It looks like Chairman Tom Harkin of the Senate Health, Labor, Education, and Pensions Committee is going to push through the controversial nominee to head the Occupational Safety and Health Administration without a hearing. The public — employers and employees alike — will have to be satisfied with David Michaels’ answers to written questions.

Accountability is the loser. Almost all nominees of all political and philosophical leanings regard the written questionnaires as an exercise in avoiding specific answers. So do the Senators. You don’t want to provide anything in writing that will be controversial or indicate a radical point of view that might alarm a Senator.

Occupational Health and Safety has the report, “HELP Committee Decides to Bypass Full Hearing for Potential OSHA Chief,” including an unpersuasive explanation from Harkin’s press secretary, Bergen Kenny:

“If we had a hearing on every single nominee, nothing would ever get done,” Kenny said. “We wouldn’t be able to fill all the positions that need to be filled.”

Funny, President Bush’s OSHA nominee went through a full confirmation hearing in January 2006.

Earlier posts on Michaels’ nomination.

Diane Rehm is celebrating 30 years as host and executive producer of the Diane Rehm Show on local NPR station, WAMU.

And even though it’s a little odd to offer praise on a day a substitute is hosting her program, Ms. Rehm really does book excellent guests. Today, with Frank Sesno filling in, the program offers Secretary of Labor Hilda Solis and Margaret Atwood. Impressive.

Secretary Solis is on in the first hour, 10 a.m. If we had one question to pose to her it would be: Supporters of the Employee Free Choice Act say the legislation is necessary because the process of recognizing a union is broken and stacked against the workers. Yet unions have recently won two-thirds of workplace elections. (See this March 10 Shopfloor.post.) Doesn’t this fact undermine a core argument in favor of EFCA?

If we had a second question it would be: President Obama’s nominee to head the Occupational Safety and Health Administration, David Michaels, is very controversial for many reasons. including his views on the admissability of junk science into trials and his organization’s (SKAPP) close alignment with the interest of the trial lawyers. As an Assistant Secretary of Labor, he would work for you, and so here’s the question: Shouldn’t Michaels at least go before the Senate HELP Committee for a confirmation hearing to address these issues?

We offer them in sincere hopes of substantive policy discussions.

An editorial in Sunday’s The Washington Times, “Occupational corner-cutting”:

For an administration and Congress that promised to be the most transparent and ethical in history, it turns out that failing historical standards is an occupational hazard.

The latest subversion of procedural fairness is set for Wednesday, when the Senate Committee on Health, Education, Labor and Pensions is set to approve a host of executive-agency nominees without the public benefit of a hearing. The most troubling nominee, one for whom a hearing should be mandatory, is David Michaels of Maryland to head the Occupational Safety and Health Administration.

The editorial cites a letter sent to the Senate HELP Committee from a broad cross-section of trade associations, including the National Association of Manufacturers, asking for a hearing. The letter from the Coalition for Workplace Safety is available here.

See also these earlier posts on Michaels and the OSHA nomination.

The Senate Health, Education, Labor, and Pensions Committee has scheduled its mark up of pending nominations for next 10 a.m. next Wednesday.

Among the nominees expected to be acted on — and usually, that means approved — are Craig Becker, Mark Pearce and Brian Hayes to be members of the National Labor Relations Board, and David Michaels to be Assistant Secretary of Labor for Occupational, Safety and Health, i.e., the head of OSHA.

None of these nominees has had or is scheduled to have a Senate confirmation hearing at which they could explain their views of the job and the proper role of the government vis a vis the private sector.

Becker’s nomination has provoked consternation in the business community. Yesterday, The Wall Street Journal editorialized on him as “Acorn’s Ally at the NLRB,” noting the close ties between the union where he has been associate general counsel, the SEIU, and the radical political activist group, ACORN. More to the point, his views of the NLRB’s proper role are outside the mainstream:

President Obama nominated Mr. Becker in April to the five-member NLRB, which has the critical job of supervising union elections, investigating labor practices, and interpreting the National Labor Relations Act. In a 1993 Minnesota Law Review article, written when he was a UCLA professor, Mr. Becker argued for rewriting current union-election rules in favor of labor. And he suggested the NLRB could do this by regulatory fiat, without a vote of Congress.

Just yesterday the NAM and 27 other trade associations sent a letter to the committee’s leadership asking for a hearing on Becker.

As for the OSHA post, earlier this month a group of industry, farm (correction: ag processing) and retail trade associations also sent a letter to the committee request confirmation hearings on Michaels. The letter stated:

Michaels has advocated for more government regulation, even when the available science
and data to support such regulations is inadequate or unsettled. He has also attacked the landmark, unanimous Supreme Court decision in Daubert v. Merrell Dow Pharmaceuticals, which stands for the proposition that scientific evidence in litigation must meet certain standards to be admitted. Michaels has also been the beneficiary of product liability actions which have been shown to be without merit. Finally, nominees for the OSHA Assistant Secretary have traditionally been subject to a hearing before their confirmations moved forward. We see no reason why Professor Michaels should be an exception. Accordingly, as detailed below, we believe his views warrant a hearing and thorough examination before his nomination can proceed.

