Brett Kavanaugh, Supreme Court Justice?

By Jon Hyman

Jul. 10, 2018

The pick is in. Brett Kavanaugh is President Trump’s nominee to replace Justice Anthony Kennedy on the Supreme Court.

What type of justice will Kavanaugh be? No one really knows for sure. All we can do is read his past appellate opinions and hypothesize.

The opinion I’m offering for your consideration is Ayissi-Etoh v. Fannie Mae, a 2013 racial harassment case that asked the question of whether one isolated yet severe incident of discriminatory conduct — “Get out of my office n***er” — can suffice to establish a hostile work environment.

Thankfully, in a concurring opinion, Judge Kavanaugh wrote that it does:

Saying that a single incident of workplace conduct rarely can create a hostile work environment is different from saying that a single incident never can create a hostile work environment. The test set forth by the Supreme Court is whether the alleged conduct is “sufficiently severe or pervasive”—written in the disjunctive —not whether the conduct is “sufficiently severe and pervasive.” A single, sufficiently severe incident, then, may suffice to create a hostile work environment.…
It may be difficult to fully catalogue the various verbal insults and epithets that by themselves could create a hostile work environment. And there may be close cases at the margins. But, in my view, being called the n-word by a supervisor—as Ayissi-Etoh alleges happened to him—suffices by itself to establish a racially hostile work environment.… No other word in the English language so powerfully or instantly calls to mind our country’s long and brutal struggle to overcome racism and discrimination against African-Americans.

What does this case show us? That as conservative as Kavanaugh might be (and by all accounts he is pretty darn conservative, and will move the court to the right, maybe significantly so), he is at least fair, and will follow the law when the facts so require it. Which means that unless you impose an ideological litmus test to confirm a Supreme Court Justice (which we should not be doing), he is qualified for the job.

Does he make me nervous about the future of the Affordable Care Act (especially its protections for pre-existing conditions), and the protection of LGBT civil liberties? Absolutely. However, as John Oliver observed last week, our opportunity to impact those issues on the court passed with the 2014 Senate election and the 2016 Senate and presidential elections.

The Republican Party won. They have a majority in the Senate and hold the White House. Which means they get to choose the future of the Supreme Court. No amount of complaining, or political gamesmanship, will change that outcome.

So, America, get used to saying Justice Kavanaugh. And if you’re unhappy about it, don’t forget to vote this Nov. 6 and again on Nov. 3, 2020.

Jon Hyman is a partner in the Employment & Labor practice at Wickens Herzer Panza. Contact Hyman at

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