Scalia Departure: When a Majority Isn't a Majority

In the wake of the Republicans take-over of the Senate, some Washington observers were surprised by the Jan. 17 departure of Eugene Scalia as acting solicitor of labor.

Although he had strong support from Republicans, Scalia was a controversial choice for the third-highest position in the Department of Labor. The solicitor oversees the enforcement of labor laws and Scalia was a pariah to organized labor, as he helped lead the battle against OSHA's failed attempt at ergonomics rulemaking, and had written articles disparaging the science supporting ergonomics.

Many Democrats questioned whether Scalia would be serious about enforcing repetitive motion hazards and other worker protections, and the record seems to support their suspicions.

OSHA announced that strong enforcement of these repetitive motion hazards would be an essential part of its new ergonomics program, when the agency launched the "four-pronged" effort nine months ago. Since then, OSHA has not launched a single ergonomics enforcement action.

But given Scalia's strong Republican ties, why would he leave just as Republicans regained control of the Senate?

Even though Democrats controlled the Senate last year, Scalia's nomination won committee approval. But Scalia never was able to get a floor vote, because his business and Republican allies could not muster the 60 votes needed under Senate rules when a nomination is opposed by a member.

Republicans now control the Senate, but only by a 51 to 49 margin, so they still lack the 60 votes needed to assure Scalia of a floor vote. The departing labor solicitor left a lucrative private practice to serve the government, and the income he sacrificed may also have been a factor in his decision, according to some sources.

"Gene Scalia has made an invaluable contribution to this Department and its efforts to help American workers," Secretary Elaine L. Chao said. "He has served his country well, and we will miss him greatly."

Howard M. Radzely, who had been the acting solicitor of labor before Scalia came on board, is now the acting solicitor once more. The Labor Department has no information on who will be nominated to fill the post on a permanent basis.

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