Scalia, a lawyer and son of late Supreme Court Justice Antonin Scalia, is a partner at the Washington law firm Gibson Dunn, where he has represented companies such as Walmart, Ford, UPS and others in workers rights claims and matters. Democrats in the Senate’s Health, Education, Labor and Pensions Committee were quick to point out his track record.
“Instead of nominating someone who understands the challenges working people face and will fight for them, President Trump has chosen a powerful corporate lawyer who has devoted his career to protecting big corporations and CEOs from accountability and attacking workers rights protections and economic security,” Sen. Patty Murray (D-Wash.), the highest-ranking Democrat on the committee, said in an opening statement. “If there’s one consistent pattern in Mr. Scalia’s long career, it’s hostility to the very workers he would be charged with protecting and the very laws he would be charged with enforcing if he were to be confirmed.”
Scalia remains very popular among Republicans, though, and is expected to be confirmed by the Senate because the GOP holds a 53-47 majority.
If confirmed, Scalia would be the seventh former lobbyist to hold a Cabinet post in the Trump administration’s first three years, far out pacing the numbers presidents Obama and Bush had in their eight years each in office.
Sen. Tammy Baldwin (D-Wis.) said she was concerned by some of Scalia’s previous legal work, including representing UPS in a lawsuit brought by workers who had paid out of pocket for protective gear for their jobs. Baldwin also cited Scalia’s work defending the theme park SeaWorld, as it contested violations from the Occupational Safety and Health Administration, which is part of the Labor Department, over the death of trainer Dawn Brancheau. Brancheau’s death after one of the park’s orca whales thrashed her around a pool was a focal point of the 2013 documentary “Blackfish,” about the exploitation of the animals by a small number of amusement parks around the world.
In contrast to other confirmation hearings that have been marked by open rancor displayed by some nominees in the face of harsh questioning, Scalia calmly responded to the complaints. He said that he had advocated for workers previously, noting that, during a previous stint as the Department of Labor’s chief lawyer during the Bush administration, he had advocated for poultry workers who were not getting paid for their time dressing in safety gear before work.
“The most important thing to me as a practitioner has been fidelity to my obligations and to the law,” Scalia said.
He said that he believed that labor unions were “among the most effective advocates you will see for workplace safety and health” and that it was “fundamental” that workers had the ability to choose whether to opt in to a union or not.
“I’ve written that there are some workplaces where the best thing you could have for achieving the best terms and conditions of employment will be a labor union,” Scalia said. “They play an important role.”
The secretary post at the Department of Labor has been marked by controversies during the Trump presidency. Trump’s first nominee, fast-food magnate Andrew Puzder, withdrew after outcry that included revelations that he had hired an undocumented worker for domestic work, as well as past allegations about domestic abuse. Alex Acosta, who was confirmed in his place, resigned in June after a public outcry swelled over a plea deal he had given to financier Jeffrey Epstein as a U.S. attorney years before, after Epstein had been accused of sexually abusing women and girls.
Scalia’s nomination has drawn harsh opposition from unions such as the United Steelworkers and the AFL-CIO. He inherits a department already deeply engaged under the Trump administration of undoing rules and regulations meant to support and protect workers. The Department of Labor has been in the midst of reining in an Obama-era proposal to raise overtime pay requirements to people earning less than $47,000 a year, from $23,700. That proposal has been held up in a lengthy court battle after it was opposed by more than a dozen Republican states. The Trump administration has sought to lower the threshold to $35,300, above the current regulations dating to 2004.
Scalia declined to say what position he would take on the proposal.
“I can commit to review carefully the ongoing rule makings that are at the department. One of my responsibilities will be to look at them with a fair and open mind in light of the comments,” he said.
Democrats also brought up some op-eds Scalia wrote as a student at the University of Virginia in the 1980s in which he said gay parents were “in conflict with the traditional organization of society” and shouldn’t be treated “as equally acceptable or desirable as the traditional family.” The Democratic National Committee on Twitter circulated another article in which Scalia defended a printer who had refused to print a poster about homosexuality, writing that "discrimination on the basis of ‘sexual preference’ is legal.”
Sen. Chris Murphy (D-Conn.) asked Scalia whether his views had changed.
Scalia noted how much time had passed since 1985 but eventually said he wouldn’t make the same type of statements again.
“I would not write those words today, in part because I expect I now have friends and colleagues to whom they would cause pain,” he said. He later told Sen. Tim Kaine (D-Va.) that he believed it was wrong for employers to terminate someone based on sexual orientation or gender identity.