Sunday, May 31, 2009
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. . . .
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."