In December, the Senate confirmed Jennifer Sung to a seat on the Ninth Circuit Court of Appeals by a 50-49 vote along party lines. Sung had been serving as one of the three members of the Oregon Employment Relations Board, a state agency that oversees labor relations in the public sector. During her four-year tenure as one of three members on the Board, she had garnered praise from lawyers representing employers for her “objectivity, fairness, and professional demeanor.” A fellow Board Member who had previously represented employers, wrote that she approaches her work “with the utmost intellect and integrity,” and lauded her “impartiality, judicial demeanor, and dedication to justice.” So, why did Republican Senators unanimously oppose her nomination? Most likely because before serving as a neutral on the Employment Relations Board, Sung spent 10 years as a lawyer representing workers and unions. But, since the Senators couldn’t admit that, they seized on a letter she signed to the Dean of Yale Law School regarding Brett Kavanaugh’s nomination to the Supreme Court. The Supreme Court’s decision striking down the Occupational Safety and Health Administration’s vaccine-or-test emergency standard shows how misguided the Republican attacks on Judge Sung were.
When Kavanaugh was nominated to the Court, his alma mater, Yale Law School, issued a press release with quotes from Dean Heather Gerken and four professors praising him. Many Yale students and alumni were offended by the press release, and they drafted an open letter to Dean Gerken. The letter argued that “the press release’s focus on the nominee’s professionalism, pedigree, and service to Yale Law School obscures the true stakes of his nomination.” The letter framed those stakes as an emergency “for democratic life, for our safety and freedom, [and] for the future of our country.” Among other things, the letter argued, based on Kavanaugh’s record as a judge, that he “would pose an existential threat to the government’s ability to regulate for the common good.” The letter included some strong rhetoric – the authors of the letter described Kavanaugh as “an intellectually and morally bankrupt ideologue intent on rolling back our rights and the rights of our clients.” And, the letter ended by sounding the alarm that “people will die if he is confirmed.” Judge Sung was one of 175 Yale alumni and students who signed the letter.
At her confirmation hearing, the Republican Senators seemed to acknowledge there was no legitimate basis to oppose Sung’s confirmation. During the four years she had served as a neutral on the Oregon Employment Relations Board she had earned the respect of her colleagues and advocates who appeared before her. She had the requisite experience, and no one could question her intellect or her commitment to justice. So, almost every Republican Senator on the Judiciary Committee spent their time badgering Sung about the Kavanaugh letter. Senator Mike Lee accused Sung of defaming Kavanaugh, as though calling someone morally bankrupt is a statement of fact. Senator Tom Cotton asked if anyone had died as a result of Kavanaugh’s appointment, and Senator Marsha Blackburn asked Sung to identify the people who would die. Senator John Kennedy asked Sung if she “really believed” people would die. The Republican Senators insisted that signing the letter called into question whether Sung possessed the appropriate judicial temperament. These were the same Republican Senators who had no trouble voting to confirm Justice Kavanaugh even after his confrontational performance at his confirmation hearing raised serious questions about his temperament.
At her confirmation hearing, Judge Sung admitted that she couldn’t identify anyone who died as a result of Justice Kavanaugh’s confirmation. But, in light of the Supreme Court’s ruling striking down OSHA’s vaccine or test mandate, it won’t be long before many of us will be able to identify those individuals. Before issuing the emergency standard, OSHA did its best to carefully weigh the costs and benefits of imposing the mandate, and OSHA concluded that the standard would save over 6,500 lives and prevent over 250,000 hospitalizations in six months’ time. Justice Kavanaugh and the other five right-wing ideologues on the Court who voted to strike down the emergency mandate did not dispute that estimate.
What’s important for everyone to understand about the Supreme Court’s decision is that there was absolutely no statutory justification for the decision. The right-wing Justices often profess to be “textualists,” insisting that the Court should decide cases based on rules of grammar without regard for legislative intent. But, the OSHA decision was strikingly devoid of references to the statutory text. Instead, the Republican appointees on the Court asserted that OSHA could not impose the regulation because COVID-19 is not an “occupational hazard.” The dissenting Justices pointed out how OSHA has always regulated hazards that exist both inside and outside the workplace. For instance, all employers are required to maintain adequate first-aid supplies even though the need for first aid may be just as great outside the workplace. In addition, one person’s workplace may be another person’s leisure destination. The Court majority stated that COVID-19 doesn’t just spread at workplaces, it also spreads at sporting events. Well, it turns out that the arenas where some of those sporting events take place are also workplaces, and because they are workplaces, they have OSHA-mandated fire-prevention plans that protect both workers and spectators. OSHA standards also often have an impact outside the workplace. If you go to your neighborhood hardware store to buy a ladder for your home, the ladder you buy will likely be advertised by the manufacturer as meeting OSHA standards.
In light of the lack of textual support for the Court’s ruling, I think it’s fair to say that Kavanaugh and his five right-wing colleagues did exactly what the authors of the Yale letter feared – they struck down OSHA’s carefully considered standard based on their own gut feeling that OSHA had gone too far. The bottom line is that because of Justice Kavanaugh and his colleagues’ hostility to government regulation, more people will die. Judge Sung and her fellow Yale alumni who signed the open letter were right, but I’m sure they will wait in vain for an apology from the Republican Senators on the Judiciary Committee.