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Eugene Scalia

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Eugene Scalia, son of Supreme Court Justice Antonin Scalia, is a partner in the Washington D.C. office of Gibson, Dunn & Crutcher LLP. He co-chairs the firm's Labor and Employment Practice Group and is a member of the Appellate and Constitutional Law Practice Group. [1]

Dubbed the "godfather of the anti-ergonomics movement" by Molly Ivins and Lou Dubose in their book Bushwhacked: Life in George W. Bush's America, Scalia is best known for his opposition to OSHA's ergonomics standard. He has gone to great lengths to "prove" that repetitive motion injury, a well documented and often highly debilitating form of injury, is a myth invented by doctors. He is described as "tireless in his efforts to debunk the science of such injuries." [2] His National Coalition on Ergonomics, entirely supported by industry, tries to cast doubt on existing science and important safety regulations by posing such questions as "should businesses become laboratories for costly, unscientific government regulations?" [3] The OSHA repetitive motion injury standard, which had been ten years in the making, was scrapped shortly after George W. Bush took office due in part to Scalia's efforts. [4]

Scalia's anti-worker efforts extend far beyond ergonomics to all forms of worker protection. Called by Jim Gilliam, political author and producer, a "lobbyist with credentials," i.e., a lawyer representing business interests, he opposed an "OSHA standard to require that employers pay for required health and safety personal protective equipment such as respirators and gloves."[5][6] He co-authored a brief for the United Parcel Service denouncing the proposal saying:

"The administration provides no proof or credible argument that the proposed rule will improve health and safety, and in fact, the rule will cause significant economic harm, will not promote health and safety, and may reduce personal protective equipment by reducing collectively bargained cooperation between union and management in the implementation of personal protective equipment requirements. The proposed rule is far beyond OSHA's mandate and should be withdrawn."[7]

Frank Mirer, in the AP article "Bush Nominee", noted of Scalia's policies that "this is especially poignant now, as the whole country watched the heroic rescue teams and construction workers at the World Trade Center site, most working without the appropriate protective clothing." [8]

In January 2002, Scalia was appointed Solicitor of Labor in the U.S. Department of Labor in one of George W. Bush's controversial recess appointments following a Senate refusal to approve the nomination.[9]

The Solicitor, according to the DOL website, "is the principal legal officer of the Department of Labor, with responsibility for overseeing litigation conducted by the Department and for providing legal advice to the Secretary and other senior officials in connection with the laws the Department administers, including the Fair Labor Standards Act, the Davis-Bacon Act, the Labor-Management Reporting and Disclosure Act, the Occupational Safety and Health Act, the Federal Mine Safety and Health Act, and ERISA." [10].

In a scathing condemnation of Scalia's appointment Paul Wellstone said it was part of the Bush administration's direct assault on American workers. He said "the Solicitor of Labor is responsible for enforcing the most fundamental worker protection measures on the books." He went on to say "Mr. Scalia's professional record of antipathy toward the laws and principles that it would be his job to carry out make this a mismatch. He has been opposed throughout his career to what I see as the very mission of the Solicitor of Labor, who is not just the Department of Labor's lawyer, but is really the lawyer for workers throughout the entire country." [11] Wellstone's denunciation was widely echoed by labor rights supporters from Senator Edward M. Kennedy to the AFL-CIO. One writer noted: "The fact that Scalia is now the Labor Department's chief lawyer--the man who, in principle, represents worker interests in court--is the kind of thing a satirist would never dare invent." [12]

In opposing Scalia's nomination Senator Kennedy, noting "serious concerns" about Scalia's anti-labor record, said Scalia:

  • has never filed comments in support of a pro-worker regulation.
  • has said that employers should not be strictly liable in sexual harassment cases unless they expressly endorse the conduct of the harasser, despite the fact that the Supreme Court has held that employers are in fact liable for supervisor harassment in many cases.
  • has encouraged employers to challenge so-called "liberal" EEOC interpretations of the Americans with Disabilities Act when they are inconsistent with "sensible business practice." (Kennedy noted that, as Solicitor, Mr. Scalia would refer cases to the EEOC and have a role in defining "sensible business practice.")
  • has said that employees should pay for their own safety equipment, when the equipment is required by law.
  • has argued that union workplaces should be exempted from certain workplace laws, such as regular OSHA inspections and the overtime requirements of the Fair Labor Standards Act. ("But," Kennedy noted, "if we follow this logic, union workers would not be protected by the same minimum standard of rights provided to non-union workers -- thereby undermining the basic function of labor laws to provide a floor of rights for all workers." [13]

In the 2002 lockout of longshoremen in port facilities on the West coast, George W. Bush invoked the Taft-Hartley Act to force the workers to go back to work. As Solicitor, Scalia was the head lawyer on the government's negotiations between the Pacific Maritime Association and the longshoreman's union, the ILWU. But before he became Solicitor, one of his legal clients was the Pacific Maritime Association, creating a conflict of interest from which he refused to recuse himself (seemingly a family trait). In his October 10, 2002, Talking Points Memo on the topic, Joshua Micah Marshall reports: "The AFL-CIO's Lane Windham told TPM today that Scalia 'can't try to be impartial when he's represented one of the parties.' And we find it sorta hard to disagree with her." [14]

When Scalia's recess appointment expired in November 2002, Bush appointed him Acting Solicitor of Labor. Rather than face what would have been a bruising Senate confirmation hearing, Scalia resigned January 17, 2003.[15] He was succeeded by Deputy Solicitor Howard Radzely.

Scalia also became a source of controversy when his law firm represented George W. Bush in the 2000 Supreme Court case that halted the Florida presidential ballot recount and resulted in Bush becoming president of the US. While Eugene Scalia was not directly involved in the case, the federal statute on recusal requires that a justice recuse himself from any case in which their spouse or child is "known by the judge to have an interest that could be substantially affected by the outcome of the proceeding." [16] As a partner in the law firm, Eugene Scalia profited directly from the case both financially and professionally, yet his father Antonin Scalia refused to recuse himself from the case, casting a vote that helped determine who would become the next president of the United States.

Lawyers for Bush-Cheney

"In late 2000, Gibson, Dunn & Crutcher spent a long moment in the spotlight, when partner Theodore Olson took on the role of national co-chair of Lawyers for Bush/Cheney. Olson, who brought with him a record of eight wins and four losses in front of the nation's highest court, argued Bush's case in front of the Supreme Court in two out of the three proceedings. The star litigator has been credited as being instrumental in bringing about the final decision in favor of Bush. The firm did have one potential conflict of interest in taking the case: partner Eugene Scalia is the son of Supreme Court Justice Antonin Scalia. Gibson [W. Bush] made it known that the younger Scalia would have no involvement with the case, and Justice Scalia did not recuse himself from the case. (This proved crucial in the Supreme Court's 5-4 decision.)" [17]

Related Resources

Molly Ivins and Lou Dubose, Bushwhacked: Life in George W. Bush's America (contains a chapter, "Blues in Belize," devoted to the ergonomics legislation, the National Coalition on Ergonomics and the impact on worker health).

External links