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Deciphering what went wrong with Eugene Scalia’s nomination is like making sense of the Balkans, where every modern struggle has its roots in some ancient battle. Last May, Scalia packed up and moved from his office at Gibson, Dunn & Crutcher to serve as a consultant at the Labor Department while awaiting confirmation as the department’s solicitor. And there he sat. He waited five months for a confirmation hearing, then squeaked through by one vote. His nomination stalled after Democrats refused to allow a vote on the Senate floor. On Jan. 11, the White House broke the impasse, at least for now: President George W. Bush bypassed the Senate and gave Scalia the job on an interim basis. But the fight is not over. “Remember when Clinton recess appointed [Justice Department civil rights chief] Bill Lann Lee and how [Republicans] screamed bloody murder?” says Jonathan Hiatt, AFL-CIO general counsel. “I don’t think this is going to go away.” Scalia’s nomination has taken on significance way beyond that of any one man or any one post. It has come to represent the divide between business and labor, the intractable differences between Republicans and Democrats, and the power disputes between the executive branch and Congress. In the eyes of many Scalia loyalists, opponents are after revenge, primarily for the Republicans’ swift defeat last year of hard-fought, union-backed ergonomics regulations. Scalia, as a lawyer in private practice, often sharply criticized ergonomics and the science underlying it. “I would suspect that this is entirely a payback to those who orchestrated the Congressional Review Act repeal of the Clinton administration’s ill-considered and ill-advised proposed ergonomics rule,” says Willis Goldsmith, chair of Jones, Day, Reavis & Pogue’s labor and employment practice in Washington, D.C. To those opposing the nomination, Scalia is the embodiment of conservative extremism that emphasizes profit to the detriment of people. “I think this is a broader question than just Scalia,” says Chris Townsend, political director for United Electrical, Radio, and Machine Workers of America. “This is what we had during the Reagan years, the first Bush administration, and now this administration. How far are we going to let them go in undoing regulations and in anti-labor abuses?” Both sides have engaged in extended brinkmanship — with no one willing to back down. And other Labor nominations, primarily those to the National Labor Relations Board, are being tied to Scalia. The NLRB has only two members on a five-seat board and can no longer act because it lacks a quorum. Bush nominated two members to the board last fall — a Democrat and a Republican. Just before the December congressional break, the White House and Capitol Hill Republicans threatened that those positions would be held up until the Scalia nomination was resolved. Now, because there has been no deal on Scalia, close observers say the White House is considering recess appointing several conservatives to the labor relations board. “The White House and the congressional Republicans won’t deal on NLRB until we deal with Scalia,” says one Democratic Senate staffer. A DECADE OF BATTLE For more than 10 years, the Labor Department had been hammering out ergonomics regulations for companies to prevent injuries. The issue is considered critical by labor, and business has fought equally hard against ergonomics. Clinton’s Labor Department released the regulations in the administration’s waning days. In March 2001, after Bush won the White House, congressional Republicans used an obscure Gingrich-era law allowing Congress to wipe out agency regulations to kill the ergonomics initiative. Shortly after that stunning reversal, Bush nominated Scalia for the Labor post. It was too much for Democrats and their union allies to stomach. “Who do they appoint? Out of all the possible conservative candidates? Out of all the possible conservative management-orientated candidates? Someone whose whole record is focused on ergonomics,” says Hiatt of the AFL-CIO. And Eugene Scalia has a lengthy trail of op-ed articles, white papers, and policy briefs criticizing the science behind the Clinton-era ergonomics regulations, and the thinking of the Labor Department. The question is whether Scalia is a lawyer who has zealously represented clients who have opposed ergonomics rules and legitimately questioned their legality and necessity, or whether he is a zealot who will push against the department creating a new ergonomics standard, and will be reluctant to enforce other department regulations. Scalia supporters paint a picture of the former. Unions and Democrats say it’s the latter. “I thought he was terrific in terms of ability, character and temperament,” says Cass Sunstein, who taught Scalia at the University of Chicago. “He is extremely fair and nonideological. This is not someone who is interested in weakening unions across the board or weakening statutes.” The dynamics at Scalia’s confirmation hearing last October weren’t altogether unusual: Democrats questioned and criticized the nominee, while Scalia and the Republicans defended and parried. “Things turned flat-out nasty right around Thanksgiving,” says a GOP Senate staffer. LIKE FATHER, LIKE SON? Management-side attorneys express dismay that Scalia is being attacked for his private practice positions. And many now accuse the Democrats and unions of running a campaign against him because of his father, conservative U.S. Supreme Court Justice Antonin Scalia. Some even believe that Eugene Scalia is being held up by Democrats still angry over the contested presidential election and the bloc of GOP-appointed Supreme Court justices — including Antonin Scalia — that handed Bush a victory. Unions deny the charge of an election payback, saying the sole issue is that Eugene Scalia is beyond the pale on one of the most important issues to them. “He has taken consistently hostile positions on ergonomics, and it’s a slap in the face to working Americans,” says Greg Denier, a spokesman for the United Food and Commercial Workers Union. “You simply have to look at the record, and Scalia is so extreme that we have no choice but to be vocal in our opposition.” The White House has never wavered in its support of Scalia. “It has been a priority of White House operations,” says William Kilberg, a partner at Gibson Dunn who is a former solicitor of labor and a mentor to Scalia. “When you saw Ari Fleischer mention him in his briefing, when you have seen this issue on all of the talk shows and in the editorials, that is because the administration has made an effort to bring it front and center. There is no reason why they should back off. The behavior of the Democrats is really outrageous.” The Democrats and the unions have been just as steadfast. Senate Majority Leader Tom Daschle of South Dakota insists that Scalia must have 60 votes to come to a floor vote, to avoid a filibuster. Yet other controversial Bush nominees — including those named to arguably more powerful posts — have passed with fewer votes: Attorney General John Ashcroft received only 58, and Justice Department Solicitor General Theodore Olson garnered only 51. But those were in the days when the Republicans controlled the Senate. Now the Democrats are in charge. The current fight has the potential to involve far more than just Scalia. The Republican right, exemplified by the National Right to Work Committee, has been watching the Scalia situation to ensure that Bush does not bargain too much on labor spots. “Our biggest concern is that the White House might be persuaded not to take a hard line on the NLRB to get Scalia,” says Stefan Gleason, vice president of National Right to Work. “The Bush administration should immediately recess two to three people to the NLRB, and if they do so they regain the leverage to put together a package later.” A nonfunctioning NLRB affects unions the most because unions tend to bring more disputes — involving such things as unionization drives and contested elections. But business won’t be completely unscathed, because some of its disputes will have to stay unresolved. Few on the business side, however, are likely to complain. “No one is going to be critical of the administration if they choose to play hardball with the NLRB,” says Kilberg. The White House may find it just as easy to fill the board with far-right-wing nominees who might be unconfirmable, but who would work in the interim. Even now, with the recess appointment of Scalia, the matter is not over. Scalia will be able to serve until the end of the current Congress, but congressional Republicans say they will continue to fight for a floor vote, allowing him the right to serve until the end of the Bush administration. If the GOP succeeds in regaining control of the Senate, a vote on Scalia may be one of the first items on its agenda.

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