You may recall that, in 2017, during the Senate Judiciary Committee’s hearings into the nomination of Neil Gorsuch to the Supreme Court seat for which Mitch McConnell had rifled through the pockets of democracy, one of Gorsuch’s opinions that led some people to believe a) that Gorsuch never had a real job in his life, and b) that he didn’t know anybody who had a real job in their lives, either, involved a truck driver whose vehicle broke down in the middle of snowstorm.

Rather than freeze to death by the side of the road, the driver, Alphonse Maddin unhitched his cab and drove off to some place where it was warm. This got Maddin fired. He sued and Gorsuch, in dissent, was the only judge to find the company’s action justified. This led to an amazing colloquy with then-Senator Al Franken:

FRANKEN: “He gets fired, and rest of the judges all go, ‘That’s ridiculous, you can’t fire a guy for doing that,’ “… Which would you have done?” Franken asked Gorsuch.

GORSUCH: “Senator, I don’t know what I would have done.”

FRANKEN “Everyone here would have done exactly what he did – and I think that’s an easy answer. It is absurd to say this company is in its rights to fire him. … I had a career in identifying absurdity. And I know it when I see it. And it makes me question your judgment.”

(God, I’d almost forgotten what a smug, smirky one Gorsuch is.)

This content is imported from YouTube. You may be able to find the same content in another format, or you may be able to find more information, at their web site.

As you might imagine, since he and Gorsuch have been raised in essentially the same political terrarium almost literally since high school, Kavanaugh has an Alphonse Maddin in his record, too.

To be fearless, courageous, tough – to perform a sport or activity at the highest levels of human capacity, even in the face of known physical risk – is among the greatest forms of personal achievement for many who take part in these activities. American spectators enjoy watching these amazing feats of competition and daring, and they pay a lot to do so. Americans like to witness the thrill of victory, to cheer the linebacker who hammers the running back at the goal line, to yell with admiration as Derek Jeter flies into the stands down the left-field line to make a catch, to applaud the gymnast who nails the back flip off the balance beam, to hold their collective breath as Jack Hanna plays with pythons, to root on the marathoner who is near collapse at the finish line, to scream “Foreman” when the announcer says “Down goes Frazier.”

(You will note that SeaWorld was represented in this case by Eugene Scalia, son of then-Supreme Court Justice Antonin. It’s a small town out there among conservative lawyers.)

Tilikum, the whale that killed Brancheau. Getty Images

The whole opinion depends on Kavanaugh’s deliberate conflation of “sports and entertainment” by which he tells the principals in the case that there is no substantive difference between working with killer whales and driving a stock car. And here is where the kitty comes screeching out of the burlap.

In the sports and entertainment fields, the activity itself frequently carries some risk that cannot be eliminated without fundamentally altering the nature of the activity as defined within the industry. Tackling is part of football, speeding is part of stock car racing, playing with dangerous animals is part of zoo and animal shows, and punching is part of boxing, as those industries define themselves. Management and participants in the relevant sports or entertainment industry must initially decide what their competition or show consists of and how to market it to spectators – subject to appropriate regulation by Congress, state legislatures, state regulators, or state tort law. Here, SeaWorld has decided that close contact between SeaWorld trainers and whales is an important aspect of its shows.

Dawn Brancheau wasn’t “playing with” the orca, you dolt, not in the same way that, say, Tom Brady plays with Julian Edelman. She was doing her job in an unsafe working environment. (If the NFL insisted that Brady and Edelman play without helmets, Kavanaugh might have a point.) The fact is that Kavanaugh consistently has been as much of an anti-labor, anti-regulatory fanatic as Gorsuch is. Were it up to him, Alphonse Maddin would be a driversicle by the side of a highway, too.

And, it turns out, to the surprise of nobody, Kavanaugh also may have been a sieve when he worked for the notoriously leaky investigation run by Ken Starr. I swear, this confirmation hearing should last a decade.

Respond to this post on the Esquire Politics Facebook page here.

Charles P. Pierce Charles P Pierce is the author of four books, most recently Idiot America, and has been a working journalist since 1976.

This content is created and maintained by a third party, and imported onto this page to help users provide their email addresses. You may be able to find more information about this and similar content at piano.io