[Senate Hearing 107-40]
[From the U.S. Government Publishing Office]



                                                         S. Hrg. 107-40
 
                               NOMINATION
=======================================================================




                                HEARING

                                 OF THE

                    COMMITTEE ON HEALTH, EDUCATION,
                          LABOR, AND PENSIONS
                          UNITED STATES SENATE

                      ONE HUNDRED SEVENTH CONGRESS

                             FIRST SESSION

                                   ON



 EUGENE SCALIA, OF VIRGINIA, TO BE SOLICITOR, U.S. DEPARTMENT OF LABOR

                               __________

                            OCTOBER 2, 2001
                               __________












 Printed for the use of the Committee on Health, Education, Labor, and 
                                Pensions


                    U.S. GOVERNMENT PRINTING OFFICE
75-532                       WASHINGTON : 2002
____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov  Phone: toll free (866) 512-1800; (202) 512-1800  
Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001








          COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS

               EDWARD M. KENNEDY, Massachusetts, Chairman

CHRISTOPHER J. DODD, Connecticut     JUDD GREGG, New Hampshire
TOM HARKIN, Iowa                     BILL FRIST, Tennessee
BARBARA A. MIKULSKI, Maryland        MICHAEL B. ENZI, Wyoming
JAMES M. JEFFORDS (I), Vermont       TIM HUTCHINSON, Arkansas
JEFF BINGAMAN, New Mexico            JOHN W. WARNER, Virginia
PAUL D. WELLSTONE, Minnesota         CHRISTOPHER S. BOND, Missouri
PATTY MURRAY, Washington             PAT ROBERTS, Kansas
JACK REED, Rhode Island              SUSAN M. COLLINS, Maine
JOHN EDWARDS, North Carolina         JEFF SESSIONS, Alabama
HILLARY RODHAM CLINTON, New York     MIKE DeWINE, Ohio

           J. Michael Myers, Staff Director and Chief Counsel

             Townsend Lange McNitt, Minority Staff Director

                                 ______

                                  (ii)

  




                            C O N T E N T S

                               __________

                               STATEMENTS

                        Tuesday, October 2, 2001

                                                                   Page
Kennedy, Hon. Edward M., a U.S. Senator from the State of 
  Massachusetts, Chairman, Committee on Health, Education, Labor, 
  and Pensions...................................................     1
Gregg, Hon. Judd, a U.S. Senator from the State of New Hampshire.     3
Scalia, Eugene, nominated to be Solicitor, U.S. Department of 
  Labor, Washington, DC..........................................     9

                          ADDITIONAL MATERIAL

Articles, publications, letters, etc.:
    American Federation of Labor and Congress of Industrial 
      Organizations (AFL-CIO)....................................    47
    Leadership Conference on Civil Rights (LCCR).................    49
    American Nurses Association (ANA)............................    50
    Harvard School of Public Health..............................    50
    Union of Needletrades, Industrial and Textile Employees 
      (UNITE), AFL-CIO, CLC......................................    51
    National Women's Law Center..................................    52
    United American Nurses (UAN), AFL-CIO........................    53
    United Food and Commercial Workers International Union 
      (UFCW), statement..........................................    54
    United Food & Commercial Workers International Union (UFCW), 
      AFL-CIO & CLC, letter......................................    56
    Americans for Democratic Action (ADA)........................    57
    International Union, United Automobile, Aerospace & 
      Agricultural Implement Workers of America (UAW)............    57
    Communications Workers of America, AFL-CIO, CLC..............    58
    International Longshore & Warehouse Union, (ILWU), AFL-CIO...    59
    The National Treasury Employees Union (NTEU).................    60
    American Federation of State, County and Municipal Employees 
      (AFSCME), AFL-CIO..........................................    60

                                 (iii)

  


                               NOMINATION

                              ----------                              


                        TUESDAY, OCTOBER 2, 2001

                                       U.S. Senate,
       Committee on Health, Education, Labor, and Pensions,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 10:36 a.m., in 
room SD-430, Dirksen Senate Office Building, Hon. Edward M. 
Kennedy (chairman of the committee) presiding.
    Present: Senators Kennedy, Harkin, Mikulski, Wellstone, 
Murray, Reed, Edwards, Gregg, Enzi, Hutchinson, Bond, Collins, 
and Sessions.

                  Opening Statement of Senator Kennedy

    The Chairman. Good morning. The committee will come to 
order.
    I thank everyone for joining us as the committee considers 
the nomination of Eugene Scalia to be the Solicitor of Labor.
    Mr. Scalia has been praised as a ``dedicated legal 
scholar'' and a lawyer with an ``extraordinarily good mind.'' 
He has had a distinguished legal career at the law firm of 
Gibson, Dunn & Crutcher, as Special Assistant to Attorney 
General of the United States William P. Barr, and as an aide to 
Secretary of Education William Bennett.
    His record makes him extremely qualified for many positions 
in this administration. However, I have read many of Mr. 
Scalia's articles, and I have serious concerns about whether 
his background provides the right fit for the position of 
Solicitor of Labor, and I plan to explore those concerns today.
    My colleagues know that this committee has been supportive 
of President Bush's nominees. In fact, we have already 
confirmed 12 nominees to the Department of Labor, and we have 
done so as quickly as possible and are moving quickly on the 
remaining three as well. This committee wants to ensure that 
the President and the Secretary of Labor have the team they 
need in place to carry out the important missions of the 
Department on behalf of millions of working men and women and 
their families across the country.
    As the third-ranking official at the Department of Labor, 
the Solicitor provides advice and guidance on virtually every 
policy, legislative, regulatory, and enforcement initiative of 
the Department and its agencies on issues of vital importance 
to all these working families.
    In addition, since most labor laws do not include a private 
right of action, the Solicitor serves as the workers' lawyer by 
using his discretion and judgment to decide whether to enforce 
workers' rights. As a result, legal decisions and policy 
decisions at the Department of Labor are so intertwined that 
they often cannot be separated.
    When Congress reviews administration nominees, it considers 
the person's entire background of experience and writings. What 
a candidate has done prior to his nomination matters to 
Congress and to the American people.
    Most of us have serious concerns about Mr. Scalia's 
nomination to this important position based on our review of 
his record and his writings, which clearly suggest that his 
views are outside the mainstream on many issues of vital 
importance to the Nation's workers and their families.
    Throughout his career, Mr. Scalia has frequently opposed 
workers' rights. It appears that Mr. Scalia has represented 
individual workers on only one occasion, when particular 
workers were suing their union after crossing a picket line. He 
has never filed comments in support of a pro-worker regulation. 
He 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 U.S. Supreme 
Court has held that employers are in fact strictly liable for 
supervisor harassment in many cases.
    Mr. Scalia has also encouraged employers to challenge so-
called liberal EEOC interpretations of the Americans with 
Disabilities Act when they are inconsistent with ``sensible 
business practice.''
    As Solicitor, Mr. Scalia would refer cases to the EEOC and 
have a role in defining ``sensible business practice.'' In 
addition, Mr. Scalia has said that employees should pay for 
their own safety equipment when the equipment is required by 
law.
    Mr. Scalia has also 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 if we follow this logic, union workers would 
not be protected by the same minimum standard of rights 
provided to nonunion workers, thereby undermining the basic 
function of labor laws which is to provide a floor of rights 
for all workers.
    In addition, Mr. Scalia has written in very strong 
opposition to ergonomics protections. For example, he has 
written that ``The science of ergonomics is notoriously doubt-
ridden and controversial.''
    He has said that ``The very existence, not to mention the 
significance of repetitive strain injuries is of course very 
much in doubt.''
    He has in fact ridiculed the scientific basis for 
ergonomics. He has written that ``as a medical science, 
ergonomics is quackery.''
    Many of us on the committee and in Congress respectfully 
disagree. The prestigious National Academy of Sciences 
estimates that one million men and women will lose time from 
work this year because of ergonomics injuries, which will cost 
the economy $50 billion. There is a wealth of evidence that 
ergonomics injuries exist, can easily be diagnosed, are caused 
by workplace practices that are no longer acceptable and can be 
readily reduced by simple workplace modifications. In 1997 and 
1998, both the National Institute of Occupational Health and 
Safety and the National Academy of Sciences reported similar 
conclusions.
    Yet despite study after study documenting the causes and 
dangers and remedies for ergonomics injuries, Mr. Scalia has 
consistently argued that ergonomics is quackery based on junk 
science.
    I have serious concerns that given this position, Mr. 
Scalia will be able to provide appropriate advice to OSHA as it 
continues to work to develop a needed solution to the extremely 
serious challenge of ergonomics injuries in workplaces across 
the Nation.
    Mr. Scalia has also been critical of OSHA's recordkeeping 
rule on workplace injuries and illnesses, which is intended to 
help track occupational injuries and illnesses. As Secretary 
Chao herself has said, ``This rule is a big step forward in 
making workplaces safer for employees. It is written in plain 
language and simplifies the employer's decisionmaking 
process.''
    With upcoming rulemaking on the ergonomics standards, 
employer payment for safety equipment, and many other major 
issues, the Solicitor will be involved in developing many 
needed new policies as well as enforcing the over 180 laws 
under the jurisdiction of the Department of Labor. The 
important position of Solicitor of Labor requires a person who 
has the confidence of Congress and the country in helping to 
carry out its essential mission of fairly and fully 
representing the working men and women of America.
    I look forward to Mr. Scalia's testimony and to exploring 
these cited issues in more detail.
    Senator Gregg?

                   Opening Statement of Senator Gregg

    Senator Gregg. Thank you, Mr. Chairman.
    The Department of Labor is obviously a significant 
department in our management structure as a Federal Government, 
as it administers over 140 labor laws affecting millions of 
Americans and American workplaces.
    The position of Solicitor is equally important, as he 
serves as the Department's chief legal counsel. The Solicitor 
performs an important task not in terms of policymaking but 
rather in advising the Secretary and other division heads about 
the legality of the actions and policies they wish to 
undertake.
    The President's nomination of Eugene Scalia testifies to 
the importance of this position. I do not think the President 
could have nominated anyone more uniquely qualified to serve as 
the Labor Department's Solicitor than Eugene Scalia.
    Mr. Scalia has at least 10 years of distinguished 
experience as a labor and employment lawyer, with an unusually 
broad practice including collective bargaining, arbitration, 
Title VII, ADA, OSHA, and wage and hour issues. He is a 
nationally-recognized expert in the area of employment law, 
having written numerous law review articles, including one 
noted piece on sexual harassment referred to by the U.S. 
Supreme Court.
    Mr. Scalia is a public servant at heart, having served two 
prior Cabinet Secretaries, and has donated his time as a 
visiting professor at the University of the District of 
Columbia Law School. I am pleased that he is willing to 
participate in public service and join again in this 
administration.
    The chairman has raised a number of issues which he has 
identified as concerning himself and possibly other members of 
this panel. I hope that those issues have not prejudged the 
decision on this nominee. I believe that this nominee, Mr. 
Scalia, can answer every one of those issues extraordinarily 
effectively. And, rather than my paraphrasing his answers, I 
will allow him to do so.
    But let me simply point out that specifically in the area 
of ergonomics, this Congress has spoken and said that the 
proposals of OSHA were not a good idea; that the courts used 
the term ``junk science'' as a legal term, and it is not a 
pejorative designed by this nominee but rather, a legal term 
which is used by the courts; and that Mr. Scalia's positions on 
ergonomics do not differ greatly and are certainly not out of 
the mainstream from the majority of the United States Congress, 
which rejected the initial proposals that came forth from OSHA.
    In the area of recordkeeping, the track record of OSHA on 
recordkeeping and the burden which that has put on the small 
businesses of America could not be worse. This committee over 
the last 4 years has held numerous hearings where we have 
pointed out the problems which OSHA has generated as a result 
of its structure and the manner in which it deals especially 
with small employers.
    I do not know of one agency of the Federal Government, 
other than Immigration, which is unique, that I receive more 
complaints about in my office from small business than OSHA. 
And I think that raising issues about the manner in which the 
recordkeeping has proceeded in OSHA is a legitimate question to 
be raised, and it is not out of the mainstream. Why isn't it 
out of the mainstream? Because this committee has held hearings 
on that specific issue innumerable times as we have tried to 
make sure that OSHA is more responsive to the needs of the 
employees in this country.
    We all recognize that OSHA has come through some tough 
times. It made some progress under Mr. Dear. It has 
unfortunately fallen back recently, but hopefully it will get 
its act together. But this nominee's writings in this area, 
rather than being out of the mainstream, are quite consistent 
with votes taken by the Congress and hearings held in this 
committee.
    So I look forward to hearing from the nominee. I think his 
extraordinary expertise will contribute greatly to the 
Department of Labor, and it will be a pleasure to listen to his 
input on the issues which are raised by the chairman of the 
committee.
    Mr. Chairman, since Senator Warner had wanted to be here to 
introduce the nominee personally, and unfortunately, as you 
know, the defense authorization bill is on the floor, and he 
has actually been asked to go down to the White House, so he 
cannot be here, I would ask that Senator Warner's opening 
statement be made a part of the record.
    The Chairman. It will be so included.
    [The prepared statement of Senator Warner follows:]

                  Prepared Statement of Senator Warner

    Chairman Kennedy, and my other distinguished colleagues on 
the Senate Committee on Health, Education, Labor and Pensions, 
I am pleased to have the opportunity to introduce Eugene Scalia 
to serve as Solicitor for the Department of Labor. I would also 
like to welcome and recognize his family in attendance today.
    As the Chief legal officer in the Department, the Solicitor 
of Labor is a key figure in the enforcement of labor and 
employment laws and regulations. The Solicitor also plays an 
integral role in the process to establish new standards to 
protect our nation's workforce.
    Prior to his nomination, Mr. Scalia was a labor lawyer and 
partner at a law firm in Washington, D.C.
    He has specialized in labor and employment law for over a 
decade. His distinguished legal career is marked by an 
intricate knowledge and understanding of the full range of 
labor laws and pertinent issues.
    Mr. Scalia's extensive writings in this field have also 
been influential in debate on a variety of related initiatives.
    The needs and make-up of the American workforce are 
constantly changing. We must continue to be responsive to the 
concerns of the American worker.
    The Department of Labor is responsible for the protection 
of the American worker, ensuring that employees are able to 
operate in a safe environment, receive just compensation for 
their work, and that everyone has fair and equal opportunity 
for employment. The Department also provides assistance to 
individuals through training programs and related services.
    I trust that the opinions and recommendations of Eugene 
Scalia as Solicitor of Labor will be in the best interest of 
American workers and in line with the mission of the 
Department.
    I look forward to working with Mr. Scalia and officials at 
the Department on matters currently pending and on new 
initiatives which will come before the Department for 
consideration.
    I urge the Committee's favorable consideration of his 
nomination.
    The Chairman. Mr. Scalia, we welcome you.
    Would you care to introduce the members of your family, or 
proceed in your own way.
    Mr. Scalia. Yes, thank you, Mr. Chairman.
    I have some of my family members here today. Beginning 
immediately behind me to my right is my wife, Patricia, and 
seated next to her, my son, Jack Christie; she is holding our 
daughter Brigette Anne, who is 3 months old today. Next to her 
is Nino, and next to her, our daughter Megan McCarthy. And next 
to Megan is Shannon Rice, who is a long-time family friend and 
babysitter to our children.
    Also with me today, seated to my left, is Mr. Tom 
Korologos, who I think is known to many of you and has been 
helpful to me in preparing for the hearing today; my brother 
Paul, otherwise known as Father Paul Scalia or, within the 
family as ``Father Brother''; and my mother, Maureen Scalia.
    And in the row behind them are my sister-in-law, Terry 
Scalia, my nephew William, his father Britt Courtney, my 
brother-in-law, and his son Timothy.
    And finally, my brother John Scalia, seated behind my wife.
    The Chairman. Thank you very much. We welcome all of them. 
Thank you.
    Before we proceed I have statements of Senators Clinton, 
Hutchinson, and Bond.
    [The prepared statements of Senators Clinton, Hutchinson, 
and Bond follow:]

                 Prepared Statement of Senator Clinton

    Mr. Scalia, thank you for being here with us today. I 
believe that it is more critical than ever to ensure that this 
Congress fills the position of Solicitor General at the 
Department of Labor--a position of extreme importance to all 
workers in America for it is the Solicitor General that 
provides legal advice and guidance on virtually every policy, 
legislative, regulatory and enforcement initiative at the 
Department of Labor.
    For the past three weeks we have witnessed the great 
backbone of our society--the brave men and women who have 
worked tirelessly in the rescue and recovery efforts at the 
World Trade Center, at the Pentagon, and in the fields of 
Pennsylvania--and, we must do all we can to ensure the safety 
and health of these workers and the many other workers who will 
be called into duty to help our nation recover from the 
destruction of the attacks, as well as recover from an economy 
that has faltered. It is no time to turn a blind eye to the 
workers of America.
    While I think the timing is critical to nominate and 
confirm someone for the position of Solicitor General, I have 
been deeply troubled by a number of positions you have taken in 
your writings and your work and I hope that today you can help 
to clarify how those positions will influence the work you 
would do as Solicitor General.

                          Protective Equipment

    Currently in New York at the site of the World Trade Center 
thousands of workers have been engaged in a rescue and recovery 
effort sorting piece by piece through steel, rubble, glass and 
debris. These workers have been tireless in their efforts, 
themselves exposed to serious hazards, from falling and 
shifting debris, cuts and lacerations, and particles in their 
eyes and lungs. From September 14 to September 24, the New York 
City health department reported nearly 3,000 injuries among the 
construction workers, firefighters, police and others involved 
in the rescue and recovery efforts.
    The first line of defense for these workers is the safety 
equipment they wear--hardhats, gloves, goggles, respirators, 
safety shoes, and protective clothing. Without this equipment, 
they have no protection from injury.
    On behalf of a client, UPS, you co-authored comments 
opposing an OSHA proposed rule that would have made clear as a 
matter of law that requirements that employers provide safety 
equipment also mean that the employer must pay for this safety 
equipment. Those comments said that there was no safety and 
health rationale to require employers to pay for the equipment.
    My question is, do you personally share this view? If 
employers have the legal obligation to provide a safe workplace 
and to comply with standards, don't you think it should be 
their legal obligation to pay for the cost of that compliance--
in this case requiring them to pay for required safety and 
equipment?
    This proposed rule on employer payment for personal 
protective equipment is now pending at OSHA. What would be your 
recommendation to the Secretary on whether there is a legal 
basis for this rule and whether it should be finalized?

                        Project Labor Agreements

    Once the rescue, recovery, and cleanup effort in New York 
is finally complete, New York will face the task of rebuilding 
after the tragedy of September 11th. It is too soon to say what 
will be built where the World Trade Center and surrounding 
buildings once stood. But it is fair to say that it will be a 
mammoth rebuilding effort that will undoubtably involve 
considerable federal and state funds.
    On massive construction projects, such as the one that 
faces New York, project managers often try to control quality, 
timeliness, and costs by entering into project labor agreements 
with construction unions. The agreements set forth the terms 
and conditions covering employment for the project. They help 
assure that there will not be strikes or other disruptions over 
the course of the construction, and they help assure 
construction contractors a ready supply of highly-skilled, 
experienced workers. Project labor agreements enjoy broad 
support.
    Earlier this year President Bush issued an Executive Order 
barring the use of Project Labor Agreements on construction 
projects receiving federal funding or assistance. The Executive 
Order is in jeopardy--a federal judge has ruled that it is 
probably illegal and preempted by the National Labor Relations 
Act. However, as of now it still stands. So, because of this 
Executive Order, the rebuilding of New York could not be done 
under a project labor agreement unless New York decided to 
forego all federal funding.
    Do you think President Bush's Executive Order should be 
revoked? Shouldn't it at least be waived as to New York?

                Prepared Statement of Senator Hutchinson

    Good Morning. I am very pleased that Chairman Kennedy has 
given you the opportunity to come before the Committee today 
and I thank him for scheduling the time necessary to conduct 
this hearing and move you one step closer to confirmation. And, 
I do believe that you will be easily and quickly confirmed as 
you are a man of solid character and impeccable credentials--
law degree from the University of Chicago, bachelor's degree 
from the University of Virginia, editor of the law review, 
partner at one of the nation's premier law firms, service with 
the Department of Justice, pro bono professor at the District 
of Columbia School of Law . . . I could go on and on. However, 
I will defer to some others whose praise might seem surprising.
    One such person is University of Chicago Professor Cass 
Sunstein, a prominent advisor to Democrats on judicial 
nominations, who said ``In terms of sheer capacity to do a fine 
job, he's as good a choice as can be imagined.'' Another such 
person is William Coleman, the former president of the NAACP 
and advisor to six Presidents, who said that you would be 
``among the best lawyers who have ever held [this] important 
position.''
    Not only am I convinced that you are extraordinarily well-
qualified for this position by your education and experience, I 
am also supremely confident that your character will lead you 
to faithfully and fairly enforce our nation's labor laws. In 
closing, please know that I completely support your nomination, 
look forward to working with you, and wish you continued 
success.

