# The "liberal case" for Kavanaugh is nonsensical
**URL:** https://boards.straightdope.com/t/the-liberal-case-for-kavanaugh-is-nonsensical/819262
**Category:** Great Debates
**Created:** [August 8, 2018, 7:33am UTC](https://boards.straightdope.com/t/the-liberal-case-for-kavanaugh-is-nonsensical/819262 "2018-08-08T07:33:03Z")
**Posts on this page:** 17
**Page:** 5
### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [August 9, 2018, 4:36pm UTC](https://boards.straightdope.com/t/the-liberal-case-for-kavanaugh-is-nonsensical/819262/81 "2018-08-09T16:36:11Z")
> [@Budget\_Player\_Cadet](#):
>
> And for those keeping track, keep in mind that [the NLRA is quite explicit](https://www.law.cornell.edu/uscode/text/29/152):
>
> (3) The term “employee” shall include any employee, and shall not be limited to the employees of a particular employer, unless this subchapter explicitly states otherwise, and shall include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment, but shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home, or any individual employed by his parent or spouse, or any individual having the status of an independent contractor, or any individual employed as a supervisor, or any individual employed by an employer subject to the Railway Labor Act [45 U.S.C. 151 et seq.], as amended from time to time, or by any other person who is not an employer as herein defined.
>
> It makes it clear that by “employee” it means _any employee_, and from there it starts carving out exceptions. “Technically it’s not legal to employ you” is not one of them.
You’re absolutely right.
If the NRLA were the only law that applied to this situation, you’d have a rock-solid argument.
Is it?
Or is there another law that you did not mention, also relevant to the analysis?
Did Kavanuagh have to weigh the conflict between the NLRA and this other law?
---
### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [August 9, 2018, 4:37pm UTC](https://boards.straightdope.com/t/the-liberal-case-for-kavanaugh-is-nonsensical/819262/82 "2018-08-09T16:37:25Z")
> [@Damuri\_Ajashi](#):
>
> Perhaps silence = consent?
No. Consent is not granted from silence.
What law, ruling, statute, or authority made you think it was?
---
### Author:  [@John\_Mace](https://boards.straightdope.com/u/John_Mace)
#### Post date: [August 9, 2018, 4:43pm UTC](https://boards.straightdope.com/t/the-liberal-case-for-kavanaugh-is-nonsensical/819262/83 "2018-08-09T16:43:07Z")
> [@Bricker](#):
>
> You’re absolutely right.
>
> If the NRLA were the only law that applied to this situation, you’d have a rock-solid argument.
>
> Is it?
>
> Or is there another law that you did not mention, also relevant to the analysis?
>
> Did Kavanuagh have to weigh the conflict between the NLRA and this other law?
Well, there’s [Immigration Reform and Control Act of 1986](https://www.congress.gov/bill/99th-congress/senate-bill/01200)
> [@](#):
>
> Immigration Reform and Control Act of 1986 - Title I: Control of Illegal Immigration - Part A: Employment - Amends the Immigration and Nationality Act to make it unlawful for a person or other entity to: (1) hire (including through subcontractors), recruit, or refer for a fee for U.S. employment any alien knowing that such person is unauthorized to work, or any person without verifying his or her work status; or (2) continue to employ an alien knowing of such person’s unauthorized work status.
Emphasis added. You must fire the person but continue to negotiate future employment terms with him or her?
---
### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [August 9, 2018, 4:43pm UTC](https://boards.straightdope.com/t/the-liberal-case-for-kavanaugh-is-nonsensical/819262/84 "2018-08-09T16:43:39Z")
> [@Damuri\_Ajashi](#):
>
> Perhaps silence = consent?
Reuben Walworth was nominated for the Supreme Court by President John Tyler. The Senate refused to vote him up or down.
Reuben Walworth never became a Supreme Court justice.[sup]\*[/sup]
Silence did not give consent then, in other words.
Did you know this?
- Interesting historical fact: years after Tyler’s nomination fizzled out in non-action by the Senate, the US Supreme Court appointed him a “commissioner,” (what’s now called a “special master,”) to hear evidence in a case of original jurisdiction before the Court concerning a suspension bridge between Pennsylvania and Virginia (now West Virginia).
