Jottings By An Employer's Lawyer

Friday, July 22, 2005

Senator Schumer's Questions - Limited Role of Labor and Employment Law Issues

At least they are not apparent from the face of the questions, although the answers (if they are given) could be broader and either mention or at least raise labor and employment related issues. The only questions that peripherally touched on labor and employment matters were:
Can Congress regulate labor standards for states and cities under its Commerce Clause power?
Do you agree with the 1976 decision in which the Supreme Court held that Congress could not extend the Fair Labor Standards Act to state and city employees (National League of Cities v. Usery), or do you agree with the later 1985 decision, which held that Congress could (Garcia v. San Antonio Metropolitan Transit, overruling Nat'l League of Cities). Was the Court right to overturn its precedent nine years later? Why or why not? Although a question about application of a labor statute, it is more about how he would respect precedent, a way of gauging his views on how Roe v. Wade should be treated.
What is the proper role of the federal government in enacting laws to protect the rights of the disabled? This is a topic that covers three questions, but they all address the access rather than employment aspects of disability laws.
See the complete list handed to Judge Roberts by Senator Schumer at their initial meeting.

Of course the Senator has said he will not be limited to this list, and he and his staff have at least four to five weeks till the hearings begin to draft more. Not to mention the seventeen other members of the Committee. But given the prominent role that Senator Schumer seems (self) destined to play in the confirmation process, the absence from his first list highlights that labor and employment issues will not be central to Judge Roberts' confirmation proceedings. Certainly different from the charged hearings over Justice Thomas where sexual harassment became a major focus fourteen years ago.

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