                   Prepared Statement of Senator Bond

    Mr. Chairman, let me begin by indicating how thrilled I am 
that the President and the Secretary of Labor have been able to 
attract a candidate of Gene's caliber for this important, 
sensitive position.
    In light of the recent attack on our country, let me also 
say that I hope we can now see this nomination in its proper 
perspective: Gene is exceptionally qualified for this job, the 
President believes he is the best person for this role, and 
there are no issues in his background that should disqualify 
him from being confirmed and serving as the Solicitor for the 
Department of Labor. While I know that there are some who have 
concerns about whether Gene should be confirmed, in the end 
their arguments are nothing more than refighting the ergonomics 
issue on which Gene will not be the policy maker. To jeopardize 
Gene's nomination over ergonomics would be to wallow in a level 
of partisanship which the country simply will not tolerate at 
this time.
    Mr. Scalia has pursued a career of mainstream 
representation of employers in traditional labor law disputes. 
Our system is built on the idea that each side gets to tell 
their side of the story. Surely, his nomination should not be 
blocked because of his role in our adversarial system of 
justice and government. Had he not represented clients with an 
interest in the ergonomics issue, his opponents would have 
nothing controversial to raise, yet he would be just as 
qualified for this position. The mere fact that he represented 
employers' interests in a rulemaking, which became so well 
publicized, and so bitterly fought, should not be held against 
him, just as it is not the most important factor in his favor.
    I'd like to take a moment to set the record straight on a 
few matters regarding Gene. The positions which Gene advocated 
with respect to the now-invalidated ergonomics standard were 
well within mainstream concerns regarding this regulation. His 
well publicized comments about the science surrounding this 
issue have also been taken grossly out of context. 
Specifically, Gene's point was that a high percentage of 
scientists called to testify by the Department of Labor in 
these cases were unable to satisfy a test established by the 
Supreme Court for credibility of evidence to be admitted. He 
was not the one saying that the scientists were flawed, the 
judges were the ones making that determination. Nor has he ever 
said that employers should not be concerned about these 
injuries, or that employees were not suffering actual injuries. 
His comments have reflected the difficult and extraordinarily 
complex issues surrounding this topic.
    Gene Scalia opposes the ergonomics proposal promulgated by 
the Clinton administration, which incidentally, was also 
opposed by organized labor. Gene has established a consistent 
record of supporting worker protections in a variety of areas. 
His work on the issue of sexual harassment has even been cited 
favorably by Justice Ginsburg who is closely associated with 
this issue. Similarly, he has also supported the role unions 
play in helping to protect employees and insuring compliance 
with regulations.
    As Solicitor, Gene's role will not be to develop policy, 
but instead it will merely be to advise the Secretary on legal 
issues affecting the Department. If some of these issues 
involve setting policy, his job will be to tell the Secretary 
what the legal arguments are and to recommend the best legal 
approach. While this role is critical to the Department 
functioning smoothly, and the Secretary achieving her 
objectives, it is far different than the level of influence 
those opposing his nomination would ascribe to him.
    Indeed, it's remarkable how much support Gene has from 
leading liberal labor scholars and even former Solicitors of 
Labor from Democratic administrations. Reading some of the 
letters supporting his nomination, one might think that Gene 
came from the ranks of organized labor. At the very least it is 
abundantly clear that Gene does not come to this position 
seeking to pursue an ideological agenda. Those who know his 
work consistently point out his open-minded approach to finding 
the best answers to legal questions. These are exactly the 
skills required to advise the Secretary on the legal issues of 
the Department. Secretary Chao would not be well served by an 
attorney that was trying to promote an agenda or ideology and 
it's clear that Gene is not that type of attorney.
    Finally, there is a side of Gene beyond his overwhelming 
qualifications that should be noted. Gene is a genuinely caring 
and warm person. He has demonstrated this through his writings 
which have advocated greater and more creative ways to protect 
employees, and through his teaching at the University of the 
District of Columbia's law school for free. His greatest 
concern before accepting the position at the University of the 
District of Columbia was whether he could find time to do the 
job well against the competing interests of his career and 
being a father. Thankfully for those students, he did find the 
time and he was regarded as ``accessible, warm, and 
nurturing.'' The Dean of the law school described his 
performance as ``balanced, accurate and first-rate teaching.'' 
These abilities to get along with a wide array of people and 
offer non-ideological, balanced thinking will be essential in 
his role as Solicitor. His sincere concern for others also 
makes it clear that Eugene Scalia will fulfill his role as 
Solicitor always mindful of the employees and people who rely 
on the Department of Labor for protection.
    Mr. Chairman, I can not imagine a more qualified or 
exemplary nominee for this position. I look forward to 
supporting his nomination and seeing Gene confirmed as soon as 
possible. Thank you.
    Mr. Scalia you may proceed in whatever way that you desire.

  STATEMENT OF EUGENE SCALIA, NOMINATED TO BE SOLICITOR, U.S. 
              DEPARTMENT OF LABOR, WASHINGTON, DC

    Mr. Scalia. Thank you, Mr. Chairman, Senator Gregg, and 
members of the committee.
    Thank you for holding this hearing today on my nomination 
to be Solicitor of Labor. It is an honor to appear before this 
committee.
    I would also like to express my deep gratitude to the 
President for nominating me to this position and my 
appreciation to the Secretary of Labor, Elaine Chao, for the 
trust and confidence she has shown in recommending me for the 
position.
    The Solicitor of Labor is the principal legal officer of 
the Department of Labor. The responsibilities of the Solicitor 
are essentially twofold--first, to enforce the nearly 200 laws 
administered by the Department. These include the Fair Labor 
Standards Act, the Occupational Safety and Health Act, ERISA, 
and Executive Order 11246.
    I have spent most of my professional career as a labor and 
employment lawyer. The laws I have just mentioned, and the 
nearly 200 other laws administered by the Department, are 
important laws. They are to be taken seriously. If confirmed, I 
pledge to enforce them vigorously.
    I should add that in addition to the laws I have just 
mentioned, the effect on American workers and families of the 
recent events in New York and at the Pentagon have also 
impressed on me in a way that could not have happened at my law 
practice the importance of some other laws administered by the 
Department, namely, those having to do with unemployment 
insurance and providing workers assistance in times of disaster 
and emergency.
    The second principal responsibility of the Solicitor of 
Labor is to provide legal advice to the Secretary and the other 
principal officers of the Department. For instance, the 
Solicitor's office reviewed draft rules prepared by the 
agencies in order to identify legal problems and, if problems 
are found, to help solve them. The Secretary and the client 
agencies set the policies in these rulemakings. The Solicitor's 
function is to help implement those policies within the bounds 
of the law.
    The Solicitor's office has a distinguished and proud 
tradition. I appreciate the great responsibility as well as the 
great honor in being entrusted to carry that tradition forward. 
I do believe that my experience as a labor and employment 
attorney has prepared me to faithfully discharge the 
responsibilities of this office should I be confirmed.
    My experience has included litigating under the labor and 
employment laws, and it has also included providing counsel to 
clients on the requirements of the laws in order that they can 
properly comply. I have also taught labor and employment law, 
and I have written broadly in the area.
    I would like to take a moment this morning to address one 
issue that I have written on and that I know some members of 
this committee will have questions about, and that is the 
subject of ergonomics. In my writings, I criticized the 
ergonomics regulatory proposals of the last administration, and 
I also criticized the writings of some ergonomists.
    My pledge to this committee is the following. If confirmed, 
I will approach the issue of ergonomics as a lawyer--as a 
lawyer for the Department of Labor and as a lawyer for the 
United States Government. I recognize and understand that I 
will not be the Department of Labor's scientist, its physician, 
or its OSHA Administrator. I have been nominated to be the 
Department's attorney.
    To me, the attorney-client relationship is an almost sacred 
trust. It is a trust where the attorney's obligations are 
toward others--in this case, toward the Secretary of Labor, 
toward the OSHA Administrator, toward the American people, and 
toward the rule of law itself. It is crucial to the attorney-
client relationship that a lawyer's advice be untainted by any 
personal preferences the lawyer may have. For a lawyer to shade 
or slant the legal advice he gives in order to advance a 
private agenda is among the greatest betrayals of his or her 
duty as a lawyer.
    I will be wholly mindful of these things if confirmed as 
Solicitor of Labor when addressing ergonomics or any other 
issue. And I will be mindful of something else as well--that if 
confirmed, I will have a new position, a new client, and new 
responsibilities. Necessarily, I will consider all issues from 
a new perspective.
    Finally, if the Department does issue an ergonomics rule, I 
will fairly and vigorously enforce it. Any views that I hold on 
ergonomics pale beside my strong conviction in the rule of law 
and in the duty all of us have to uphold and obey the law.
    I have been urged in closing to explain why this nomination 
is important to me personally. One friend suggested to me that 
I had the law in my veins. I looked into this--I had a blood 
test--and I do not have the law in my veins.
    What I do have is a mother--the Massachusetts-born 
cofounder of the Young Democrats of Radcliffe--who, when I was 
7 or 8 years old, pressed me to read a several-hundred-page 
biography of Samuel Adams. And later, she sat up with me at 
night to watch a PBS program called ``The Adams Chronicles.''
    I knew at the time, living as I was in Virginia, that what 
my mother was doing was somewhat subversive--educating me in 
John and Samuel Adams rather than Thomas Jefferson, Patrick 
Henry, and the other Virginians. But in this and other ways, 
from as early as I can remember, my mother as well as my father 
instilled in me the highest respect for service in the 
Government of the United States and for bringing to that 
Government service the selfless dedication to national ideals 
that characterized our Founding Fathers at their best.
    That, above all, is why I am honored to have been nominated 
by the President of the United States; it is why I am honored 
to appear before this committee and all of you today; and it is 
the spirit with which I would approach the office of Solicitor 
of Labor should I be confirmed.
    Again, thank you for holding this hearing today, and I look 
forward to answering your questions.
    The Chairman. Thank you very much, Mr. Scalia.
    As far as I am concerned, there is very little doubt about 
your competency and your basic and fundamental ability. What 
you are being nominated for now is to be the workers' attorney 
in the Department of Labor. The Department of Labor is one of 
the few departments that can bring cases without having 
clearance by the Justice Department. It has more than 500 
attorneys, and there is enormous latitude in terms of 
discretion about what cases are going to be brought, what 
regulations are going to be supported, and what kinds of 
protections are going to be out there in terms of working 
families.
    We will have 8-minute rounds for Senator Gregg and myself, 
and 6-minute rounds for other members, if that is okay. It 
seems to be okay, Judd.
    Senator Wellstone. Can we have a vote on that? [Laughter.]
    The Chairman. I am using up my time.
    I make that comment because if you take these decisions--
for example, reference was made to OSHA and the challenges they 
had. The interesting fact is that the injury rate under OSHA 
fell by 26 percent, from 8.6 per hundred workers in 1993 to 6.3 
per hundred workers in 1999--the lowest in OSHA's 30-year 
history. These are real results; lives being saved; families 
that would not have had parents do have parents today.
    Decisions that are made by the Solicitor are life and death 
decisions, and you, or whomever is going to be the Solicitor 
General, is going to be the workers' lawyer. We have got to 
look over your record and find out what in that record would 
give any of us confidence that you have a fundamental core 
commitment to working families in this country. I find it very 
difficult to find much there, and I find in many indications 
ridicule for working families and for unions in your statements 
and comments and a disdain for that whole process. Now, maybe I 
am wrong about it. That is what this hearing is really about. 
But this is a very important position, and I know that you take 
your position seriously, as we take ours.
    These are some of the comments that you have made with 
regard to ergonomics. In the January Wall Street Journal: 
``Home office policy. The most obvious effect will be in 
conjunction with the ergonomics rule that OSHA proposed last 
November. That draft rule itself is a major concession to union 
leaders, who know that ergonomics regulations will force 
companies to give more rest periods, slow the pace of work, 
then hire more workers''--you can read into that ``dues-paying 
members''--``to maintain current levels of production.''
    Do you have a reaction to that kind of reflection of 
attitude toward workers? I would ask you to make any comment 
you wish to on this issue.
    Mr. Scalia. Yes, Senator. I first of all have a great deal 
of respect for labor unions. I believe they do a great deal of 
good for their members, and actually, about a year ago, before 
I had any inkling that I might be nominated for this position, 
I wrote a somewhat lengthy law review article in which I sought 
to express my respect for labor unions and my appreciation for 
some of the good things they do.
    As to that particular comment, what I was attempting to 
emphasize in that article was the stakes for American 
businesses of the last administration's proposed ergonomics 
rule, because I did have concerns with it. And that particular 
statement was intended to reflect the stakes.
    I did not mean to suggest that dues, for example, was all 
that unions cared about. I do believe that the advocates of 
ergonomics regulation do so in the belief that it will improve 
safety. And again, in the article I mentioned to you, that was 
something that I sought to emphasize on a more general level, 
that labor unions do seek safety in a very sincere and 
effective way.
    The Chairman. Well, of course, most of the support for the 
rules was by unions, who already have protections.
    Here are some more quotes. This one is in your 
``Ergonomics: OSHA's Strange Campaign to Run American Business. 
Weird science, ergonomists' doubtful theories, like a cruise 
through Disneyworld's Pirates of the Caribbean to survey 
ergonomists' theories is to glimpse the exotic, absurd, 
occasionally amusing, and sometimes grisly.''
    ``There is, however, an alternative conclusion to be drawn 
from the emergence of psychosocial factors. That is, in medical 
science, ergonomics is quackery.''
    These are your statements.
    This is in ``Government Ergonomic Regulation of Repetitive 
Strain Injury.'' ``Ergonomics comprise the most comprehensive 
agenda for regulating the employment relationship since the 
enactment of the National Labor Relations Act. If proponents 
prevail, Federal and State safety and health agencies would 
regulate hours, work, rest breaks, staffing, equipment, 
workplace hierarchy, and opportunities for promotion. Yet the 
research said to support such regulation is to a large degree 
junk science par excellence.''
    You can make comments on any of those.
    Mr. Scalia. Yes. I will refer to two or three and explain 
them.
    First, the word ``quackery''--in that part of my article--
and it is the same part of the article where some of the other 
statements that you read came from, Mr. Chairman--I was 
addressing a particular proposal that had been made by some 
people on ergonomics, and that is the proposal to regulate what 
are called ``psychosocial conditions.''
    Some ergonomists and some fairly well-known organizations 
had suggested that an ergonomics regulation should, among other 
things, address the pay and benefits that employees received 
and opportunities for promotion and other such things. I 
disapproved of that idea, as did the Clinton Administration 
ultimately, when they excluded that sort of thing from their 
rule.
    So, Mr. Chairman, that is what I was referring to, that 
particular idea.
    The term ``junk science,'' which I have used on occasion, 
as Senator Gregg noted, what I was doing in that article was 
looking at decisions by judges, and I was reporting what the 
judges were saying. The term ``junk science'' is shorthand for 
a U.S. Supreme Court test of when scientific evidence is 
admissible in court. And I looked for cases where ergonomists 
had been scrutinized under that U.S. Supreme Court test, and 
what I found was that in 11 of 14 cases, their testimony had 
been excluded in full or in part; that is, the judge concluded 
that the U.S. Supreme Court so-called junk science test was not 
met. And I reported that, but in one of my articles, I took 
pains to then point out that you cannot draw firm conclusions 
from that because, of course, some judges did let the evidence 
in.
    The Chairman. In the time that I have left, I want to go 
back to--you had a series of articles during the period of the 
1990's, from 1994 through 2001. Let me just mention very 
quickly that in July of 1997, we had the NIOSH study. Over 600 
studies were reviewed. NIOSH concluded: ``A substantial body of 
credible epidemiological research provides strong evidence of 
association with MSDs and certain work-related physical 
factors,'' and it continues on. That was in July of 1997.
    Then, in October 1997, you had this reference in terms of 
``junk science par excellence,'' with no reference to the NIOSH 
study.
    Then, in 1998, the National Academy of Sciences did a very 
extensive study where they found that ``scientific evidence 
shows that workplace ergonomics factors cause musculoskeletal 
disorders.'' That was in 1998.
    Then, Congress appropriated another $890,000. In March of 
1999, you had the Court's junk science test reference, with no 
reference to NIOSH and no reference to the National Academy of 
Sciences.
    You continue your articles, with the Rubber Manufacturers 
in July, maintaining your same position; briefings for the 
American Trucking Association, the same position; the 
Federalist Society in November.
    In the year 2000, you continue writing the articles.
    In the year 2001, the National Academy of Sciences released 
on January 18 its second congressionally-mandated report in 3 
years on workplace disorders.
    In all of your studies, there is absolutely no reference to 
the National Academy of Sciences or their studies, or to the 
NIOSH studies; there is no reference or explanation of where 
they are right or where they are wrong. There is a complete 
disdain, apparently, for this kind of scientific information in 
all of your writings.
    How can we think that you are going to give a fair hearing 
to workers when we have the most prestigious, distinguished 
research groups that Congress is constantly, in a bipartisan 
way, asking for their advice, and we have three creditable 
reports, and yet you do not choose to reference any of them or 
explain your position against any of them?
    I think you have just continued to demonstrate a relentless 
opposition to these kinds of protections, and I think some of 
us need to understand why we should think that you would be any 
different in this position in the future.
    Mr. Scalia. One thing that I did take pains to do in a 
number of things I wrote was to point out that, for example, 
musculoskeletal pain, so-called ergonomic pain, is real, it is 
prevalent; I admonished employers that it should be taken 
seriously. In a couple of the articles that you referred to, 
Mr. Chairman, I said that many ergonomists are good scientists 
with valuable suggestions.
    So I believe that in my writings, I did acknowledge that 
there was much of value there as well.
    It is true that I did not always cite particular studies on 
both sides of an issue, and I think there are probably two 
explanations to your question. One is that some of the pieces 
you mentioned were legal briefs where I was advancing a 
client's position, and where I was aware that the people on the 
other side of the case were going to be bringing those studies 
in, and I was trying to draw attention to other studies. And 
second, when I began writing on this issue, I think there was a 
lot of attention to what was being said, for example, by NIOSH, 
which you have mentioned; but in my judgment, there was not 
much recognition of some of the concerns being expressed by 
other respectable organizations, like the American Society for 
Surgery of the Hand or the California Orthopaedic Association. 
I tried to bring those into the discussion as well.
    The Chairman. My time is up.
    Senator Gregg?
    Senator Gregg. Thank you.
    I must say that I find one of the ironies of the line of 
questioning that the chairman has pursued is that he is 
basically saying, as I understand it--not to characterize what 
he is saying--the irony is that you are being attacked for 
attacking a rule which the Congress rejected. On its face, the 
Congress said this rule was not going to work; yet you are now 
being attacked for saying, Hey, this rule is not going to work. 
So there does seem to be an irony there.
    But let us go over some of the specifics. Congress likes 
the National Academy of Sciences, and we listen to them. We 
like NIOSH, and we listen to them. What we did not like, 
obviously, was the rule that was proposed by OSHA. So I think 
you need to separate the National Academy of Sciences and NIOSH 
from their findings, which were very legitimate, and then, how 
OSHA took those findings and created a rule out of them which 
was not consistent with public policy as the Congress decided 
because it rejected the rule. Is that not correct?
    Mr. Scalia. That is absolutely correct, Senator, and I 
recognize that if I am confirmed, I am going to have an 
obligation to consider all sides of issues in a way that, as an 
advocate in private practice, I did not.
    Senator Gregg. Let us step back. This psychosocial factor 
which was being promoted--even OSHA leadership under the prior 
administration rejected psychosocial factors, did it not?
    Mr. Scalia. That is correct, Senator.
    Senator Gregg. So when you said that that was an 
application of junk science and a definition defined as 
quackery, you were making a statement which was essentially 
consistent with the findings of the OSHA Administrator under 
the prior administration, were you not?
    Mr. Scalia. That is correct.
    Senator Gregg. The issue of junk science, which is a 
technical term for--is it the Daubert test----
    Mr. Scalia. That is correct.
    Senator Gregg. [continuing]. Nobody wanted to give Daubert 
the credit for it, so they called it junk science--but that was 
a U.S. Supreme Court decision; correct?
    Mr. Scalia. Yes.
    Senator Gregg. So you did not come up with this term.
    Mr. Scalia. No, I did not. It is a test that the U.S. 
Supreme Court developed.
    Senator Gregg. And in those cases where OSHA has had that 
issue raised--is that the right way to phrase it--how many 
times has OSHA won on those cases?
    Mr. Scalia. I looked at two groups of cases, and some of 
them did not involve OSHA; most of the reported cases did not 
involve OSHA, and I do not know the one lost there, although 
again, by my count, it was something around three-quarters of 
the time, the ergonomist was not permitted to testify either in 
full or in part.
    OSHA's own cases--to my knowledge, there have been three 
that were litigated to judgment, and I think only one 
relatively small part of those three cases can be called an 
OSHA victory at this point.
    Senator Gregg. Wasn't that reversed?
    Mr. Scalia. Much of one of OSHA's victories was, I believe, 
but in the Peppridge Farm case, there does remain one small 
part of that case.
    Senator Gregg. So at least in two, and in the majority of 
the third case that OSHA has raised, where the issue of junk 
science has been raised as a legal issue, it has been 
determined that it was applicable. So it is a term which is 
applicable and appropriate to certain initiatives which have 
come out of OSHA; is that not correct?
    Mr. Scalia. I think what I would say is that some of the 
experts that OSHA has used did not meet the junk science test--
--
    Senator Gregg. That is a much better way to phrase it than 
I did. But essentially, your position is made credible by the 
fact that courts have supported essentially what you were 
saying relative to those experts.
    Mr. Scalia. That is how I feel about it. I do not believe 
the courts were saying that all of ergonomics is junk science.
    Senator Gregg. So you are certainly not out of the 
mainstream, because the courts found basically what you were 
arguing.
    What is your position--it was argued that you have 
ridiculed, I think was the term, worker families. Have you ever 
ridiculed worker families?
    Mr. Scalia. No, I have not.
    Senator Gregg. And what is your position on home office 
policy?
    Mr. Scalia. I thought that the decision announced by OSHA 
to apply regulations within the home somewhat aggressively was 
mistaken, and that was the point of my article. I did, however, 
in the article note that at the same time, if an employer were 
sending employees home to do dangerous work--I used the example 
of mix chemicals--that was wrong, and that should be stopped by 
OSHA.
    Senator Gregg. Have you ever opposed any of the hundreds of 
laws or regulations which you would be called on to enforce?
    Mr. Scalia. I have not, Senator. I have not opposed any--
the OSHA Act or any of those laws or any existing OSHA 
regulation or any other law or regulation at the Department.
    Senator Gregg. You have written extensively on the 
importance of supporting the civil rights of plaintiffs and 
unions. Can you go into that a little bit for us?
    Mr. Scalia. Yes. I think the two principal articles I would 
mention are two law review articles I wrote. One, I wrote as a 
member of my law review as a student, and I argued that police 
who lie at trial and end up leading to a prosecution and 
possibly a conviction of somebody should be subject to suit 
under the civil rights laws. And in arguing that, I sided with 
a dissenting opinion that had been written by Justice Thurgood 
Marshall. I thought he was right in his approach in that area 
of the law and that there should be liability.
    A second piece I wrote as a practicing lawyer on sexual 
harassment, and that piece was actually eventually cited by the 
U.S. Supreme Court in a very important decision on sexual 
harassment. The analysis that I set forth was followed to a 
degree by the Court. I criticized some things that employers 
were saying about the law in that article.
    Senator Gregg. You also wrote, as you mentioned, an article 
for the Harvard Law Review--which is a fine university, with 
wonderful graduates, in a great State--and you mentioned that 
you wrote it about a year ago, before there was even any 
inclination that you might be asked to do the Solicitor's job.
    Would you characterize that as a pro-union or anti-union 
piece?
    Mr. Scalia. I certainly do not view it as anti-union. I 
viewed it when I wrote it and I guess I still view it as pro-
union. I spoke at some length about the good things that I had 
seen unions do for their members, the seriousness with which I 
believed that they and their lawyers approached safety issues 
in particular, and I made some suggestions in that article, 
really suggestions for consideration and discussion, but some 
suggestions that I thought actually might increase union 
membership.
    Senator Gregg. Have you ever opposed union organizing 
drives?
    Mr. Scalia. I have never opposed a union organizing drive.
    Senator Gregg. And the article that you wrote was 
essentially an attempt to say, Hey, listen, this is a way that 
maybe it could be done even better?
    Mr. Scalia. That is correct, and I intended it in a 
bipartisan spirit.
    Senator Gregg. Thank you.
    I see my time is up.
    The Chairman. Senator Harkin.
    Senator Harkin. Thank you, Mr. Chairman.
    I would first ask that my statement be made a part of the 
record.
    The Chairman. So ordered.
    [The prepared statement of Senator Harkin follows:]

