Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On July 9, 2018, President Trump nominated Judge Brett M. Kavanaugh to potentially fill the impending U.S. Supreme Court vacancy created by Justice Anthony Kennedy’s retirement, which takes effect on July 31, 2018. Judge Kavanaugh currently sits on the U.S. Court of Appeals for the D.C. Circuit. He has consistently demonstrated conservative legal reasoning as an appellate judge and is likely to bring that perspective to the Supreme Court, if confirmed.
Judge Kavanaugh’s Background
Judge Kavanaugh, aged 53, was born in Washington, D.C. Notably, Judge Kavanaugh attended a Jesuit high school with Justice Neil Gorsuch, where they overlapped for two years.1 Judge Kavanaugh received his undergraduate degree from Yale, graduating in 1987, and then stayed at Yale for law school, graduating in 1990.
Judge Kavanaugh began his legal career as a law clerk for Judge Walter K. Stapleton in the Third Circuit. He subsequently clerked at the Ninth Circuit as well, for Judge Alex Kozinski. Following these appellate clerkships, he worked for one year as a fellow in the Office of the Solicitor General Kenneth Starr. Judge Kavanaugh then served as a Supreme Court clerk for Justice Kennedy, who he may soon replace. The paths of Judge Kavanaugh and Justice Gorsuch crossed again in Justice Kennedy’s chambers, as they clerked for him during the same 1993-1994 term.
Following his Supreme Court clerkship, Judge Kavanaugh returned to work for Ken Starr at the Office of the Independent Counsel during its controversial, years-long investigation of President Bill Clinton. He also practiced in the private sector at a large firm in Washington, D.C. for a few years, before moving back into public service.
Beginning in 2001, Judge Kavanaugh spent five years in the White House during the George W. Bush administration. He served as associate counsel to President Bush and later became staff secretary. President Bush initially nominated Judge Kavanaugh to the D.C. Circuit in 2003, but his nomination stalled amid concerns about the highly political, partisan nature of his work experience. He was not confirmed until 2006. In his 12 years at the D.C. Circuit, Judge Kavanaugh has heard numerous significant, contentious cases, including disputes over abortion rights, challenges to the Affordable Care Act, attacks on administrative regulations, and questions about the appropriate separation of powers.
Like Justice Gorsuch, Judge Kavanaugh has spoken publicly of his great admiration for the late Justice Antonin Scalia and his judicial philosophies. Judge Kavanaugh has espoused the importance of textualism,2 for example, and adopted Justice Scalia’s description of “the rule of law as a law of rules.”3 He has proposed that judges “strive to find the best reading of the statute, based on the words, context, and appropriate semantic canons of construction” and base their decisions on that “best reading” to the extent possible, rather than indulge in a finding of ambiguity and consider extrinsic sources.4
General Positions on Employment Issues
On the whole, Judge Kavanaugh’s written opinions are straightforward and display his disciplined view of statutory interpretation. He has had extensive exposure to labor and employment issues while on the D.C. Circuit, and his writings do not reveal any particular leanings that might concern the employer community.
Last year, for example, Judge Kavanaugh authored an opinion refusing to recognize a private right of action for employees under the Occupational Health and Safety Act’s retaliation provision.5 Citing the Supreme Court’s hostility to implied causes of action, he explained that because the statute expressly afforded enforcement rights to the Secretary of Labor, it could not be interpreted to impliedly authorize private retaliation suits as well.
