it has been in decades. A graduate of Yale Law School, Judge Kavanaugh served as a clerk to Justice Anthony M. Kennedy, whose retirement, announced just weeks ago, opened the seat that Judge Kavanaugh has been nominated to fill. Judge Kavanaugh was White House Staff Secretary to President George W. Bush from 2003 to 2006, when President Bush nominated him for the federal appellate bench.
Judge Kavanaugh follows a judicial philosophy of originalism, under which he seeks to interpret the text of the Constitution to give it the meaning intended when it was adopted. In his dozen years as a federal appellate court judge, Judge Kavanaugh has tended to side with business interests in employment cases and in resolving regulatory issues. Judge Kavanaugh also has been critical of the expanding powers of federal administrative agencies, frequently ruling against agencies such as the National Labor Relations Board. Judge Kavanaugh also will likely lend strong support to the Trump administration’s immigration agenda, as his prior immigration decisions suggest a tendency to interpret the law to protect U.S. workers.
More robust information about Judge Kavanaugh and how his appointment to the Court will impact employers is certain to come out during the upcoming confirmation hearings before the U.S. Senate. The confirmation process is expected to be contentious, with Senate Democrats already signaling they intend to oppose Judge Kavanaugh’s nomination. However, given the Republican majority in the Senate, as was the case with now Justice Gorsuch, congressional approval is expected, and Judge Kavanaugh will likely be installed as Justice Kavanaugh on the Supreme Court when the Court reconvenes in October.