Speeches & Floor Statements

Hearing Statement: Eugene Scalia Confirmation Hearing

Posted on September 19, 2019

Today we are considering the nomination of Eugene Scalia to serve as Secretary of Labor.

Yesterday I received a letter from Senator Murray asking me to delay today’s hearing.

We have already delayed the hearing one week at the request of Senator Murray, but let me review Mr. Scalia’s nomination process:

On July 18, President Trump announced he planned to nominate Mr. Scalia.

On August 27 the Committee received Mr. Scalia’s Office of Government Ethics (OGE) paperwork, including his public financial disclosure and ethics agreement. Based on these documents, the OGE determined that Mr. Scalia “is in compliance with applicable laws and regulations governing conflicts of interest.” 

On the same day, August 27, the Committee also received his HELP paperwork, which is extensive, additional background information.

So all of Mr. Scalia’s required paperwork has been available for Committee members to review for the last 23 days—more than three weeks.  

And, since August 27, Mr. Scalia has offered to meet with every member of the HELP Committee and has met with most of them.

Now, to make absolutely sure I am being exactly fair in the way I schedule these confirmation hearings, I checked closely to compare how the Committee handled President Obama’s most recent cabinet nominations to how we handle President Trump’s.

This is what I found:

Let’s take the example of Tom Perez, who was President Obama’s second Secretary of Labor.

The Committee received the last of Mr. Perez’s paperwork 10 days before his hearing.

Or take the example of John King, President Obama’s second Secretary of Education.

The Committee received the last of Mr. King’s paperwork six days before his hearing.

By comparison, Mr. Scalia had all his paperwork in 23 days before this hearing.

Now I think it is reasonable that we will vote on Mr. Scalia next Tuesday.

This has been a thorough process.

Senators have known since July 18 that the president had selected Mr. Scalia.

As of today, we have had all of Mr. Scalia’s paperwork for 23 days.

Senators will have two rounds of questions today.

If senators have additional questions, they can submit those by five p.m. tomorrow and Mr. Scalia will answer them before the vote.

I imagine that Democrats on this Committee disagree with Mr. Scalia on labor policy about as much as Republicans disagreed with Secretary Perez, who is now Chairman of the Democratic National Committee.

And I disagreed with Mr. King on many education matters.

But when President Obama’s Education Secretary stepped down in his last year in office, I went to him and said: “Mr. President, I think it is inappropriate for us not to have a confirmed Senate nominee in a principal position like U.S. Secretary of Education. If you will please nominate John King, with whom I disagree, I will make sure he is confirmed,” and we confirmed him.

I held his confirmation hearing 15 days after President Obama nominated him, and within 32 days the full Senate had confirmed John King.  

I also voted for cloture for both of these nominees, even though I did not support their nominations.

I did this because I believe it is important to have a Secretary of Education confirmed and accountable to the Senate, and because I thought it was important for the elected President of the United States to have his choice of a cabinet member promptly considered and confirmed.

So, as a matter of fairness, if having a hearing 10 days after receiving the last of Mr. Perez’s paperwork and 6 days after receiving Mr. King’s completed paperwork was good enough for President Obama, why is it not appropriate to have a hearing 23 days, or three weeks, after Mr. Scalia’s paperwork was delivered to the Committee?

It would certainly be difficult for me, as Chairman, to justify treating President Trump’s nominees worse than I treated President Obama’s nominees.

As for today’s hearing, Senator Murray and I will each have an opening statement, and then Secretary Chao will introduce Mr. Scalia. After his testimony, senators will each have five minutes of questions.

I know, as is often the case, there are other meetings and hearings going on this morning, so I have asked Mr. Scalia to stay for two rounds of questions so senators can have their questions answered.

Last week, a Washington Times headline read: “Jobs report shows strong economy, growing wages, low unemployment rate.”

Wages are growing at an annual rate of 3.2 percent.

African American unemployment fell to 5.5 percent in August – and to a record low of 4.4 percent for African American women.

And overall unemployment is at a 50 year low of 3.7 percent.

Businesses and workers need a Secretary of Labor who will steer the department with a steady hand.

I believe Mr. Scalia has the skills to help continue to grow our economy and help workers gain the skills they need to succeed in today’s workplace.