                  Prepared Statement of Senator Harkin

    Thank You, Mr. Chairman and thank you, Mr. Scalia for 
meeting with us today. I first want to take a moment and 
stress, as my colleagues have done, the extreme importance and 
influence of the Solicitor of Labor.
    The Solicitor provides guidance on virtually every policy, 
legislative, regulatory and enforcement initiative of the 
Department and its agencies. This position leads a staff of 500 
attorneys who are responsible for enforcing the laws under the 
Department's jurisdiction as well as defending the Department 
in litigation against it.
    I have to admit, Mr. Scalia, that based on your background 
and past writings and statements against the very worker safety 
and protection policies this position is expected to enforce 
and protect, whether you would make an appropriate candidate 
for Solicitor of Labor.
    Your writings indicate extreme views against key worker 
protections, such as your argument that there is no scientific 
basis for an ergonomics rule and your claim these repetitive 
stress injuries may not be real - but rather, psychological. 
Tell that to the men and women who work in meat-packing and 
poultry plants. Tell that to the 600,000 workers each year who 
lose time from their jobs due to these injuries.
    I am also concerned how vigorously you will enforce current 
laws, including the Americans with Disabilities Act and the 
Equal Pay Act, which fall under your department when federal 
contractors are found by the DOL's Office of Federal Contract 
Compliance to violate those laws. Based on past articles you've 
written, you were critical of the EEOC for being overzealous in 
its interpretation of the ADA.
    And so I'm glad to have this opportunity to discuss how you 
would view this new role as Labor Solicitor versus the others 
you have played in past debates on labor laws and policy.
    Senator Harkin. Mr. Scalia, again, it is not just the 
ergonomics rule and whether you have opposed it, it's about the 
tone and the attitude. Obviously, the Solicitor provides 
guidance on almost all policy, legislative, regulatory, and 
enforcement initiatives of the Department. So you look to past 
writings and a person's position in the past to try to get some 
idea of just how vigorously this person would enforce the 
laws--and not so much just enforce the laws but in terms of the 
attitude that will prevail in the Solicitor's office of over 
500 attorneys.
    I find disturbing some of the statements that you have 
made. Obviously, you appear to be a great advocate for one side 
of this argument, and that is fine; I have no problem with the 
two forces battling it out in court and that kind of thing, and 
you seem to be a very strong advocate for the business side of 
the ledger. But somewhere in that past, I am looking for some 
little indication that maybe that was just--that was your job--
but where you have some other things that maybe weigh against 
that, and I am having a very hard time finding that, especially 
in one area that I am very concerned about, and that is the 
Americans with Disabilities Act.
    We have fought for years to break down some of the 
misconceptions and to bring people with disabilities into every 
phase of American life, not just the workplace, but travel, 
entertainment, everything. With the passage of the Americans 
with Disabilities Act in 1990, we took that major step forward 
of saying this is a civil rights law. ADA is not an employment 
law--it is a civil rights law like any other civil rights law. 
But in that law, we very carefully, over a number of years, 
working with the business community--and I might tell you that 
the Chamber of Commerce supported the passage of the Americans 
with Disabilities Act; the only group that did not was the 
NFIB, the only business group out there; the U.S. Chamber of 
Commerce supported the passage of the Americans with 
Disabilities Act after we had worked out the language with 
them. A lot of us here were very much involved in working that 
out.
    But I find your statements regarding the ADA to be a little 
confusing and not in consonance with the law. For example, in 
an article that you authored in 1999 in Legal Times, it was a 
story about the ADA cases--let me just read what you said in 
your article. You said: ``The lesson is clear. Just like the 
prevailing defendants in these cases, employers should not 
hesitate to challenge agency interpretations of the ADA 
whenever they appear inconsistent with the law's text, its 
purpose, or sensible business practices.'' That is your quote. 
I will go on. It says: ``For its part, the EEOC may be well-
advised to consider its more aggressive litigating positions 
and interpretations of the Act in order to regain credibility 
with the courts.''
    I want to ask you this. Would you agree or would you not 
agree that ``sensible business practice'' is not the test for 
determining whether a particular employment practice violates 
the ADA?
    Mr. Scalia. It is not the legal test, Senator. But what I 
was trying to get across in that article was that I was 
describing a number of U.S. Supreme Court decisions that had 
gone against the----
    Senator Harkin. Two.
    Mr. Scalia. [continuing]. I believe there were three, 
actually; Sutton, Murphy, and Kirkenberg, I believe was the 
third----
    Senator Harkin. You are right. There were three. I thought 
there were just two, but there were three.
    Mr. Scalia. [continuing]. And I was attempting to 
communicate to businesses which were my clients and my 
prospective clients that the U.S. Supreme Court had concerns 
with what the EEOC was saying on the ADA, and therefore, 
businesses should recognize that they also were within their 
rights to question certain EEOC interpretations.
    The ``sensible business practice'' line is not the legal 
test. If it were something in the statute and consistent with 
the policy, it would not matter if there were a business 
practice that the employer wanted to maintain. However, I do 
believe that one of the reasons why the ADA was supported by 
such a broad section--and I share your view that it is an 
exceptionally important law--but one reason why it was 
supported was that the ADA was written to, for example, require 
that disabilities be accommodated but that they be accommodated 
in a reasonable way.
    The Act recognizes, I would say, two things--that 
discrimination against the disabled is not smart business. The 
disabled offer a great detail to a company. And the Act also, I 
believe, was written with a sensitivity toward economic 
concerns so that, in my view, what the ADA requires is by and 
large something the company would want to be doing anyway.
    Senator Harkin. I personally have a bit of a problem with a 
couple of the U.S. Supreme Court's rulings in that regard, 
having been through from the start of ADA to the finish of it.
    Let me ask you this. If you have epilepsy, would you fall 
under the provisions of the ADA? What do you think?
    Mr. Scalia. It is hard to answer on any particular medical 
condition, because the U.S. Supreme Court and I believe the 
Congress have made clear that you need to address conditions on 
a case-by-case basis. But epilepsy would I think often be a 
disability, but perhaps not always.
    Senator Harkin. If you had epilepsy, would you be 
considered to be disabled?
    Mr. Scalia. That is a second way that somebody can get 
protected under the Americans with Disabilities Act. They may 
not actually be physically disabled, but if somebody treats 
them as if they are, they would have rights. And somebody who 
was epileptic, even if they did not meet that test the U.S. 
Supreme Court has insisted on, you are correct, could still be 
disabled because they were treated that way, and that is not 
right, either.
    Senator Harkin. Would a reasonable person consider that 
someone who is diagnosed as having epilepsy be considered as 
disabled--would a reasonable person?
    Mr. Scalia. Well, what the U.S. Supreme Court has said--and 
it was a 7-to-2 decision--is that you have to look at how this 
condition affects the person on a case-by-case basis once they 
are medicated.
    So if the person is completely successfully medicated, it 
is possible that in that case, they might not be disabled. As I 
said, it is a case-by-case judgment. That person would still 
have rights, but they might not meet that U.S. Supreme Court 
test.
    Senator Harkin. My time has run out, but I will come back 
to that.
    Thank you.
    The Chairman. Senator Enzi?
    Senator Enzi. Thank you, Mr. Chairman, and I particularly 
want to thank you for scheduling this hearing for today. I 
think it is important that we get the people in place for the 
administration, and I think this is a key position for the 
Department of Labor, and I would hope that we would expedite it 
after the hearing has concluded as well.
    I appreciated your comments on Mr. Scalia's character, 
integrity, and capability in your opening remarks. Those are 
things that we are supposed to be looking at.
    I am pleased to announce my strong support for the 
appointment. I know that Mr. Scalia possesses outstanding 
academic as well as professional credentials. One of those, the 
folks in Wyoming will consider to be a little bit liberal, and 
that is that he was editor-in-chief of the University of 
Chicago Law Review--but I am sure that that will not reflect 
badly anywhere.
    Our task in conducting this hearing, of course, is to make 
sure that the Presidential nominee subject to confirmation is 
evaluated on qualifications, and I cannot envision a better-
qualified choice for the position of Solicitor of Labor than 
the person who sits before us today. He's a person with whom I 
had the opportunity to have more extensive discussions on a 
number of the labor issues that I have been interested in as 
previously the chairman of the Workplace Safety and Training 
Subcommittee and now the ranking member of the Workplace Safety 
and Training Subcommittee. I think he has a great depth of 
understanding in those areas, and in line with the questions 
that have been posed today, I think it is important for us to 
note what the role of Solicitor of Labor is and is not.
    The Solicitor is the chief legal officer of the Department 
of Labor. The responsibility is to enforce the laws under the 
Department's jurisdiction. The Solicitor is charged with 
advising the Department about the legality of the actions the 
Secretary and other individuals at the Department wish to 
pursue, and the Solicitor's position is not--not--an 
ideological one nor is it a policy position. The Solicitor 
opines on the legality, not the policy, of proposed actions by 
the Department.
    Mr. Chairman, I would ask that a considerably longer 
statement that I have prepared be made a part of the record.
    The Chairman. It will be so included.
    [The prepared statement of Senator Enzi follows:]