In employment discrimination claims, Judge Kavanaugh’s opinions over the years typically favored the employer.6 When appropriate, Judge Kavanaugh sought to clarify the purpose and value of the McDonnell Douglas prima facie analysis.7 In a 2008 opinion, he noted that “[j]udicial inquiry into the prima facie case is usually misplaced.”8 He characterized that inquiry as “a largely unnecessary sideshow” and announced a simplified approach for disparate-treatment claims. He explained that “where an employee has suffered an adverse employment action and an employer has asserted a legitimate, non-discriminatory reason for the decision, the district need not–and should not–decide whether the plaintiff actually made out a prima facie case under McDonnell Douglas.”9 Instead, trial courts should focus on the more important question of whether the employee can establish that the employer’s rationale is pretext “and that the employer intentionally discriminated against the employee.”10
Regardless of the outcome, Judge Kavanaugh’s rulings in discrimination matters reflect his interest in setting clear, consistent rules for the lower courts. His concurring opinion in a 2016 case, heard en banc, provides a prime example.11 The plaintiff in Ortiz-Diaz v. U.S. Department of Housing and Urban Development sought to take advantage of a voluntary transfer program offered by the agency, whereby employees could move to a different location at no cost to the government.12 The plaintiff felt that his supervisor was biased against him, on the basis of his race and national origin, and wished to transfer to improve his career and personal circumstances. His supervisor summarily denied his transfer requests, however. In the ensuing litigation, both the district court and the initial D.C. Circuit panel (which included Judge Kavanaugh) followed precedent stating that the denials of requests for lateral transfers are not adverse actions sufficient to support a discrimination claim. The D.C. Circuit ultimately reversed. Judge Kavanaugh agreed with the majority’s holding that “discriminatory transfers are sometimes actionable” depending on the circumstances.13 In his concurrence, however, Judge Kavanaugh sought further clarity. He expressed his concern that “uncertainty will remain about the line separating transfers actionable under Title VII from those that are not actionable.”14 He then proposed that the court adopt a more expansive but unequivocal rule in the future: “All discriminatory transfers (and discriminatory denials of requested transfers) are actionable under Title VII.”15
Views on Labor Relations Issues
Judge Kavanaugh has considered numerous appeals involving review of orders issued by the National Labor Relations Board (NLRB) or similar bodies, such as the Federal Labor Relations Authority and the Surface Transportation Board. Topics before him have included the validity of recess appointments,16 employer restrictions on clothing worn by public-facing employees,17 the scope of a union’s waiver of the right to picket,18 Weingarten issues,19 procedures for the revocation of dues deductions,20 and an employer’s duty to bargain.21 His written opinions on these questions suggest a thorough understanding of traditional labor law principles. All in all, Judge Kavanaugh appears to take a practical, measured approach to such cases and, based on the circumstances, does not hesitate to rule in favor of employers, unions, and/or the Board as appropriate.
That being said, Judge Kavanaugh has shown a fairly narrow view of joint employment and related issues. In a dissent issued just weeks ago, for example, he condemned the majority’s finding that two small businesses were a single employer, as alter egos, where the entities did not have common ownership or management, did not share employees, did not commingle funds, and did not hold substantial, mutual financial interests.22 And in 2017, Judge Kavanaugh concurred in an opinion that refused to enforce a holding by the NLRB that a cable network was a joint employer of contracted technical support workers.23 He dissented in part, however, because he disagreed with the majority’s conclusion that the network was a successor employer to certain employees.24 In both cases, Judge Kavanaugh would have sided fully with the employers.