Mr. Scalia has broad experience in labor and employment law in both the public and private sectors.

He is currently a partner in the Washington, D.C., office of Gibson, Dunn & Crutcher, where he has spent the majority of his career working on labor, employment and regulatory matters.

From 2002-2003, he served as Solicitor of the U.S. Department of Labor when George W. Bush was president.

As the Department’s chief lawyer, he led initiatives to protect workers, reduce unnecessary burdens, and improve enforcement of workplace safety laws.   

As solicitor, he continued a case started by the Clinton Administration to ensure that a poultry factory was paying workers what they were owed.

The Department ultimately announced a $10 million settlement for workers.

In 1992, Mr. Scalia left the firm to serve as Special Assistant to U.S. Attorney General William Barr in the George H.W. Bush administration.   

Mr. Scalia has a distinguished academic background – he graduated with distinction from the University of Virginia in 1985 and from the University of Chicago Law School in 1990 cum laude, where he served as editor-in-chief of the Law Review. 

He has served as a guest lecturer on labor and employment law at the University of Chicago Law School and as an adjunct professor at the David A. Clarke School of Law at the University of the District of Columbia.

Mr. Scalia and his wife, Trish, have seven children.

Altogether, Mr. Scalia is well qualified to lead the Department of Labor.

It is important for the Department of Labor to create an environment to help employers and employees succeed in today’s rapidly changing workplace.

One step the Trump Administration has taken to create this kind of environment has been to help the Americans who own and run the nation’s 700,000 franchises, as well as help their employees.  

In 2015, the Obama-era National Labor Relations Board issued a decision overturning more than 30 years of precedent creating a new "joint-employer" standard.

That decision said that mere indirect or even unexercised control over employees’ working conditions could make a franchisee and franchisor joint employers – discouraging large companies from franchising at all.

Then, after the Board’s decision, the Obama Labor Department issued guidance broadening its interpretation of who is a joint employer under the Fair Labor Standards Act.  

This has led to confusion for franchise owners and their employees.

One federal court recently said that federal circuit courts have adopted a “dizzying world of multi-factor tests” for determining joint employment under the Fair Labor Standards Act.

The Trump Administration has tried to eliminate this confusion.

In June 2017, then-Secretary Acosta withdrew the Obama Labor Department’s guidance and began the rulemaking process to clear up this patchwork of standards.

In June 2019, the comment period closed for the Department’s proposed joint employer rule, which will help restore stability to franchise owners and their employees.

A second way this Administration has sought to create more certainty for employees and their employers has been to raise the salary threshold for overtime pay in a reasonable way.

In 2014, the Obama Administration more than doubled the salary threshold too rapidly, which would have reduced workers’ hours and advancement opportunities.  

There was bipartisan opposition to this in Congress.

The Department has proposed a much more reasonable rule that would increase the threshold to $35,308.

The Department’s proposal would also require input from workers and employers prior to future changes.

I have been glad to see the Trump Administration take action to help workers and businesses in a responsible way and would encourage you, Mr. Scalia, if confirmed, to continue to lead the Department with a steady hand.  

As I mentioned earlier, the Senate confirmed Mr. King about a month after President Obama said he wanted Mr. King to serve as Education Secretary.

In this case, it has been about two months since President Trump announced Mr. Scalia would be the next Labor Secretary.

This Committee considered President Obama’s cabinet nominees promptly and with respect, and I trust that the Committee will continue that with President Trump’s nominees.

It is embarrassing to ask well-qualified Americans to be nominated by the President of the United States for an important position and then say, ‘‘You are innocent until you are nominated’’ or drag things out for a long period of time. 

Mr. Scalia is supported by a number of trade organizations and the Committee has received letters of support from women he has mentored, from former DOL career attorneys whom he worked with while he was Solicitor at DOL, from a Hispanic immigrant whom he represented on a pro-bono basis, from Cass Sunstein, who worked at the White House for President Obama, and from one of Senator Ted Kennedy’s former Senior Counsels on the Judiciary Committee. 

I ask unanimous consent that those letters and 17 additional letters of support be submitted into the record.

The Committee will vote next Tuesday on his nomination, and I look forward to the full Senate confirming Mr. Scalia soon.