---
### Author:  [@Bone](https://boards.straightdope.com/u/Bone)
#### Post date: [August 9, 2018, 5:50pm UTC](https://boards.straightdope.com/t/the-liberal-case-for-kavanaugh-is-nonsensical/819262/85 "2018-08-09T17:50:25Z")
> [@Budget\_Player\_Cadet](#):
>
> … In [another such case](https://dccircuitbreaker.org/wp-content/uploads/2018/07/16-1303.pdf), he rejected the (fairly fucking obvious) claim that a company had farmed itself out to a subsidiary in order to avoid working with the employee’s union. As CurrentAffairs puts it:
>
> This case shows Kavanaugh’s bias. Because he clearly hasn’t spent any time among laborers or read much about labor politics and labor history, he doesn’t understand how companies work. He doesn’t, or won’t, realize that this exactly the sort of maneuver one would expect of a profit-maximizing company that was, as Island’s CEO was, frustrated with the costs of a unionized workforce. Kavanaugh’s bias means that when cases involving unions come to the Supreme Court, he’s not going to actually understand what’s going on, because he will have a conservative’s naive understanding of corporate motives. If Island v. NLRB is a clue, **he will rule against workers even in cases where the law is on their side** , because he sees the facts through a lens that is more sympathetic to business than business’s actual behavior warrants.
>
> (Emphasis mine - **Bone** , take note.)
>
> What we’re seeing here is an alleged textualist with a firm partisan and ideological bend in favor of the rich and powerful, who universally finds against workers even when the workers are definitely in the right. The scary thing about that is, you can’t fix that with Congress. Congress _did_ pass laws in those cases, and Kavanaugh, were he not overruled by his colleagues on the court, would have ignored that. This is not some impartial judge, and the fact that he’s a republican and a self-described “textualist” should not distract us from the fact that he holds these biases, just as much as any alleged “activist” judge might.
Okay, I read this case to see if the synopsis provided was accurate. Surprise, it’s not.
Here is how the CurrentAffairs article describes it:
> [@](#):
>
> Let’s look at another minor but telling case. In Island Architectural Woodwork v. National Labor Relations Board, the union for employees at a “manufacturer of custom modules for office interiors” had filed an unfair labor practices complaint. They alleged that the company, Island Woodwork, was avoiding bargaining with its union by farming some work out to a “separate” non-unionized company (“Verde Partitions”) that was actually just the main company’s “alter ego.” The National Labor Relations Board determined that the union was correct, and found that Island had violated its agreement with the union. The appellate court, 2-1, found the NLRB’s decision reasonable and upheld it. Kavanaugh dissented.
>
> It’s obvious to anyone who knows much about labor relations that Island had simply set up a shell corporation in order to avoid having to use union labor. The court said that “Verde picked up where Island left off— manufacturing the Island-Verde Partition for the same customer with the same equipment in the same place in the same way with many of the same employees and managers,” and it was even owned by the same family. Island’s CEO “repeatedly misled the Union about Island’s relationship to Verde,” lying and pretending to have “sold” equipment to the new shell company, when he had actually just granted it free use. Kavanaugh, however, either playing dumb or actually dumb, said that Company 2 was totally not just a scheme to evade the union. The majority, he said, “seems to have found something shady in the fact that Verde was started and primarily owned by two daughters of Island’s primary owner.” Kavanaugh could see nothing shady in this.
This implies that they shared employees and management. But this isn’t true - there was no contemporaneous employment and the management of the companies was different. Kavanaugh relied on the test established by precedent, applied the test, and came to a different result than the majority in that opinion. Are you saying that he’s not a texualist as a result? First of all, I don’t think Kavanaugh self describes as a textualist. Second of all, why? CurrentAffairs goes on to accuse Kavanaugh of bias, and since he allegedly hasn’t spent any time among laborers or read much about labor politics and labor history, he doesn’t know how companies work. How is that a critique of textualism? I find the criticism regarding this case pretty weak. I’m not saying his dissent should have carried the day. I’m saying it’s not some smoking gun showing some weakness in Kavanaugh.
