Confirming Judge Kavanaugh to the Supreme Court could bring in a New Era of anti-immigrant repression and authoritarianism.

As the headlines continue to speculate on whether or not there will be a Senate committee hearing on the sexual assault allegation against Judge Brett Kavanaugh, the danger is that, important as this issue clearly is, focusing on this charge alone will distract from the equally serious issue of Kavanaugh's record as a lawyer and a judge, and whether that record disqualifies him for the High Court because of bias against certain likely litigants and lack of adherence to the Constitution.

Judge Kavanaugh has a very thin record of opinions involving immigration - only three that I am aware of, all dissents while siting on the D.C. Circuit Court of Appeals. All of them are summarized in a September 5 Immigration Impact article:which also has links to the full decisions: See:

Brett Kavanaugh's Record on Immigration Raises Questions

Unlike Trump's other Supreme Court appointee, Neil Gorsuch, who has not hesitated to come down on the side of immigrant rights when he believes it is appropriate, both as a Circuit Court Judge and as a Supreme Court Justice, Judge Kavanaugh's three dissents show a basic hostility to the principle that immigrants have any rights at all, whether in the context of legal immigration petitions or in the context of immigration detention.

In this comment, I will discuss a case involving an L-1 petition by a US employer for a restaurant chef, in which Kavanaugh's dissent went far beyond the immediate issue before the Court (on which his dissent was very arguably quite reasonable) and launched into an anti- immigrant tirade involving matters which had little if anything to do with deciding the case at hand.

The case involved was Fogo de Chao Holdings Inc. v. US Department of Homeland Security. In that case, a Brazilian restaurant was sponsoring a chef as an employee with "specialized knowledge" under the L-1 statute The employer claimed that the chef's having grown up in Brazil in an environment where preparing Brazilian steaks was part of his cultural background constituted "specialized knowledge" within the meaning of the statute.

Granted, it might not have been unreasonable to find that this argument was a good deal thinner than the Brazilian steaks themselves presumably were, and USCIS rejected this claim, as a matter of statutory interpretation. The Circuit Court majority disagreed and approved the petition on the grounds that USCIS had been too narrow in its interpretation of what "specialized knowledge" meant.

Judge Kavanaugh strongly disagreed with the Court majority on the immediate question of whether a cultural background in cuisine amounted to "specialized knowledge". To this extent, he very arguably may have been on firm ground.

But then, he went beyond the issue of statutory interpretation on which the case depended, and went into an issue that was not involved in either the case itself of in the L-1 statute - namely protection of American workers.

Ignoring the fact that the L-1 law does not require a Labor Certification involving advertising for or recruiting US workers, Judge Kavanaugh condemned the restaurant for allegedly wanting to use foreign workers to displace American ones in order to cut labor costs - in line with accusations frequently made by anti-immigrant organizations.

The fact that this issue had nothing to do with deciding the case at hand did not seem to bother Judge Kavanaugh at all. I will discuss Judge Kavanaugh's other two immigration dissents in my next comment on this topic.