                   Prepared Statement of Senator Enzi

    Thank you Mr. Chairman for holding this hearing today. I am 
pleased to announce my strong support for the appointment of 
Eugene Scalia to be Solicitor of Labor. Mr. Scalia possesses 
outstanding academic as well as professional credentials. The 
former Editor-in-Chief of the University of Chicago Law Review 
is a nationally-recognized expert in the area of employment and 
labor law. Furthermore, by all accounts, Mr. Scalia's character 
and integrity is impeccable.
    Our task in conducting this hearing on Mr. Scalia's 
nomination, as with any Presidential nominee subject to Senate 
confirmation, is to evaluate whether the President's choice is, 
in fact, qualified for the position. As the Ranking Member of 
the Subcommittee on Employment, Safety and Training, I am 
particularly interested in the position of Solicitor of Labor. 
The Department of Labor plays a critical role for both the 
workers and businesses that make up our nation's economy. The 
Solicitor of Labor plays a critical role in the effective 
functioning of the Department.
    It is difficult to envision a better qualified choice for 
the position of Solicitor of Labor than the person that sits 
before us today. As Professor Cass Sunstein from the University 
of Chicago writes in support of Mr. Scalia's nomination, ``In 
terms of sheer capacity to do a fine job, he's as good a choice 
as can be imagined.''
    Mr. Scalia has received praise from distinguished lawyers 
and scholars across the political spectrum. The letters of 
support sent on behalf of Mr. Scalia attest to his keen 
intellectual abilities. They also attest to his independence of 
mind and thoughtful, balanced analysis. These are precisely the 
attributes that the Department, the nation's workers and the 
nations' businesses that make our economy grow need in a 
Solicitor of Labor. Professor Sunstein writes: ``Gene Scalia is 
likely to be a terrific public servant, one who would serve the 
interests of the nation as a whole and American workers in 
particular.''
    An assessment of a nominee's qualifications is relative to 
the responsibilities of the position he or she has been 
selected to fill. It is therefore important to note what the 
role of the Solicitor of Labor is and is not.
    The Solicitor is the chief legal officer of the Department 
of Labor. The Solicitor's responsibility is to enforce the laws 
under the Department's jurisdiction. The Solicitor is charged 
with advising the Department about the legality of the actions 
the Secretary and other individuals at the Department wish to 
pursue. The Solicitor monitors agency activities and provides 
the advice and opinions to ensure that the Departments agencies 
and employees comply with applicable laws and regulations.
    The Solicitor's position is not an ideological one, nor is 
it a policy position. Rather, the Solicitor opines on the 
legality (not the policy) of proposed actions by the 
Department. Furthermore, an assessment of science is not within 
the Solicitor's purview. It is an assessment of the law that is 
the Solicitor's responsibility.
    The President has selected an exceptionally qualified 
individual to perform the responsibilities of the Solicitor of 
Labor. The President's choice should be applauded and 
respected. I look forward to Mr. Scalia's speedy confirmation 
as Solicitor so that he may begin to perform the legal services 
for which he is so qualified. I thank you Mr. Chairman.
    Senator Enzi. Thank you.
    I do appreciate the statistics that the chairman pointed 
out at the beginning of his remarks on the way that OSHA has 
improved. I would like to think that part of that improvement 
on the statistics on the safety of workers has come from the 
collaborative efforts of particularly the Senator from 
Massachusetts and the Senator from Minnesota and myself in 
working to make sure that we had a consultation part to any of 
the work that was done.
    There are a number of things that can be involved in 
improving worker safety. Even a hearing such as today's will 
improve worker safety. It will show across the country the 
concern that we have for safety. I hope that we can bring out 
during the course of the hearing some of the things that can 
improve safety.
    Ergonomics is one of the things that you have been 
questioned on here today. During the debate that led to both 
the Senate and the House repealing the ergonomics rule, 
California was used as an example, and they were shown to have 
a more consultative approach. Perhaps because of the debate and 
the mention of California, they thought it was important to 
bring up before their legislature the ergonomics rule that we 
had, and it is interesting to note that California evidently 
agreed with some of your writings and saw that it was not the 
right piece of legislation for the State of California as well, 
and they are usually considered leaders in safety.
    I also appreciate the comments that you have made about 
OSHA in the home and have to mention that I think that was kind 
of a unanimous decision not only by OSHA but unanimously 
approved by the members of this committee that that would be 
overreaching the boundaries and putting in place enforcement 
requirements that would not be possible.
    There have been varying numbers on the number of statutes 
that you will have to enforce, but the numbers that are varying 
depend on whether we include Executive orders and rules as well 
as Federal statutes. But regardless of whether they are Federal 
statutes or rules or Executive orders, you have been practicing 
labor law and have been an employment lawyer for over 8 years. 
During that time, have you ever opposed any of the more than 
180 laws that the Department is responsible for enforcing?
    Mr. Scalia. No, I have not, Senator Enzi.
    Senator Enzi. In the wake of the congressional 
nullification of OSHA's ergonomics rule last March, the 
Department of Labor is formulating a comprehensive approach to 
addressing ergonomics in the workplace. I recognize that you 
have expressed criticism of the nullified ergonomics standards. 
I want to note that this criticism was shared by many other 
lawyers practicing in the field; in fact, this opposition was 
shared by, of course, as we have mentioned, a majority of both 
the House and the Senate.
    If you are confirmed, are you in your capacity as Solicitor 
committed to administering or enforcing whatever approach the 
Department determines is the best way to deal with ergonomics 
hazards in the workplace?
    Mr. Scalia. Very, very much so, Senator. It would be my 
obligation as a lawyer and as a subordinate and public servant 
to the Secretary of Labor.
    Senator Enzi. Thank you. I see that my time has expired.
    The Chairman. Senator Wellstone?
    Senator Wellstone. Mr. Chairman, are we going to have a 
second round for questioning?
    The Chairman. Yes.
    Senator Wellstone. Then, I will take the first part of my 
time for a statement and then hopefully get into some 
questions.
    Mr. Chairman, as I see it, the Solicitor of Labor is not 
just the Department of Labor's lawyer, but is really the 
workers' lawyer for the whole country. He or she is responsible 
for enforcing the most fundamental worker protection measures 
on the books which have been won through decades of struggle 
and sometimes even with blood--the minimum wage, the 40-hour 
week, occupational health and safety, mine safety and health, 
workers' comp, family and medical leave.
    The Office of Solicitor is responsible for more than 180 
Federal laws that cover roughly 10 million employers and 125 
million workers.
    Before I get to some questions which I think are important 
to have on the record, let me say that I met with the nominee 
in my office some weeks ago, and I really enjoyed the meeting. 
I have a great deal of respect--I want to say this on the 
record before I say one other thing--I have a great deal of 
respect for Mr. Scalia's intelligence and his capabilities as a 
lawyer, and whatever happens, I wish him well. And if he is the 
Solicitor, I wish him well, and we will work together.
    But I cannot support his nomination to this position 
because after reviewing his record and a number of his 
writings, I do not believe he is the right person for this job. 
His professional record of apparent antipathy toward the very 
laws and principles that would be his job to carry out make 
this, I think, a mismatch, at least in my view. Mr. Scalia 
seems to have been opposed throughout his career to what I see 
as the very mission of the Solicitor of Labor. That is why I 
cannot support this nominee.
    The President is entitled to nominate people that he thinks 
are right for his administration, and I am supporting the vast 
majority of his selections; but as chair of the subcommittee 
with jurisdiction over OSHA and Fair Labor Standards, the 
National Labor Relations Act, Mine Safety and Health, and 
others, I see this nominee in a different light.
    At a time when many working families face a tremendous 
amount of economic insecurity, I think it is really important 
that we have someone who will instill much more confidence that 
the Department of Labor is going to be on the side of working 
families. I do not believe that Mr. Scalia can instill that 
confidence.
    I wanted to say that because we could not all make 
statements at the beginning, Mr. Chairman.
    Let me make a transition to some of the questions which 
have led me to this conclusion. I will go back through a little 
bit of what was said earlier, but I will go in a different 
direction.
    Mr. Scalia, you have written that you thought that workers 
liked repetitive stress injury regulation because ``it reduces 
the pace of work''--that is a quote, that ``it reduces the pace 
of work''--and you said that unions like such regulations 
because ``with the pace of work reduced, more workers would be 
needed to maintain the level of production; consequently, union 
membership and dues would increase.'' That is all in quotes, 
from October 1977, ``Government Ergonomic Regulation of 
Repetitive Stress Injuries.''
    During OSHA's March 20 repetitive stress injury hearings 
last year, there was riveting testimony from Mr. Walter Fraser, 
who was a poultry processing worker employed at Allen Family 
Foods on the Eastern Shore for 9 years. Mr. Fraser told of 
having to lift birds above his head at 26 birds a minute and 
re-hanging birds that had been scalded at 70 birds a minute for 
8 to 10 hours a day. He described numerous repetitive stress 
disorders, some requiring surgery. He then described how his 
injuries affected his life. He told of always being in pain; of 
the difficulty of lifting his grand-daughter; pain in mowing 
the lawn and doing all the normal things of life.
    This is the basis of my opposition, Mr. Scalia, as I try to 
juxtapose some of what you have said and Mr. Fraser's life. Do 
you think Mr. Fraser's account was a ploy to get more break 
time? Do you think the pain that Mr. Fraser was experiencing 
was all in his head? Do you think the work that he did might 
have caused the problems he described? And is it truly your 
position that the union that was supporting Mr. Fraser was 
supporting Mr. Fraser because they were hoping that by slowing 
down the line, they would hire new members? And finally, does 
Mr. Fraser deserve to be protected from sustaining this kind of 
injury?
    Mr. Scalia. There are a lot of parts to that question, and 
I will try to keep them all in mind.
    Senator Wellstone. I know; and take whatever you are most 
comfortable with.
    Mr. Scalia. First of all, I very much enjoyed meeting you 
several months ago, and I appreciate your taking the time to do 
it, and I hope I get the chance to work with you.
    Senator Wellstone. I appreciate that.
    Mr. Scalia. The job you describe is one that has been 
identified as causing ergonomic difficulties. And I have 
written that those kinds of jobs may well cause injury, and I 
have urged employers to address complaints of pain. I have 
actually quoted a physician to the effect that patients do not 
lie, that they are feeling the pain.
    It can be difficult sometimes to determine the exact cause, 
but in that case, it may well be that Mr. Fraser's job caused 
his problem, aggravated a problem, or otherwise contributed to 
the problem.
    An employer with employees experiencing those kinds of 
conditions ought to do something, and I have written that. And 
certainly Mr. Fraser's safety and health ought to be protected. 
Again, it is hard to know all the facts here and hard to know 
whether in that particular case, there was an OSHA violation or 
it would be under an ergonomics rule, but it is certainly 
something that ought to be of concern to OSHA as well as to Mr. 
Fraser's employer.
    Senator Wellstone. My time is up. I will come back to it.
    Thank you, Mr. Chairman.
    The Chairman. Senator Collins?
    Senator Collins. Thank you, Mr. Chairman.
    Welcome, Mr. Scalia. You have been nominated for a very 
important position, and I think the number of members at the 
committee hearing this morning shows that we consider it to be 
a significant role. So in preparation for this hearing, I have 
spent considerable time not only talking with you but also 
reviewing your writings, looking at the letters both for and 
against your nomination, and I must say that I was impressed 
with the many people representing a wide range of ideologies 
who have written in support of your nomination. I do not think 
that would occur if you were, as some have portrayed you, 
against working families or anti-union or a right-wing 
ideologies. I do not think any of those are true based on my 
complete review of your writings.
    I think it is important that we get some of those letters 
entered into the record. For example, we discussed some 
writings that you had written on sexual harassment, and the 
article that I read was a pretty provocative article. You 
explained to me your views on that, and I am completely 
satisfied, but I think as more evidence of the esteem in which 
you are held is a letter from Justice Ruth Bader Ginsburg which 
she has given permission to be included in this hearing record, 
and I would like to just briefly read it, since it is a short 
letter. It is with regard to a sexual harassment case that was 
before the U.S. Supreme Court.
    Justice Ginsburg writes: ``Dear Gene, Looking out to the 
courtroom audience this morning, I wished we could have invited 
you to present argument. All would agree, I think, that 
whatever we do in these cases, we should leave the forest less 
dense. Your article is written with refreshing clarity and 
style. It is informative, thought-provoking, and altogether a 
treat to read.''
    Mr. Chairman, I would ask that the letter from Justice 
Ginsburg be entered into the record. [Letter from Justice 
Ginsburg follows:] (At time of printing, the letter was not 
available. Documents are maintained in the files of the 
Committee.)
    Senator Collins. Similarly, we have letters from legal 
scholars, from a legal scholar who is a former AFL-CIO lawyer, 
all pointing out how extremely well-qualified you are for this 
post and that they believe you will serve very well.
    I think it is important in view of the questions that have 
been raised about your position on ergonomics to talk about 
some of your other writings. For example, you wrote--and you 
referred to this in response to Senator Wellstone--that: 
``Patients do not lie about musculoskeletal pain and 
discomfort; indeed, such pain is prevalent. Employers should 
consider a global medical protocol aimed at ensuring that such 
discomfort is treated, but not improperly diagnosed. Again, a 
company should not ignore legitimate complaints of pain and 
discomfort. Industry should continue to examine the 
relationship between repetitive work and injury just as it 
should continue to take into account human factors and 
engineering.''
    So my question for you is really straightforward. Do you 
believe that there are cases in which the work environment 
produces a repetitive stress syndrome such as carpal tunnel?
    Mr. Scalia. Yes, I do.
    Senator Collins. So you are not saying that there should be 
no regulation in the area of ergonomics. Is what you are 
arguing for a science-based, carefully-drawn regulation?
    Mr. Scalia. I believe that the science requires very 
careful attention, and if there is to be a regulation, yes, 
that it must be carefully based in the science. As to whether 
there is to be a regulation, that is a decision that the 
Secretary and the OSHA Administrator would make and that the 
Solicitor would not be involved on a policy basis in making.
    Senator Collins. Which brings me to my second point, and 
that is what your role would be at the Department. It is not 
your call whether there is going to be an ergonomics 
regulation; is that not correct?
    Mr. Scalia. That is correct, Senator.
    Senator Collins. And indeed, Secretary Chao has indicated 
that she is now marshalling the information and attempting to 
come up with an approach to ergonomics that would not involve 
the 608 pages of regulations that Congress decided did not 
address the problem properly and thus were repealed. But your 
role is to provide legal advice, a legal road map, if you will, 
and not policy advice on what the contents of these regulations 
should be; is that accurate?
    Mr. Scalia. That is absolutely correct, and in fact the 
Secretary and her team are already fairly far down the road 
toward deciding precisely what course they will take on the 
issue of ergonomics, and those are discussions that I have not 
had any involvement in at all or really much knowledge about.
    Senator Collins. Mr. Chairman, I think it would be 
unprecedented for us to oppose a nominee who is eminently 
qualified for this post simply because he opposed a 608-page 
regulation that does not exist because it was repealed by a 
bipartisan majority in both the House and the Senate. I hope we 
will not go down that road. I think it would be unfair and 
would deprive us of the services of an individual who is 
eminently qualified for this post and of whom a wide range of 
objective observers representing all sorts of ideologies have 
spoken so highly.
    Thank you, Mr. Chairman.
    The Chairman. Thank you very much.
    Senator Murray--I understand Senator Edwards has to leave 
just before 12 to preside.
    Senator Murray. Mr. Chairman, I just have a couple minutes, 
if I could just quickly ask my question, and I would be happy 
to yield my remaining time to Senator Edwards.
    The Chairman. Fine. Go ahead.
    Senator Murray. Let me just thank the chairman and welcome 
Mr. Scalia here.
    I want to focus on just one area, and that is the area of 
sexual harassment laws. I was looking at a Harvard Journal of 
Law and Public Policy article that you wrote in 1998 where you 
basically reject the notion of quid pro quo sexual harassment 
lawsuits against employers and argue that the employer should 
not be liable for the harasser's conduct unless the employer 
endorsed it.
    I want you to explain to us what you meant. Do you mean 
that the employer should not be liable for quid pro quo sexual 
harassment that is perpetrated by supervisors or even 
executives of the company while on company time?
    Mr. Scalia. In that article, I actually very strongly 
condemned quid pro quo sexual harassment. I cannot remember the 
exact terms I used, but I think I described it as 
extraordinarily offensive; I think I called it perhaps the most 
offensive form of sexual harassment.
    I was making the point that a legal test that some courts 
were using was confusing and in fact was unfair to plaintiffs, 
and that was the main point of my article.
    I did talk briefly about the ``strict liability'' issue. I 
just commented in passing that I would tend to think that you 
would look for some evidence that managers knew about the 
harassment.
    Senator Murray. I think what you said is they should only 
be liable when they ``endorse'' such improper conduct. Does 
that mean they have to affirmatively endorse it and say ``We 
allow this,'' or do you believe they should be liable even if 
they only knew about it or turned a blind eye to it? How does 
someone ``endorse'' it?
    Mr. Scalia. I believe the answer is that under the law, the 
employer could be liable in both circumstances, and I think 
that is the right answer.
    Senator Murray. Whether they endorse it or not?
    Mr. Scalia. That is right. If they affirmatively say that 
is okay, or if they know and do nothing, I believe that under 
the law they can be liable, and I think they should be.
    Senator Murray. Thank you, Mr. Chairman.
    The Chairman. Senator Edwards?
    Senator Edwards. Thank you very much, Mr. Chairman, and I 
thank my colleagues.
    Good morning, Mr. Scalia.
    Mr. Scalia. Good morning.
    Senator Edwards. Mr. Scalia, it is clear to me from having 
reviewed all the materials about your background--and I do not 
think you and I have met before, if I am not mistaken--that you 
have a great deal of skill, training, legal acumen, and you 
have been a very good lawyer for employers.
    My concern is that in the position that you have been 
nominated for, you will have the responsibility of being a 
lawyer for the Nation's employees, among other things, and I am 
concerned based on all the things that I have read. I think 
there are legitimate arguments about a number of these issues 
that you have been asked about this morning on both sides. But 
my concern is finding in your record as I have looked at it 
what I think is a necessary empathy for workers in order to 
adequately and properly represent them.
    As I am sure you know, in the OSHA statute, among others 
which you would be responsible for helping to enforce, there is 
no private cause of action, so the Solicitor is the person 
responsible for determining whether there is going to be a case 
brought on behalf of employees against whomever is involved.
    Let me ask you a couple of factual questions. Can you tell 
me how many times over the years, approximately, you have 
represented corporations and employers in disputes with either 
Government agencies, unions, or employees?
    Mr. Scalia. I do not have a number.
    Senator Edwards. Can you give me some idea of how many 
times, approximately?
    Mr. Scalia. I am sorry, Senator, I would be guessing. But 
what I would emphasize is that although I handled a number of 
cases for employers, a large part of my practice also was to 
counsel employers, and in that capacity, I felt that I had a 
great obligation both to the law, to make sure these people 
knew what the law was, and also to the employees.
    I think it is not often appreciated that a lawyer who 
represents a company in labor-management type issues often gets 
in a bit of an argument with maybe a manager and says, ``You 
cannot do that.'' I filled that role a lot, Senator. I spent a 
lot of time on the phone saying, ``I am sorry, you just cannot 
let that person go.''
    Senator Edwards. Can you tell me what percentage of the 
time that you spent in the practice of law was devoted to 
representing and counseling employers as opposed to employees?
    Mr. Scalia. I represented employees very seldom; it was not 
regularly part of my practice. I did it----
    Senator Edwards. How many times did you actually represent 
employees in disputes against employers or corporations or 
corporate associations?
    Mr. Scalia. There are two matters that I can recall that 
did not go to litigation, but they were counseling matters 
where I helped people--in one instance, a pro bono basis for a 
woman with a hearing difficulty--but in litigation, I do not 
believe I had cases.
    Senator Edwards. OK. So on two different occasions over 
the--how many years have you practiced law now----
    Mr. Scalia. I was in private practice for, I believe, 10 
years.
    Senator Edwards. [continuing]. Ten years. So for that 10 
years, you had two cases where you represented employees in 
some capacity, and the remainder of the time you were 
representing employers, corporations, etc; is that correct?
    Mr. Scalia. I was representing those employers or entities 
in one capacity or another. As I say, it might have been to 
counsel them on their obligations; it might have been in a 
nonemployment matter in some circumstances.
    Senator Edwards. Would you agree that one of your 
responsibilities in this position that you have been nominated 
for would be to represent the laborers, the working people 
around America?
    Mr. Scalia. My responsibility would be to represent the 
Government of the United States and enforce the laws, which I 
would do vigorously. In that capacity, I would be acting to 
vindicate the rights of working people in many kinds of cases. 
They would not technically be my client, so I would not 
technically represent them, but I would enforce those laws 
vigorously to their benefit.
    Senator Edwards. OK. You were asked by Senator Wellstone 
about a particular employee who had testified about hanging 
chickens and working at a poultry plant. Down in the part of 
the country where I am from, my father worked in a cotton mill 
most of his life, and my mother worked in a cotton mill for 
some part of her life. Just out of curiosity, have you yourself 
ever had any personal experience working in a manufacturing 
plant or the kind of poultry facility that Senator Wellstone 
was asking about?
    Mr. Scalia. No, I have not worked in a facility like that.
    Senator Edwards. Thank you, Mr. Chairman.
    The Chairman. Thank you very much.
    Senator Sessions?
    Senator Sessions. Thank you, Mr. Chairman.
    Mr. Scalia, I want to thank you, and I know that Senator 
Wellstone and Senator Edwards were asking about whom you 
represent, but as a former United States Attorney, you do 
represent the Government and the laws that the Congress passes, 
and your responsibility is to enforce them equally and properly 
and fairly, and you well-stated that, and I think that is 
important for us to remember. We want an objective counsel as 
counsel to the Secretary of Labor.
    Your background is just marvelous, Mr. Scalia. You received 
your bachelor's degree from the University of Virginia, one of 
the great universities in the world, and your law degree from 
the University of Chicago, one of the great law schools in all 
the world. You were editor-in-chief of the law review at the 
University of Chicago which, for those who do not know, is the 
most prestigious position of any graduating senior, and to do 
that at a great law school like Chicago is an extraordinary 
achievement and one in which I think you can take great pride. 
You have also spent your career with Gibson, Dunn & Crutcher, 
one of the great law firms in America, and you have spent most 
of your career doing labor work, representing the clients of 
Gibson, Dunn & Crutcher with fidelity, with objectiveness and 
fairness. I have not heard anyone who has litigated against you 
come forward and say that you are dishonest, unfair, or 
unobjective.
    I think you have an extraordinary background, and for the 
Secretary of Labor to reach out for someone of your quality 
speaks well for her. I think she is entitled to one of the best 
lawyers in the world to represent her, and I think you are one 
of those, and I know you will give your level best to advise 
her according to the law as your best judgment helps you find 
it; is that correct?
    Mr. Scalia. I would; that would be my obligation.
    Senator Sessions. And with regard to the regulations that 
are in force in law and that may become law in the future, will 
you give her your best advice on how to fairly and objectively 
enforce those laws?
    Mr. Scalia. Yes, I would.
    Senator Sessions. And if the U.S. Supreme Court rules in a 
certain way, whether you agree with it or whether you do not 
agree with it, will you advise her on how to enforce the 
rulings of the U.S. Supreme Court and other courts as 
appropriate?
    Mr. Scalia. Yes, I would, Senator.
    Senator Sessions. I think that that is important.
    The article that you were asked about in the Wall Street 
Journal was a reaction to this OSHA advisory to go far beyond 
anything we have seen before to regulate homes, to have OSHA 
inspectors apparently go into homes. It resulted in a real 
reaction across the board, as I recall it, and your article was 
written as part of that reaction to that proposed advisory, or 
that advisory; is that correct?
    Mr. Scalia. That is correct, yes.
    Senator Sessions. And that advisory was withdrawn by OSHA 
itself, was it not?
    Mr. Scalia. That is correct.
    Senator Sessions. And to my knowledge, not a single member 
of this committee and not a single person in the U.S. Senate 
has ever objected to the withdrawal of that advisory, which in 
my view went far beyond a legitimate action of OSHA. So I do 
not think that your article, which was aggressive and to the 
point, was extreme, but it reflected the considered opinion of 
the Senate and even the OSHA leadership when the issue was 
raised to them.
    Mr. Scalia, you have written about some of these 
regulations, and as a former Federal prosecutor, I have had to 
enforce laws and regulations myself. Let me ask you this. Is 
your concern out of the fact that you know they will be 
enforced; you have seen how rules and regulations are enforced 
in the legal world, and that they need to be good regulations, 
and if they are not, bad things happen?
    Mr. Scalia. I have a great deal of respect in the rule of 
law and employers complying with the laws on the books, and for 
that reason, I think it is important that we take great care in 
the laws we formulate.
    Senator Sessions. And you have had to advise clients to 
enforce laws I am sure on occasion which did not make much good 
sense to them; is that right?
    Mr. Scalia. There were certainly times when clients did not 
quite get why they needed to do the kinds of things that I 
advised them legally they had to do, but I told them it was the 
law.
    Senator Sessions. I think you are going to find in 
Secretary Chao that you have a tremendous leader. Just this 
past week, I traveled with her to Brookwood, AL, where we had 
13 coal miners killed in a mining accident, the worst since 
1984. Ten of them died responding to help three others--gave 
their lives for their brother miners. We had a marvelous 
memorial service that finished around 8:30, and Secretary Chao 
had a plane out of Birmingham at 6 a.m. the next morning. 
Despite that, she went to the union hall and spent 2 hours 
visiting with everyone there, not leaving until after 10 
o'clock.
    I think she is going to provide great leadership and 
concern for the working men and women of America, and I think 
it is going to be wonderful to have someone of your caliber 
help her enforce the laws effectively.
    Mr. Chairman, I would just note a couple of things. Cass 
Sunstein, one of the more notable liberal professors in America 
at the University of Chicago Law School, recently wrote: ``I 
know Gene well. I think he is an excellent choice, first-rate, 
not at all an ideologue. Gene was a sensational student at 
Chicago, one of our very best. He was elected editor-in-chief 
of the Law Review not only because he is so smart but also, and 
maybe even more so, because he is a wonderful human being.''
    He volunteered as an unpaid professor to help the DC. Law 
School here when they were having financial troubles, and Dean 
Robinson wrote: ``I found Gene Scalia to be a dedicated legal 
scholar who looked past labels to make a more thoughtful 
judgment, took a balanced, nonideological approach to his 
teaching, and was respectful to his students.''
    William Coleman, former President of the NAACP Legal 
Defense and Education Fund, wrote to this committee saying: ``I 
have every reason to believe that his performance at the end 
will place him among the best lawyers who have ever held that 
important position.''
    I would agree. I think this nominee is extraordinarily 
qualified. He has a history of balance and commitment to law 
and will be a great asset to the Secretary of Labor.
    It is important that we move forward with it, and I thank 
the chairman for allowing us to have this hearing today.
    The Chairman. Thank you very much.
    Senator Reed?
    Senator Reed. Thank you very much, Mr. Chairman.
    Thank you, Mr. Scalia, for joining us today.
    It seems from reviewing your writings and listening to your 
responses today that you do recognize that there are many 
wrongs in the workplace, but you do not seem to see many 
regulatory responses that the Government can take effectively 
to correct those wrongs; and that is a disturbing point for 
someone who is going to be proposed as Solicitor General for 
the Department of Labor.
    In response to questions from Senator Collins about the 
proposed ergonomics rule, you left the impression, I believe, 
that you would have a very limited role in that. Is that the 
correct impression that you would like to leave with the 
committee as the Solicitor General?
    Mr. Scalia. The Solicitor has a defined role. It is an 
important role, but it is a role dedicated toward providing 
legal advice. So for example, in a rulemaking, the Solicitor 
would say there is a range of legal options before the 
Secretary, before OSHA, and here is the sustainability in court 
of the different courses of action you might take.
    It is not the Solicitor's job, however, to opine on medical 
issues, scientific issues. That expertise lies elsewhere in the 
Department. So yes, the role would be limited in that respect.
    Second, I believe I mentioned earlier in the response you 
were referring to that the Secretary's decision on ergonomics 
particularly was already one that was in the latter stages, 
close to a decision, and that I had not been involved in that, 
actually, at all.
    Senator Reed. So as Solicitor, would you accept the premise 
that the science was junk science, or would you see the science 
as very valid, pointing to the need for a regulation?
    Mr. Scalia. I have never said that all the ergonomics 
science is junk science, and I do not think it is. Whether it 
supports a regulation, again, the evaluation of that scientific 
evidence is something that falls principally with the experts 
within OSHA.
    Senator Reed. So you could conceivably recommend to the 
Secretary that no regulation is required as a lawyer, because 
the scientific evidence has not been conclusive to you, even 
though you do not present the scientific evidence.
    Mr. Scalia. As I understand the working of the Department, 
it is OSHA and personnel within OSHA who would take the lead in 
assessing the scientific and medical evidence. I cannot imagine 
myself if I were confirmed as Solicitor reading individual 
studies and calling up the OSHA Administrator and saying, 
``Here is what the science says.''
    At some point, a legal judgment is necessary based on 
recommendations reached by OSHA on whether that rule is 
sustainable, and as I said, I do not see the Solicitor's office 
as being an on/off switch but rather as presenting the range of 
legal options and the sustainability of them.
    Senator Reed. I think you have a very circumscribed view of 
what the Solicitor does as the key advisor to the Secretary of 
Labor--not just on this issue of ergonomics but on a range of 
issues, making judgments about not just the sustainability in 
court but whether or not this is an appropriate response of the 
Government to a real problem. And if you are going into this 
office with that kind of a circumscribed view, first, I think 
it is rather artificial, and it comes to the whole essence, 
which is one of the difficult issues of public policy--where 
does policy end and the law begin--and I suspect it is almost 
impossible to find out in most cases.
    So in your role, you are going to make key value judgments 
about what is important, not just procedurally about where do 
we file this case and what would happen if someone sued us, 
what court would we be in, and if you do not appreciate that 
and evidence that in your remarks today, then I just think you 
are missing a major point of what you are going to be doing.
    It gets back also, I think, not just to the skills you 
bring to the job but to the spirit you bring to the job, 
whether you are going to be the lawyer for people who work 
every day and need someone to look out for them, or whether you 
are going to be the lawyer for the Government or those special 
interests which influence the Government. Many times, they are 
not the working people who need the help of the Department of 
Labor.
    Let me turn to another point. With respect to your writing 
on quid pro quo sexual harassment, you seem to say that an 
employer should only be directly liable if they endorse or 
ratify the act in question. Again, is that a fair statement of 
your view?
    Mr. Scalia. I do not recall exactly what I wrote on that. I 
believe that what you are referring to, Senator, is maybe a 
sentence or two at the very end of the article where I think I 
said some see it this way, some see it that way, I probably see 
it this way, but that is not important to my article, and I 
believe that is in short how I dealt with it.
    This----
    Senator Reed. Again--excuse me. Go ahead, please.
    Mr. Scalia. This area of the law is a little bit difficult 
right now; in light of the U.S. Supreme Court decisions I 
believe from 1998, the law is a little bit unclear. So it is 
hard for me to say this is the legal answer right now. But----
    Senator Reed. Why don't you give me your answer?
    Mr. Scalia. As a policy matter?
    Senator Reed. As a legal matter, as a policy matter, as 
matter of what the law should be--any way you want to describe 
it. Should an employer be liable only if that employer endorses 
or ratifies the act in question.
    Mr. Scalia. In this article, I wrote very strongly against 
sexual harassment----
    Senator Reed. That is not my question, Mr. Scalia.
    Mr. Scalia. [continuing]. And that was the message I was 
communicating.
    As to employer liability, I would not limit it to cases 
where there has been endorsement or ratification. If there is 
knowledge, and it is not fixed, that is a basis for liability, 
I believe, under the law, and I think that is how it should be; 
it ought to be stopped.
    Senator Reed. Does that represent a change from the view 
you took even peripherally in this article of 1998, just about 
3 years ago?
    Mr. Scalia. I am sorry, I cannot answer that, Senator, 
because my article was not about that issue. I may have made an 
observation in passing, but I just did not have firm thoughts 
on that point.
    Senator Reed. Again, it seems to me that someone who is 
crafting an article for a Law Review through the various 
editorial processes--and you were the editor of a prestigious 
law journal, as Senator Sessions pointed out--that there is not 
a lot of throwaway language in those articles; there is not a 
lot of sort of ``Let me just say off the cuff....'' And in 
preparation for this hearing, I would assume that you would at 
least have a grasp on every point of the article, but 
apparently, you do not.
    Mr. Scalia. I try to write carefully, but again, this was 
not a point that was the subject of my article, and I do think, 
again, if an employer has knowledge of sexual harassment, it 
ought to be stopped, because that is the right thing to do and 
because as I understand it, that is the law. What I said on 
this at the time, I am afraid I do not recall.
    Senator Reed. Thank you very much, Mr. Scalia.
    Thank you, Mr. Chairman.
    The Chairman. Thank you very much.
    We will begin a second round.
    As you have obviously concluded, the principal questions 
that people have in mind, at least in one important area, are 
on ergonomics and the whole history that you have been able to 
not only represent your clients but also in your writings and 
whether you have been sufficiently understanding of what the 
interests of workers and their health needs are in the light of 
very substantial and I think overwhelming medical science in 
NIOSH and the National Academy of Sciences. I find myself that 
you come up short.
    Reference was made earlier to junk science and to the U.S. 
Supreme Court's use of that term, but as I understand it, that 
dealt not with health-related issues but with issues of product 
liability.
    These are the other words you used--and this was in the 
year 2000--``The science of ergonomics is notoriously doubt-
ridden and controversial.'' That was in the Policy Analysis 
that the CATO Institute made in 2000.
    In another, an article in the San Francisco Daily Journal--
this is not representing a client--``no agency should be 
permitted to impose on the entire American economy a costly 
rule premised on a science so mysterious that the agency itself 
cannot fathom it.'' This was in the San Francisco Daily Journal 
in July. ``This vague and subjective rule would afford little 
benefit to workers because it is based on thoroughly unreliable 
science.''
    Those statements and comments were all made after the 
publication of the National Academy of Sciences and NIOSH, and 
they are enormously troublesome in the sense of whether you can 
really separate your own views, because the articles that I 
have referred to are not representing a client, they are your 
own conclusions.
    Let me ask a question. You have said in your written 
statement that as Solicitor General, you would only be 
providing legal advice to the Secretary on ergonomics, not 
policy advice or scientific advice. I find it difficult to 
believe that legal advice can be easily disentangled from 
policy and science.
    For example, the Secretary has said that she is developing 
a comprehensive approach to ergonomics that may include a new 
regulation. Before it can issue a regulation, OSHA must 
demonstrate that the hazard in question poses a significant 
risk of harm, and the standard will reduce that risk.
    You are intimately familiar with the record of evidence on 
ergonomics, including the scientific evidence, and I want to 
know, as the Department of Labor's chief lawyer, what would be 
your legal advice to Secretary Chao on whether there is a legal 
basis to support an ergonomics regulation.
    Mr. Scalia. Mr. Chairman, unfortunately, I am not 
particularly familiar with the record evidence that was put in 
in the last rulemaking; it was so vast that I have not reviewed 
it to any sufficient degree to State whether a rule is 
supported.
    One thing I will say is that in litigation that I was 
involved in in California over the California ergonomics rule, 
in that litigation, I did not raise a ``significant risk'' 
challenge to California rule. So at least in that one 
circumstance, in view of the circumstances in that one 
regulation, I was not involved in arguing that significant risk 
had not been shown.
    The Chairman. Well, I am really more surprised at this 
answer than any you have given earlier, quite frankly. You have 
been writing about this now for 6 or 7 years. You have been one 
of the most prolific writers on this whole issue., and given 
the fact that you have written about this and represented 
different clients, you must have in your representation of 
different clients understood, obviously, what the other side 
was going to say. You must have looked at the opposition and 
the people who were taking a different position.
    This is a very, very simple question. This is a very, very 
simple question, and if you cannot answer that question--if you 
cannot answer that question, you have lost me; you have 
absolutely lost me. That might not be important, but that is 
beyond belief in terms of the fact that you have been writing 
about this for 6 or 7 years and have been one of the most 
prolific writers. You have written about it a great deal and 
represented clients, and the question is, given all the 
evidence to meet these particular requirements, the issue is 
does it pose a significant risk of harm and that the standard 
will reduce the risk, and you say you cannot give us an answer 
on that because you are not familiar with the evidence out 
there.
    Let me go on to another issue.
    Mr. Scalia. If I could answer that quickly, Mr. Chairman.
    The Chairman. Yes.
    Mr. Scalia. Certainly what you think is important, and what 
I meant was that the record, the evidence that was assembled 
before OSHA, I do not know what that record evidence is.
    As to what is out there in the larger scientific community, 
I do not know the scientific answers, and I have never said 
that I do, because there is so much uncertainty among the 
leading experts. And I think there has been an effort--I think 
the recent NAS report reflects it--to come to consensus and 
agreement, and I think perhaps there has been progress, but I 
have found it--I have never tried to say this is the answer or 
that is the answer. I have instead pointed to what scientists 
themselves are saying about how things can be difficult in this 
area.
    The Chairman. Well, let me go to another area. In 1999, 
OSHA proposed regulations to make clear that an employer's 
legal duty to provide a safe workplace under the Occupational 
Safety and Health Act includes a duty to pay for safety 
equipment such as gloves, goggles, and other personal 
safeguards when safety equipment is required by an OSHA 
standard. The rulemaking was needed because of a decision by 
the Occupational Safety and Health Review Commission which said 
that the standard requiring employers to provide safety 
equipment did not necessarily mean the employer had to pay for 
the equipment.
    OSHA's proposed rule is still pending in OSHA. Because of 
the Review Commission's decision, we currently have a situation 
where employers are not required to pay for many of the basic 
kinds of safety equipment even though the equipment is required 
by OSHA standards. Many employers do in fact pay for safety 
equipment, but some refuse to pay and instead make the workers 
pay. This is particularly true in low-wage industries where 
workers are unorganized. For example, in the poultry industry, 
some employers require workers to pay for mesh gloves and what 
they call arm guards needed to protect against cuts from sharp 
knives. These workers make $7 an hour. The cost of one mesh 
glove is $65, and the employer deducts the cost of the 
equipment from the worker's pay check.
    You co-authored comments on OSHA's proposed rule on behalf 
of your client, UPS, and those comments opposed the rule and 
urged OSHA to withdraw the rule in its entirety. The comment 
argued that the rule was ``a naked allocation of economic 
benefits and is not a health or safety standard'' and 
consequently was ``beyond OSHA's mandate''. The comment 
actually said the rule could be harmful to worker protections.
    Now, I recognize you wrote those comments for a client; I 
would like to know to what extent those comments reflect your 
personal views.
    Mr. Scalia. It was written for a client, Senator, and in 
fact I notice that I was one of five lawyers who worked on that 
document. I did not have particularly great involvement in it.
    I cannot say that when I wrote the parts of those comments 
that I worked on that I was advancing personal views. I do not 
know the law in that area particularly well and did not have 
any of my own personal feelings about that issue.
    The Chairman. So do you believe that OSHA has the authority 
to issue the standards that require the use of safety equipment 
like respirators, mesh gloves, goggles, to protect workers from 
workplace health hazards?
    Mr. Scalia. I do not know the law particularly well in that 
area. I would be surprised if it did not have the authority to 
some extent.
    The Chairman. Well, you see, in your opinion about home 
offices, this is what you said--or in fact, didn't you argue 
against OSHA having jurisdiction over home offices? You said: 
``It is a basic principle of OSHA law that employers must bear 
the cost of eliminating unsafe work conditions.'' You said that 
in the Wall Street Journal. So you were willing to say it 
there, and I am asking you why did you know it then, and you do 
not know it now.
    Mr. Scalia. I was talking about what are called 
``engineering controls'' when employers change the equipment 
that employees are using, or that sort of change, and I did not 
have in mind personal protective equipment.
    The Chairman. Mesh gloves for poultry, the kinds of things 
which are the notorious in regard to health and safety--you do 
not know whether the authority is there, but you do understand 
with regard to more technical questions on ventilation or 
whatever--what else were you mentioning--engineering.
    Mr. Scalia. Engineering controls; changing the equipment, 
machines.
    The Chairman. So they do in engineering controls, but not 
with regard to the others.
    My time is up.
    Senator Gregg. I think your answer was you did not know the 
answer.
    Mr. Scalia. That is correct.
    Senator Gregg. Which is a reasonable answer, and I think 
very appropriate for this hearing, and I regret that that will 
be held against you.
    In fact, so far from the evidence presented from the other 
side of the aisle, it appears that the basic detriments that 
might stand in the way of your being appointed to this position 
are, one, that you felt there were problems with an OSHA 
regulation which the Congress felt was so bad it rejected it in 
a bipartisan vote in both Houses. That seems to be the number 
one reason why you are being opposed for this nomination; 
second, that you are a lawyer, and you represented clients. 
Well, my goodness, what a surprise. You are a lawyer, and you 
represented clients.
    Mr. Scalia. I had mouths to feed, Senator.
    Senator Gregg. In fact I was very surprised to hear the 
Senator from North Carolina, who is an outstanding lawyer, make 
the representation that because you were a lawyer and 
represented clients, you could not change sides as a lawyer and 
represent the other clients. When I was in law school, that was 
something we were expected to be able to do. Maybe the 
treatment of the bar has changed; maybe you can only represent 
one side these days. My expectation is that you would be a heck 
of an attorney for whatever side you decided to join. That is 
the third reason. The first was that you could not answer a 
question.
    And the fourth reason appears to be that you--I am not sure 
there is a fourth reason.
    So let us return to the cause celebre, ergonomics, and this 
issue of whether junk science applied to ergonomics. The 
representation was that this was applied to something other 
than ergonomics. Wasn't junk science applied in the three OSHA 
cases to those questions involving ergonomics?
    Mr. Scalia. That is correct. The test that is popularly 
known as the junk science test was formulated elsewhere.
    Senator Gregg. But I mean it has not been limited to--I 
think it was represented that it came out of a case that was 
decided on some other issue than ergonomics, which is 
reasonable, but it has been applied by courts in the ergonomics 
area--is that not correct?
    Mr. Scalia. That is correct.
    Senator Gregg. There was also, as I understood it, a 
concern--and I guess it came from Senator Reed--that you did 
not think that there was a regulatory response to many of these 
issues. Was that a correct representation of your view? 
Essentially, he said that you do not believe in regulations. Do 
you believe that the Department of Labor has a legitimate 
regulatory role?
    Mr. Scalia. I believe it has an extraordinarily important 
regulatory role, and there is not an OSHA rule on the books 
that I have opposed or that I have an objection to.
    Senator Gregg. And you have not opposed any of the rules, 
of which there are 140, according to--I think it was the 
Senator from Wyoming who noted that there are 140 different 
rules--is that all--laws--I knew there must be more rules; that 
is a ridiculously small number for a Federal agency--any of the 
laws, 140 laws. You have not opposed those, and I presume there 
is a lot of rulemaking authority under those laws.
    Mr. Scalia. That is correct.
    Senator Gregg. So rather than being someone who opposes 
regulatory activity, you have actually been quite supportive of 
the initiatives.
    Mr. Scalia. I think the Government has a very important 
role to play in ensuring worker well-being, including their 
safety and health.
    Senator Gregg. And there was the further representation 
that you were not going to be good at this job because you were 
going to be the lawyer for the Government. Is the Solicitor the 
lawyer for the Government?
    Mr. Scalia. That is correct.
    Senator Gregg. Isn't the Solicitor always the lawyer for 
the Government?
    Mr. Scalia. That is correct.
    Senator Gregg. So I think that that representation has a 
few holes in the bucket, doesn't it? It is a little hard to 
carry that water.
    I think your answers have been exceptional, they have been 
forthright, and so far, I have not heard any representations 
which in any way would undermine the views expressed by some 
very substantive people who were quoted by the Senator from 
Alabama, one of whom happens to be in the room today--Mr. 
Coleman--that you would do a heck of a job in this position. I 
am looking forward to working with you, and I just cannot see 
how your nomination could be opposed on the basis of the 
representations made here today.
    Thank you.
    Mr. Scalia. Thank you. I would look forward to working with 
you and all the members of this committee if I am confirmed.
    The Chairman. Senator Wellstone?
    Senator Wellstone. Thank you, Mr. Chairman.
    Thank you, Mr. Scalia. I appreciate your patience for a 
long hearing.
    Just to build on what Senator Gregg said, I do not really 
think it is a question of whether or not you can switch sides, 
and it is certainly not a question of whether you are an able 
lawyer, that is the basis of my saying that I cannot support 
you. I think it is more a question of whether or not there is 
anything in your background and your professional work history 
that suggests that you would be on the side of workers, that 
you would have the sensitivity and the compassion.
    I gave the example of the poultry worker, Mr. Fraser, and 
then we ran out of time. The reason I raised that question is 
because I am trying to look at your view of the world, and then 
I am trying to look at Mr. Fraser's world, the worker's world, 
and I am trying to see how someone like Mr. Fraser, a poultry 
worker, gets the protection and gets the relief.
    I have here a summary of a lot of the cases that you have 
litigated and articles that you have written--it goes on for 
any number of pages--and I see not just opposition, I say to my 
colleagues, to the regulation, to the OSHA standard, I see 
opposition to guidelines, I see opposition to general duty 
enforcement. I just do not see anything in your past, in your 
work as a lawyer and what you have written, that provides much 
help for Mr. Fraser. That is really what I think this hearing 
is about, which leads me to a question.
    We know--and you have said, Look, I was a lawyer, and this 
is what I was doing--we know of your opposition to repetitive 
stress injury rules. Have you ever filed comments supporting a 
worker protection regulation?
    Mr. Scalia. Yes, I have, and I provided congressional 
testimony also on the recordkeeping rule, which I believe in 
the comments I filed but also in the testimony I gave, I said 
was a very important rule; I said it was good that OSHA was 
doing it so that employers could know where the injuries are 
occurring, so employees could, and so OSHA could.
    Senator Wellstone. This was--could you go over that for me 
again, the specific reference of the comments that you are 
talking about? This was in which testimony or what case?
    Mr. Scalia. It was on the recordkeeping rule which OSHA 
finalized. But I will concede, Senator, that when you are 
representing the regulated community, it is relatively unusual 
to file comments asking for regulation; but that was one that 
in a personal capacity also I supported.
    Senator Wellstone. And I will concede that when you are 
representing such a community, it is rare, and I note not your 
tone of sarcasm, which I appreciate, but more the twinkle in 
your eye as you say that to me. But again, I think that is part 
of the question of looking at the record and trying to figure 
out, given all the positions you have taken and your very 
career, how that squares with what I think is the mission of 
the Solicitor of Labor.
    Now, if I have a little bit more time--you talked about 
this article that you wrote for the Harvard Journal of Law and 
Public Policy, and you said this was an article where you 
expressed your respect, or you wrote about your respect for 
unions. I think that was your reference--am I correct?
    Mr. Scalia. Yes.
    Senator Wellstone. It is my understanding that this is also 
an article where you argue for exempting unions from programmed 
OSHA inspections and from Fair Labor Standard overtime 
requirements. If that is the case--and I want to ask you if 
that is the case--then, the effect of the recommendation would 
be to disadvantage union members, causing them to bargain for 
matters for which all other workers would have--is that 
correct? Did you also in that article argue for exempting 
unions from programmed OSHA inspections and from FLSA overtime 
requirements?
    Mr. Scalia. As you say, this was a law review article. It 
was written to suggest issues for discussion and consideration. 
The general point that I was making was that unions do a very 
good job in many instances of helping their members in a sense 
of regulating the workplace, and that is why we have the 
National Labor Relations Act and protect the right to unionize.
    And I said that consideration should be given in some 
circumstances to letting unions negotiate and perhaps alter the 
degree of their Federal coverage if they thought it was in 
their own interest.
    Senator Wellstone. So you were not arguing that you wanted 
to exempt unions from the OSHA inspections or from FLSA 
overtime requirements; you were saying that if unions 
themselves sought such an exemption--is that correct?
    Mr. Scalia. I think on the inspections, what I did was 
analogize to an inspection program during the Clinton 
Administration which had said that if you have a safety program 
that includes employees, there would not be inspection, and I 
said, well, what if you have a union that is affected in that 
area. I think on that point, I may not have said it was a 
matter of union negotiation, but on the overtime, I believe 
what I suggested was that it would be a matter of union 
negotiation.
    I intended that article, as I say, and as is sort of clear 
from many passages in it, in a spirit of bipartisanship and to 
start discussion, but I did not--it was a little bit of a think 
piece, and I did not intend it to be a manifesto but rather as 
the start of a discussion.
    Senator Wellstone. Well, I am out of time, and I am not 
trying to score debate points with you. You are, I think 
everybody knows, very able. But I just want to point out that I 
think--I could be wrong, and I am going to have to go back and 
look at every word--you were talking about something where you 
paid your respect for unions. My understanding, though, and 
from what I read, is that you then go on and argue for 
exempting unions from OSHA and from FLSA, and it does not seem 
like--I have not heard unions really calling for that or asking 
for that. Unless I read this the wrong way, it hardly seems 
like a piece where you are really showing respect for unions. 
It seems to go in the opposite direction. The reason I mention 
this is that it is in the context of all of your writings, and 
of the cases. My question is not whether you can shift sides; 
my question is whether or not you can be an attorney, a 
Solicitor, for workers in this country. That is my question.
    I am out of time.
    The Chairman. Senator Enzi?
    Senator Enzi. Thank you, Mr. Chairman.
    Mr. Chairman, could I ask unanimous consent that a letter 
from some previous Solicitors of Labor in a number of 
administrations be made a part of the record?
    The Chairman. It will be so included.
    [Letter follows:]

