A Look at Judge Jackson’s Record on Unions

President Joe Biden’s Supreme Court nominee, Ketanji Brown Jackson, has come under fire for her positions on child porn sentencing, court stacking, and immigration.

Now David Osborne, CEO of Americans for Fair Treatment, tells “The Daily Signal Podcast” that Jackson has another controversial position: her views on labor.

“Even taking Ketanji Brown Jackson at her best, she’s got new judicial philosophies. She’s got her own view on the First Amendment and how it should work. She’s definitely got her own perspective on how federal sector bargaining should work,” says Osborne. “And she’s going to bring that to the court. And she may drive some of these issues. I think unions are getting what they’re paying for.”

Osborne joins the show to discuss those concerns, and what they could mean if Jackson is confirmed to the court.

We also cover these stories:

• Sen. Lindsey Graham, R-S.C., gets into a heated confrontation with Jackson on her third day of hearings.
• The Oklahoma House passes a bill banning medically unnecessary abortions.
• Madeleine Albright, who served as secretary of state under President Bill Clinton, dies at 84.

Listen to the podcast or read the lightly edited transcript below.

Douglas Blair: My guest today is David Osborne, CEO of Americans for Fair Treatment, a national nonprofit that works to educate public sector employees about their constitutional rights around union membership. David, welcome to the show.

David Osborne: Well done, Doug. Thanks.

Blair: Very much appreciate your coming here. So, I’d like to talk to you a little bit about the kind of top news story right now, which is President [Joe] Biden’s potential nominee to the Supreme Court, Ketanji Brown Jackson.

You’ve stated about Ketanji Brown herself that she’s a bit of a problem. You say, “I can’t think of a judge who’s done more for public sector unions in the relatively short period of time that KBJ, Ketanji Brown Jackson, has been on the bench. Of course, Biden selected someone that unions favored. He owes it to them.”

Can you expand on that?

Osborne: Yeah. Well, we’re here talking about the nation’s most powerful special-interest groups. It’s the labor unions. And I want to make the case to you today that labor unions’ political influence goes right to the top. That Ketanji Brown Jackson, in this case, is the nominee because she is the union-favored nominee.

This is the most pro-union president we’ve had. Those are his words. During the 2020 election cycle, unions spent $244 million in direct contributions to Joe Biden and $1.8 billion in total political spending. So we’re talking about getting out the vote efforts, uncoordinated expenditures, and of course, direct campaign contributions as well.

I don’t know if you’ve seen the documentary about Justice Clarence Thomas and about his confirmation proceedings. What was I think obvious to a lot of people at the time, but was really explicit in that documentary, was the opposition to Justice Thomas’ confirmation, which ended up including the NAACP really only got a full head of steam after the AFL-CIO asked for it. They were the ones who directed all of this.

And just like that today, out of all of the qualified candidates that President Biden could have selected, he happened to select the union-favored nominee and he did it for a very political reason.

Blair: And you’re saying that the political reason is because unions are the most powerful political force driving both parties or driving the Democrats or—?

Osborne: Driving the Democrats in particular. But they’ve been a powerful player even with Republicans as well. A good friend of mine says that they’ll rent a Republican until they can buy a Democrat.

What they’ve done, they’ve read Ketanji Brown Jackson’s opinions. She’s out there about this stuff. At best, she’s got a profound misunderstanding of public sector labor law that tilts toward the unions. At worst, she’s done some cynical things, political maneuvering in order to get where she’s gotten today and she’s impressed the unions along the way.

Blair: One of the things that, obviously, you look at when a judge is going up for this type of position is the work that they’ve done on cases. So, the way that they’ve ruled, the way that they’ve sort of shown their jurisprudence. Are there any particular cases that Judge Jackson has shown she’s going to be more pro-union than not?

Osborne: Yeah, here’s what got her on the map. In 2018, President [Donald] Trump issued three executive orders that were meant to deal with longstanding problems with unions in the federal government.

You probably know this, but there are 3 million federal employees, a vast administrative state, and unions get a cut of that action. They were invited into the federal government by Kennedy back in the ’60s. And they’ve been there ever since. Their role has metastasized. They’ve used their power and influence as unions in the federal government to get more, many times, direct spending from the federal government.

But in 2018, Trump meant to deal with that by issuing three executive orders. Just a month later, 17 separate federal employee unions filed four separate lawsuits, and they all ended up in front of?

Blair: Ketanji Brown Jackson.

Osborne: Ketanji Brown Jackson. Yeah.

Blair: Interesting. And the way that she ruled in those cases indicated that she was more in favor of the unions than the Trump administration.

Osborne: She wrote a 120-something-page tome about federal labor law that includes a lot of—I can go into detail on that decision, but I’ll say a few things. It displayed a really flawed view of collective bargaining that was tilted in favor of unions.

It’s a misunderstanding of the role of the president in dealing with unions and with his own workforce. It assumes that the health of the unions derives from getting free stuff from the government.

And even worse, she saw in that 120-page document a real value in unions being politically active, lobbying, for instance, on behalf of federal employees at the same time they’re sitting across the bargaining table from the very people that they’re lobbying.

