The One Take About SCOTUS Nominee Kavanaugh Employers Should Read
Until last month, most people had no idea who Brett Kavanaugh was. Now, you’d be hard-pressed to find someone who didn’t have a take on him.
This is partially a result of the dramatic times we live in. It’s increasingly difficult these days for anyone on any side of the political equation to keep up with the deluge of real news, not-so-real news, news about news, opinions about news, and potentially inauthentic opinions about questionable news flooding all forms of media.
But the proliferation of headlines about Brett Kavanaugh is just as much of a product of our Constitution. Nine people preside over the entire United States legal system, and it’s big news when one Justice decides to step down—especially if that Justice has played the role of swing vote on the Court, as is the case for Anthony Kennedy.
So, it’s only natural that President Trump’s nomination of a DC Circuit Judge named Brett Kavanaugh would agitate the already-sleepless news-and-opinion beast: you can now read tens of thousands of words about why Kavanaugh must and must not be confirmed, what he will and won’t mean for the future of crucial American rights, the “real” reasons to oppose and support his appointment to the bench, and so on and so forth.
Maybe you’ve already read one or two of these takes; maybe you’ve read them all. Regardless, there’s at least one more our readers should mull over, and it’s by—who else?—our friends at Fisher Phillips.
Over on their blog, the attorneys of Fisher Phillips have written up an excellent article about what to expect if Kavanaugh makes it to the Supreme Court. The article follows their “Magic 8-Ball” format, which makes predictions about a Justice’s behavior along a spectrum of certainty—from “It Is Decidedly So” to “Reply Hazy, Try Again”—of by examining prior the individual’s prior rulings.
This time around, the Magic 8-Ball offers insights into questions such as…
- Should Kavanaugh’s Background Give Employers Reason For Hope?
- Will Kavanaugh Go The Extra Mile For Employers?
- Will Kavanaugh Side With Management In Labor Cases?
and - Will Kavanaugh Side With Employers In Typical Workplace Law Cases?
The answers provide a unique glimpse of Kavanaugh’s judicial style, independent of partisan analysis. For instance, here’s an excerpt of the 8-Ball’s response to that last question:
“The Magic 8-Ball has reviewed a number of employment law decisions issued by Kavanaugh, and in virtually every published opinion, he has ruled in favor of the employer. In one of his earliest decisions, he ruled in favor of the Bureau of Prisons after a worker filed an action alleging that his non-selection for a promotion was the result of racial discrimination in violation of Title VII. The employee argued that the employer made its hiring decision based on a factor not expressly listed in the job description, which should have led to a finding of discrimination. Kavanaugh wasn’t having it. His 2007 opinion concludes: ‘The fact that an employer based its ultimate hiring decision on one or more specific factors encompassed within a broader and more general job description does not itself raise an inference of discrimination sufficient to overcome summary judgment.’”
We’ll be sure to inundate—I mean, update—you with more thoughts about Kavanaugh and other current and soon-to-be newsmakers as the weeks and months go by. To make sure you don’t miss anything (and I mean anything), keep up with the Compli blog.