                                                     July 19, 2001.
Hon. Edward M. Kennedy,
U.S. Senate,
Washington, D.C. 20510.
Hon. Judd Gregg,
U.S. Senate,
Washington, D.C. 20510.
    Dear Chairman Kennedy and Senator Gregg: We served as Solicitor of 
Labor in the administrations of Presidents Nixon, Ford, Reagan, George 
H.W. Bush, and Clinton. We are writing to urge that the Senate 
Committee on Health, Education, Labor, and Pensions proceed 
expeditiously with the nomination of the current Solicitor nominee, 
Eugene Scalia.
    The uniqueness and importance of the Solicitor is reflected by the 
Department's structure, which places him as the third-ranking official, 
as you are aware. His involvement is crucial to the Department's 
performance of its important mission - the enforcement of the labor and 
employment laws administered by the Department the development of 
legally compliant policy initiatives, and the issuance of regulations 
in furtherance of those laws. While it is possible for the Department 
to function without a confirmed Solicitor for short periods of time, 
the absence of a Solicitor inevitably causes significant interference 
with the Department's operation and most important is detrimental to 
those who am protected by our Nation's labor laws. Without a Solicitor 
the Department has more difficulty making important litigation 
decisions; important enforcement initiatives may be delayed as a 
consequence, and employment law violations may go unaddressed. The 
absence of a confirmed Solicitor also makes it harder for the 
Department to make significant regulatory decisions, as the Secretary 
and other senior staff await legal review by the person the President 
has nominated for that task. Finally, the institution of the Office of 
the Solicitor, which is the second largest cabinet-level legal office, 
it self suffers when the Solicitor cannot personally participate in the 
Departments deliberations, and functions ordinarily performed by the 
Solicitor are assumed by other departmental personnel.
    Eugene Scalia was nominated to be Solicitor in April. We recognize 
that some have raised concerns with his nomination. We believe, 
however, that the best course at this time is to have those concerns 
addressed in a confirmation hearing, so that the Office of the 
Solicitor may be filled as soon as practicable. Thank you.