So I reiterate my question in post #72.
---
### Author:  [@UltraVires](https://boards.straightdope.com/u/UltraVires)
#### Post date: [August 10, 2018, 12:44am UTC](https://boards.straightdope.com/t/the-liberal-case-for-kavanaugh-is-nonsensical/819262/86 "2018-08-10T00:44:18Z")
> [@ElvisL1ves](#):
>
> It’s called justice. No, it isn’t the same thing as the law. The law is just a tool to implement justice, and not the only tool at that. But the higher purpose is justice, as the motto over the Supreme Court building reminds anyone who enters it.
>
> Certainly words can be read in different ways by different people all claiming to be following the exact wording devotedly. The idea that there is only one right way to do it is just silly. I think we all know that a claim to textualism, or original intent, is a claim to superior knowledge or understanding that just doesn’t exist. That’s illustrated by the strenuousness with which those claiming it dismiss any alternative interpretations than the ones they favor.
Then we just have nine people in a super legislature and are not practicing law at all. We just take a principle that we think is good, call it justice, and then say that the law must be a tool for justice.
> [@ElvisL1ves](#):
>
> Not a good example there. The right to equal protection of the laws is explicitly stated. The legal arguments against SSM are that it should be decided legislatively, Constitutional protections be damned.
Just like you’ve done here. That’s not the argument. The argument is that there is no Constitutional protection for SSM, as realized from 1789-2015. The equal protection clause was indeed NOT used in Obergefell, but the (substantive) due process clause, which is equally as malleable.
I might as well say that every person has a right to separate but equal schools and that the 14th Amendment requires it, as a racist has an equal right under the law to send his kid to an all white school as someone else has to send his kid to an integrated school. It sounds silly, but if you use the equal protection clause as such a free floating right, untethered from anything, then that is possible as well.
---
### Author:  [@Budget\_Player\_Cadet](https://boards.straightdope.com/u/Budget_Player_Cadet)
#### Post date: [August 10, 2018, 5:06am UTC](https://boards.straightdope.com/t/the-liberal-case-for-kavanaugh-is-nonsensical/819262/87 "2018-08-10T05:06:54Z")
> [@UltraVires](#):
>
> Then we just have nine people in a super legislature and are not practicing law at all. We just take a principle that we think is good, call it justice, and then say that the law must be a tool for justice.
Y’know, funnily enough, the Germans kinda do this. Article 1 of their Grundgesetz translates roughly to “in all things, the value of human life must not be abridged”. And the German supreme court actually takes a fair bit of latitude on that. It is (rarely) a last-ditch, “Okay, I realize the law is written like X, but the consequences of that law are _obscene_” step in court cases. So far, the German republic has not collapsed as a result.
> [@Bone](#):
>
> Okay, I read this case to see if the synopsis provided was accurate. Surprise, it’s not.
>
> Here is how the CurrentAffairs article describes it:
>
> This implies that they shared employees and management. But this isn’t true - there was no contemporaneous employment and the management of the companies was different. Kavanaugh relied on the test established by precedent, applied the test, and came to a different result than the majority in that opinion. Are you saying that he’s not a texualist as a result? First of all, I don’t think Kavanaugh self describes as a textualist. Second of all, why? CurrentAffairs goes on to accuse Kavanaugh of bias, and since he allegedly hasn’t spent any time among laborers or read much about labor politics and labor history, he doesn’t know how companies work. How is that a critique of textualism? I find the criticism regarding this case pretty weak. I’m not saying his dissent should have carried the day. I’m saying it’s not some smoking gun showing some weakness in Kavanaugh.
The existing test produced a laughable result, in that case. Again, it’s really not hard to tell what’s going on here. It’s really basic union-busting. It’s like if I sold my company to myself and laid off all my unionized workers, then declared this “new” company (doing the exact same thing with the same tools as my old company) “non-union”. _You can’t do that_. Kavanaugh is hopelessly naive if he came to that conclusion.
