With Alex Acosta history repeats itself

Bloomberg reports that Secretary of Labor Alex Acosta is “keeping a low profile in this first year in office, possibly because he has his eye on another job.” “Low profile” means keeping Barack Obama’s left-wing program in place. “Another job” means a high-level federal judgeship. “Possibly” means certainly.

Here’s how Bloomberg’s Ben Penn puts it:

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.

History is repeating himself. Acosta took a “cautious approach to policy issues” when he was Assistant Attorney General for the Civil Rights Division. As I wrote when Acosta was nominated to be Secretary of Labor:

Acosta’s priority wasn’t the advancement of the administration’s policy goals. Rather, it was to stay on the good side of left-wing civil rights groups.

Acosta sought to accomplish this primarily by meeting their demands to bring certain kinds of cases and by not bringing cases the left didn’t like. But Acosta’s appeasement of the left seems to have gone further than that. I’m told that in crunch time during the 2004 election, he was more accommodating to the Democrats than to the Republicans on voting issues with the potential to influence the outcome.

I provided important examples. You can find them here.

Based on this track record, I argued that the Acosta nomination was “very bad news for conservatives.” I also predicted that Acosta would “not act vigorously to reverse the excesses of the Obama/[Tom] Perez years.”

It’s clear from Bloomberg’s latest report that Acosta isn’t reversing excesses at the Labor Department, a bastion of the administrative state, for the same reason he was so accommodating to the left while at the Department of Justice — he’s a careerist who fears alienating Democrats.

Acosta apparently isn’t worried about alienating conservatives. That’s probably because years ago, he made strong friends within the conservative movement. He was a law school friend of Ted Cruz and a law clerk for Justice (then Judge) Alito. He was associated with two great conservative organizations — the Federalist Society and the Ethics and Public Policy Center. The Federalist Society connection is particularly valuable now that its vice president, Leonard Leo (said to be a friend of Acosta’s), is playing a major role in picking the Trump administration’s judicial nominees.

But what should matter if Acosta is considered for a judgeship is his record in public office. Whether we’re talking about his time at the NLRB (where he earned the praise of AFL-CIO president Richard Trumka and other union leaders), his feckless tenure at the DOJ, or his “cautious” approach to running the Labor Department, Acosta’s record is not appreciably conservative.

It will be a pity if Acosta is able to parlay nearly two decades of squishiness into an appellate judgeship and a path to the Supreme Court.

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