Brett Kavanaugh sided with SeaWorld in case involving trainer’s death, as well as employer who didn’t want to bargain with union that included undocumented immigrants
A federal appeals-court panel split in 2014 over a case involving a grisly theme-park death, ruling 2-1 that the Labor Department was on sound footing when it sanctioned SeaWorld Entertainment Inc. for safety violations after a trainer was attacked by a killer whale.
The two judges upholding the sanction said that while whale-training is a dangerous occupation, SeaWorld could have taken steps to reduce the hazard. One of those judges was Merrick Garland, the Obama Supreme Court nominee whom Senate Republicans declined to consider after Justice Antonin Scalia died in 2016.
In dissent was Judge Brett Kavanaugh, President Donald Trump’s current nominee for the high court. Judge Kavanaugh said the case raised the question of “when should we as a society paternalistically decide” whether people who choose to work in risky sports and entertainment fields “must be protected from themselves.”
It Just Got Harder to Fire Mueller
It’s just become trickier for President Trump to fire Robert Muelleranytime soon. Doing so during the Supreme Court confirmation process for Brett Kavanaugh — which is likely to last for at least two months — would create a set of problems for Trump that didn’t exist before.
One, Trump clearly loves making Supreme Court nominations. They allow him to look presidential and to be bathed in praise by other Republicans. If he were to fire Mueller — the special counsel investigating Russian interference in the election — anytime in the coming weeks, the confirmation process would immediately lose its normalcy. It would be dominated by discussion of Mueller’s Russia investigation, which Trump loathes and makes him look like the opposite of a normal president.
Two, firing Mueller could damage the Republicans’ chances of holding Congress in this year’s midterms.
.. the Supreme Court nomination has some real political advantages for Republicans. It unifies their base voters and reminds them of reasons to turn out. And it turns the discussion away from Trump, who remains unpopular.
.. Finally, firing Mueller could damage Kavanaugh’s chances of confirmation. As I’ve written before, I would be very surprised if any Senate Republicans defected. But their margin for error is virtually zero. Losing a single senator could defeat the nomination. And the circus that would accompany the firing of Mueller could certainly imperil one vote.
The Supreme Court Won’t Stop Executive Overreach
Presidential appointees, business advocates complain, routinely overstep the authority given them by Congress in how they write and enforce rules. With the addition of Brett Kavanaugh, President Donald Trump’s Supreme Court nominee, business sees the Supreme Court as a reliable bulwark against executive branch overreach.
.. Judge Kavanaugh believes presidents, unlike regulators, are owed considerable deference, especially on national security and law enforcement. That’s significant because Mr. Trump is now using national security to justify his own economic interventions, especially on trade.
.. Much of the controversy over the administrative state harkens back to 1984, when the Supreme Court decided, in a case involving the Environmental Protection Agency, Chevron U.S.A. Inc. and an environmental group, that when a law is unclear, the court should defer to a federal agency’s interpretation of that law.
.. Courts have cited Chevron deference, as this doctrine is known, to grant wide latitude to regulatory agencies, from the EPA to the Department of Labor and the Federal Communications Commission. Many conservatives blame it for a decadeslong transfer of power to the executive branch. They questioned the legality of President Barack Obama’s routine use of executive authority, such as limiting greenhouse gas emissions and suspending some deportations of illegal immigrants, to sidestep Congress.
.. “Chevron is nothing more than a judicially orchestrated shift of power from Congress to the Executive Branch,” he wrote in 2016 in the Harvard Law Review.It encourages the president, regardless of party, to “be extremely aggressive in seeking to squeeze its policy goals into ill-fitting statutory authorizations and restraints.”.. Both parties have agencies they love to hate: For Republicans, it’s the EPA and the Consumer Financial Protection Bureau; for liberal Democrats, it’s now Immigration and Customs Enforcement. For both, it’s the Internal Revenue Service or the Justice Department when the other party controls the White House. In each case, a change of president is usually enough to change the agency’s behavior.
.. Yet even as he rolls back the administrative state, Mr. Trump has pushed the boundaries of presidential authority. He has imposed steep tariffs on imports of aluminum and steel and is planning the same on cars, citing his national security authority under a little-used 1962 law. Mr. Trump is also weighing forcing utilities to buy more coal and nuclear-generated power, also on national security grounds.
In both cases, national security appears to be a pretext to shore up economically beleaguered industries... “There is a pronounced dichotomy between Kavanaugh’s view on deference to agencies as opposed to his view on deference to presidents,” says Jonathan Turley, a law professor at George Washington University. He says Congress has been progressively marginalized by the expanding authority of both federal agencies, and presidents; Judge Kavanaugh seems to oppose the first and encourage the second... Judge Kavanaugh’s concurring opinion, as a judge on the U.S. Court of Appeals for the D.C. Circuit, in 2015 that the National Security Agency could collect an individual’s telephone “meta data.” Because the purpose was preventing terrorist attacks, he said, it didn’t violate the Fourth Amendment’s prohibition on unreasonable search and seizure.
Mitch McConnell Is the Master of Confirming Judges
He outmaneuvered Chuck Schumer last year, making the path clearer for this year’s high court nominee.
Mr. McConnell adopted as his top priority as Senate majority leader an ambitious effort to make the federal courts more conservative—from top to bottom. There’s only one way to do this—fill every judicial vacancy with a conservative.
For Mr. McConnell, this is a war. Justice Gorsuch was D-Day. Judge Brett Kavanaugh is the slog across France. Mr. McConnell is a general in a hurry to keep winning, since Republicans could lose the Senate majority in November.
.. When Justice Gorsuch sailed through, Democrats and the left were reeling from Donald Trump’s election. Their opposition was inept. The vaunted “resistance” to anything associated with Mr. Trump was pathetic. Now Democrats are committed to blocking Judge Kavanaugh, and they’re serious. But they still have Chuck Schumer as their leader, and they still can’t do it without Republican help.
.. Mr. McConnell is experienced in outmaneuvering Mr. Schumer. By the time the Democrat offered his deal, Mr. McConnell had recruited former Sen. Kelly Ayotte of New Hampshire as Judge Gorsuch’s sherpa as he visited senators. Ms. Ayotte pointed Ms. Collins and Ms. Murkowski to Judge Gorsuch’s record, which didn’t reveal a yearning to kill Roe. After listening to Judge Gorsuch, the two senators were leaning in his favor. Mr. Schumer was too late.
.. Ms. Collins and Ms. Murkowski are back. Same issue. Democrats seem to think every GOP judicial nominee is hiding a passion for overturning Roe. In truth, some may be. But it’s awfully hard to prove it.
.. Why is Mr. McConnell so successful in getting Republican judges confirmed? He’s a big-picture guy. He plays a long game. He must have a home-state agenda for Kentucky, but you rarely hear of it. He’s not out for himself.
.. As Republican leader, he has little interest in popularity. He’s secretive and a self-described introvert. “He never tells me anything,” a close Senate ally says.
.. “In a city where concealing ambition behind a cloak of righteousness is the norm, this refusal is one of his more underappreciated virtues,” Mr. McGuire wrote. The majority leader’s willingness to oppose popular issues like the tobacco settlement and campaign-finance reform show he’s no political weakling.
.. Among Mr. McConnell’s unusual traits are patience and a sense of when to call a vote. He’s willing to delay a vote for months waiting for precisely the right moment. Last spring he twice canceled votes to confirm an appeals court nominee. When he felt the time had come, he held a quick vote. The judge was confirmed handily... No one is better at the game, now or probably ever.