Reprinted with permission from DCReport.
Allow me to be blunt: Judge Brett Kavanaugh lied about the SeaWorld case during his Senate confirmation testimony last week and showed very little understanding of the Occupational Safety and Health Act.
But for those who take the Supreme Courtâand workersâ rightsâseriously, facts are facts. And facts explored here should be very troubling for Americ
I canât figure out how the lies in Kavanaughâs testimony or his legal misunderstanding of the OSHA act would get a passing grade in the first year of law school, much less a lifetime seat on the Supreme Court of the United States.
In case youâre just tuning in, in 2010 SeaWorld trainer Dawn Brancheau died from dismemberment by a killer whale during a live show in front of hundreds of horrified customers, including small children.
OSHA, which had proven SeaWorld was aware the whale that killed Brancheau had been involved in previous trainer fatalities, and that killer whales, in general, were hazardous to trainers, cited SeaWorld and ordered them to use physical barriers or minimum distances to separate trainers from whales. SeaWorld appealed, and both the OSHA Review Commission and the federal Appeals Court found in OSHAâs favor. The only dissent throughout the entire process was Appeals Court Judge Brett Kavanaugh who argued in his 2014Â written opinionÂ that OSHA had paternalistically interfered in a workerâs right to risk his or her life in a hazardous workplace, that OSHA had violated its long-standing precedent not to get involved in sports or entertainment, that the agency had no authority to regulate in the sports or entertainment industries and that Congressâand only Congressâcould give OSHA that authority.
So, letâs fast-forward to last Thursday, when Kavanaugh was questioned about his SeaWorld dissent by Sen. Diane Feinstein (D-Calif.) during his Supreme Court confirmation hearing. You can watch and listen to the exchange beginning at 1:42:16 of Thursdayâs hearingÂ here.
Feinstein: âJudge Kavanaugh,Â you sat on a case where a trainer, Dawn Brancheau, was killed while interacting with a killer whale during a live performance. Following her death, the Occupational Safety and Health Administration found that SeaWorld had violated workforce safety laws. The majority agreed with the agency, that SeaWorld had violated the law. According to what I know, you disagreed. In your dissent, you argued that the agency lacked the authority to regulate employers to protect participants in sporting events or entertainment shows. However, the statute, as enacted, applies to each employer and it defined employer as anyone engaged in business affecting commerce who has employees.
Where in the text of the law does Congress exempt employers of animal trainers?â
Kavanaugh:Â âThe issue, Senator, wasÂ precedent. I follow, as a judge,Â I follow precedent.Â The precedentÂ of the Labor Department, as I read it, was that the Labor Department under the statute would not regulate what it calledÂ the intrinsic qualitiesÂ of a sports or entertainment show.âÂ [emphasis added]
There are several problems in Kavanaughâs statement.
There Is No Precedent for OSHA Not Regulating the Entertainment Industry
Just the opposite, in fact. OSHA has cited circuses and Broadway musicals several times due to deaths and injuries of performers. For example:
- In 2011 OSHA issued three seriousÂ citationsÂ and a $12,600 fine to 8 Legged Productions LLC following four separate incidents that resulted in injuries to cast members of the musical âSpider-Man Turn Off the Dark.â
- In June 2013, Nevada OSHAÂ finedÂ Cirque du Soleil $23,035 for five violations after a performer in the show âKaâ at the MGM Grand Hotel and Casino in Las Vegas was killed after falling 94 feet during a show. The wire rope attached to her harness broke because it was scraping against a sharp edge.
- In November 2014, Federal OSHA cited the Ringling Bros. and Barnum & Bailey Circus after eight performers fell more than 15 feet during the âhair hang actâ as they were suspended from a twirling frame by their hair. According to the OSHAÂ investigation, âThe hair hang act was advertised as a spectacular and thrilling act to perform and watch. Six performers are hung from their hair from an overhead hexagonal steel framed apparatus.â OSHA determined that a steel carabiner holding the performers was not strong enough to support their weight.
- OSHA Is currentlyÂ investigatingÂ the death of a Cirque du Soleil performer in Tampa after he fell during an aerial act.
One other thing. Kavanaugh was not only wrong, but he was just making stuff up: SeaWorld didnât even argue that its whale trainers werenât covered by OSHA because they were in the entertainment business. It wasnât part of the case until Kavanaugh raised the issue.