                                           Henry L. Solano,
                        Solicitor of Labor under President Clinton.
                                      Thomas S. Williamson,
                        Solicitor of Labor under President Clinton.
                                           Robert P. Davis,
               Solicitor of Labor under President George H.W. Bush.
                                           George R. Salem,
                         Solicitor of Labor under President Reagan.
                                   William J. Kilberg, P.C.
                   Solicitor of Labor under Presidents Nixon, Ford.
                                 ______
                                 

    Senator Enzi. Thank you. It does make a point on the 
urgency of getting somebody into this position. It also makes a 
point of the important litigation decisions, the important 
enforcement initiatives, and the employment law violations that 
could go unaddressed with this position being unfilled and 
asking, of course, for a review, and again, I appreciate having 
this review.
    I had my staff do some checking--and I have outstanding 
staff, but they may have missed something--and I could not find 
where we had had anything except pro forma sorts of hearings on 
Solicitor Generals before, so I was not able to find what kinds 
of questions were asked of a Solicitor General before.
    I suspect that if a full hearing were held, perhaps our 
side would have asked a question about how many employers the 
Solicitor General represented if he were from the other side. I 
suspect that perhaps we might have even asked a question about 
what kinds of businesses they had run. I am not sure that that 
is really appropriate to the position that you are asking 
about, but I will mention something on recordkeeping, and that 
is that I really share your opinions on the recordkeeping--and 
I may be the only one in the Senate who has filled out the OSHA 
accident forms. I was an accountant, and that was one of the 
jobs that was given to me, and I have got to say that that was 
the most worthless piece of crap I ever did. [Laughter.] There 
is no value to filling out that form, so when I got here, I was 
really excited to be able to find out what happened to it. 
Nothing happens to it. The biggest use for it, of course, is 
that in January, the employer has to post it on the board to 
show his employees what accidents happened. And if that cannot 
be improved on, OSHA needs to find another job. Just posting it 
does not do any good. Just posting it in January is probably 
the worst time to post it. Encouraging employers to not only 
keep track of what the accidents are but to keep track of the 
near misses and let their employees know what could have 
happened and how to avoid it would be much more useful.
    So I appreciate your point on the recordkeeping. I also 
appreciate the point that when you represented a client, you 
were one-sided. Although I am not a lawyer, it has always been 
my understanding that that is how the law is supposed to work--
when you pick a client and you represent them, you are supposed 
to represent their side. You are not supposed to make the case 
for the other side. So I can understand how some of these 
statements that you made while representing a client might be 
more one-sided than you might otherwise feel.
    To get to the questions, one of the reasons why that 
ergonomics effort did not pass was because of the process that 
the OSHA department used. I would be interested in knowing if 
you have a say in how the process will work. What I am 
referring to specifically is that people were paid to testify. 
Then, they were brought in to practice testifying. Then, their 
testimony was rewritten by the Department who, it was always my 
thought, was supposed to be unbiased in the situation. And 
then, worst of all, they were paid to rip apart the testimony 
of the people who paid their own way to testify.
    Would that be a job of the Solicitor General to advise in 
which instances things can be paid and what would be correct 
opportunities for payment?
    Mr. Scalia. Yes, that would be a function performed by the 
Solicitor's office.
    Senator Enzi. Another thing that bothered me and evidently 
a lot of other Senators and House Members was that the 
comments--and there were about 78 feet of them, so I can 
understand why you have not read them yet--were reviewed in 
less than a month and then not reflected in the final document. 
In fact, the final document went the opposite way from the 
majority of the comments.
    The reason I am curious about this and interested in this 
is I think we could start a whole new trend in rules if we 
allow a department to put up what might be a ``milktoast rule'' 
and get unanimous comment in favor of it and then reflect a 
much tougher line when the final rule comes out. Is that 
something that would come under your jurisdiction?
    Mr. Scalia. That is correct. Compliance with the 
Administrative Procedures Act is important to rulemakings, and 
it is those kinds of issues where the Solicitor's office would 
have its principal involvement as I understand it.
    Senator Enzi. Do you have any difficulties with these 
things that I have mentioned? Are they things that--well, I 
will not even ask the question because----
    Mr. Scalia. Well, I--I guess I should not answer the 
question if you did not ask it.
    Senator Enzi. I will go ahead and ask the question; you go 
ahead and answer it.
    Senator Sessions. Do you want legal advice on that? 
[Laughter.]
    Mr. Scalia. There were difficulties in getting the task 
done in the time that was allotted for it during the last 
rulemaking. My impression was that OSHA and the Solicitor's 
office worked exceptionally hard, but it was an awful lot of 
work to get done in the period that we were talking about.
    Senator Enzi. Would you work to be sure that the testimony 
taken is unbiased from the Department's standpoint?
    Mr. Scalia. I think it is the Department's responsibility 
to enable a spectrum of views to be expressed and to establish 
procedures that allow that in an unbiased manner, and I think 
it is the Department's responsibility to review those comments 
and the testimony in an unbiased fashion.
    Senator Enzi. Just very quickly and without an answer, but 
I will submit this in writing to get an answer--I would like to 
have your comments about what your position would be on making 
a rule tougher after the hearing was held and whether you as 
Solicitor would have the right to have them do another hearing 
after that time.
    I will submit that in writing.
    [Question and response follow:]
    [At time of printing, the Question and Response was not 
available. Documents are maintained in the files of the 
Committee.]
    The Chairman. Senator Sessions?
    Senator Sessions. Thank you, Mr. Chairman.
    You know, regulations are a part of life. I think our big 
concern is if we have a regulation that imposes a cost but does 
not produce a benefit, then we ought to look at that with some 
concern.
    I have filed a number of cases on behalf of workers against 
entities in the last 10 or 12 years in private practice. I 
remember two on overtime, one against a business and one 
against a union. The union did not properly compute the 
overtime, and an employee came to me, and we won both of those 
lawsuits.
    I think that what you are saying, Mr. Scalia, is that you 
believe in the law, you believe in the rule of law, and if the 
overtime is necessary or the safety rule is clear, you will 
seek in every way possible to enforce that rule of law or court 
case. Is that correct?
    Mr. Scalia. Absolutely.
    Senator Sessions. Whether you agree with it or not.
    Mr. Scalia. Whether I agree with it or not; that is right.
    Senator Sessions. And you have been asked if you have a 
circumscribed view of your role, but as I understood the 
question--let me ask you if this is true--you were simply 
responding to what your legal responsibilities are, what your 
position calls for you to do, which is not to provide policy 
advice on every matter that comes before the Department of 
Labor. Is that correct?
    Mr. Scalia. That is correct, Senator. At times, other 
issues may get raised peripherally with the Solicitor. The 
Solicitor does not have an obligation to sit mute in every 
meeting. But I think it is very important for a lawyer to be 
reliable for legal advice, and if a lawyer takes on other 
things, the lawyer becomes less reliable as a lawyer.
    Senator Sessions. If the Secretary asked you about some 
matter unrelated to your duties, I assume you would give it 
your best answer, but in your best answer to the questions you 
had here, you were referring to what your legal 
responsibilities are as the Solicitor in the Department of 
Labor, which is a circumscribed role in many ways, is it not, 
officially?
    Mr. Scalia. That is correct.
    Senator Sessions. On the sexual harassment questions you 
were asked and the article you have written that Senator Reed 
asked you about, is that the same article that Justice Ruth 
Bader Ginsburg--who, I think most would say, is clearly the 
most ardent defender of women's rights on the U.S. Supreme 
Court--is that the article she wrote you about in which she 
said, ``your article is written with refreshing clarity and 
style; it is informative, thought-provoking, altogether a treat 
to read''?
    Mr. Scalia. That is the same article, Senator.
    Senator Sessions. I do not think she would have written 
that if she thought you were off the world somewhere in your 
views on that.
    And I want to say about Senator Enzi that he has worked so 
hard to improve OSHA. The goal that Senator Enzi has worked on 
and which I support is to make OSHA a vehicle for a clearly 
improved and more safe workplace without having it coming along 
after a problem occurs, with a ``Gotcha'' mentality, to try to 
make it a positive force. That is not your role--that is our 
role to deal with that, and we have worked together on it, and 
he has worked dedicatedly to make sure that we have an OSHA 
that is out, inspecting before accidents occur, encouraging, 
helping, advising businesses how to have a safer workplace and 
reduce injuries. He has made some points about the OSHA 
bureaucracy and the procedures that are valid. Just because 
they are known as OSHA does not mean they cannot be an 
arrogant, bureaucratic, nonresponsive agency, and sometimes it 
deserves criticism. This Congress voted overwhelmingly, or with 
a significant bipartisan majority, to reject their OSHA 
regulations and to send them back for further review by the 
Secretary of Labor, which is happening today.
    But I just want to say that OSHA has played an important 
role. I believe we need to look at it today to see how we can 
make it more effective in preventing injuries and reduce its 
bureaucratic mentality.
    You do not have to comment on that unless you desire to do 
so.
    Mr. Scalia. I understand that OSHA is important to all the 
members of this committee, and I would look forward to working 
with them on it if I am confirmed.
    Senator Sessions. And I hope you will take to heart in your 
role as you are able to make sure that if we have information 
that both sides get heard and that you will encourage people to 
do that.
    I am extraordinarily impressed with your testimony. I think 
you have handled yourself just wonderfully today. You have been 
professional and thoughtful and responsive and humble and 
brilliant. So I congratulate you, and I know you will do a 
great job as Solicitor.
    Thank you.
    Mr. Scalia. Thank you.
    The Chairman. Thank you very much.
    The way we will proceed now is Senator Wellstone has a 
question or two, and then I will make a very brief final 
comment.
    Senator Wellstone. I will be very brief, because I know we 
all have to go to caucus luncheons.
    Just following up on Senator Sessions, Mr. Scalia, in case 
you have not noticed, this is a very diverse committee----
    Mr. Scalia. I have noticed.
    Senator Wellstone. [continuing]. And I want to respond to 
the comments of my colleague, Senator Enzi.
    Senator Sessions. Senator Wellstone, I want you to know 
that the only lawsuit I had against a union was a winning 
lawsuit from its own employee for failure to pay overtime.
    Senator Wellstone. Well, Senator Sessions, I would not 
doubt----
    Senator Sessions. He is speechless, I can tell.
    Senator Gregg. No, no--that never happens. [Laughter.]
    The Chairman. He has just used all his time.
    Senator Wellstone. I am so impressed with what Senator 
Sessions told me that I cannot think now.
    I wanted to point out just for the record, unless I am 
wrong, that I had asked you whether you had filed comments 
supporting a worker protection regulation, and in the House 
subcommittee testimony, you had talked about and had given OSHA 
credit for the efforts to codify the recordkeeping 
requirements. But I also want to point out that you had 
recommended changes that would change the definition and 
criteria for recording work-related injuries and illnesses 
that, if implemented, would reduce the number of injuries and 
illnesses now being recorded.
    I want to point out that I do not actually see that as 
being testimony that supports worker protection regulation. I 
would disagree with Senator Enzi. I would not consider these 
recordkeeping requirements to be ``worthless.'' I think that 
when you have less reporting, part of what you are doing is 
taking away an important foundation of worker protection. That 
is how we know what is happening in the workplace.
    So maybe I am wrong, but in that same testimony that you 
cited, am I not correct that this was what you said?
    Mr. Scalia. On that point, you are right, Senator, and if I 
gave the impression that I supported the rule in full, I 
appreciate your clarifying it.
    Senator Wellstone. OK. I thank you. And with that 
clarification, let me just thank you for being here today. I 
appreciate it.
    Mr. Scalia. Thank you very much.
    The Chairman. Thank you.
    I did not get into your views about discouraging even 
voluntary regulations by businesses in terms of ergonomics. I 
do not know if you want to make a brief comment on that. You 
co-authored the article--you included in the UPS brief: ``UPS 
believes that issuing prescriptive RSI guidelines would be as 
ill-advised as establishing a standard, perhaps more so.'' And 
then, later in the year, you wrote: ``The same vigilance is 
needed with regard to industry. Of immediate concern is the 
potential disastrous ergonomics standard being set by the 
American National Standards Institute. As long as it asserts 
that repetitive work motions can cause injury, it threatens to 
enhance greatly OSHA's litigating position.''
    So it is not only opposition to any standard, but even 
where industries were trying to develop that. I do not know if 
you want to make a comment on that.
    Mr. Scalia. I did encourage employers to look closely at 
ergonomics and to address employee complaints and to adopt 
ergonomic measures. The standard-setting by these associations 
concerned employers because sometimes after the standards are 
set, OSHA uses them in prosecutions, and so some companies--and 
one of my clients was included--did not support those voluntary 
standards for that reason.
    The Chairman. Well, thank you very much.
    Just a brief comment in conclusion. As has been mentioned 
during the committee hearing, the Solicitor of Labor has no 
ordinary responsibility and is no ordinary appointment. The 
Solicitor of Labor is the workers' lawyer, and he is their 
representative, and he is responsible for protecting the basic 
interests of literally millions of working men and women in 
every community and every workplace in the United States. So 
this position requires a person who will have the confidence of 
America's workers that their rights being rigorously protected 
by the Department of Labor.
    I think that appointing a Solicitor who does not believe in 
the dangers of ergonomics is like appointing a high official in 
the Environmental Protection Agency who does not believe in the 
existence of pollution or a high-level official in civil rights 
who does not believe in discrimination.
    We need a Solicitor whose background and experience reflect 
a commitment to the fundamental rights and protections of 
workers across America.
    I respect your ability, Mr. Scalia, but I continue to have 
the gravest reservations about your nomination for this very 
important position.
    The committee stands in recess.
    [Additional material follows.]

                          ADDITIONAL MATERIAL

      American Federation of Labor and Congress of 
                          Industrial Organizations,
                                    Washington, D.C. 20006,
                                                 September 5, 2001.
Hon. Edward M. Kennedy,
U.S. Senate,
Washington, D.C. 20510.

    Dear Senator Kennedy: Later this month, the Committee on Health, 
Education, Labor, and Pensions will hold a hearing on the nomination of 
Eugene Scalia to be Solicitor of Labor. I am writing to inform you of 
the AFL-CIO's strong opposition to this nomination. The AFL-CIO urges 
you to oppose Eugene Scalia's confirmation to this important post 
should his nomination come before the Senate for a vote.
    Our opposition to Eugene Scalia's nomination is based on his track 
record as an outspoken opponent of key worker protection initiatives, 
including, but not limited to, regulation of workplace ergonomics. It 
is not the mere fact of Mr. Scalia's opposition that causes us such 
concern--it is the extreme and radical nature of his opposition that 
leads us to believe that he is an inappropriate choice for the 
Solicitor's job.
    The Department of Labor and its various agencies are charged by 
statute with enforcing and implementing more than 180 laws that 
Congress enacted to provide basic worker protections in critically 
important areas such as safety and health, minimum wages, equal 
employment opportunity, and pension security. The Secretary of Labor 
and the various agency heads play a pivotal role in ensuring that the 
fundamental protections enacted by Congress are, implemented, 
respected, and enforced. For some of these protections, such as 
workplace safety and health, workers are wholly dependent on the 
Department of Labor, because the governing laws do not provide workers 
with a private right of action to enforce their statutory rights.
    The Solicitor of Labor holds a position of extreme importance and 
influence within the Department of Labor. As the Department's top 
lawyer, the Solicitor is one of the leading officials within the 
Department, widely recognized as third in rank behind only the 
Secretary herself and the Deputy Secretary. The Solicitor, or his 
designee, is involved in providing advice and guidance on virtually 
every policy, legislative, regulatory, and enforcement initiative of 
the Department and its various agencies. The Solicitor oversees a 
nationwide staff of 500 attorneys, who are responsible for enforcing 
the laws within the Department's jurisdiction, as well as defending the 
Department in litigation against it. Thus, the Solicitor wields 
considerable influence over the direction the laws and their 
enforcement take.
    For this position of such critical importance to American workers, 
President Bush has chosen an individual who is unsuited to the task. We 
say this not because of the nominee's inexperience or lack of ability, 
but because of his demonstrated track record of extreme hostility to 
key worker protection initiatives of the very agencies with which he 
would be working as Solicitor. Eugene Scalia is simply the wrong person 
for the job.
    As a labor and employment lawyer at the Washington, D.C. law firm 
of Gibson Dunn & Crutcher, Eugene Scalia's practice included advising 
employers and defending them when they were charged with violating 
workplace safety, equal employment opportunity, minimum wage and 
overtime, labor relations and other important laws.
    But that is not where Eugene Scalia has made his mark. He has made 
a name for himself by fighting worker protection initiatives by federal 
and state agencies, particularly but not exclusively in the area of 
ergonomics.
    It is no exaggeration to say that Eugene Scalia is one of the 
architects and leaders of the business community's campaign to prevent 
federal OSHA and numerous state worker safety agencies from issuing 
strong regulations to protect workers from ergonomic hazards--hazards 
which result in more than 600,000 serious injuries each year. In 
California, North Carolina, Washington State, and Washington, D.C., he 
has been on the front lines leading the fight to keep federal and state 
agencies from protecting workers from ergonomic hazards.
    In fighting these initiatives, Eugene Scalia did not simply oppose 
a particular ergonomics regulation or suggest that a proposed 
regulation needed to be clarified or improved. Rather, he has 
repeatedly expressed his personal view that there is no scientific 
basis for ergonomics regulation of any kind, and he has repeatedly 
questioned whether ergonomic injuries are real. For example, in a 1994 
``white paper'' prepared for the National Legal Center for the Public 
Interest, entitled ``Ergonomics: OSHA's Strange Campaign to Run 
American: Business,'' Mr. Scalia wrote that ``the very existence, not 
to mention the significance of repetitive strain injuries is of course 
very much in doubt,'' and suggested that ``as medical science, 
ergonomics is quackery.'' He later characterized the science supporting 
ergonomics regulation as ``to a large degree junk science par 
excellence.'' Eugene Scalia, Government `Ergonomic' Regulation of 
`Repetitive Strain Injuries,' '' October 1997). These views surface 
repeatedly in Eugene Scalia's personal writings, as well as in filings 
prepared by Mr. Scalia on behalf of his clients in various rulemakings.
    Eugene Scalia's views on the science underlying ergonomics stand in 
marked contrast to those of mainstream experts, including the National 
Academy of Sciences, which, after an exhaustive review of the 
scientific literature, recently concluded that ``a rich and consistent 
pattern of evidence . . . supports a relationship between the workplace 
and the occurrence of musculoskeletal disorders of the low back and 
upper extremities.'' National Research Council, ``Musculoskeletal 
Disorders and the Workplace: Low Back and Upper Extremities (2001), at 
8-9. See also National Institute for Occupational Safety and Health, 
``Musculoskeletal Disorders and Workplace Factors'' (July 1997), at xiv 
(``A substantial body of credible epidemiologic research provides 
strong evidence of an association between MSDs and certain work-related 
physical factors.'')
    And what of the hundreds of businesses across America that have 
developed ergonomics programs in an effort to protect their workers 
from serious injury? Mr. Scalia has criticized business for its 
``surprisingly supine'' posture regarding ergonomics, and he has warned 
businesses to ``keep tabs on their own in-house ergonomics 
specialists,'' to ``take a long, hard look at what they are being 
sold'' by these experts, and to avoid making ``premature official 
pronouncements'' about the existence of ergonomics hazards. (Judicial 
Legislative Watch Report, October 1995; ``Strange Campaign'' white 
paper).
    Eugene Scalia has also repeatedly suggested that unions are in 
favor of ergonomics regulation not because we are interested in 
protecting workers, but as a clever ploy to increase membership. 
According to Mr. Scalia, ergonomics regulation ``would reduce the pace 
of work, thereby pleasing current members. With the pace of work 
reduced, more workers would be needed to maintain the level of 
production; consequently, union membership (and dues) would increase, 
thereby pleasing union leaders.'' (``Government `Ergonomic' Regulation 
of `Repetitive Strain Injuries' '' (October 1997)). These views are not 
only offensive to workers and unions, but also miss the point that 
ergonomics regulation will undoubtedly benefit non-union workers more 
than union workers because ergonomics programs already exist in many 
union workplaces. (Mr. Scalia's remarks also misrepresent ergonomics 
regulations, none of which require employers to slow the pace of work).
    This theme of unions being interested in worker safety initiatives 
not out of a concern about workers' safety but out of an interest in 
collecting union dues has played elsewhere in Mr. Scalia's writings. In 
a January 5, 2000 Wall Street Journal op ed criticizing OSHA's policy 
regarding home offices, he stated that ``for labor unions, . . . at-
home workplaces are a nightmare. How do you unionize workers who don't 
come to the office?'' According to Mr. Scalia, OSHA's home office 
policy needed to be viewed in conjunction with OSHA's proposed 
ergonomics rule. That rule, according to Eugene Scalia, ``is a major 
concession to union leaders, who know that ergonomics regulations will 
force companies to give more rest periods, slow the pace of work, and 
then hire more workers (read: dues paying members) to maintain current 
levels of production.''
    Fighting ergonomic protections is where Eugene Scalia has made his 
mark, but it is not the only area in which his stated views are cause 
for concern about actions he would take as Solicitor of Labor.
    For example, both individually and on behalf of his client United 
Parcel Service, Scalia has criticized another important OSHA 
rulemaking, this one dealing with the recording of workplace injuries 
and illnesses. The recordkeeping rules were developed through a 15-year 
process and enjoy significant support from major stakeholders in the 
business community. Testifying on his own behalf in July 2000, Mr. 
Scalia criticized the agency over major aspects of the rule, including 
the central question of which injuries and illnesses should be 
recorded. These objections are reflected in a pending lawsuit brought 
by his former law firm on behalf of the Association of Manufacturers 
against OSHA's new recordkeeping rules.
    In addition, Mr. Scalia filed comments on behalf of United Parcel 
Service opposing an OSHA proposal that would require employers, rather 
than individual employees, to pay for safety equipment when such 
equipment is required by an OSHA standard. According to UPS, the rule 
exceeded OSHA's authority because, in UPS's view, no safety-related 
purpose was served by the rule. These views stand in sharp contrast to 
those of worker safety experts, including the National Institute for 
Occupational Safety and Health, who testified that worker safety would 
be better protected by requiring employers, and not individual workers, 
to purchase and maintain safety equipment.
    The Department of Labor is faced with many crucial decisions about 
how it will fulfill its mission to protect workers. In the area of 
ergonomics, an issue of paramount importance to American workers, 
Secretary of Labor Elaine Chao is in the midst of deciding how the 
Department will proceed. We have grave doubts about how the Department 
could possibly take meaningful action on ergonomics, either in the 
standard-setting or in the enforcement arena, with such an avowed 
opponent of ergonomics at the helm of its Solicitor's Office. More 
fundamentally, we have real concerns about what a record like Mr. 
Scalia's says about his willingness and commitment to vigorously 
implement and enforce the nation's worker protection laws.
    The AFL-CIO did not make the decision to oppose Eugene Scalia's 
nomination lightly. We recognize that the President has the authority 
to nominate individuals who reflect his policy views, and that 
President Bush's policy views differ substantially from ours in many 
respects. However, in the case of Eugene Scalia, the President has 
nominated an individual whose extreme views on key worker protections 
place him outside the mainstream and make him unsuited to hold this 
important position. He is simply the wrong person for the job. We 
regretfully but respectfully urge you to oppose his nomination if it 
should come before the Senate for a vote.
            Sincerely,
                                           John J. Sweeney,
                                                         President.
                                 ______
                                 
             Leadership Conference on Civil Rights,
                                    Washington, D.C. 20006,
                                                   October 2, 2001.
Hon. Edward M. Kennedy,
U.S. Senate,
Washington, D.C. 20510.
    Dear Senator Kennedy: The Leadership Conference on Civil Rights 
(LCCR), an umbrella organization of more than 185 national 
organizations representing persons of color, women, children, labor 
unions, individuals with disabilities, older Americans, major religious 
groups, gays and lesbians and civil liberties and human rights groups, 
has a deep interest in our nation's workplace protections and in the 
individuals who are chosen to implement and enforce our workplace laws. 
It is critically important that these individuals be highly qualified, 
experienced, and dedicated to the rights and protections they are 
called upon to enforce.
    The Solicitor of Labor is a particularly significant position 
within the Department. The Solicitor is the Department's lawyer, and 
the lawyer for the agencies within the Department, but he is more than 
that--he is in a very real sense the lawyer for working Americans. This 
is so because many of the statutes under the Department's jurisdiction 
place exclusive enforcement authority in the hands of the Department 
and do not provide a means for individual workers to pursue enforcement 
of their rights. Workers are dependent on the Department, and on the 
Solicitor of Labor, to vindicate crucial protections such as those 
provided under Executive Order 11246, the Occupational Safety and 
Health Act, the Workforce Investment Act, and other important laws.
    The Leadership Conference on Civil Rights has reviewed the record 
and writings of Eugene Scalia, President Bush's nominee to be Solicitor 
of Labor. We are very troubled by some of his views and actions, 
particularly in the area of worker safety and health protections. Mr. 
Scalia has been a long-time opponent of ergonomic protections, and has 
built a career around opposing ergonomic regulations at both the 
federal and state level as well as opposing voluntary guidelines. He 
has harshly criticized the Occupational Safety and Health 
Administration for its actions around ergonomics, has questioned 
whether scientific support exists for ergonomic protections, and 
whether ergonomic injuries are even real. He has staked out an extreme 
position on an issue of utmost importance to the safety and health of 
American workers. While the vast majority of Mr. Scalia's writings are 
in the area of ergonomics, his writings have also included criticism of 
other worker protections and other agencies responsible for workplace 
protections, such as the Equal Employment Opportunity Commission.
    The question facing the Committee and the Senate is whether someone 
with such divisive and, in some cases, extreme views on key worker 
protections should be rewarded with the critically important job of 
Solicitor of Labor and entrusted with implementing and enforcing our 
workplace laws on behalf of working men and women. Unfortunately, we 
believe Mr. Scalia's track record of hostility to crucial worker 
protections and his controversial views in this area make him an 
unsuitable choice for the Solicitor's job. Therefore, the Leadership 
Conference on Civil Rights urges you to oppose Mr. Scalia's nomination 
should it come before the Committee for a vote. Thank you for your 
consideration.
            Sincerely,
                                            Wade Henderson,
                                                Executive Director.
                                         Dorothy I. Height,
                                                       Chairperson.
                                 ______
                                 