> [@Bone](#):
>
> I’ll have to review the specific cases in more detail to respond to the specific criticisms. I will say that any synopsis by CurrentAffairs I find suspect based on my reading of the linked article. They don’t do a good job presenting fairly information from what I’ve seen.
>
> To clarify though, is your position that:
>
> A. Liberals or,
> B. All people
> Shouldn’t support Kavanaugh because
>
> 1. Textualism is bad or,
> 2. Kavanaugh is not a textualist?
All people should oppose Kavanaugh, but I realize that expecting republicans to care about things like defendants in criminal cases or workers in labor disputes is a bit of a hard lift, and that they’ve got other reasons (which I find abhorrent) for supporting him. And they should oppose him because Kavanaugh uses textualism to legitimize his apparent judicial philosophy of supporting the strong over the weak almost every single time (like, seriously, how does one explain this - does he only ever take cases where he feels the strong can win, or… what’s going on here?), despite the fact that actual textualism is an impossible goal. He uses it as an excuse to pretend his biases are nothing of the sort.
> [@puddleglum](#):
>
> You are misrepresenting his argument. Kavanaugh cited Sure Tan vs NLRM as the controlling precedent. In that ruling the court tried to reconcile the NLRA position and the Immigration and Naturalization Act. The court said that because the INA did not make it a crime for an illegal alien to take a job or for the employer to hire them that the intent of congress was that they would qualify as employees and the NLRA would apply. \*\*After that ruling Congress passed the Immigration Control and Reform Act which made it a crime to employ illegal aliens. Since the Supreme Court said that illegal aliens were employees because hiring them was legal, it makes sense that when hiring them became illegal they were no longer employees under the legal definition. \*\*
> He then discusses Hoffman Plastic vs NLRB in which the court ruled that an illegal alien who was wrongfully dismissed was not due backpay under the NLRA because he was an illegal alien and thus not eligible for legal employment. Wikipedia says this about the case “The courts ruling finds that workers must have authorization to be working in the United States in order to be protected under all labor laws.” Thus Kavanaugh’s opinion in this case is well grounded in Supreme Court precedence.
(bolding mine)
…Okay, I was not aware of that context. Oops! :o I will retract the claim that Kavanaugh was obviously and blatantly wrong in this case. I have been mislead by my sources and my distaste for reading long legal documents.
(FWIW I consider that ruling highly problematic. illegal immigrants are already among the most easily-exploited, most-vulnerable workers, and despite this law companies still hire them. What this law does is ensure that should your workers be trying to take advantage of legal benefits granted to employees - again, the NLRB is pretty clear on their take that illegal immigrants are still employees - the best thing you can do is bust them up under the pretext of them being illegal employees. This is bad for all workers, not just illegal immigrants. But that does not translate to Kavanaugh being unjustifiable in his opinion.)
---
### Author:  [@John\_Mace](https://boards.straightdope.com/u/John_Mace)
#### Post date: [August 10, 2018, 1:23pm UTC](https://boards.straightdope.com/t/the-liberal-case-for-kavanaugh-is-nonsensical/819262/88 "2018-08-10T13:23:19Z")
> [@Budget\_Player\_Cadet](#):
>
> Y’know, funnily enough, the Germans kinda do this. Article 1 of their Grundgesetz translates roughly to “in all things, the value of human life must not be abridged”. And the German supreme court actually takes a fair bit of latitude on that. It is (rarely) a last-ditch, “Okay, I realize the law is written like X, but the consequences of that law are _obscene_” step in court cases. So far, the German republic has not collapsed as a result.
Do you want that type of article in the US Constitution, with SCOTUS justices selected by conservatives interpreting “human life” the way they would do so? Seems to me that would get rid of the death penalty, but also abortion. You wouldn’t just get rid of _Roe_, and leave things up to the states. Abortion would be unconstitutional.
---
### Author:  [@Budget\_Player\_Cadet](https://boards.straightdope.com/u/Budget_Player_Cadet)
#### Post date: [August 10, 2018, 2:11pm UTC](https://boards.straightdope.com/t/the-liberal-case-for-kavanaugh-is-nonsensical/819262/89 "2018-08-10T14:11:15Z")
And yet, somehow, Germany still has abortions… ������
Why yes, given sufficiently evangelical judges, that could happen. The tradeoff is pretty great though.
