On Day 2 of Judge Brett Kavanaugh’s confirmation hearing, Senator Dick Durbin (D-IL) asked the Supreme Court nominee:
“What’s the dirtiest, hardiest job you ever did in your life?”
Kavanaugh said when he was 16 years old he did some construction work for the summer and also cut neighbors’ lawns to make some extra cash.
Durbin countered with his own experience:
“The dirtiest job I ever had was four summers working in a slaughterhouse. I always wanted to go back to college. I couldn’t wait to get out of there. It was unbearable. It was dirty, was hot. The things I did were unimaginable and I wouldn’t even start to repeat them.”
That’s the way that the Senator led into his challenge of Kavanaugh’s views on labor law protections, specifically workers’ rights to form a union. (The full exchange on this topic is here beginning at 00:23:55.) Durbin referred to Kavanaugh’s dissenting opinion in AgriProcessors v. NLRB, a case before the U.S. Court of Appeals for the D.C. Circuit that was decided in 2008.
“At least a third of the workers in our nation’s slaughterhouses are immigrants. Visits to Iowa, Illinois, Delaware, you pick [the state] and you’re going to find a lot of immigrants doing these miserable, stinking, hot jobs. Many of them are undocumented. The work is low pay and dangerous. As the GAO notes, immigrants are pressured not to even report injuries on the job. …AgriProcessors had at the core of its business model the exploitation of undocumented workers. Almost half their workers were not authorized.
“Workers alleged the company fostered a hostile workplace environment that included 12-hour shifts without overtime pay, exposure to dangerous chemicals, sexual harassment, and child labor. A truck driver at AgriProcessors’ Brooklyn headquarters said ‘we were treated like garbage, and if we said anything, we got fired immediately.'”
Referring to Kavanaugh’s dissent in AgriProcessors v. NLRB Durbin said:
“Judge Kavanaugh, you bent over backwards to take the company’s side against these workers.
“Your dissent argued that this company’s workers should be prohibited from unionizing because they did not fit your definition of an employee. To reach this conclusion, you imported a definition of employee from a totally different statute. You ignored the plain language of the controlling statute, the National Labor Relations Act (NLRA), which has a broad definition of employee, as well as binding Supreme Court precedent.
“The majority in this case…noted that their opinion stuck to the text of the NLRA and to the 1986 Immigration Reform and Control Act. …They said that your dissent would ‘abandon the text of the controlling statute’ and lead to a ‘absurd result.’ The majority in this decision included one Republican and one Democratic appointed judge.”
“Judge Kavanaugh, you claim over and over again to be a textualist, to be careful weighing every work of statute. So why did you go out of your way in a way that benefited this horrible business and disadvantaged these exploited workers? Why didn’t you stick to the plain language of the controlling statute and the binding Supreme Court precedent?”
I listened to Kavanaugh’s explanation. I listened again and again. It had me twisted in knots. Senator Durbin is right that the judge “bent over backwards” to side with this horrible employer.
Judge Kavanaugh insisted that he was relying on a 1984 Supreme Court decision called Sure-Tan v. NLRB. Kavanaugh admitted that the Supreme Court said at that time
“it is permissible to consider an immigrant unlawfully in the country as an employee under the NLRA.”
However, Kavanaugh argued that when Congress passed the Immigration Reform and Control Act of 1986, the Supreme Court’s decision in Sure-Tan should be interpreted in a different way. And his explanation here explains how much he will bend over backwards to twist a decision his way:
“I really parsed it very carefully. I went deep into this case. I went back and pulled from the Sure-Tan case. I went and asked for the Thurgood Marshall papers from the library to read all the memo’s that went back and forth between justices in the Sure-Tan case, and I cited the oral argument to make sure that what I was reading in there was actually reflective of what had been going on in the Supreme Court. It was quite clear from the oral argument, they were aware that the immigration law was about to be changed, and they were aware of the interaction between the labor law and the immigration law. …So I stand by what I wrote then.”
Thankfully, Senator Durbin had the last word on the matter:
“You said earlier today, you don’t get to pick and choose which Supreme Court precedent you follow. The majority in the AgriProcessors’ case was following Supreme Court precedent. In the Sure-Tan case, the Supreme Court in a 7-2 decision said that undocumented immigrants are employees under the NLRA.”
Durbin closed by quoting from the 1984 Supreme Court’s 7-2 Sure-Tan ruling:
“Since undocumented aliens are not among the few groups of workers expressly exempted by Congress, they plainly come within the broad statutory definition of employee.”
Jordan Barab at Confined Space has another example of Judge Kavanaugh playing linguistic gymnastics to interpret another law designed to protect workers’ rights.