President Trump’s nomination of Judge Brett M. Kavanaugh to the Supreme Court, his second nominee, could further cement the high court’s pro-business tilt.
In his dozen years as a federal appellate court judge, Judge Kavanaugh has tended to side with business interests in resolving regulatory issues and employment disputes in cases involving the environment, consumer protection and technology.
“The Champagne corks are going to pop at the Chamber of Commerce and in the C.E.O. offices across America,” said Dennis Kelleher, president of Better Markets, a nonprofit group that advocates stringent financial regulation.
A graduate of Yale Law School, Judge Kavanaugh served as a clerk to Justice Anthony M. Kennedy, whose retirement, announced less than two weeks ago, opened the seat that Judge Kavanaugh has been nominated to fill. Judge Kavanaugh has had a hand in writing some 300 judicial opinions for the Court of Appeals of the District of Columbia.
Business groups, for now, were careful not to strike an overly celebratory note in commenting on the nomination.
“We congratulate Judge Brett Kavanaugh and look forward to reviewing his record on legal issues important to the business community,” said Blair Latoff Holmes, a spokeswoman for the United States Chamber of Commerce.
In one of Judge Kavanaugh’s best-known rulings, he said the legal structure of the Consumer Financial Protection Bureau was unconstitutional because it was led by a single director, unlike other agencies with several commissioners. Judge Kavanaugh sought to remedy the problem by empowering the president to fire the director.
Judge Kavanaugh’s legal reasoning ultimately was rejected by a full panel of the appellate court for the District of Columbia.
Much of the debate in the coming months will focus on Judge Kavanaugh’s view on social issues and whether a sitting president can be subject to prosecution or other legal claims. But Mr. Kelleher said equal attention should be given to his track record in siding with business or in finding ways to strengthen the hand of the executive branch.
Judge Kavanaugh took a position favored by some big telecommunications companies when he wrote a dissenting opinion in an appellate case that had upheld the Obama administration’s so-called net neutrality regulation. The rule passed by the Federal Communications Commission required big internet providers to treat data equally and to not favor some data companies over others.
The judge said the rule violated the First Amendment by interfering with the editorial decision-making of internet providers.
Judge Kavanaugh’s view ultimately triumphed when the Trump administration and the F.C.C., under new leadership, rescinded the net neutrality rule.
The Environment and Employment
In other decisions, he has taken a tough line on environmental regulations. In one case he was part of a divided bench that struck down a provision of the Clean Air Act. The ruling was later overturned by the Supreme Court.
In employment-related cases, Judge Kavanaugh has a mixed record, sometimes siding with businesses and sometimes with employees.
In one case involving Fannie Mae, the government-sponsored mortgage firm, Judge Kavanaugh joined his colleagues on the appellate court in reinstating a lawsuit in which a black employee claimed his supervisor created a racially hostile workplace.
Judge Kavanaugh, according to Scotusblog, wrote that “being called the N-word by a supervisor” even a single time was enough to “establish a racially hostile work environment.”