---
### Author:  [@John\_Mace](https://boards.straightdope.com/u/John_Mace)
#### Post date: [August 10, 2018, 2:17pm UTC](https://boards.straightdope.com/t/the-liberal-case-for-kavanaugh-is-nonsensical/819262/90 "2018-08-10T14:17:11Z")
> [@Budget\_Player\_Cadet](#):
>
> And yet, somehow, Germany still has abortions… ��
Yeah, and the electorate in Germany is generally much to the left to the electorate in the US. No surprise there.
> [@](#):
>
> Why yes, given sufficiently evangelical judges, that could happen. The tradeoff is pretty great though.
They don’t have to be evangelical. They just have to think that “human life” includes fetuses. They could be Catholic, Muslim, Jewish or (possibly) atheist.
BTW, good for you for acknowledging the error regarding the “employee” case. It’s too rare around here for folks to accept correction, and yet who doesn’t make mistakes now and then?
---
### Author:  [@Bone](https://boards.straightdope.com/u/Bone)
#### Post date: [August 10, 2018, 2:39pm UTC](https://boards.straightdope.com/t/the-liberal-case-for-kavanaugh-is-nonsensical/819262/91 "2018-08-10T14:39:52Z")
> [@Budget\_Player\_Cadet](#):
>
> The existing test produced a laughable result, in that case. Again, it’s really not hard to tell what’s going on here. It’s really basic union-busting. It’s like if I sold my company to myself and laid off all my unionized workers, then declared this “new” company (doing the exact same thing with the same tools as my old company) “non-union”. _You can’t do that_. Kavanaugh is hopelessly naive if he came to that conclusion.
First - Kavanaugh was following the existing precedent, the test laid out by his own court. It produced a result you didn’t like, but that’s hardly a criticism of textualism. If anything, this is a point in his favor again. He should follow existing precedent at the DC Circuit level.
Second - Your example is not very good. In the precedent cited (Fugazy), that is what the company did. They shut down and reformed doing the same thing. This is not what happened here. In this case, there were two businesses operating at the same time, with different management, and different employees. One did not cease operating and the other began.
> [@](#):
>
> All people should oppose Kavanaugh, but I realize that expecting republicans to care about things like defendants in criminal cases or workers in labor disputes is a bit of a hard lift, and that they’ve got other reasons (which I find abhorrent) for supporting him. And they should oppose him because Kavanaugh uses textualism to legitimize his apparent judicial philosophy of supporting the strong over the weak almost every single time (like, seriously, how does one explain this - does he only ever take cases where he feels the strong can win, or… what’s going on here?), despite the fact that actual textualism is an impossible goal. He uses it as an excuse to pretend his biases are nothing of the sort.
Actually, I doubt Kavanaugh has a choice in the cases that come before him. From my understanding, the 3 judge panels that are chosen from the 11 member court are chosen at random. Only when cases are heard en banc is the full court seated. But thus far your criticism seems unfounded - that his philosophy is supporting the strong over the weak. If the law favors the strong, then the judges’ actions should reflect that - do you agree?
As far as the German rule…I’m not sure I would like a “don’t be a jerk” equivalent in the constitution.
---
### Author:  [@John\_Mace](https://boards.straightdope.com/u/John_Mace)
#### Post date: [August 10, 2018, 5:00pm UTC](https://boards.straightdope.com/t/the-liberal-case-for-kavanaugh-is-nonsensical/819262/92 "2018-08-10T17:00:02Z")
> [@Bone](#):
>
> As far as the German rule…I’m not sure I would like a “don’t be a jerk” equivalent in the constitution.
While most countries have shameful things that they’ve done in the past, Germany has a unique reason from the modern era to include such a clause in their constitution.
---
### Author:  [@elucidator](https://boards.straightdope.com/u/elucidator)
#### Post date: [August 10, 2018, 5:06pm UTC](https://boards.straightdope.com/t/the-liberal-case-for-kavanaugh-is-nonsensical/819262/93 "2018-08-10T17:06:17Z")
> [@Bone](#):
>
> …If the law favors the strong, then the judges’ actions should reflect that - do you agree?..
