Is Trump’s Supreme Court Nominee a Threat to Workers and OSHA?

Ever since Donald Trump announced his intent to nominate Brett Kavanaugh to the Supreme Court, the nation has been speculating as to how his appointment could influence a range of issues. Among debate over abortion rights, gun laws, and presidential pardons, some have expressed concern over Kavanaugh’s corporate friendly voting record and his potential hostility toward workplace safety regulations.

Brett Kavanaugh, who nomination comes following the retirement of Justice Anthony Kennedy, has served as a judge on the U.S. Court of Appeals for the District of Columbia Circuit since 2006. He was one of the three judges who oversaw SeaWorld’s appeal of citations following the death of a trainer in 2010.

That now famous incident saw Dawn Brancheau drown during a live show, when the killer whale she was working with “grabbed her and pulled her off the platform into the pool, refusing to release her.”

In their majority optinion, Chief Judge Merrick Garland and Circuit Judge Judith Rogers upheld OSHA’s findings. They found SeaWorld had violated safety regulations by exposing trainers to recognised hazards (the whale) with inadequate protective measures (a barrier). Perhaps most damming for SeaWorld was the fact that this was the third human death that this particular killer whale had been involved in.

“There was substantial record evidence that SeaWorld recognized its precautions were inadequate to prevent serious bodily harm or even death to its trainers and that the residual hazard was preventable.”

However, Kavanaugh argued in his dissenting opinion that SeaWorld trainers were comparable to professional athletes and race car drivers. That is, they knowingly, and willingly, work in a dangerous role, and have assumed the risks that accompany it.

“When should we as a society paternalistically decide that the participants in these sports and entertainment activities must be protected from themselves – that the risk of significant physical injury is simply too great even for eager and willing participants? And most importantly for this case, who decides that the risk to participants is too high?”

It was an opinion that didn’t sit well with former OSHA Assistant Secretary David Michaels, who said Kavanaugh had made the “perverse and erroneous assertion that the law allows Sea World trainers to willingly accept the risk of violent death as part of their job. He clearly has little regard for workers who face deadly hazards at the workplace."

SeaWorld’s case is not the only example of Kavanaugh’s pro-business mindset. In a document obtained by POLITICO, the White House wrote that Kavanaugh has overruled federal regulators 75 times on cases involving clean air, consumer protections, net neutrality and other issues. Similarly, The Wall Street Journal reported that Kavanaugh believes the courts are “giving administrative agencies too much latitude" when they interpret statutes during a dispute.

If Kavanaugh's corporate thinking was to become Supreme Court opinion, it could mean that government agencies tasked with regulation become more limited in what they can do.

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