By Ben Penn, Bloomberg BNA
The well-established revolving door from big law to a GOP Labor Department may need extra grease under President Donald Trump.
Labor Secretary Alexander Acosta’s ongoing search to fill political vacancies appears to be impeded by a shrinking pool of private attorneys willing to incur a lifelong Trump association — not to mention the steep pay cut, grueling confirmation process, and a post-work lobbying ban. That could make it difficult for the department to get to work on undoing large parts of the Obama administration’s labor agenda.
“In a more traditional Republican or Democrat administration, there is virtually always a long line of people out the door eager to take just about any presidentially appointed position that the administration has to offer,” Paul DeCamp, administrator of the DOL’s Wage and Hour Division under President George W. Bush, told Bloomberg BNA.
“I think that it may be concerning to people that they don’t know where this administration is going to go, in particular with issues affecting the Department of Labor,” said DeCamp, now a principal at Jackson Lewis, the powerhouse management-side law firm.
Attorneys’ post-election concerns are said to have eased in February when the White House tapped Acosta, a veteran Republican government attorney with ties to megafirm Kirkland & Ellis. But continuing questions about how the DOL will operate under Trump has some lawyers still unsure about signing on.
Republican labor secretaries frequently turn to private law firms for a solicitor, the agency’s chief legal officer, and other senior attorney posts. By contrast, Democratic administrations have mostly poached attorneys from labor unions, academia and nonprofits when rounding out a DOL political staff.
Acosta has been hands on in trying to recruit high-level private-sector attorneys with litigation and clerkship experience, as well as a knack for administrative law. The DOL will be looking in the coming months to follow through on the White House agenda of rolling back Obama regulations.
Any significant policy changes will be a challenge for the secretary to impose until new personnel arrives, former agency officials say. More than four weeks into an already slow start, the Trump DOL has yet to name a single Senate-confirmed nominee or other subagency head below Acosta.
Appointment Worth Sacrifices?
White House vetting is said to be playing a role in the delays. The uncertain and increasingly toxic political climate in Washington is believed to be further prolonging the process, as some attorneys question whether government service is worth it. Acosta’s already been rejected by at least one prominent big firm partner for the job of solicitor, according to a source familiar with the process.
“People who accept these critically important positions often make many sacrifices professionally and personally. And given the political environment, they may also turn black and blue due to all the punches they take in the process,” Michael Lotito, a shareholder at Littler Mendelson, told Bloomberg BNA. “No one knows how many qualified individuals never even advance their names.”
Littler Mendelson, a renowned management side labor and employment practice, has helped bring down the Obama DOL’s persuader rule and convinced a court to press pause on the overtime regulation. The persuader rule would have required employers to divulge information about attorneys hired to stop union drives. The overtime rule was expected to make some 4 million workers newly eligible for time-and-a-half pay.
Alumni of past Republican Labor Departments are now scattered across the nation’s big three employment practices — Littler Mendelson, Jackson Lewis and Ogletree Deakins — and other high-powered firms. Whether many of those partners, their associates, and peers at other firms across the country will enlist for Acosta and Trump is an open question.
Government service often comes with a sizable pay cut, especially for lawyers in senior partner positions. That makes firm associates, who may be eager for a resume boost, a possibly more fertile hiring ground for Acosta.
Some worker advocates grumble that this produces a cycle of inexperience and incompetence at important DOL agencies when Republicans control the executive branch. The public interest attorneys that typically become DOL officials in Democratic administrations are commonly far along in their careers when they take the job.
Some lawyers from large legal shops will inevitably migrate over to work for Acosta. At least one (Paul Ray from global firm Sidley Austin) already has come aboard as the secretary’s counselor, a job that doesn’t require Senate approval.
“My understanding is that Alex is interviewing everybody from the ground floor up who is being put into a potential political position, and I think that’s great,” Gregory Jacob, a George W. Bush administration solicitor of labor, told Bloomberg BNA. “There are a lot of pressing demands on his time but he clearly understands that personnel is policy.”
Jacob, now a partner at international firm O’Melveny & Myers, said he’s recently been advising some lawyers that going to work for Acosta would be “an incredibly rewarding experience.”
Kirkland & Ellis, where Acosta was an associate in the 1990s, is a commonsense home of potential DOL hires.