Views on Administrative Agencies
Judge Kavanaugh seems to view administrative rulemaking with a cynical eye, based on his work in the executive and judicial branches. In a 2017 speech, for example, he asserted that “the Chevron doctrine encourages agency aggressiveness on a large scale.”25 (The deference afforded to administrative agency interpretations and regulations is commonly known as “Chevron deference.”26) He proposed at that time that courts “simply determine the best reading of the statute” rather than defer to agency interpretations.27 While recognizing that Chevron deference can be useful in certain situations, he explained that this more restrained approach “would help keep agencies within statutory bounds and help prevent a run-away executive branch that exploits ambiguities in governing statutes to pursue its broad policy aims, even in situations where Congress has not enacted legislation embodying those policies.”28
Judge Kavanaugh demonstrated this approach in a 2016 opinion involving the reach of the Davis-Bacon Act (DBA), which imposes certain prevailing wage requirements and generally applies to construction contracts involving the either federal or Washington, D.C. government.29 In that case, the Department of Labor (DOL) asserted that the DBA applied to a particular contract between construction contractors and private developers that were renting land long-term from D.C. for development. Consistent with his views on Chevron, Judge Kavanaugh noted that “[n]o matter how it is framed, the question a court faces when confronted with an agency’s interpretation of a statute it administers is always, simply, whether the agency has stayed within the bounds of its statutory authority.”30 Based on his reading of the plain text of the DBA, Judge Kavanaugh rejected the DOL’s arguments and concluded that the statute could not extend to “construction contracts, such as these, to which D.C. is not a party.”31 Nor could the DBA be construed to apply to non-public buildings, such as the mixed-use private development in question.32 In short, he refused to “enlarge the scope” of the DBA, leaving it to Congress to address any amendments that might be needed to update the statute.33
The Senate Judiciary Committee will now take up the task of vetting Judge Kavanaugh by conducting interviews and a hearing. That committee will vote on the nomination, which then moves to the full Senate for debate and a vote. Historically, the nomination process has been completed in about two or three months. (A notable exception occurred in 2016, of course, when Senate Republicans refused to consider the nomination of Merrick Garland, Judge Kavanaugh’s colleague on the D.C. Circuit.) Senate Majority Leader Mitch McConnell has vowed to present Judge Kavanaugh’s nomination for vote promptly, with the intent to seat him on the High Court before the October 2018 term begins.
Prior to January 2017, sixty votes were needed for Senate confirmation. Faced with the possibility of a filibuster over Justice Gorsuch’s nomination, however, Senate Republicans amended procedural rules to reduce the number of votes needed to endorse a nominee and thus to prevent any filibuster. As a result, only a simple majority will be required to confirm Judge Kavanaugh. Even with that lower threshold, Senate Republicans will need every vote they can muster, as they currently hold the slimmest of majorities (51-49). While Senator John McCain (R-AZ) may or may not participate given his health, Vice President Mike Pence can cast a tie-breaking vote if necessary. It remains to be seen whether any Senate Democrats—particularly those up for re-election in “red states” this fall—will support Judge Kavanaugh’s nomination. Several Democratic Senators joined their Republican colleagues in approving Justice Gorsuch’s nomination in 2017, by a 54-45 vote.
We will continue to monitor the confirmation proceedings closely.
1 See, e.g., Brett M. Kavanaugh, Keynote Address: Two Challenges for the Judge as Umpire: Statutory Ambiguity and Constitutional Exceptions, 92 Notre Dame L. Rev. 1907 (2017).
2 See Brett M. Kavanaugh, The Courts and the Administrative State, 64 Case W. L. Rev. 711 (2014); see also Brett M. Kavanaugh, Our Anchor for 225 Years and Counting: The Enduring Significance of the Precise Text of the Constitution, 89 Notre Dame L. Rev. 1907 (2014).
3 Kavanaugh, supra note 1, at 1909, 1919.
4 Id. at 1912; see also International Internship Program v. Napolitano, 718 F.3d 986 (D.C. Cir. 2013) (rejecting foreign exchange program’s challenge to the government’s denial of visas based on the best reading of the statutes and regulations at issue).
5 Johnson v. Interstate Mgmt. Co., LLC, 849 F.3d 1093 (D.C. Cir. 2017).
6 While many of the D.C. Circuit’s cases involve the federal government as an employer, the analysis of discrimination claims generally remains the same.
7 The McDonnell Douglas test includes four factors to be used by plaintiffs to set out a prima facie claim of discrimination under Title VII and similarly-construed federal and state statutes. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). It requires a plaintiff to show that: (1) he or she belongs to a protected class under the relevant statute (e.g., race, sex, disability, age); (2) he or she is qualified for the position in question; (3) although qualified, he or she suffered an adverse employment action (e.g., termination, denial of promotion); and (4) the employer treated more favorably similarly-situated employees outside the plaintiff’s protected class.
