Donald Trump’s new United States Supreme Court nominee Brett Kavanaugh has written and issued opinions on a wide range of legal and Constitutional issues, with much of the attention around his nomination centered on his news concerning a woman’s right to abortion, as The Washington Post reported, and how he might rule on issues relating to presidential power — which could determine Trump’s fate in the ongoing Russia collusion investigation.
As The Atlantic reported, Kavanaugh has supported sweeping power for the president, believing that a president can “neither be sued, indicted, tried, investigated or even questioned by prosecutors while in office.” Which would be good news for Trump, who faces all of those possibilities.
But there was one case in particular that caught the attention of Twitter users after writer Amanda Marcotte posted about it on her Twitter account, noting that Kavanaugh dissented from a majority opinion written by Judge Merrick Garland — who had been President Barack Obama’s nominee to the court in 2016, only to have the nomination declared, as NPR described, “null and void” by Senate Republican Majority Leader Mitch McConnell. Garland never even received a hearing before the Senate.
The case noted by Marcotte involved the death of a whale trainer, Dawn Brancheau, at the SeaWorld aquatic theme park. As reported by ABC News, Brancheau was killed on February 24, 2010, by the orca whale Tilikum — who later became the subject of a critically acclaimed documentary about SeaWorld’s treatment of captive whales, Blackfish.
The federal government’s Occupation and Safety Health Administration saddled SeaWorld with heavy fines for safety violations resulting in Brancheau’s death, and the theme park sued to get the fines revoked. Judge Judith Rogers’ opinion, joined by Garland, upheld the fines, as Florida’s WKMG TV News reported. But in a dissent, Kavanaugh seemed to blame Brancheau, not the theme park, for her own death.
“Many sports events and entertainment shows can be extremely dangerous for the participants. Football. Ice hockey. Downhill skiing. Air shows. The circus. Horse racing. Tiger taming. Standing in the batter’s box against a 95 mile per hour fastball,” Kavanaugh wrote in his dissent. “But the 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.”
That’s what prompted Twitter users to respond, including Marcotte who wondered why Kavanaugh did not take into account the conditions of Tilikum’s 33 years of captivity.
Others simply found Kavanaugh’s reasoning absurd.
Or typical of Trump administration policies.
Others saw a parallel to an infamous decision rendered by Trump’s previous Supreme Court nominee, Neil Gorsuch, in what became known (per The Washington Post) as “the frozen trucker case.”
In that case, a truck driver stopped in the middle of nowhere on a freezing cold night when his vehicle ran out of gas. His trucking company instructed him to stay with the truck despite the fact that the truck had no heat. After several hours and feeling the onset of hypothermia, he left rather than freeze to death. His employer fired him, and he sued. But Gorsuch held that the driver should have stayed with the truck no matter what, as the blog Above the Law recounted.
Kavanaugh is likely to prove a controversial pick for a number of reasons, including as the Inquisitr reported, he once used a sexist profanity to describe Hillary Clinton, and collected gruesome files on the suicide of her friend, Vince Foster.