The labor secretary’s former Kirkland & Ellis supervisor John Irving, who was a Nixon administration DOL attorney is still on staff at Kirkland. “There are good reasons why I think it would be better for me to stay clear of this,” Irving emailed Bloomberg BNA, when asked to comment on the challenges of convincing experienced lawyers to work at DOL.
Acosta is expected to also select appointments from the public sector. A widely presumed front-runner for deputy labor secretary, Patrick Pizzella, would bring decades of applicable government service experience (including at DOL), if nominated. Nicholas Geale, the current acting solicitor who wants to be nominated for the spot permanently, sources told Bloomberg BNA, is also a seasoned GOP government official.
Still, as the secretary navigates a deregulatory process that awaits surefire legal challenges from the left, his top attorney deputies won’t necessarily be his first picks for the job.
GOP Pay Cut
GOP administrations have placed more emphasis on getting employers to comply with federal labor laws rather than using punitive enforcement tools. That’s one reason why they turn to business attorneys for political appointments.
The two solicitors under Obama were Deborah Greenfield, a longtime associate general counsel at the AFL-CIO, and Patricia Smith, who transitioned to DOL from her gig as New York’s labor commissioner. Greenfield is now an attorney at the International Labour Organization, while Smith is a senior counsel at the worker advocacy group National Employment Law Project.
Republican solicitors, on average, are less advanced in their careers when they take the job than their Democratic counterparts, according to a Bloomberg BNA review of solicitors dating back to the Nixon administration. With a few exceptions, they are usually under 10 years out of law school and have leveraged the job to go on to careers representing businesses as private attorneys.
“Very well-established partners at big firms would be taking an 80-90 percent pay cut to take the solicitor’s job,” Seth Harris, deputy labor secretary in the Obama administration, told Bloomberg BNA. “Unless they’ve made as much money as they want to make, they’re not going to do that.”
William Kilberg, who was only four years out of law school when President Richard Nixon appointed him DOL solicitor, told Bloomberg BNA that the salary difference shouldn’t prevent Acosta from finding an exemplary attorney to run the agency’s legal division.
“It’s probably one of the best legal jobs in all of government because you have a large legal shop — over 500 lawyers — and you have your own litigation authority,” said Kilberg, who recently retired as a partner at Gibson Dunn. “I don’t think they’ll have any trouble attracting high-caliber people.”
Kilberg said private practice is a great place to select candidates, but that Acosta may also look for government or nonprofit attorneys.
To Kerry O’Brien, senior counsel to the solicitor at Obama’s DOL, Acosta’s interviewing of management-side attorneys suggests a major priority shift.
“It’s definitely a different approach to lawyers in your administration,” O’Brien told Bloomberg BNA. “I think it speaks volumes as to what the agenda is — the agenda is not for working people; it’s for business.”
Salary Not Only Factor
As Acosta trudges forward with interviews and a back-and-forth with the White House on hiring decisions, some Washington labor attorneys caution that salary is just one of many factors would-be DOL lawyers are mulling.
“For a lot of people money is a super important factor in taking a job, but it’s not the only factor,” Michael Eastman, an employer-side counsel at NT Lakis, told Bloomberg BNA.
Take Christopher Wilkinson, who ascended to associate solicitor during 16 years as a DOL career attorney. If a big law attorney can afford the move to Washington at a reduced salary and for longer hours, then the decision becomes how to find the right job that gives you the “greatest amount of exposure in the greatest amount of areas,” Wilkinson told Bloomberg BNA. His tenure at DOL was sandwiched between stops as a Seyfarth Shaw associate and now, a partner at Orrick, Herrington & Sutcliffe.
For the Senate-confirmed nominees, the prospect of being grilled at a confirmation hearing may be particularly worrisome.
The 60-38 confirmation vote for Acosta, who was an “eminently qualified” nominee, sends a chilling signal to future DOL nominees, DeCamp, the Bush administration official, said.
“Do you want to go through that nonsense of a hostile opposition party in the Senate determined to throw as much mud at the candidates as it possibly can?” DeCamp said. “It has become a personally unpleasant, nasty process that I think increasingly is causing some potential candidates to reconsider whether they need this. Is it worth it?”