Kavanaugh Lied About What He Wrote In His SeaWorldÂ DissentingÂ Opinion
Kavanaugh to Feinstein:Â âThe Labor Department in the oral arguments tried to distinguish, for example, the dangers of football from the dangers of the SeaWorld show and I did not, as I explained in the opinion, find that argument persuasive.
But I did make clear two things, Senator. One is â¦ that Congress could make the decision to regulate the intrinsic qualities of sports or entertainment shows,Â or the Labor Department could change its precedent...â
Actually, Kavanaugh is lying here. He made one of those things very clear in hisÂ SeaWorld dissent: thatÂ onlyÂ Congress allows OSHA to regulate sports or entertainment andÂ onlyÂ by changing the law. The Department of Labor, he wrote in his dissent, didÂ notÂ have the authority to cover sports or entertainment because Congress hadnât intended these kinds of occupations to be covered when the Occupational Safety and Health Act (OSHA act) was passed. He wrote in his 2014 dissent:
In the real world,Â it is simply not plausible to assert that Congress, when passing the Occupational Safety and Health Act,Â silently intended to authorize the Department of Labor to eliminate familiar sports and entertainment practices, such as punt returns in the NFL, speeding in NASCAR, or the whale show at SeaWorld.
To the extent sports or entertainment activities raise concerns about the risk of injury to the participants, several extant legal bodies possess significant authority to clamp down on unreasonable dangers: Congress, state legislatures, state regulators, courts applying state tort law. I take no position here on whether SeaWorldâor for that matter the NFL or NASCARâshould be subject to more stringent government regulation or liability, or otherwise should voluntarily make its activities safer. That policy question is not before us.Â My legal disagreement with the majority opinion boils down to one basic question: Who decides?Â Under current law, it is not the Department of Labor.Â [emphasis added.]
So can the Department of Labor change OSHAâs (non-existent) precedent, or can only Congress change OSHAâs (non-existent) precedent? It apparently depends on which Brett Kavanaugh youâre talking to and which day youâre talking to him.
Nor does Kavanaugh explain exactly how OSHA would âchange its precedent.â Obviously, he didnât consider issuance of a citation against SeaWorld to be adequate. Maybe this would work:
The OSHA Act Covers All EmployeesâIncluding Animal Trainers
Kavanaugh never really answers Feinsteinâs direct question about where the OSHA act says that employers of animal trainers are not covered by the law. Because the OSHA act clearly states thatÂ allÂ employees are covered by OSHA (with the exception of public employees.)
To put it bluntly, Kavanaughâs statement in his testimony and in his SeaWorld dissent are not only wrong but are also sheer hypocrisy. He claims to be a âtextualist,â that is a jurist who gives primacy to the ordinary meanings of the words of a statute, and steers away from other sources of meaning, like legislative history. So it is unclear how textualism is consistent with his speculation on what CongressÂ plausibly intendedâbut never actuallyÂ saidâ50 years ago when the OSHA act was passed. As Wharton professor and former OSHA official Adam Finkel stated:
â âTextualistâ Brett KavanaughÂ made up out of nowhereÂ language he personallyÂ wishedÂ Congress had written, but never did.â
Kavanaugh Misuses the Word âIntrinsicâ
Kavanaugh states that OSHA is not allowed to regulateÂ the intrinsic qualitiesÂ of a sport or entertainment show.â But âintrinsic,â according toÂ Merriam-Webster, is defined as âbelonging to theÂ essential natureÂ or constitution of a thing.â
Now, one might make a convincing argument that tackling is âintrinsicâ or âessentialâ to professional football, although there is still nothing in the law prohibiting OSHA from regulating the safety of football even if the agency has chosen not to do so.
But is close personal contact between trainers and the killer whales during performances âintrinsicâ or âessentialâ to SeaWorldâs killer whale shows?
The answer is no. The main attraction of whale shows is watching the whales jump out of the water, do clever tricks and splash the spectators. Sure, the audience may also enjoy watching the trainers hug and cuddle the whales, but the show goes on even without the close, personal contact, as SeaWorld itself admits by the fact that it isÂ continuing to allow their customers to âjourney into the world of majestic killer whalesâÂ without the close contact between the whales and the trainers. People still seem to enjoy the show even without the opportunity to watch a trainer get killed during the performance.
Kavanaugh Is Wrong: OSHA Is Permitted to Regulate in âNewâ Areas that Congress Didnât Specifically Mention 50 Years Ago
The possibility OSHA might be confronted by ânewâ hazards that Congress did not foresee in 1970, or hazards for which there was no specific OSHA standard, was clear to the founding fathers of the OSHA act when the law was passed almost 50 years ago.
