Labor Department nominee likely to face tough questions

Senators critical of the stands taken against labor-friendly laws by labor law attorney Eugene Scalia may complicate his quest to win approval as Labor Department solicitor when he appears before the Health, Education, Labor and Pensions Committee Sept. 20.

"There will surely be a big fight on this one," said a spokesman for Sen. Paul Wellstone, D-Minn., who chairs the committee's Employment, Safety and Training Subcommittee. "Based on Scalia's record, he has a number of concerns about this nomination," the spokesman added.

A spokeswoman for Sen. Michael Enzi, R-Wyo., a critic of Clinton administration workplace safety policies and ranking member of the subcommittee, said Enzi supports Scalia, but would reserve his questions for the hearing.

Scalia, 37, is the son of Supreme Court Justice Antonin Scalia and formerly a partner in the Washington-based law firm Gibson, Dunn & Crutcher, which argued President Bush's election case before the Supreme Court.

The nominee has not shied away from criticism of the Labor Department under former President Clinton. According to information compiled by the AFL-CIO, Eugene Scalia in a 1994 article for the National Legal Center for the Public Interest questioned the validity of repetitive strain injuries.

"The very existence, not to mention the significance of [repetitive strain injuries] is of course very much in doubt," he wrote.

Labor advocates, who have long backed federal policies requiring employers to address these injuries, were embittered by action in Congress in March to overturn the Clinton administration rule requiring employers to respond to them.

In a Jan. 5, 2000, article in The Wall Street Journal, Scalia said The Occupational Safety and Health Administration's intent to apply certain regulations to home offices--which was later revoked--was "part of a string of recent initiatives intended to court union leaders as the presidential primaries approach."

In a spring 2001 Harvard Journal of Law and Public Policy article, Scalia suggested that unionized workplaces should be exempt from certain federal labor laws, putting the onus on the unions rather than the government to ensure safe and fair workplaces.

Supporters defend Scalia against criticism. Gibson, Dunn partner William Kilberg told Legal Times last month that it is "hard to describe [Scalia's articles] as anything other than thoughtful." Kilberg characterized Scalia's opponents as "a handful of people in organized labor who feel very strongly about ergonomics." Kilberg himself served as Labor Department solicitor from 1973-77.

But Scalia's labor policy positions may not be the only issue discussed at the Sept. 20 hearing. The solicitor's position entails contributing to decisions on how to enforce laws within the department's jurisdiction and deciding which cases to bring to court. Justice Scalia could have to recuse himself from some cases the younger Scalia would bring, depending on his level of involvement, legal experts said.

Another Supreme Court justice's offspring, Janet Rehnquist, daughter of Chief Justice Rehnquist, may face similar concerns. She was recently nominated to be inspector general at the Health and Human Services Department.