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Scalia Says Big Law is Unwilling to Defend Conservative Views (1)

Nov. 15, 2019, 8:56 PMUpdated: Nov. 15, 2019, 10:36 PM

Major law firms are shying away from defending conservative viewpoints in court, a trend that “should trouble the legal profession,” Labor Secretary Eugene Scalia told a group of right-leaning lawyers at a Federalist Society event Nov. 15.

“It is appropriate, admirable, and necessary for lawyers to take on clients and advance positions that may offend some observers,” Scalia said. But some of the country’s biggest law firms appear to be disinclined to protect free speech and “free trade in ideas,” he argued, calling that evidence of a “broad trend” of conservative political views being under attack.

Scalia, a former partner at Gibson Dunn in Washington who is the son of the late Supreme Court Justice Antonin Scalia, pointed to two recent U.S. Supreme Court cases as evidence of this trend.

The justices Nov. 12 heard arguments in a lawsuit against President Donald Trump’s decision to cancel the Obama-era program Deferred Action for Childhood Arrivals, which shields almost 700,000 young, undocumented immigrants from deportation.

Dozens of major law firms—including Mayer Brown; Manatt, Phelps & Phillips; Steptoe & Johnson; Orrick, Herrington & Sutcliffe; and Mintz—filed amicus briefs on behalf of clients opposing Trump’s decision. Not a single major law firm filed a brief in support, Scalia said.

A similar disparity occurred in a trio of high court cases that could decide whether federal anti-discrimination law protects gay and transgender employees.

Several major law firms—including Quinn Emanuel Urquhart & Sullivan; Jenner & Block; and Perkins Coie—filed amicus briefs on behalf of clients supporting what Scalia called a “broad reading” of Title VII of the 1964 Civil Rights Act that would treat LGBT bias as a form of sex discrimination. Not a single major law firm filed a brief backing the position taken by the Justice Department and three companies sued for discrimination—that Congress has to update the law if it wants to ban sexual orientation and gender identity bias.

“My concern is not the particular position any individual firm took in any specific case but the complete absence of any large firm on the other side in either of those cases, and a similar imbalance in other cases involving hot-button issues,” Scalia said.

Lawyers have a professional responsibility to represent all sides and should be staunch defenders of free speech, he said, but major law firms are increasingly hesitant to get involved in cases that may draw criticism from those on the political left. Firms fear repercussions from “certain well-heeled corporate clients,” he said, making a point to note that he was not criticizing his old law firm, Gibson Dunn.

The legal community’s political contributions have increasingly leaned left. In 2018, nearly 80 percent of a record $160 million in estimated lawyer and law-firm-connected donations to political campaigns and parties went to Democrats, a Bloomberg Law analysis showed. Major law firms, such as Morgan, Lewis & Bockius, Kirkland & Ellis, Greenberg Traurig, and BakerHostetler, have taken on immigration and LGBTQ discrimination cases pro bono.

Scalia spoke at the Federalist Society’s National Lawyers Convention. The event marked his first public speech directed at the business and legal community since he was sworn in as labor secretary on Sept. 30.

Expect More Targeted Inspections by DOL

Scalia also spoke of upcoming regulatory and enforcement priorities for the DOL, highlighting plans to continue aggressive enforcement and to provide compliance assistance for employers.

The DOL remains committed to pursuing deregulatory efforts in line with Trump’s priorities, Scalia said early on in his speech to the convention audience, which included several of the department’s leading officials. He said he will continue DOL’s efforts to follow Trump’s directive that federal agencies take two regulations off the books for every one that is added.

“We have taken a number of important deregulatory steps, and have more in the works,” he said, without offering specific examples. The DOL is in the midst of finalizing several rulemakings, including a proposed rule that would update the “fluctuating workweek” method of compensating workers for overtime under the Fair Labor Standards Act and a rule that would broaden states’ authority to mandate drug testing before workers can receive unemployment compensation.

The department’s Wage and Hour Division will proceed with its strong enforcement measures, which resulted in record collections of back wages for workers in fiscal year 2019, Scalia said. The DOL collected $322 million in back wages for workers, eclipsing its record for the second straight fiscal year. The agency’s Office of Federal Contract Compliance Programs, which enforces non-discrimination requirements for federal contractors, also set a record for recoveries in 2019, topping $40 million.

Enforcement actions will now include more emphasis on targeted inspections and investigations, he said.

“We should be selecting companies and unions for inspection and investigation based on the likelihood there will be a prosecutable violation of the laws we administer,” Scalia said. “Our inspections and investigations should be targeted to that end, and if they are not effectively identifying violations of law, resources should be redeployed to places where significant violations may be more likely.”

To contact the reporter on this story: Jaclyn Diaz in Washington at jdiaz@bloomberglaw.com

To contact the editors responsible for this story: Chris Opfer at copfer@bloomberglaw.com; John Lauinger at jlauinger@bloomberglaw.com