Ah, yes, the legendary **Bricker Trap**! Suggest a simplistic proposition that seems to be immune to debate, and offer the opportunity to surrender. Classic! but I believe you owe the Counselor a nickel, or at least a tip o’ the hat…
As for _my_ opinion of justice in relation to law, my sig speaks for me.
---
### Author:  [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)
#### Post date: [August 10, 2018, 8:54pm UTC](https://boards.straightdope.com/t/the-liberal-case-for-kavanaugh-is-nonsensical/819262/94 "2018-08-10T20:54:22Z")
> [@UltraVires](#):
>
> Then we just have nine people in a super legislature and are not practicing law at all.
Um, no, the courts have to have something to rule _on_, don’t they? You do need to stop excluding middles. It doesn’t help you at all.
> [@](#):
>
> The argument is that there is no Constitutional protection for SSM, as realized from 1789-2015.
And that’s false, as already explained. The right was suppressed from the day the 14th was ratified until the Court struck down that suppression, yes, but the right was still there.
> [@](#):
>
> The equal protection clause was indeed NOT used in Obergefell, but the (substantive) due process clause, which is equally as malleable.
It was used as a secondary argument in Massachusetts (once again, as usual, at the forefront of liberty, with the rest of the states following later), with a dissent saying it should have been primary. But the USSC indeed did make EP the primary argument. You don’t have to like it, but you don’t have a factual or reasoned argument against it.
---
### Author:  [@Budget\_Player\_Cadet](https://boards.straightdope.com/u/Budget_Player_Cadet)
#### Post date: [August 10, 2018, 10:10pm UTC](https://boards.straightdope.com/t/the-liberal-case-for-kavanaugh-is-nonsensical/819262/95 "2018-08-10T22:10:26Z")
> [@John\_Mace](#):
>
> BTW, good for you for acknowledging the error regarding the “employee” case. It’s too rare around here for folks to accept correction, and yet who doesn’t make mistakes now and then?
This is almost uniquely depressing, I’m not gonna lie.
---
### Author:  [@Budget\_Player\_Cadet](https://boards.straightdope.com/u/Budget_Player_Cadet)
#### Post date: [August 11, 2018, 4:03pm UTC](https://boards.straightdope.com/t/the-liberal-case-for-kavanaugh-is-nonsensical/819262/96 "2018-08-11T16:03:42Z")
> [@Bone](#):
>
> Actually, I doubt Kavanaugh has a choice in the cases that come before him. From my understanding, the 3 judge panels that are chosen from the 11 member court are chosen at random. Only when cases are heard en banc is the full court seated. But thus far your criticism seems unfounded - that his philosophy is supporting the strong over the weak. If the law favors the strong, then the judges’ actions should reflect that - do you agree?
Sure. But the law typically doesn’t favor the accuser, the rich, the employer quite that often. It should serve as a huge red flag if the argument for him are based on impartiality and respect for the law - that kind of result is weird, to put it kindly. Especially when we’re not always dealing with 3-0 cases. Clearly, at least in some of those cases where he sided with the employer, the prosecution, etc., there was a judge (or sometimes 2) that disagreed with him. So that’s a pretty big “if” in my eyes.
---
### Author:  [@Bone](https://boards.straightdope.com/u/Bone)
#### Post date: [August 11, 2018, 4:28pm UTC](https://boards.straightdope.com/t/the-liberal-case-for-kavanaugh-is-nonsensical/819262/97 "2018-08-11T16:28:20Z")
Your complaint was against textualism, that it was a fig leaf to push an agenda not in comportment with the law. But in two of the cases you’ve referenced so far, it turns out the law did favor the side that Kavanaugh supported. Yes there were other judges who felt differently, but they weren’t textualists, so they were free to use their judgement on what the law should actually be as opposed to what the law actually said.
Is there an example that actually holds up? The CurrentAffairs source seems to have failed.
[Previous page](https://boards.straightdope.com/t/the-liberal-case-for-kavanaugh-is-nonsensical/819262.md?page=4)