So she’s also got a philosophy that I think came out, but those are the profound flaws that, in my view, attracted the attention of the labor unions, put her on the map, and then made her the favorite candidate.

Now, later on, she would go on to become a judge on the D.C. Circuit Court. And she wrote two opinions at the D.C. Circuit. One of them dealt with federal sector labor law and happened to involve one of the same parties that had filed the suit initially. Her profound misunderstanding was just repeated in that case on a broader scale. And I can go into detail on that one, if you’re interested.

Blair: I guess what I’m curious about is, was her 100-page opinion out of the ordinary? Was that sort of large, profound amount of text regarding a case all that out of the ordinary or was this just like a very complicated case that she needed to do that?

Osborne: It was a complicated case, no doubt. And I mentioned 17 federal sector unions involved in the thing, three executive orders that were … varying levels of complexity. But on the other hand, I think the style of writing that she employed and the length, the breadth of things that she took on in that document, it was sort of like a showcase for the unions. It put her on the map and made her a viable candidate.

Blair: OK. I think before we get a little too deep into the weeds here, one of the concepts that you’ve mentioned a little bit is collective bargaining and these ideas that unions have this right to do that. What is that? What is collective bargaining?

Osborne: OK. Let’s start here. … Let’s just talk about that process. Federal employees have been unionized, [as] I mentioned, since Kennedy back in the ’60s. At that time, it was somewhat of a free for all. And this is how unionization started in general, but we’ll talk just about the federal sector.

Sort of a free for all. And starting with Kennedy and then with Nixon, there were all sorts of executive orders that would sort of allow unions to come in and then tell them what they could and couldn’t bargain over, how the agencies were going to approach them.

But that really became a statutory process when Congress got involved. They passed a couple of different federal sector labor laws that would formalize this process, codify it. And I think in general, that was probably a good move. It took what could have been just another one of these things that swings back and forth with presidents into something a little bit more stable.

Now, I’ll tell you, … this thing also goes back and forth these days. But it was probably a good move. And what it asked the federal government to do is to balance two things. One, the right of federal employees to organize with the right of the government, the need for the government to run an effective and a fair and efficient business—for a lack of a better term.

In my role, President Trump appointed me to a panel called the Federal Service Impasses Panel, one of the mechanisms that was created in these statutes to deal with the inevitable conflict that would happen between agencies and unions.

Now, what Ketanji Brown Jackson thinks about this process is that the contest between an agency and a union is sort of like a football game. And you can imagine that the conflict that goes on between these two sides would somehow produce the best result. That’s what she thinks.

Now, in fact, what we’ve seen over time, it’s been decades now, what we’ve seen over time is that labor law has been tilted in favor of unions so that, for instance, when an employer and a union go to arbitration, an arbitrator more or less splits the baby.

And by splitting the baby, they’ve only encouraged the union to ask for more. Because at the very least, the union’s going to get about half of what it asks for. So unions sit across the bargaining table and make these outrageous demands.

OK, stop there.

One big difference between private sector labor and public sector labor is that when unions are sitting across this bargaining table and making these outrageous demands in the private sector, they’re making those demands of an employer who’s trying to run a business. And if they go out of business or have to move overseas, all of the employees are out of their jobs. And then the private sector union leaders have really messed up.

In the public sector, on the other hand, these public sector union officials are sitting across from a government that never goes out of business. Never goes out of business. There’s always more to extract. Not only that, but they’ve also got this incentive to do rent-seeking, to get involved politically so that the people sitting across the bargaining table owe the unions some sort of payoff.

So they do it all the time.

I think at the lowest level, a school district where school boards run for office, teachers unions are very, very involved in the school board campaigns. And if they can get the school board that they want on the other side of the bargaining table, then they will get all of those outrageous demands without even having to go to arbitration.

So public sector labor law can be fundamentally broken depending on how one administers it. [Franklin D. Roosevelt] thought that public sector unionization, for instance, was just out of the question. That it was fundamentally different from private sector labor law.

Well, Ketanji Brown Jackson, I told you, sort of sees this thing as a football field. She actually, from her writings, appears to view that football game as one in which the referees should continue to get involved until there’s a tie ballgame or until the unions win.

She seems to think that it’s intolerable that the government, in this case, the employer, could somehow work among different agencies, get a better coach, whatever it is, and then end up winning that ballgame. And unfortunately, that means that we don’t really get the result that we wanted at the end of the ballgame. We get a tie.

Blair: Right, right. And so we’re not looking for a tie, we’re looking for something else. We’re looking for a better result that doesn’t result in both parties kind of splitting it, right?

Osborne: Well, listen, that balancing act that Congress asked the federal government to engage in—remember, the right of employees to organize versus the ability for the government to run an efficient and a fair government—sometimes that results in an imbalance. And it depends a little bit, it should depend on the facts on the ground.

So … if employees are properly represented, hopefully they’re going to have a manager who respects them and gives them the value that they should get as employees, unless there’s no value. And then the employer should have the flexibility to either pay them less, to ask bad employees to leave. And Ketanji Brown Jackson, in that opinion, made it very clear that she wants the government to have no such flexibility.

