{"id":3806,"date":"2018-09-10T08:20:57","date_gmt":"2018-09-10T12:20:57","guid":{"rendered":"http:\/\/jordanbarab.com\/confinedspace\/?p=3806"},"modified":"2019-07-19T13:38:19","modified_gmt":"2019-07-19T17:38:19","slug":"kavanaughs-lies-seaworld","status":"publish","type":"post","link":"https:\/\/jordanbarab.com\/confinedspace\/2018\/09\/10\/kavanaughs-lies-seaworld\/","title":{"rendered":"Kavanaugh’s Lies About SeaWorld: Annotated"},"content":{"rendered":"


\n\"KavanaughAllow me to be blunt: Judge Brett Kavanaugh lied about the SeaWorld case during his Senate Confirmation testimony last week and he showed very little understanding of the Occupational Safety and Health Act.<\/span><\/p>\n

Being as Judge Kavanaugh is a great girls basketball coach<\/a> in the crime-ridden streets<\/a> of Bethesda, Maryland, however, these facts probably won’t make much difference to Republicans in his confirmation vote. <\/span><\/p>\n

But for those who take the Supreme Court — and workers’ rights — seriously, the facts are the facts. And these facts should be very troubling for American workers.<\/span><\/p>\n

I can’t figure out how the lies in Kavanaugh’s testimony or his legal misunderstanding of the OSHAct would get a passing grade in the first year of law school, much less a lifetime seat on the Supreme Court of the United States. <\/strong><\/span><\/p><\/blockquote>\n

In case you’re just tuning in, in 2010 SeaWorld killer whale trainer Dawn Brancheau was dismembered and killed by a killer whale during a live show in front of hundreds of horrified customers, including small children. <\/span><\/p>\n

OSHA, which had proven that SeaWorld was aware that 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\u00a0written opinion<\/a> 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.<\/span><\/p>\n

(You can read my original post about the SeaWorld decision\u00a0here<\/a>, and an excellent piece by my former OSHA colleague Deborah Berkowitz here<\/a>.)<\/p>\n

So, let’s fast-forward to last Thursday, when Kavanaugh was questioned about his SeaWorld dissent by Senator Diane Feinstein (D-CA) during his Supreme Court confirmation hearing. You can watch and listen\u00a0to the exchange beginning at 1:42:16 of Thursday\u2019s hearing here<\/a>.<\/span><\/p>\n

Senator Feinstein<\/span><\/strong>: “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. \u00a0However the statute, as enacted, applies to each employer and it defined employer as anyone engaged in business affecting commerce who has employees. <\/em><\/span><\/p>\n

Where in the text of the law does Congress exempt employers of animal trainers?”<\/span><\/em><\/p>\n

Judge Kavanaugh<\/span>:<\/strong> “<\/span>The issue, Senator, was precedent<\/strong>. I follow, as a judge, I follow precedent.<\/strong> The precedent <\/strong>of the Labor Department<\/strong>, as I read it, was that the Labor Department under the statute would not regulate what it called the intrinsic qualities <\/strong>of a sports or entertainment show.”\u00a0<\/span><\/i>[emphasis added]<\/span><\/p>\n

There are several problems in Kavanaugh’s statement.\u00a0<\/span><\/p>\n

There is no precedent for OSHA not regulating the entertainment industry.<\/b><\/h3>\n

Just the opposite, in fact. \u00a0OSHA has cited circuses and Broadway musicals several times due to deaths and injuries of performers. For example:<\/span><\/p>\n