“If Brett Kavanaugh wins Senate confirmation to the U.S. Supreme Court,” Ken Stone over at The Times of San Diego warns us,
“SeaWorld may have a friend in high places.”
It was just in 2014 that Kavanaugh saddled up to SeaWorld’s side in a case involving the death 4 years earlier of a SeaWorld trainer by one of the killer whales. The trainer was Dawn Brancheau and the Orca was named Tilikum, and the case was about a $70,000 OSHA fine slapped on the theme park – which SeaWorld contested and took it to court.
Kavanaugh voted against the fine and dissented in the 2-1 opinion by the D.C. Court of Appeals majority who upheld the fine. (Guess who was in the majority – Judge Merrick Garland — President Obama’s pick for the high court totally squelched by a brazen power play by GOP Senate leader Mitch McConnell – who didn’t even afford Garland a hearing.)
SeaWorld, represented by attorney Eugene Scalia, the son of late Supreme Court Justice Antonin Scalia, had argued there had been a precedent set in 2006 in another case from San Diego, where after an Orca bit another trainer and dragged him underwater, no citation for the incident had been issued by Cal-OSHA. That trainer, Ken Peters, had suffered a fractured foot.
But Judge Judith Rogers – the other justice who wrote the majority opinion in the 2014 case – didn’t go for the SeaWorld argument, and wrote, as reported by Ken Stone,:
“In any event, the state inspection report included a warning on point. Although noting that SeaWorld had been following industry standards and was a recognized leader in training killer whales for performance, and that its employees were well-trained and followed emergency procedures, Cal/OSHA concluded that SeaWorld of San Diego’s procedures ‘were not entirely effective at stopping the unwanted behaviors of the killer whale during this attack’ and that ‘[s]hort of eliminating all of the water interactions with the killer whales, there is no guarantee that employees can be kept safe from an attack by the killer whale once they get in the water with the animal.’”
So Kavanaugh dissented, calling Orca trainers similar to other dangerous sports and entertainment, like football, ice hockey and downhill skiing. In his nearly 3,000 word dissent, he asserted that those extremely dangerous sports are not covered by federal health and safety rules, and that Orca trainers, like those athletes, take risks willingly.
Kavanaugh wrote:
“Participants in those activities want to take part, sometimes even to make a career of it, despite and occasionally because of the known risk of serious injury. To be fearless, courageous, tough — to perform a sport or activity at the highest levels of human capacity, even in the face of known physical risk — is among the greatest forms of personal achievement for many who take part in these activities.”
He ticked off a number of other dangerous activities not subject to OSHA regs, such as rodeo bull riding, daredevil motorcycle jumps, boxing, cheerleading vaults, the ironman triathlon, and movie stunts.
Looking back, Kavanaugh really made some absurd comparisons. According to Stone of The Times of SD, the judge heavily criticized the Department of Labor’s “unprecedented assertion of authority to proscribe SeaWorld’s whale show….” He dissed OSHA’s argument that close contact between the trainers and the killer whales was different than close contact between football players or NASCAR racers.
In his dissent, Kavanaugh cautioned that the case with SeaWorld opened up the floodgates for the Department of Labor to begin regulating the National Football League and the National Hockey League.
Yet, the majority opinion was much more reasoned; Judge Rogers wrote:
“No one has described SeaWorld’s killer whale performance as a ‘sport,’ and a legal argument that the ‘sports industry’ should not be regulated by OSHA can be raised when and if OSHA attempts to do so. Until then, this court will not find that OSHA acted arbitrarily based on a few responses to hypotheticals in briefing or oral argument.”
In another slam on Kavanaugh, the former Obama-era OSHA Assistant Secretary David Michaels stated:
“In his dissent in the SeaWorld decision, Judge Kavanaugh made the perverse and erroneous assertion that the law allows Sea World trainers to willingly accept the risk of violent death as part of their job. He clearly has little regard for workers who face deadly hazards at the workplace.”
Thanks to Ken Stone, we have this revelation. Yet, Kavanaugh’s position reflects his extreme right-wing bias, part of the Federalist Society’s props for him, that he believes government should be shrunken so it can fit in a bathtub and then drowned.
The Federalist Society is totally hog over protecting the so-called rights of business, and big-business at that. Capitalists don’t need any government looking over their shoulder, no siree.
So, besides his other lack of deep appreciations of the way this society has been run for the last one hundred years, Judge Brett Kavanaugh’s true self shines through. Big capitalists can run amok and employees and consumers just have to take it.
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