Blair: So then what are the consequences if Ketanji Brown Jackson is confirmed to the court? It seems like she would have a lot more power and influence on the Supreme Court than she would on the D.C. Circuit.

Osborne: Oh, yeah. And so I’ve read a lot of stuff that says the ideological balance of the court is not going to change. And that’s because people think that there’s a 6-3 split and that she’s basically taking the place of a judge for whom she clerked prior.

Byron “Whizzer” White, the football player-turned-Supreme Court justice, said that every time a new Supreme Court justice gets on the court, the court changes. And I think that’s what we’re going to see.

In my view, it appears that Justice [Samuel] Alito had some particular views with respect to public sector unionization that ended up getting worked out through a series of decisions starting in 2012 and ending in 2018 with a case called Janus v. AFSCME. I think he drove the court on that because he understood the First Amendment. Not for a nefarious reason, but because he had a particular judicial philosophy.

Even taking Ketanji Brown Jackson at her best, she’s got new judicial philosophies. She’s got her own view on the First Amendment and how it should work. She’s definitely got her own perspective on how federal sector bargaining should work. And she’s going to bring that to the court. And she may drive some of these issues. I think unions are getting what they’re paying for.

Blair: So you think that even though, as we’ve mentioned, there is an ideological difference on the court that would make it more difficult for sort of sweeping liberal positions to get passed, there will still be an impact by her nature on the court?

Osborne: Oh, absolutely. You don’t know what happens behind those closed doors during conference. But it certainly looks like a judge has room within that context to drive toward certain things that they believe should be reflected in the majority decisions.

Blair: OK. You mentioned earlier that you served as a presidential appointee to the Federal Service Impasses Panel during the Trump administration. What were some of the things that you handled while you were in that position?

Osborne: The Impasses Panel is supposed to resolve conflicts when they’ve reached an impasse. So when you’ve got this bargaining thing happening, unions are sitting across the bargaining table from the agency, there are going to be some sticking points and neither side wants to move. It’s called an impasse.

Historically, that’s been a very bad result from collective bargaining. You may remember when President [Ronald] Reagan had to stand up to the air traffic controllers. The air traffic controllers decided they were going to go on strike. And he said, “Oh, we’re going to have to move on without you.”

I think it’s fair to say that this panel was designed so that we don’t have to get into that situation again. So that this panel has extraordinary authority to help people reach impasse, to sit down with the parties, and then if all else fails, to actually impose written terms and conditions on the party so that they can move forward with their lives.

Blair: And we think that maybe if Ketanji Brown Jackson were to be confirmed to the Supreme Court, we would see less of an impact from that because in her mind, you wouldn’t need that because it’s always the fault of the government—it’s never the fault of the public sector union?

Osborne: Yeah. That’s an interesting question. I don’t know that I’ve thought too hard about how those decisions might affect indirectly the Federal Service Impasses Panel.

The decision I told you about, the 120-page thing, I was particularly clued into that because it had everything to do with the work at the Federal Service Impasses Panel. But her decision at the D.C. Circuit Court might be a better example. There, she held, along with a panel of judges, that the government had to engage in collective bargaining whenever there’s more of a de minimis impact on terms and conditions of employment for an employee.

So here’s a couple of examples. An employee gets moved from his window seat to another part of the office. Her decision and the de minimis standard would require that the union and the employer sit down, require that they sit down and negotiate that move. Highly inefficient.

The [Federal Labor Relations Authority], which is sort of like the [National Labor Relations Board] for federal employees, tried to make a change in this and she stopped them from doing that.

That would mean that there’s a lot more bargaining over very small issues and a lot more opportunity, unfortunately, to reach impasse. I could see the Federal Service Impasses Panel actually being flooded with new requests for help figuring out how to get past this impasse.

Blair: Interesting. As we wrap-up, I’m curious, as we’re watching these confirmation hearings on TV, and as we’re sort of pondering whether or not she’s going to be a very pro-union justice on the court, can ordinary Americans actually do anything to sort of mitigate the worst consequences of a potential confirmation to the Supreme Court?

Osborne: My organization cares a lot about people. Americans for Fair Treatment educates public employees as to their First Amendment rights in particular. And it also empowers them to act in response and in defense of those rights.

So if you are a federal employee, you can decide today to stop paying union dues. You can leave your union, withdraw your membership. We have tools to help you do that.

If you want more rights within your workplace and you’re dissatisfied with your union, we’ve helped public employees exercise their constitutional statutory rights to replace your union or to create a new local-only union instead.

And if you’re not a public employee and you’re sort of on the outside, your awareness of these issues, when you are voting, when you’re paying your taxes, makes all the difference in the world.

What very few people realize is how powerful these unions are from the bottom all the way to the top, the stuff that we’ve been talking about today.

Blair: Excellent. That was David Osborne, CEO of Americans for Fair Treatment, a national nonprofit that works to educate public sector employees about their constitutional rights around union membership. David, very much appreciate your time.

Osborne: Yeah. Thanks, Doug.

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