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By Ben Penn
Labor Secretary Alexander Acosta is keeping a low profile in this first year in office, possibly because he has his eye on another job.
There is widespread discussion that Acosta, a former United States Attorney and law school dean, is biding his time for a spot on the federal bench.
The secretary’s cautious approach to policy issues is starting to rankle business advocates who want the department to speed up its dismantling of the Obama labor agenda. That includes rolling back an overtime rule that would have made some four million workers eligible for time-and-a-half pay, stepping up oversight of labor unions, and refocusing the Labor Department’s litigation and enforcement strategies.
Chatter of Acosta’s aspirations has followed him throughout a prominent legal career that also included a stint at the Justice Department’s civil rights office. Some have the secretary eyeing an appointment to the Eleventh Circuit Court of Appeals—which covers his native South Florida turf—as a pathway to the U.S. Supreme Court.
Business representatives now see these ambitions as possibly driving Acosta’s risk-averse approach to the DOL, even as several of his executive branch counterparts are moving to aggressively disrupt other agencies. A stalled Senate confirmation process for department leadership posts below Acosta has also contributed to the pace.
Whether the White House actually has Acosta on its radar to fill a potential Supreme Court or appellate vacancy is unclear. But Bloomberg Law interviews with those who know the secretary and a review of his public comments dating back to the 1990s demonstrate Acosta’s undeniable passion for the judicial system. What’s more, he is close friends with Leonard Leo, the Federalist Society vice president credited for orchestrating the selections of the last three Republican-appointed Supreme Court justices.
Acosta is “certainly somebody who has a lot of credentials that you would look for in appointing judges,” Ronald Cass, a past chair of two Federalist Society practice groups and former member of the American Bar Association committee that screens judicial appointments, told Bloomberg Law. “He’s got a broad academic background, a broad legal background, he’s somebody who is clearly bright and thoughtful.”
Leo declined interview requests for this article.
The labor secretary role doesn’t fit the traditional path to a spot on a federal bench, but Acosta checks off a number of boxes that would make him an attractive choice for Leo and the conservative legal movement at large. He’s a Latino Republican who just turned 49, meaning that he could be expected to hold the gavel for decades. He’s also already held three Senate-confirmed legal posts in the George W. Bush White House, seemingly avoiding any major scandals in the process.
“If I’m advising President Trump, I think Acosta is a really smart pick for a federal judgeship—now; not after the 2018 midterm election,” when Democrats may seize control of the Senate, Amanda Hollis-Brusky, a Pomona College professor of politics, told Bloomberg Law. Hollis-Brusky, who wrote a 2015 book on the influence of the Federalist Society’s conservative legal network, noted Acosta’s demographics, résumé, ties to Leo, and history of decisions that reflect some overtures to the left.
Acosta, who has generally shied away from media appearances and declined previous interview requests, declined to speak on the record for this story. The White House did not provide a comment.
A source close to Acosta told Bloomberg Law that the secretary has always welcomed the chance to take on tough government jobs and then let his future take care of itself. The source would not address whether the secretary is eyeing a possible judgeship.
Since he started on the job in April, numerous business and labor community sources and former DOL officials from the past two administrations have all—often unsolicited and with varying degrees of confidence—told Bloomberg Law they suspect that the secretary covets a judgeship. Many of these people believe Acosta is committed to his current job and acknowledge that he’s been hamstrung by not having a deputy secretary and other top assistants on board.
“I’ve got no personal knowledge, but it is certainly widely and commonly speculated that he would like to be on the bench some day,” Judy Conti, federal advocacy coordinator at the National Employment Law Project, told Bloomberg Law.
Several employer and worker representatives said they see the secretary’s reluctance to rapidly unwind an active Obama labor agenda as partially driven by a desire to avoid a controversy that could sink a future appointment. Others pointed to the secretary’s legalistic mind, independent of aspirations, as sparking his careful decisionmaking at the DOL.
The wheels on the expected Trump labor policy overhaul started to slow when the president’s first pick for labor secretary, fast food executive Andrew Puzder, withdrew his name from consideration under wavering support from Senate Republicans. Puzder, a harsh critic of the Obama administration, was poised to swiftly transition the department to a more corporate-friendly regime.
“In a lot of ways, Secretary Acosta is the anti-Puzder,” Paul DeCamp, a DOL official in the George W. Bush administration, told Bloomberg Law. “Whereas Puzder would’ve been essentially a bull in a China shop, Secretary Acosta has shown himself to be extremely careful, thoughtful, and cautious.”
“There’s nothing disingenuous about that, but he is clearly conducting himself like somebody who may find himself in the future before a Senate confirmation proceeding, whether that’s for a judgeship or some other type of proceeding,” added DeCamp, who now represents management at Epstein Becker Green in Washington.
The source close to Acosta said observers should focus on today, not tomorrow. The source, who spoke on condition of anonymity, added that the delays in confirming DOL personnel have also impeded operations.