8 Brady v. Office of Sergeant at Arms, 520 F.3d 490, 493 (D.C. Cir. 2008).
9 Id. at 494.
10 Id.; see also Adeyemi v. District of Columbia, 525 F.3d 1222, 1225 (D.C. Cir. 2008) (“[T]he prima-facie-case aspect of McDonnell Douglas is irrelevant when an employer has asserted a legitimate, non-discriminatory reason for its decision—as an employer almost always will do by the summary judgment stage of an employment discrimination suit.”).
11 En banc hearings occur after a three-judge appellate panel has already issued an opinion in a case, but the full federal circuit panel agrees to revisit the dispute.
12 867 F.3d 70 (D.C. Cir. 2016).
13 Id. at 81.
15 Id. (emphasis added).
16 Mathew Enter., Inc. v. NLRB, 771 F.3d 812 (D.C. Cir. 2014 (upholding appointment of NLRB Member Becker, which occurred during a 17-day recess).
17 Southern New England Tel. Co. v. NLRB, 793 F.3d 93 (D.C. Cir. 2015) (granting employer’s petition for review and noting that “[c]ommon sense sometimes matters in resolving legal disputes”).
18 Verizon New England Inc. v. NLRB, 826 F.3d 480 (D.C. Cir. 2016) (finding that Board should have upheld arbitrator’s ruling in favor of employer that a waiver of picketing could encompass the display of stationary signs).
19 Midwest Division-MMC, LLC v. NLRB, 867 F.3d 1288 (D.C. Cir. 2017) (Kavanaugh, J., dissenting in part) (preferring to reach the Weingarten question and directly hold that such “rights do not apply in peer review committee interviews”). The so-called “Weingarten right” refers to the general right of a unionized employee to request union representation in connection with an investigatory interview that could lead to discipline.
20 Local 58, IBEW v. NLRB, 888 F.3d 1313 (D.C. Cir. 2018) (upholding Board determination that union’s policy unlawfully restricted members’ rights to revoke dues-deduction authorizations); Ruisi et al. v. NLRB, 856 F.3d 1031 (D.C. Cir. 2017) (upholding Board determination that union did not discriminate against members or breach its duty of fair representation by requiring written requests for anniversary dates, where that information was needed to timely revoke dues authorization).
21 See, e.g., U.S. Dep’t of Navy v. FLRA, 665 F.3d 1339 (D.C. Cir. 2012); Raymond F. Kravis Ctr. for Performing Arts, Inc. v. NLRB, 550 F.3d 1183 (D.C. Cir. 2008).
22 Island Architectural Woodwork, Inc. v. NLRB, 892 F.3d 362 (D.C. Cir. 2018).
23 NLRB v. CNN Am., Inc., 865 F.3d 740 (D.C. Cir. 2017); see also Michael J. Lotito, D.C. Circuit Rejects Labor Board Joint Employer Determination, Littler ASAP (Aug. 7, 2017).
24 CNN Am., Inc., 865 F.3d at 765-67 (commenting that “the Board jumped the rails in its analysis of both the joint-employer and the successor-employer issues”).
25 Kavanaugh, supra note 1, at 1911.
26 See Chevron, U.S.A., Inc. v. National Res. Def. Council, Inc., 467 U.S. 837 (1985) (describing analysis for agency actions and generally deferring to such actions where a statute is ambiguous and the agency’s interpretation is reasonable).
27 Kavanaugh, supra note 1, at 1911.
29 District of Columbia v. Department of Labor, 819 F.3d 444 (D.C. Cir. 2016).
30 Id. at 449 (internal quotation omitted).
32 Id. at 451-53.
33 Id. at 449-50.