                       American Nurses Association,
                               Washington, D.C. 20024-2571,
                                                   October 1, 2001.
Hon. Edward M. Kennedy,
U.S. Senate,
Washington, D.C. 20515.
    Dear Senator Kennedy: As the Senate Committee on Health Education, 
Labor and Pensions prepares to consider the nomination of Eugene Scalia 
to be Solicitor of the Department of Labor, I am writing to express the 
opposition of the American Nurses Association to Mr. Scalia's 
nomination.
    ANA is particularly concerned about Mr. Scalia's views on ergonomic 
injuries in the workplace. He has repeatedly expressed his personal 
view that there is no scientific basis for ergonomics regulation of any 
kind and has repeatedly questioned whether ergonomic injuries are real.
    Registered nurses suffer musculoskeletal injuries in the workplace 
at a rate that exceeds truck drivers and construction workers. The 
views expressed by Mr. Scalia defy the realities of registered nurses 
at the bedside whose routine includes lifting, bathing, moving and 
caring for their patients. Repetitive patient handling task and low 
back injuries, in particular, continue to be the leading causes of 
injury and disability for nurses. These disorders, more than any other 
illness or injury, are responsible for lost work time, the need for 
protracted medical care, and the inability to continue work as a nurse. 
Mr. Scalia's dismissal of these injuries as ``junk science'' flies in 
the face of the conclusions reached by the National Academy of Sciences 
that ``a rich and consistent pattern of evidence . . . supports a 
relationship between the workplace and the occurrence of 
musculoskeletal disorders of the low back and upper extremities.
    Ergonomic hazards are the primary workplace dangers responsible for 
debilitating and depleting the ranks of registered nurses. As the 
nation faces a growing shortage of nurses, it is more important than 
ever that the agency charged with protecting their health and safety be 
firmly committed to that goal. Mr. Scalia's extreme views on these 
protections make him unsuited to hold this critical position within the 
Department of Labor.
    The American Nurses Association appreciates your consideration of 
our views on this important matter.
            Sincerely,
                                             Rose Gonzalez,
                                      Director, Government Affairs.
                                 ______
                                 
                   Harvard School of Public Health,
                                     Boston, MA 02115-9957,
                                                September 21, 2001.
Hon. Edward Kennedy,
U.S. Senate,
Washington, DC 20510.
    Dear Senator Kennedy: On September 20 the Senate Committee on 
Health, Education, Labor, and Pensions is scheduled to hold a hearing 
on the nomination of Eugene Scalia to be Solicitor of Labor. I oppose 
very strongly the nomination of Mr. Scalia to this important position.
    The position to which Mr. Scalia has been nominated is one of the 
most critical for workers. The Solicitor of Labor is the third highest-
ranking official in the Department of Labor and has complete 
responsibility for enforcing the many laws: the Fair Labor Standards 
Act (FLSA), the Occupational Safety and Health Act (OSHA) and the 
Employee Retirement Income Security Act (ERISA), that protect workers 
and their families.
    I believe that the record shows Mr. Scalia is unsuited for this 
job. In his relatively short time as an attorney, he has made a career 
of trying to halt or undermine workplace health and safety protections. 
For the last several years he devoted himself to fighting the passage 
of an ergonomics standard nationally, as well as in the states of 
California and Washington, in particular.
    Significantly, the record shows that Mr. Scalia has done far more 
than simply represent clients on these safety and health issues. He has 
published his personal view that there is no scientific basis for 
ergonomics regulation or enforcement of any kind, and he has repeatedly 
questioned whether workers' ergonomic injuries are ``real''. In a paper 
entitled ``Ergonomics: OSHA's Strange Campaign to Run American 
Business'', Mr. Scalia expressed his doubts about the very existence, 
not to mention the significance, of repetitive-strain injuries and 
suggested that ``as medical science, ergonomics is quackery''.
    I believe that these extreme anti-worker views should disqualify 
Mr. Scalia for the position of Solicitor of Labor. Again, I strongly 
oppose the nomination of Eugene Scalia for this position, and urge the 
Committee to refuse to confirm him as Solicitor of Labor.
    Thank you for considering my view on this important matter.
            Sincerely yours,
                              David C. Christiani, MD, MPH,
               Professor of Occupational Medicine and Epidemiology,
                             Director, Occupational Health Program.
                                 ______
                                 
     Union of Needletrades, Industrial and Textile 
                   Employees, AFL-CIO, CLC (UNITE),
                                    Washington, D.C. 20006,
                                                September 17, 2001.
    Dear Senator: I am writing to inform you of UNITE's strong 
opposition to the nomination of Eugene Scalia to be Solicitor of Labor. 
Our opposition to Eugene Scalia's nomination is based on the extreme 
and radical nature of his track record as an outspoken opponent of key 
worker protection initiatives, including, but not limited to, 
regulation of workplace ergonomics.
    The Department of Labor and its various agencies enforce and 
implement more than 180 laws that Congress has enacted to provide basic 
worker protections such as safety and health, minimum wage, and 
overtime pay. Because the existing laws do not provide workers with the 
``private right of action,'' most workers, and specifically immigrant 
workers, are wholly dependent on the Department of Labor to enforce 
their statutory rights.
    The Solicitor of Labor holds a position of extreme importance and 
influence within the Department of Labor. He is involved in providing 
advice and guidance on virtually every policy, legislative, regulatory, 
and enforcement initiative of the Department and oversees a nationwide 
staff of 500 attorneys responsible for enforcing these laws.
    Unfortunately, for a position of such importance to American 
workers, President Bush has chosen an individual who is not suited for 
the task. Because of his demonstrated track record of extreme hostility 
to key worker protection initiatives of the very agencies with which he 
would be working as Solicitor, Eugene Scalia is simply the wrong person 
for the job.
    He has made a name for himself by fighting worker protection 
initiatives by federal and state agencies, particularly but not 
exclusively in the area of ergonomics. He is one of the architects and 
leaders of the business community's campaign to prevent OSHA from 
issuing strong regulations to protect workers from ergonomic hazards 
which result in more than 600,000 serious injuries each year. In 
fighting these initiatives, Eugene Scalia did not just oppose a 
particular type of ergonomics regulation. Rather, he opposed a standard 
in a way which demonstrated either his ignorance or contempt for the 
very principles upon which the Congress based the OSHA Act.
    Mr. Scalia has been a well-informed and active participant in the 
Department's most important regulatory proceeding in at least a decade. 
He has done so with unfortunate consequences for the vast majority of 
employers and workers affected by this serious workplace hazard and the 
costs arising therefrom. The positions he has taken are far removed 
from the mainstream views of both OSHA's primary stakeholders and the 
prevailing scientific authorities. He could come to these views in only 
two ways: a serious--in our view unforgivable--lack of judgment, or 
conscious deceit. It is UNITE's opinion that either case renders him 
completely unsuitable for a position requiring both excellent judgment 
and the highest ethical standards.
    The Department of Labor is faced with many crucial decisions about 
how it will fulfill its mission to protect American workers. In the 
area of ergonomics, an issue of paramount importance to American 
workers, Secretary of Labor Elaine Chao is in the midst of deciding how 
the Department will proceed with developing an ergonomic standard. We 
at UNITE have real concerns about what a record like Mr. Scalia's 
states about his willingness and commitment to vigorously implement and 
enforce the nation's worker protection laws, including developing and 
enforcing a new ergonomic standard.
    Mr. Scalia is simply the wrong person for the job. We regretfully 
but respectfully urge you to oppose his nomination if it should come 
before the Senate for a vote.
            Sincerely,
                                                Bruce Ryan,
                                                         President.
                                               Chris Chafe,
                                  Political & Legislative Director.
                                 ______
                                 
                       National Women's Law Center,
                                    Washington, D.C. 20036,
                                                   October 1, 2001.
Hon. Edward M. Kennedy,
U.S. Senate,
Washington, D.C. 20510-2101.
    Dear Chairman Kennedy: We are writing to express the National 
Women's Law Center's serious concerns about the nomination of Eugene 
Scalia for the position of Solicitor of Labor. As an organization that 
has been working since 1972 to advance and protect the legal rights and 
protections of women in the workplace, the Center has a deep and 
abiding interest in ensuring that those entrusted with enforcing and 
administering the laws protecting women in the workplace are fully 
committed to their vigorous enforcement and implementation. Mr. 
Scalia's record raises serious questions about whether he possesses the 
necessary commitment to fill this position.
    The Solicitor of Labor, as the chief legal officer of the 
Department of Labor, has the responsibility to enforce a range of laws 
prohibiting employment discrimination, protecting worker health and 
safety, and guaranteeing a minimum wage and other employee protections. 
Among the laws under the Solicitor's responsibility are several of 
particular importance to women: the Family and Medical Leave Act; 
Executive Order 11246, prohibiting sex discrimination by federal 
contractors and requiring these enterprises to have affirmative action 
plans to help ensure equal opportunity in their workplaces; and health 
and safety regulations such as those governing ergonomic injuries, 
which account for a large percentage of the workplace injuries suffered 
by women.
    Our questions about Mr. Scalia's fitness for this critical position 
are based on his past writings suggesting hostility to exercising the 
very enforcement role he would be called upon to lead as Solicitor. For 
example, Mr. Scalia has repeatedly taken the position that repetitive 
strain injuries do not exist--contrary not only to scientific opinion 
but also to the experience of the millions of women who work in 
computer-keyboarding jobs, assembly-line jobs, and other occupations 
requiring repetitive motions--and he has fought against any regulation 
of this form of workplace injury. This alone should raise very serious 
questions about his qualifications to serve as Solicitor. In addition, 
in his past writings Mr. Scalia has taken a narrow view of when an 
employer should be held liable for sexual harassment by supervisory 
personnel in the workplace and has expressed disappointment with recent 
Supreme Court cases that strengthened the federal protections against 
sexual harassment in the workplace. He has also urged employers to 
challenge Equal Employment Opportunity Commission (EEOC) 
interpretations of the Americans With Disabilities Act (ADA) with which 
he disagrees, and urged the EEOC to reconsider its enforcement and 
interpretations of the ADA. Particularly in light of the fact that the 
Department of Labor and the EEOC have shared responsibility to enforce 
workplace anti-discrimination laws and cooperative agreements for 
enforcement of these laws, Mr. Scalia's views toward the EEOC raise 
troubling questions about his attitude toward the appropriateness of 
effective enforcement of the anti-discrimination laws by the Department 
of Labor and how he will approach the need for cooperation between the 
EEOC and DOL.
    These highly disturbing aspects of Mr. Scalia's record must form 
the backdrop for any serious examination of his fitness to serve as 
Solicitor of Labor--a position of great importance to the employment, 
health, and economic security of women and their families across the 
country.
            Sincerely,
                                     Marcia D. Greenberger,
                                                      Co-President.
                                       Nancy Duff Campbell,
                                                      Co-President.
                                 ______
                                 
             United American Nurses (UAN), AFL-CIO,
                               Washington, D.C. 20024-2571,
                                                September 17, 2001.
Hon. Edward M. Kennedy,
U.S. Senate,
Washington, D.C. 20510.
    Dear Senator Kennedy: The United American Nurses (UAN), the labor 
arm of the American Nurses Association, strongly opposes the nomination 
of Eugene Scalia to be Solicitor of the U.S. Department of Labor. The 
UAN urges you to oppose his confirmation to this pivotal post should 
his nomination come before the U.S. Senate for a vote.
    Eugene Scalia is simply the wrong person for the job. His views on 
regulation of workplace ergonomics place him far outside the mainstream 
of current scientific thinking. He has repeatedly expressed his 
personal view that there is no scientific basis for ergonomics 
regulation of any kind and has repeatedly questioned whether ergonomic 
injuries are real. For example, in a 1994 ``white paper'' prepared for 
the National Legal Center for the Public Interest entitled Ergonomics: 
0SHA's Strange Campaign to Run American Business, Scalia claimed that 
``the very existence, not to mention the significance of repetitive 
strain injuries, is of course very much in doubt'' and suggested that 
``as medical science, ergonomics is quackery.'' He later characterized 
the science supporting ergonomics regulation as ``to a large degree 
junk science par excellence.'' (Eugene Scalia, Government `Ergonomic' 
Regulation of `Repetitive Strain Injuries', October 1997) Such views 
surface repeatedly in Mr. Scalia's writings as well as in filings he 
has prepared on behalf of his clients in various rulemakings.
    Registered nurses suffer musculoskeletal injuries at the workplace 
at a rate that exceeds truck drivers and construction workers. There is 
nothing phantom about these workplace injuries, The views expressed by 
nominee Scalia defy the realities of registered nurses at the bedside 
whose daily routine includes lifting, bathing, moving and caring for 
their patients. Repetitive patient handling tasks and low back injuries 
in particular continue to be the leading causes of injury and 
disability for nurses. These disorders, more than any other illness or 
injury, are responsible for lost work time, the need for protracted 
medical care and the inability to continue work as a nurse. It is an 
understatement to say that the UAN is outraged by Mr. Scalia's reckless 
and out-of-touch assertions. Nor can the conclusion of the National 
Academy of Sciences that ``a rich and consistent pattern of evidence . 
. . supports a relationship between the workplace and the occurrence of 
musculoskeletal disorders of the low back and upper extremities'' be 
justifiably characterized as ``quackery'' or ``junk science.'' Imagine 
the public uproar if a nominee for high office in the Environmental 
Protection Agency were to assert that ``the very existence, not to 
mention the significance of air pollution, is of course very much in 
doubt.'' Such a nominee would immediately be identified as grossly out 
of touch not only with current science but also with common sense.
    Ergonomic hazards are the primary workplace dangers responsible for 
debilitating and depleting the ranks of registered nurses. As the 
nation faces a growing shortage of nurses, it is more important than 
ever that the agency in charge of protecting the health and safety of 
this critical workforce be committed to the challenge. Unfortunately, 
Eugene Scalia's extreme views on key worker protections make him 
unsuited to hold a position that advises and guides virtually every 
policy, legislative, regulatory and enforcement initiative of the Labor 
Department and its various agencies. Thus the UAN on behalf of the 
100,000 registered nurses it represents again respectfully urges you to 
oppose the nomination of Eugene Scalia to become Solicitor of Labor.
            Sincerely,
                                        Cheryl Johnson, RN,
                            Chair, United American Nurses, AFL-CIO.
                                 ______
                                 
Statement of the United Food and Commercial Workers International Union 
                                 (UFCW)
    On behalf of the 1.4 million members of the United Food and 
Commercial Workers International Union (UFCW), this testimony is being 
submitted regarding the pending nomination of Eugene Scalia to the 
position of Solicitor at the United States Department of Labor (DOL). 
The UFCW is strongly opposed to this nomination and we urge your 
opposition. After an exhaustive examination of the nominee's record, 
public writings, and publicly stated policy positions, it is clear that 
he is unalterably opposed to, and thus in conflict with, many of the 
laws and regulations he would be sworn to uphold. The DOL is charged 
with securing vital minimum workplace protections for the American 
people in the form of minimum health and safety standards under the 
Occupational Safety and Health Act, minimum wage and hour protections 
for work performed under the Fair Labor Standards Act, protections 
against systemic discrimination by federal contractors and compliance 
with equal employment opportunity under Executive Order No. 11246 and 
Section 503 of the Rehabilitation Act of 1973, and job-protected leave 
for workers for serious health conditions for themselves and their 
immediate families under the Family and Medical Leave Act. However, as 
this testimony will demonstrate, this nominee has taken positions 
against and worked to diminish minimum protections afforded by the very 
laws for which he would be responsible as Solicitor. We believe that 
there is demonstrable evidence that he should not be confirmed, and we 
hope that this testimony helps to provide that evidence.

Chief Law Enforcement Officer

    The Solicitor is the chief law enforcement officer of DOL. 
Enforcement is the linchpin of vital laws to protect American workers. 
Enforcement prevents delay and obstruction of the law, and as Dr. 
Martin Luther King, Jr. so eloquently said, ``Justice delayed is 
justice denied.''

The Nominee vs. The Department of Labor

    A cursory examination of the nominee's record, with regard to the 
workplace protection laws he would be charged with upholding if 
confirmed as Solicitor, will demonstrate several things. The nominee 
has well-known, well-developed views in several important areas. One 
such area is the mandate implemented by the Office of Federal Contract 
Compliance Programs (OFCCP) at DOL. The OFCCP enforces laws which cover 
approximately 25 percent of the civilian workforce employed by about 
200,000 federal contractor establishments. OFCCP, inter alia, prohibits 
systemic discrimination and promotes equal employment opportunity in 
hiring and other employment decisions by federal contractors under 
Executive Order 11246 and Section 503 of the Rehabilitation Act of 
1973, as amended. Under these two laws, OFCCP prohibits systemic 
discrimination based on race, color, religion, sex, or national origin 
and disability.
    The nominee has addressed the issue of liability for sexual 
harassment under Title VII of the Civil Rights Act of 1964. He 
expressly opposed employer liability for all forms of supervisory 
sexual harassment of a subordinate, including situations in which a 
supervisor expressly conditions continued employment upon submitting to 
sexual favors. Writing in a 1998 issue of the Harvard Journal of Law 
and Public Policy, Scalia stated, ``I believe the employer should not 
be liable in any of these scenarios unless it endorsed the conduct.'' 
\1\ Although he concedes that a harassing supervisor ``uses power and 
opportunity supplied by the company,'' he believes employers generally 
should not be liable for the harassment because ``it should be apparent 
. . . that a supervisor has no authority to demand sexual favors.'' \2\ 
Thus, absent proof that the employer actually endorsed the conduct, 
Scalia would impose no liability on the employer whose supervisor 
orders his assistant, with the threat that she will be fired if she 
doesn't submit, to accompany him on a business trip and gropes her in 
the office, at dinner, and in the hotel. The nominee also shows 
hostility toward the necessary protections against sex discrimination 
in the workplace when he states that where a supervisor threatens an 
employee with reprisal to get her to submit to sexual favors and the 
employee does so there is no adverse job action affecting the employee. 
\3\ For the nominee, a supervisor who requires an employee to also 
provide sexual favors in addition to the job-related criteria for 
securing particular benefits of employment is not engaging in an 
adverse job action. \4\ Although Scalia was expressing views about 
sexual discrimination under Title VII, Title VII analysis is fully 
applicable to discrimination analysis under other federal laws and 
regulations, including Executive Order 11246 which the Solicitor of 
Labor is charged with enforcing.
---------------------------------------------------------------------------
    \1\ Eugene Scalia, The Strange Career of Quid Pro Quo Sexual 
Harassment, 21 Har. J.L. & Pub. Pol'y 307, 323 (1998).
    \2\ Id.
    \3\ 21 Har.J.L. &Pub. Pol'y at 321.
    \4\ Id.
---------------------------------------------------------------------------
    Scalia has also expressed hostility to combating discrimination 
based on disability. The objective of a nominee to Solicitor to weaken 
the Americans with Disabilities Act (ADA) deserves critical focus 
because the Solicitor oversees the OFCCP which shares enforcement 
authority with EEOC for Title I (employment provisions) of the 
Americans with Disabilities Act (ADA) and enforces Section 503 of the 
Rehabilitation Act, as amended, which now is interpreted the same as 
the ADA. Thus, he urges employers to challenge the status of working as 
a major life activity under the ADA. Under the ADA, disability is 
defined, inter alia, as ``a physical or mental impairment that 
substantially limits one or more of the major life activities of such 
individual.'' \5\ The EEOC's regulations provide a nonexhaustive list 
of major life activities to include caring for oneself, performing 
manual tasks, and working. \6\ The EEOC, in its interpretive guidance, 
defines major life activity as those basic activities that the average 
person in the general population can perform with little difficulty. 
\7\ Scalia's aim to remove ``working'' from the definition of major 
life activity would eviscerate the ADA. Thus, in Scalia's view, 
contrary to the decision of the United States Court of Appeals for the 
First Circuit, an employee with bilateral carpal tunnel syndrome, 
irritated ulnar nerves, and arm/shoulder syndrome which prevented her 
from performing a variety of tasks, which covered a broad range of jobs 
over various classes, including repetitive and overhead tasks, pulling 
and pushing out from her body, and lifting over ten pounds due to the 
extreme pain such tasks caused would not have an ADA disability. \8\ 
Under the nominee's model workplace, this employee with bilateral 
carpal tunnel would not be disabled and would have no redress under 
federal anti-discrimination law.
---------------------------------------------------------------------------
    \5\ 42 U.S.C. Section 12102(2)(A).
    \6\ 29 CFR Section 1630.2(i).
    \7\ EEOC Interpretive Guidance, Major Life Activities--1630.2(i).
    \8\ Quint v. A.E. Staley Manufacturing Co., 172 F.3d 1, 6, 11-12 
(1st Cir. 1999)(court awarded reinstatement, back pay, and punitive 
damages).
---------------------------------------------------------------------------
    As stated above, the Solicitor also is obligated to enforce the 
OSHA and FLSA. But in an article written just this year, the nominee 
urged that employers whose employees are union-represented be exempted 
from enforcement of OSHA and FLSA. \9\ Peering under the thin veneer of 
intellectuality in his writings, it is clear that Scalia wants to place 
the responsibility to enforce employment regulations on unions. Scalia 
believes that unions are the principal advocates of employment 
regulation with the aim of protecting union jobs and wages by raising 
costs of non-union companies. \10\ Specifically, he urged exemption 
from OSHA's programmed inspections and from the FLSA's overtime 
requirements. Under this version of FLSA non-enforcement, employees 
covered by collectively bargained wages would be barred from 
challenging violations of FLSA's overtime provisions, thereby elevating 
a private agreement above public law. \11\ He urges a similar exemption 
from OSHA enforcement and would force unions to be the front-line 
enforcers to ensure safe workplaces and prevent employer retaliation 
against those who complain of violations of health and safety laws. 
\12\ Specifically, Scalia wants to end the ability of whistleblowers to 
obtain agency relief from employer retaliation for voicing complaints 
about workplace violations. \13\ The result will be overburdened unions 
struggling to oversee enforcement of minimum workplace protections OSHA 
is charged with securing. Further, Scalia's plan for OSHA would add 
another layer of bureaucracy and delay to securing statutory rights to 
workplace health and safety, as OSHA would have to establish a 
procedure for review of private enforcement efforts. Promoting use of 
private enforcement of vital minimum workplace protections will reduce 
overall protection of statutory rights, because unlawful conduct will 
be shielded from public evaluation and reproach.
---------------------------------------------------------------------------
    \9\ Eugene Scalia, Ending Our Anti-Union Federal Employment Policy, 
24 Harv. J.L. & Pub. Pol'y 489 (2001).
    \10\ Id. at 490-91.
    \11\ Id. at 496.
    \12\ Id. at 495.
    \13\ Id. at 494-95.
---------------------------------------------------------------------------
    Going further than seeking to eviscerate prohibitions on disability 
discrimination where the disability substantially limits the major life 
activity of working, the nominee, in a 1994 article for the National 
Legal Center for the Public Interest, questioned the very existence of 
common repetitive strain injuries of the type suffered by the plaintiff 
in Quint v. Staley Manufacturing Co. In his own words, he suggested 
that, ``as medical science, ergonomics is quackery.''

