September 24, 2018
We write on behalf of the 150,000 bedside Registered Nurses who are members of National Nurses United (NNU) to oppose the confirmation of Judge Brett Kavanaugh to the United States Supreme Court. After analyzing his judicial record and the information presented at his confirmation hearings thus far, we have serious concerns about his suitability to serve on the highest court in our country. We have no doubt that his confirmation to the Supreme Court would have drastic consequences for nurses, our patients, and communities. For these reasons, we urge you to vote against his confirmation.
Furthermore, in light of new allegations of sexual assault that have been made public in the last week, we urge the United States Senate to hear out the allegations from Dr. Christine Blasey Ford, and to give her the benefit of the doubt. It is long past time that women’s voices are heard and that sexual assault and violence against women is taken seriously. This allegation raises serious questions about Judge Kavanaugh’s fitness to serve on the Supreme Court. Any person who has committed sexual assault is unfit to serve on the Supreme Court of the United States.
Regardless of these allegations, we strongly oppose his confirmation based on his judicial record, his dishonesty during sworn testimony, and the lack of transparency that has mired his confirmation process.
Judge Kavanaugh’s bias in favor of corporations over working women and men is well documented. Indeed, when our union argued a case before Judge Kavanuagh last year,1 he demonstrated through his questions that he is far out of touch with the day-to-day realities of working people. A close examination of his record shows that he is likely to overturn well-established precedents that protect workers rights:
Judge Kavanaugh authored a decision reversing National Labor Relations Board (NLRB) precedent that would have prohibited employers from calling the police to issue criminal citations for legal union demonstrations and from discriminating against union members when hiring.
He authored a decision reversing an NLRB decision to allow workers to display pro-union signs in their cars while at work.
When the D.C. Circuit upheld an Occupational Safety and Health Review Commission’s (OSHA) safety citation against SeaWorld following the third death of an animal trainer who had been working with a killer whale, Judge Kavanaugh strongly dissented and characterized the government’s role in protecting such workers as ‘paternalistic.’
In a decision that ordered a company to bargain with a union, Judge Kavanaugh dissented from the decision because some of the workers were undocumented immigrants.
In his dissents, he has attacked all independent federal agencies.
In addition to showing extraordinary deference to corporations and the wealthy elite, his judicial record also shows a similar deference to executive governmental authority. For example, he allowed the Department of Defense to eliminate collective bargaining rights for their workers, a gross attack on workers’ rights in this country. He has said in dissenting opinions that Congressional employees should be disallowed from pursuing employment discrimination claims, and that the State Department should be exempt from the Age Discrimination in Employment Act. In his dissent from a decision upholding the Affordable Care Act, he said that, “Under the Constitution, the President may decline to enforce a statute that regulates private individuals when the President deems the statute unconstitutional.” All of these examples show that Judge Kavanaugh would undermine the protections of our democratic institutions – the very protections that the Supreme Court is supposed to uphold.
NNU’s members are bedside nurses who have devoted their lives to delivering a high standard of health care to each and every one of their patients. We, like a majority of Americans, support expanding health care to every American through a Medicare-for-All program. By contrast, Judge Kavanaugh has been hostile to the Affordable Care Act, which was a modest step in expanding medical coverage to more Americans. Prior to his nomination to the Supreme Court, Judge Kavanaugh had already shared, in a 2017 speech to the Heritage Foundation, his critique of the Supreme Court’s decision in NFIB v. Sebelius2 upholding key portions of the Affordable Care Act (“ACA”).3 He has described the ACA as “unprecedented on the federal level in American history,”4 and said that it “could usher in a significant expansion of Congressional authority with no obvious principled limit.”5 At his confirmation hearing, Judge Kavanaugh declined to say that he would protect the ACA, a statute we know from our nursing practice to have provided critical access to healthcare for millions of our nation’s most vulnerable citizens.
Particularly alarming was Judge Kavanaugh’s characterization of contraceptives as “abortion-inducing drugs,” and his indication that he had relied on this characterization when writing the dissenting opinion in Priests for Life v. Burwell.6 This is a fundamental misunderstanding of medications that a vast majority of American women use to protect their own health and well-being. Based on his comments about contraception, it is clear that Judge Kavanaugh cannot be trusted to deliberate impartially on issues that could affect women’s access to necessary health care.
Furthermore, throughout the confirmation process, it has come to light that Judge Kavanaugh may have been dishonest in sworn testimony provided to the United States Senate Judiciary Committee in his 2004 confirmation hearings for the D.C. Circuit. In his 2004 testimony, he denied seeing Judiciary Committee documents that had been improperly obtained. It now appears that Judge Kavanaugh did see the documents and that he likely knew at the time that they had been improperly obtained.
The confirmation process itself has been marred by lack of transparency and an abundance of partisanship. A large number of documents have been withheld from consideration in their entirety. Others were only received by Judiciary Committee members too late for them to receive meaningful review. Still others have been unilaterally marked by a private attorney as “confidential,” even though, as was revealed by a few courageous Democratic Senators, the documents contained nothing that could be rightfully construed as confidential. The documents did contain alarming statements by Judge Kavanaugh about racial profiling and women’s reproductive rights. This lack of transparency has undermined the faith that Americans should be able to have in the confirmation process.
Moreover, some of Judge Kavanaugh’s responses to questions of Judiciary Committee members further erode public confidence in the process and speak to the need for a complete and thorough review of all documents relating to Judge Kavanaugh’s work in government. Judge Kavanaugh appeared evasive and not credible when asked questions that are highly relevant to whether he would exercise appropriate impartiality toward President Trump should cases involving President Trump be heard by the Supreme Court.
While this confirmation process continues to be shrouded in secrecy and obfuscation, one thing is perfectly transparent: with this nomination, the health and wellbeing of hundreds of millions of Americans is at risk. There is no need to skip a thorough review of Judge Kavanaugh’s record and character in order to rush his confirmation at a time when there are serious questions pending about the sexual assault allegations against him and his deference to executive authority. This deference may protect a sitting President who was recently accused in open court in a sworn statement of being an unindicted co-conspirator in a felony, while also dismantling the democratic institutions that the Supreme Court is supposed to protect. Based on the record that has been made available, Judge Kavanaugh should not be confirmed.
We strongly urge you to vote against the confirmation of Judge Brett Kavanaugh.
Deborah Burger, RN
National Nurses United
Jean Ross, RN
National Nurses United
1Midwest Division – MMC, LLC v. NLRB (D.C. Circuit Case No. 15-1312)
2 567 U.S. 519 (2012)
4Seven-Sky v. Holder, 661 F.3d 1, 51 (2011)
5Id. at 52.
6 755 F.3d 372 (6th Cir. 2014)