The NAM had also sent its own letter on the Michaels’ nomination. And, as noted above, President George W. Bush’s OSHA nominee went through a full confirmation hearing in January 2006 so business isn’t asking for anything unusual.

In both cases — Becker and Michael — we’re surprised that the committee did not believe nominees to these important positions should be asked to explain their beliefs and governing philosophies in a public forum. The two men will soon wield great power over the workplace world, and a confirmation hearing puts them on the record, letting the public better judge their actions once in office.

The HELP Committee is busy, we know, but not so busy that it should eschew its responsibilities of advice and consent. The White House could play a constructive role here, demonstrating its adherence to high standards of transparency and accountability if it asked the HELP Committee to take another week and conduct the confirmation hearings.

News stories of interest on matters regulatory:

• The Hill, October 9, “New Obama policy may restrict federal power and boost state, local authority.” The issue is federal preemption. President Obama has instructed his executive branch agencies to avoid preemption language in federal regulations, with the eventual result being the establishment of 50 state regulatory regimes determined by the court system. The approach gives trial lawyers more venues in which to sue manufacturers.

• Washington Post, October 13, “A Vigorous Push From Federal Regulators,” a roundup of the Administration’s aggressive regulation.

• Washington Examiner, October 12, Chris Stirewalt column, “Obama will stick with embattled OSHA nominee if he knows who pays the bills,” writing about David Michaels, the President’s nominee to head the Occupational Safety and Health Administration. See also The Hill, “Industry wants OSHA nominee hearing.”

UPDATE (12:45 p.m.): More from Brad Peck at The ChamberPost blog, “Vast Regulatory Apparatus.”

A broad cross-section of industry, farm and retail trade associations yesterday sent a letter to the leaders of the Senate Health, Education, Labor, and Pensions Committee asking for confirmation hearings on the nomination of David Michaels to head the Occupational Safety and Health Administration.

Michaels has advocated for more government regulation, even when the available science
and data to support such regulations is inadequate or unsettled. He has also attacked the landmark, unanimous Supreme Court decision in Daubert v. Merrell Dow Pharmaceuticals, which stands for the proposition that scientific evidence in litigation must meet certain standards to be admitted. Michaels has also been the beneficiary of product liability actions which have been shown to be without merit. Finally, nominees for the OSHA Assistant Secretary have traditionally been subject to a hearing before their confirmations moved forward. We see no reason why Professor Michaels should be an exception. Accordingly, as detailed below, we believe his views warrant a hearing and thorough examination before his nomination can proceed.

The National Association of Manufacturers, which joined the coalition letter, also sent its own letter to the Hill requesting the hearing.

For more on the Michaels’ nomination, see this August 18 Shopfloor.org post.

On July 28, President Obama announced his intent to nominate David Michaels to be Assistant Secretary of Labor, heading the Occupational Safety and Health Administration (OSHA). As we wrote at a Point of Law post, “Certitude is His Product,” Michaels writings evince his belief that businesses are always bad actors, and the activism of the  Project on Scientific Knowledge and Public Policy he heads aligns closely with the causes of the trial lawyer machine that originally financed the group. For example, SKAPP has campaigned against bisphenol A, or BPA, a safe ingredient in many consumer plastics that the plaintiffs’ bar has worked to demonize and litigate into oblivion — but first big cash settlements.

Walter Olson at Overlawyered.com has now reported Michaels’ views on the Second Amendment, frequently a flashpoint in Senate confirmation hearings: “David Michaels and gun control.”

The controversial OSHA nominee and left-leaning public health advocate also seems to have strong views on firearms issues. That’s by no means irrelevant to the agenda of an agency like OSHA, because once you start viewing private gun ownership as a public health menace, it begins to seem logical to use the powers of government to urge or even require employers to forbid workers from possessing guns on company premises, up to and including parking lots, ostensibly for the protection of co-workers. In addition, OSHA has authority to regulate the working conditions of various job categories associated with firearms use (security guards, hunting guides, etc.) and could in that capacity do much to bring grief to Second Amendment values.

See also…

• Hans Bader, a legal scholar at the Competitive Enterprise Institute, “Obama’s OSHA nominee is anti-gun activist and junk science peddler“
• Iain Murray, at National Review’s The Corner, “OSHA Head Doesn’t Think Anything’s Safe“
• Steven Milloy, JunkScience.com, “Obama OSHA pick supports junk science in courts, regulatory agencies” (Milloy gets credit for being the first to write on Michaels’ after the White House announcement)

Also…

The acting administrator at OSHA is Jordan Barab, formerly a senior policy advisor for the House Education and Labor Committee. Barab previously blogged at Firedoglake, a prominent and vicious leftwing blog where we find him hosting an online chat with David Michaels on June 21, 2008, “FDL Book Salon Welcomes David Michaels: Doubt Is Their Product.”

Here’s how Barab starts the discussion: “I first realized the power — and evil — of the dreaded practitioners of ‘manufactured doubt’ when I was working at OSHA in the late 1990’s on the ergonomics standard.”

By “dreaded practitioners,” Barab means corporations that challenge scientific studies used against them. So corporations are “evil,” in his view.

If Michaels is confirmed, Barab will remain at OSHA as second in command.