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SIGNIFICANCE OF JUDGE KAVANAUGH'S NOMINATION TO THE SUPREME COURT

Most expect Judge Kavanaugh to continue the pro-employer rulings in labor and employment matters issued by his mentor, the recently retired Justice Anthony Kennedy.  His previous rulings suggest he would uphold mandatory arbitration agreements and support pre-Obama era case precedents under the National Labor Relations Act, such as on the joint-employer issue.  An area that may particularly benefit employers is the judge's inclination to give less deference to the position of administrative agencies, which may benefit employers in defending certain administrative actions.  His prior rulings indicate that he recognizes the existence of discrimination, and Judge Kavanaugh's views on sexual orientation discrimination may be a wild card.

One area in which Judge Kavanaugh may reject the current Administration's policies is immigration.  There is currently a lot of litigation in immigration because of restrictions from the U.S. Citizenship and Immigration Services.  Judge Kavanaugh may have a tendency to read the immigration statutes literally and thus look more carefully as to whether the Executive Branch is interpreting immigration laws consistent with the statutes.  Further, he has authored a decision supporting a significant degree of prosecutorial discretion not to enforce certain laws, which may seem to be supportive of President Obama's decision not to enforce certain immigration laws under the Deferred Action for Childhood Arrivals (DACA) Program, an issue currently before the courts.  Further, Judge Kavanaugh has remarked in the past that the abortion ruling, Roe v. Wade, is settled law, and has even issued an opinion suggesting he might support the Affordable Care Act (ACA). 

In short, although Judge Kavanaugh is likely to join the conservative majority on the Court, he has also taken some positions that may be contrary to the current Administration's policies.


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