Journalist David Cay Johnston’s site published an article by Joran Barab, who says Kavanaugh lied in his senate confirmation testimony, following Barab’s layout of a lawsuit against SeaWorld following the death of trainer Dawn Brancheau during a live show.
Here is an excerpt from Johnston’s site DCReport:
In case you’re 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 OSHA’s favor. The only dissent throughout the entire process was Appeals Court Judge Brett Kavanaugh who argued in his 2014 written opinion that OSHA had paternalistically interfered in a worker’s 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 Congress—and only Congress—could give OSHA that authority.
That’s the backstory. With that laid out, Barab highlights a section of Kavanaugh’s 14+ hour testimony this month in which Feinstein asks him about his OSHA decision:
So, let’s 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 Thursday’s hearing here.
Feinstein: “Judge Kavanaugh, 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?”
Kavanaugh: “The issue, Senator, was precedent. I follow, as a judge, I follow precedent. The precedent of the Labor Department, as I read it, was that the Labor Department under the statute would not regulate what it called the intrinsic qualities of a sports or entertainment show.” [emphasis added]
There are several problems in Kavanaugh’s statement.
The first problem Barab highlights from Kavanaugh’s statement was that there was no precedent for OSHA to not regulate the entertainment industry. Barab lists OSHA citations against Broadway shows and circuses to back this up.
There is more — Barab says not only was there no precedent, but Kavanaugh this month lied about what he wrote in 2014.
These are the subheads of the remainder of Barab’s article published on Johnston’s site:
Kavanaugh Lied About What He Wrote In His SeaWorld Dissenting Opinion
The OSHA Act Covers All Employees—Including Animal Trainers
Kavanaugh Misuses the Word ‘Intrinsic’
Kavanaugh Is Wrong: OSHA Is Permitted to Regulate in ‘New’ Areas that Congress Didn’t Specifically Mention 50 Years Ago
Kavanaugh Is Wrong: Whale Training Is Not a Sport
Kavanaugh Is Wrong: Tort Law Is Not a Substitute for Laws that Prevent Workers from Getting Hurt on the Job
As they say, read the whole thing.
In his 2014 dissent in the SeaWorld case, following the 2010 dismemberment in a live show of a trainer by a whale known at the time to have been involved in “other trainer fatalities,” Kavanaugh wrote it was paternalistic uphold OSHA citations:
When should we as a society paternalistically decide that the participants in these sports and entertainment activities must be protected from themselves—that 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?
The passage of the Occupational Safety and Health Act took place under President Nixon in 1970.
Kavanaugh’s 2014 opinion is getting buried even though it was reported on Sept. 7 by nelp.org’s Deborah Berkowitz who covers worker safety. Her article is titled Trump’s SCOTUS Pick Holds Radical View of Worker Safety Laws and it’s worth a read.