The secretary’s approach has agitated certain employers, who’ve grown nervous about lingering Obama-era rules they hoped would be fully voided under Trump. Enforcement tactics that target businesses for wage and safety violations, which businesses claim amount to a game of “gotcha,” also remain in place from the prior administration.
Acosta’s ambition might be good news for those who want to preserve the Obama DOL’s workplace policies. “I think anything that causes a presidentially appointed civil servant to proceed with caution and the utmost respect for the rule of law is an excellent thing,” said Conti, who helped mobilize the left’s effort to block Puzder’s confirmation.
The secretary has repeatedly trumpeted the importance of rule of law and strict adherence to the Administrative Procedure Act, as he navigates the White House directive to reverse Obama regulations that are deemed harmful to job growth. That’s music to the ears of people who want to stack courts with conservative judges.
Acosta explained these principles in a Wall Street Journal op-ed in which he announced that portions of a regulation designed to prevent conflicted retirement advice would take effect. Although the more contentious aspects of this so-called fiduciary rule are now delayed, Acosta’s message still defied opposition from the powerful financial services lobby, which wanted the entire rule abandoned or reworked.
His chief policy talking points have involved relatively nonpartisan issues, such as expanding apprenticeship programs and removing barriers to occupational licensing. Acosta has angered worker rights’ groups more recently by taking steps to rescind a 2011 rule that declared tips are the property of employees. This drew the particular ire of the Restaurant Opportunities Centers United, a worker center whose leader drew a direct line from what she calls the “tip theft” policy to Acosta’s aspirations.
“If he’s looking for a judgeship, this is not the way to do it,” Saru Jayaraman, ROC United’s president, told Bloomberg Law of Acosta, without being prompted about the judiciary issue.
Yet even in advancing a tip pool proposal that he knew would be crushed from the left, Acosta’s strategic thinking tied to the court was on display. Had Acosta not moved to undo it, the Obama version of the rule was on track for high court review, where it very well could have been overturned. If the secretary defended the rule before the supremes, and lost on the merits, it could damage the department’s ability to receive deference from the Supreme Court going forward.
Acosta joined the Federalist Society in his first year at Harvard Law in 1991, and served as president of his student chapter. This set in motion a 27-year legal career that’s endeared him to some of the most influential right-leaning figures on or adjacent to the federal judiciary.
He befriended a law school classmate who would become Sen. Ted Cruz (R-Texas); clerked for then-appellate judge and current Supreme Court Justice Samuel Alito, and forged high-level private bar contacts as an associate at the elite management-side firm Kirkland & Ellis. That’s all before he landed at the Ethics and Public Policy Center, a think tank advocating against government intrusion into religion.
At the EPPC, Acosta was founding director of the “Project on the Judiciary,” a judicial monitoring initiative that addressed “the increasing activism of the federal judiciary” during the Bill Clinton presidency. “If anyone, it is judges who should be acutely aware of the bounds of their power as outlined by the constitution,” a 28-year-old Acosta said during the project’s 1997 launch event. “Judges again and again are enacting their own personal beliefs into law and this must be stopped.”
Acosta then held a range of politically appointed posts in all eight years of the Bush presidency, including nine months as a National Labor Relations Board member, a few years heading the Justice Department’s Civil Rights Division, and four years as the U.S. attorney for the Southern District of Florida.
“Alex was certainly viewed as being ambitious, and there was a widely held assumption that his decision to leave Washington to take the U.S. Attorney job in Miami reflected a desire to position himself for a judgeship,” William Yeomans, who was a deputy assistant attorney general at DOJ under Acosta, told Bloomberg Law via email.
“He had to put that goal on hold through the Obama years, but it would not surprise me at all if he were nominated” to the bench in the future, added Yeomans, who was also a chief counsel on the Senate Judiciary Committee to Sen. Ted Kennedy (D-Mass.).
With Obama atop the executive branch, Acosta continued to build connections in the Miami legal community, becoming dean of the Florida International University College of Law. His judicial interest appeared not to wane in his tenure as dean, when he could be spotted moderating several Federalist Society-sponsored panels on judging and the courts.
But Federalist members, perhaps protective of Acosta’s immediate responsibilities to the DOL, are now reluctant to declare whether the labor secretary is still on the path to wearing a robe.
One notable friend of the Federalist Society, Senior Judge Diarmuid O’Scannlain of the Ninth Circuit Court of Appeals, was beaming with pride in November, as his daughter Kate had just completed a smooth Senate hearing. Kate O’Scannlain arrived at the department this week as Acosta’s freshly confirmed chief legal officer. When asked if his daughter’s next boss has the makeup to join him on the bench, the judge demurred, with a smile.
“It would be inappropriate for me to answer that kind of question,” O’Scannlain, who said he’s known Acosta since the Alito clerkship days, told Bloomberg Law. “I think the world of Alex, and other than that, I have to leave it there.”
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