Sunday, May 31, 2009

Secunda On Confirmation Hearings And Labor And Employment Law

SECUNDA Marcia Coyle at the National Law Journal in a recent article explored some pressing legal issues that should--but probably won't--be asked on Judge Sotomayor.  These issues include Rule 10b-5 under securities law, legality of TARP, high-tech crime, and--of course--labor and employment law.  Paul Secunda (Marquette) commented on what he viewed as some of the more significant questions in the area:

A confirmation hearing, some have said, is a window on the legal debates of the day. The window does not open wide enough, according to others. Key issues affecting businesses, workers, consumers, criminal defendants and others generally are ignored because senators do not earn much political capital by raising them, according to lawyers and scholars. Those issues, however, will have a profound impact on more people than will most of the predictable menu items. And, they add, Sotomayor's views on those issues would be more predictive of her role as a Supreme Court justice. . . .

[Some lament] the near disappearance of criminal justice issues from Supreme Court confirmation hearings, and labor and employment scholar Paul Secunda of Marquette University Law School has a similar complaint about his field.

But that does not mean there are no issues, particularly amid the recession, Secunda said. "To me, the most pressing thing right now is the ability of plaintiffs to get a remedy under ERISA [the Employee Retirement and Income Security Act]," he said. "It sounds arcane, but affects everyone on the economic ladder. There are no consequential damages, no back pay. Lots of employers now are looking to save money on these legacy costs — promises to pay generous health benefits. They're freezing pension benefits left and right."

Senators should ask Sotomayor, he said, where she sees the entitlement to social welfare. "What role does the Supreme Court have in guaranteeing minimum entitlement to social welfare benefits?"

He would also like questions about a constitutional right to bargain collectively. "Does it come under the First Amendment as expressive association or even under the 14th amendment as a privacy right?" he asked. "Do employers have any right to ask who you are married to, who you are sleeping with? And what right does an employer have to know and make decisions about what employees do when they're not at work?"

In the end, he said, "All that should really matter is whether the nominee is competent and has the acumen to be a good judge. But that's not how it is."

Congratulations, Paul!


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I wrote an article as part of a symposium issue on Supreme Court confirmation hearings many years ago - A Proposal to Reform the Process for Confirming Justices of the United States Supreme Court, 7 St. John's Journal of Legal Commentary 193 (1992)- suggesting that nominees for the Supreme Court should not testify at the confirmation hearings, and that we should go back to the system that prevailed prior to the appointment of Justice Frankfurter. Asking any of these substantive questions requires the nominee to violate fundamental principles of judicial ethics by stating her position in advance on contested legal issues that are likely to come before her. The idea that we should know where candidates for the Supreme Court stand on any legal issues through any devices other than their prior published opinions, articles, and speeches strikes me as turning this into a campaign for public office rather than a hearing to determine whether a nominee has the qualifications to serve on the Supreme Court. We've taken a terrible wrong turn in the confirmation process.

Posted by: Art Leonard | Jun 1, 2009 8:57:50 AM

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