Summary

    In summary, the nominee believes that unions--not the federal 
government--should enforce the law in unionized workplaces, that 
employers should be free from legal responsibility when their 
supervisors sexually harass their employees, that ``work'' is not a 
major life activity, and that there are no ergonomic injuries. These 
views, taken together, show that the nominee has direct conflicts with 
the laws the Department enforces. It is these views that will color his 
discussion on enforcement policy, legislative initiatives by both the 
Congress and the Administration, on regulatory rulemaking at the 
Department of Labor, and every case that the Department may consider 
taking to court.
    It does not have to be this way. The Senate should reject this 
nomination and urge the Administration to nominate someone who can 
fairly and impartially enforce that nation's laws and represent the 
views of the Administration.
    Thank you for your consideration of this testimony. We would be 
happy to respond to inquiries.

    United Food & Commercial Workers International 
                              Union, AFL-CIO & CLC,
                               Washington, D.C. 20006-1598,
                                                   October 1, 2001.
Hon. Edward Kennedy,
U.S. Senate,
Washington, D.C. 20510.
    Dear Mr. Chairman: On behalf of the 1.4 million members of the 
United Food and Commercial Workers International Union (UFCW), I am 
writing to you on an issue of utmost importance. On October 3, 2001, 
the Senate Committee on Health, Education, Labor and Pensions is 
scheduled to hold a hearing on the nomination of Mr. Eugene Scalia for 
Solicitor of Labor. UFCW is strongly opposed to this nomination and 
urges your opposition.
    The Solicitor of Labor, the third highest ranking official in the 
Department of Labor, is vitally important to all of the policies within 
the Department of Labor. The Solicitor is integral to workplace 
enforcement for the development of regulatory and legislative policy, 
as well as to any litigation related to the Department's work. All of 
the important laws that protect workers and their families--such as, 
the Fair Labor Standards Act (FLSA), the Occupational Safety and Health 
Act (OSHA), the Family and Medical Leave Act (FMLA), the Employee 
Retirement Income Security Act (ERISA), and the equal employment and 
nondiscrimination statutes and executive orders--find the Solicitor as 
their chief enforcement officer.
    UFCW believes Mr. Scalia's record makes him unsuited to be 
confirmed to this position. He has made a career of working to halt or 
undermine workplace health and safety protections. For the last several 
years, he has been a leader in the fight against promulgation of a 
reasonable, workable ergonomics standard to prevent ergonomic injuries 
among America's workers. Mr. Scalia has not only represented the views 
of clients on these safety and health issues, in a paper entitled 
``Ergonomics: OSHA's Strange Campaign to Run American Business,'' he 
expressed doubts about whether repetitive strain injuries even exist. 
In his own words, Mr. Scalia suggested that, ``as medical science, 
ergonomics is quackery.'' If DOL chooses not to promulgate regulations 
regarding ergonomics, and workers have to continue to rely on the 
general duty clause for protection, it is unlikely, given Mr. Scalia's 
record on this issue, that he would uphold these citations.
    In addition, the nominee has expressed frightening views about sex 
discrimination under Title VII, which are fully applicable to DOL's 
mandate under Executive Order 11246 to prevent gender discrimination 
and promote equal opportunity by federal contractors. He has opposed 
employer liability for all forms of supervisory sexual harassment of a 
subordinate, including situations in which a supervisor expressly 
conditions continued employment upon submitting to sexual favors. 
Writing in a 1998 issue of the Harvard Journal of Law and Public 
Policy, Scalia stated, ``I believe the employer should not be liable in 
any of these scenarios unless it endorsed the conduct.'' Further, he 
expresses the view that an employee who submits to this type of sexual 
harassment has not suffered an adverse job action.
    Equally objectionable are the nominee's views on combating 
disability discrimination. Importantly, DOL's Office of Federal 
Contract Compliance Programs (OFCCP) shares with the Equal Employment 
Opportunity Commission (EEOC) enforcement authority for Title I 
(employment provisions of the Americans with Disabilities Act [ADA]), 
and solely enforces Section 503 of the Rehabilitation Act. Yet the 
nominee has also urged employers to challenge disabilities of employees 
whose impairments substantially limit them in the major life activity 
of working by claiming that ``working'' should not be deemed a major 
life activity under the ADA.
    While there is no question about the ability of a President to 
place within the government personnel of their choosing, there is also 
no doubt about the role of the Senate in confirming such nominees. It 
is our hope that the Committee will examine the totality of the record 
of this nominee. We are certain that if you do, you will find ample 
evidence of a record that does not justify confirmation.
    Thank you for your consideration of these views.
            Sincerely,
                                         Douglas H. Dority,
                                           International President.
                                 ______
                                 
                   Americans for Democratic Action,
                                    Washington, D.C. 20006,
                                                September 26, 2001.
Hon. Edward M. Kennedy,
U.S. Senate,
Washington, D.C. 20510.
    Dear Senator Kennedy: We are deeply concerned about the nomination 
of Eugene Scalia to become Solicitor at the Department of Labor. 
Placing such an unflinching opponent of worker interests, most notably 
workplace safety regulations, into the Solicitor post is akin to 
putting the fox in charge of the chicken coop.
    In this position, Scalia would be intimately involved in almost all 
policy-making and regulation-enforcement under the jurisdiction of the 
Department of Labor. Furthermore, he would directly oversee 500 federal 
attorneys charged with enforcing the nation's labor laws. As a longtime 
champion of working Americans, we urge you to oppose the nomination of 
such a vehement foe of worker rights.
    Here are some telling details on Eugene Scalia:
     He has written that ``the very existence, not to mention 
the significance of repetitive strain injuries is of course very much 
in doubt.''
     Scalia has helped lead the business community's campaign 
to prevent federal and state worker safety regulations from being 
enforced.
     He has raised questions about the scientific basis of 
workplace ergonomic injuries, stating that research supporting 
ergonomics regulation is ``to a large degree junk science par 
excellence,'' and ``as medical science, ergonomics is quackery.''
     Scalia has claimed that unions favor ergonomics 
regulations solely as a way to increase membership: ``(Regulations) 
would reduce the pace of work, thereby pleasing current members. With 
the pace of work reduced, more workers would be needed to maintain the 
level of production; consequently, union membership would increase, 
thereby pleasing union leaders.''
     He has worked in opposition to an OSHA standard requiring 
employers, not individual employees, to purchase safety equipment when 
the equipment is required by law.
    Please contact me if you need any additional material on Scalia. To 
allow such an outspoken opponent of worker rights to serve as Solicitor 
of Labor is ill-advised, to say the least.
            Sincerely,
                                                Amy Isaacs,
                                                 National Director.
                                 ______
                                 
International Union, United Automobile, Aerospace & 
        Agricultural, Implement Workers of America,
                                   Detroit, Michigan 48214,
                                                September 18, 2001.
Hon. Edward Kennedy,
U.S. Senate,
Washington, D.C. 20510.
    Dear Senator Kennedy: On September 20, the Senate Committee on 
Health, Education, Labor and Pensions is scheduled to hold a hearing on 
the nomination of Eugene Scalia to be Solicitor of Labor. The UAW 
strongly opposes the nomination of Mr. Scalia to this important 
position.
    The position to which Mr. Scalia has been nominated is one of the 
most critical for workers. The Solicitor of Labor is the third highest 
ranking official in the Department of Labor and has complete 
responsibility for enforcing the many laws--such as the Fair Labor 
Standards Act (FLSA), the Occupational Safety and Health Act (OSHA) and 
the Employee Retirement Income Security Act (ERISA)--that protect 
workers and their families.
    The UAW believes the record shows Mr. Scalia is unsuited for this 
job. In his relatively short time as an attorney, he has made a career 
of trying to halt or undermine workplace health and safety protections. 
For the last several years, he devoted himself to fighting the passage 
of an ergonomics standard nationally, as well as in California and 
Washington states.
    Significantly, the record shows that Mr. Scalia has done far more 
than simply represent clients on these safety and health issues. He has 
published his personal view that there is no scientific basis for 
ergonomics regulation or enforcement of any kind, and has repeatedly 
questioned whether workers' ergonomic injuries are ``real.'' In a paper 
entitled ``Ergonomics: OSHA's Strange Campaign to Run American 
Business,'' Mr. Scalia expressed his doubts about the very existence, 
not to mention the significance, of repetitive strain injuries and 
suggested that ``as medical science, ergonomics is quackery.''
    The UAW submits that these extreme anti-worker views should 
disqualify, Mr. Scalia for the position of Solicitor of Labor. 
Accordingly, the UAW opposes the nomination of Eugene Scalia for this 
position, and urges the Committee to refuse to confirm him as Solicitor 
of Labor. Thank you for considering our views on this important matter.
            Sincerely,
                                         Stephen P. Yokich,
                                                    President, UAW.
                                 ______
                                 
   Communications Workers of America, AFL-CIO, CLC,
                               Washington, D.C. 20001-2797,
                                                September 25, 2001.
Hon. Edward M. Kennedy,
U.S. Senate,
Washington, D.C. 20510.
    Dear Senator Kennedy: The Communications Workers of America (CWA) 
urges you to oppose the nomination of Eugene Scalia to be Solicitor of 
Labor if it comes before the Senate for debate and vote.
    The Solicitor is responsible for enforcing and implementing more 
than 180 laws enacted by Congress to protect workers. These include 
safety and health laws, the minimum wage statute, equal employment 
rights and retirement income security. With regard to the enforcement 
of these laws, the Solicitor is vested with significant discretionary 
authority to determine whether to pursue violations or file appeals. 
The Solicitor provides guidance on nearly every major policy, 
legislative, regulatory or enforcement initiative that the Department 
of Labor undertakes.
    Unfortunately, the President has nominated for this important 
position an individual whose track record renders him unsuitable. 
Instead of demonstrating a commitment to implement vigorously and 
enforce effectively employment laws, the nominee has sought to erode 
rights conferred by them.
    Most disturbing, the viewpoint espoused by Mr. Scalia on safety and 
health matters during his work as a private sector lawyer stands in 
marked contrast with the need for enforcement of these laws. Mr. Scalia 
has challenged the existence of repetitive motion injuries. In a 1994 
``white paper'' prepared for the National Legal Center for the Public 
Interest, Mr. Scalia wrote that ``the very existence, not to mention 
the significance of repetitive strain injuries is of course much in 
doubt.''
    Mr. Scalia went on to write, ``as medical science, ergonomics is 
quackery.'' He later wrote that the science undergirding economic 
regulation is ``to a large extent junk science par excellence.''
    Contrary to Mr. Scalia's writings, each year, more than 600,000 
workers lose time from their jobs due to repetitive motion injuries. 
These impairments are now the fastest growing safety and health 
problems in America's workplaces. Repetitive motion injuries account 
for more than one-third of all disabling ailments.
    If Mr. Scalia is unable to recognize the existence of the most 
prevalent injury in the American workplace, how could he vigorously 
enforce the law that would protect the safety and health of our 
nation's wage earners?
    The nominee has also defended employers who were charged with 
violating equal employment opportunity laws, the minimum wage statute 
and other legal protections enacted by Congress.
    In conclusion, the President has nominated an individual whose 
views are at variance with the responsibilities of the position he 
would occupy. He is the wrong person for the job. On behalf of the 
740,000 active members of the Communications Workers of America, I urge 
you to oppose the nomination of Eugene Scalia to serve as Solicitor of 
Labor.
            Sincerely,
                                     Barbara J. Easterling,
                                               Secretary-Treasurer.
                                 ______
                                 
International Longshore & Warehouse Union, AFL-CIO,
                           San Francisco, California 94109,
                                                September 14, 2001.
Hon. Edward M. Kennedy,
U.S. Senate,
Washington, D.C. 20510.
    Dear Senator Kennedy: As President of the International Longshore 
and Warehouse Union, I am urging you to vote against the confirmation 
of Eugene Scalia to be Solicitor of Labor should his nomination come 
before the Senate for a vote. Later this month, the Committee on 
Health, Education, Labor and Pensions will hold a hearing on the 
nomination. For more than a decade Scalia has made a career opposing 
important workplace regulations and enforcement action. After carefully 
reviewing the writings and public statements of Scalia on ergonomics 
and other OSHA initiatives, I have come to the conclusion that his 
views are simply too far right to give me any comfort that he will 
fairly enforce the nation's labor laws and give American workers the 
protections they have come to appreciate and depend on to protect their 
health and safety.
    The Solicitor of Labor is an extremely important and influential 
position within the Department of Labor and is recognized as third in 
rank behind the Secretary and the Deputy Secretary. Not only is the 
Solicitor the ``top lawyer'' within the Department, but oversees a 
nationwide staff of 500 attorneys who are responsible for enforcing the 
180 laws within the Department's jurisdiction as well as defending the 
Department in litigation against it. The Solicitor is directly involved 
in providing advice and guidance on virtually every policy, 
legislative, regulatory and enforcement initiative of the Department 
and its various agencies. Finally, unlike other agencies, the Solicitor 
of Labor has a great deal of direct litigation authority and can bring 
cases and file appeals without first obtaining the approval of the 
Department of Justice.
    Eugene Scalia should not be confirmed as Solicitor of Labor because 
of his anti-worker track record of opposition to key worker protection 
initiatives including regulation of workplace ergonomics. As a labor 
and employment 1awyer at the law firm of Gibson, Dunn & Crutcher, 
Scalia advised employers and defended them when they were charged with 
violating workplace safety, equal employment opportunity, minimum wage 
and overtime, labor relations and other important laws. He was also one 
of the principal leaders of the business community's campaign to 
prevent federal OSHA from issuing strong regulations to protect workers 
from ergonomics injuries. In addition, Scalia led the fight to keep the 
states of California, North Carolina, Washington and Washington, DC 
from issuing regulations to protect their workers from ergonomics 
injuries. In his personal writings, he has questioned the existence of 
repetitive strain injuries and has even dismissed ergonomics as 
``medical quackery.''
    Eugene Scalia has opposed other key worker protections. Both 
individually and on behalf of his client United Parcel Service, Scalia 
criticized OSHA's proposed amendments to its rules governing the 
recording of workplace injuries and illnesses--recordkeeping rules that 
were developed through a 15 year process including input from the 
business community. He also filed comments opposing an OSHA rule that 
would require employers, rather than individual employees, to pay for 
safety equipment when an OSHA standard requires such equipment. In 
addition, Scalia has filed other comments critical of regulatory 
initiatives, including Contractor Responsibility, OSHA recordkeeping 
and Hours of Service Regulation.
    Working men and women depend on the Department of Labor to 
implement and enforce the nation's worker protection laws. They need a 
Solicitor of Labor who believes in these laws and who will vigorously 
enforce them. Eugene Scalia is simply the wrong person for this job. 
The International Longshore and Warehouse Union urges you to vote 
against his nomination should it come to the floor of the Senate.
            Sincerely,
                                             James Spinosa,
                                                         President.
                                 ______
                                 
             The National Treasury Employees Union,
                                 Washington, DC 20004-2037,
                                                September 17, 2001.
Hon. Edward Kennedy,
U.S. Senate,
Washington, DC 20510.
    Dear Chairman Kennedy: The National Treasury Employees Union (NTEU) 
is America's largest federal sector, independent labor union, 
representing 150,000 federal workers in 25 agencies. From Customs 
Service officers to employees of the Energy Department to IRS agents, 
our members go to work every day to serve their country. NTEU has never 
shirked from seeking to protect their health and safety on the job.
    I am sure you have heard from many in the private sector on the 
important workplace safety issue of ergonomics. It should be remembered 
that our federal workplaces are subject to the same OSHA standards as 
the private sector. That is why NTEU has long sought a fair and 
meaningful ergonomic standard to protect our members and all workers.
    Because of the critical nature of this issue as well as other 
concerns, NTEU has determined we cannot support the nomination of 
Eugene Scalia as Solicitor of Labor. I ask that you join us in 
opposition to this nomination.
    Mr. Scalia has a public and well documented history of opposition 
to essential workplace safety protections. He has been a national 
leader against the ergonomic standard issued by the Department of Labor 
and later (wrongly) suspended. In the meantime, over 600,000 private 
and public sector workers have suffered on the job ergonomic injuries 
since this action. His hostility has not been limited to the particular 
standard put forward by the previous Administration, but to ergonomic 
regulation in general, labeling ergonomic protections ``junk science'' 
and ``quackery.''
    I hope NTEU can count on your support on this important matter. If 
you or your staff have any questions, please feel free to call Kurt 
Vorndran of the NTEU Legislation Department at 202.783.4444 ext. 2617. 
Thank you.
            Sincerely,
                                         Colleen M. Kelley,
                                                National President.
                                 ______
                                 
 American Federation of State, County and Municipal Employees, AFSCME--
                                AFL-CIO
    The 1.3 million members of the American Federation of State, County 
and Municipal Employees (AFSCME) strongly oppose the nomination of 
Eugene Scalia to be Solicitor of the United States Department of Labor 
(DOL). In our view, Mr. Scalia's extreme anti-worker record clearly 
disqualifies him for the position within the Department of Labor that 
is charged with enforcing important labor laws.
    Eugene Scalia's record shows that he is a staunch opponent of 
initiatives to protect the health and safety of America's workers. The 
radical nature of his opposition proves that he is not the appropriate 
candidate for this important post. He played an instrumental role in 
preventing federal and state agencies from implementing strong 
protections designed to safeguard workers from the nation's preeminent 
workplace safety and health threat--ergonomics injuries. Despite 
massive evidence from the scientific community that ergonomic hazards 
are real and result in hundreds of thousands of workplace injuries each 
year, Mr. Scalia referred to ergonomics regulations as ``quackery'' and 
``junk science.'' These reviews appear throughout his personal writings 
and legal filings.
    However, Mr. Scalia's anti-worker reputation is not limited to 
defeating ergonomics regulations. As an employment and labor attorney 
in Washington, D.C., he has compiled a long record of advising and 
defending clients who have been accused of violating laws on minimum 
wage, overtime, equal employment opportunity and labor relations. He 
has opposed efforts to improve rules and regulations including simple 
recordkeeping requirements for employers. This long and consistent 
record makes it clear that Mr. Scalia is not the appropriate person to 
serve as Solicitor of Labor. How can he be expected to enforce laws 
that he does not support and that he has worked tirelessly to change?
    As a labor union, we are particularly offended by Mr. Scalia's 
accusation that unions are pushing for ergonomics protections because 
we see this as a creative tool to use in our organizing efforts. His 
views are offensive to the very people who the DOL seeks to serve, not 
to mention the thousands of workers who are injured on the job each 
year.
    The Office of the Solicitor serves a critical function at the DOL. 
The Solicitor's office is responsible for enforcing the various laws 
that fall under DOL's jurisdiction. The Solicitor also is responsible 
for litigating on behalf of the agency. We do not believe that Mr. 
Scalia can honorably perform this function with any amount of 
credibility since he has devoted his career to opposing these laws.
    For an entire decade Eugene Scalia has worked to eliminate and 
weaken important worker protection laws. Regardless of an individual's 
personal beliefs or political ideology, worker protection laws must be 
recognized as the law of the land. They must be at the very least, 
enforced. Eugene Scalia has demonstrated a lack of sensitivity to the 
workers in this country. He has demonstrated a willingness to sacrifice 
the well being of America's workers for the benefit of special 
interests. For the forgoing reasons AFSCME urges that his nomination be 
rejected.

    [Whereupon, at 12:55 p.m., the committee was adjourned.]

                                    

      
