- The Washington Times - Sunday, October 18, 2009


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.

Mr. Michaels is a fierce critic of one of the most important and reasonable legal developments in years, known as the Daubert rule, which allows judges to screen “expert” witnesses to make sure juries are not presented with pay-for-hire testimony that amounts to junk science. On Oct. 2, the U.S. Chamber of Commerce sent a letter to the committee asking for the mere courtesy of a hearing on Mr. Michaels’ nomination before bringing the Marylander up for a vote. That would be nothing more than standard operating procedure. When Republicans controlled the Senate and Republican George W. Bush was in the White House, the president’s OSHA nominee, Ed Foulke, was subject to a hearing before a vote. There’s no reason Mr. Michaels should be scrutinized any less.

It isn’t just Big Business that wants a hearing on Mr. Michaels before the committee rubber-stamps his nomination. A separate group of 22 farm, retail and trade associations, as diverse as the Food Marketing Institute and the National Association of Home Builders, sent a similar letter requesting a hearing.

“Daubert has resulted in keeping drugs on the market that help people, and preventing judgments based on junk science that would have put companies out of business and people out of work,” the trade associations wrote. “Michaels’ [apparent] view is that agencies such as OSHA should proceed with regulations … [even when] relying upon science and data that may not have been subjected to rigorous examination.” They also questioned his ties, financial and otherwise, to big-money plaintiffs’ lawyers.

To ram such an important and controversial nominee into office without benefit of a hearing is to deny the public’s essential right to know. The procedural shortcut would be a travesty of representative government and a stain on the institution of the Senate.

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