To ensure that OSHA would be able to require employers to protect workers from these ânewâ hazards, the OSHA act contains the âGeneral Duty Clauseâ(Section 5(a)(1)), which enables OSHA to cite employers for exposing employees to hazards for which there are no standards as long as the hazard was ârecognizedâ (by the employer or by the industry) and where there was a âfeasibleâ means of preventing or reducing the hazard. SeaWorld wasÂ citedÂ under OSHAâs General Duty Clause because the hazard of killer whales was well recognized by SeaWorld (and the industry), and because it was perfectly feasible to carry on with whale shows without exposing the trainers to death and dismemberment.
Furthermore, ânewâ hazards have also never been a legal problem for OSHA before. Many serious hazards facing workers today were not envisioned when the OSHA act was passed in 1970, but OSHA still regulates those hazards. Workplace violence and ergonomics are two examples of ânewâ hazards that are regularly cited under OSHAâs General Duty Clause.
The legislators that wrote the OSHA act most likely never predicted that infectious diseases might be an area that OSHA would someday regulate. And indeed, OSHAâs Bloodborne Pathogens standard, issued in 1990, was initially opposed because infectious diseases were an area that OSHA had never regulated before the scourges of HIV/AIDS and hepatitis B started killing healthcare workers in large numbers. Yet today, thanks to OSHAâs ability to regulate in areas that Congress never foresaw, thousands of healthcare workers owe their lives to OSHAâs Bloodborne Pathogens standard.
Kavanaugh Is Wrong: Whale Training Is Not a Sport
Killer whale trainers are not athletes; theyâre workers in the entertainment industry. And killer whale shows are not sports. There is no fight between whale and human (or there shouldnât be). No one is trying to win. No one keeps score. No one is supposed to get hurt. No one is supposed to die.
Kavanaugh Is Wrong: Tort Law Is Not a Substitute for Laws that Prevent Workers from Getting Hurt on the Job
The use of lawsuits as the only recourse for workers in unsafe jobs went out of fashion (and law) 100 years ago. One would think that Kavanaugh, as a distinguished jurist being considered for the Supreme Court, would be aware that ever since the creation of workers compensation laws in the early part of the 20th century, employees have generally not been allowed to sue their employers after being hurt on the job. And the whole point of the OSHA act is to make the workplace safeÂ beforeÂ workers get hurt, not after itâs too late.
So the following statement from Kavanaugh was confusing, to say the least:
Kavanaugh to Feinstein:Â ââ¦and I made clear that of course, state tort law, as the NFL has experienced with the concussion issue, state tort law always exists as a way to ensure or help ensure safety in the SeaWorld show.â
In his SeaWorld dissent, Kavanaugh asked:
When should we as a society paternalistically decide that the participants in these sports and entertainment activities must be protected from themselvesâthat 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?
When? In 1970, with the passage of the Occupational Safety and Health Act that gave employers the legal responsibility to provide a safe workplace for their employees.
Who decides? Congress and then President Richard Nixon decided, almost 50 years ago with the passage of the OSHA act and the creation of the Occupational Safety and Health Administration.
In that sentence, Kavanaugh undermines the OSHA actâs clear guarantee of a safe workplace to every worker, and the employerâs responsibility to provide that safe workplace.
Now Iâm no lawyer, nor am I a professor of law, but I canât figure out how the lies in Kavanaughâs testimony or his legal misunderstanding of the OSHA act would get a passing grade in the first year of law school, much less a lifetime seat on the Supreme Court of the United States. He has made clear that he does not believe in the mission of OSHA, the goals of the Occupational Safety and Health Act or what Congress actually said in the law, despite his claim to be a textualist.
He has shown himself, under sworn testimony, to be willing to make up facts and legal theories out of thin air to support his corporate-first ideology.
He is not fit for the Supreme Court.
Steven Pearlsteinâs recent description in TheÂ Washington PostÂ of Kavanaughâs opinion about an environmental law could have been written about the SeaWorld case:
What you get is 60 pages of legal sophistry, procedural hair-splitting and scientific conjecture. You find a judge without a shred of technical training formulating his own policy solution to an incredibly complex problem and substituting it for the solution proposed by experienced experts. You find an appeals court judge so dismissive of the most fundamental rules of judicial restraint that he dares to throw out regulations on the basis of concerns never raised during the rule-making process or in the initial court appeal.
As Debbie Berkowitz wrote in her NELPÂ post, âIf you work in a dangerous job, you should be worried about Brett Kavanaugh.â