Devil in the Details


Who could be against traffic safety? Well, according to the sublimely
named American Highway Users Alliance (AHUA), environmentalists
and urban planners, of all people.

At issue is the 1991 Inter-modal Surface Transportation Efficiency
Act (ISTEA, known affectionately as "ice tea"), which
is up for renewal this year. ISTEA signaled a major change in
federal transportation policy. The law shifted billions of dollars
traditionally earmarked for funding roads, bridges, and transit
to new programs designed to promote alternative modes of transportation
and to help cities and suburbs comply with more stringent clean
air requirements. But according to the highway lobby, the environmentalists
and urban planners who supported this measure have put millions
of American drivers at risk by denying highway builders the funds
to repair potholes, fix bridges, and otherwise keep highways in
safe driving condition.

In an interview with Congressional Quarterly, AHUA President
William D. Fay contended that by diverting funds from infrastructure
upkeep, the legislation has endangered American drivers, and lead
to "lives lost and decay of our roads and bridges."
The highway lobby wants to strip out the mass-transit options
and other environmentally friendly provisions in an effort, it
claims, to save America's "crumbling infrastructure."

But a closer look suggests that the real problem here is not that
the law denies funds for highway upkeep. It's that the highway
lobby finds it more profitable to build new roads than to repair
existing ones. Of the funds earmarked for roads and bridges by
the 1991 law, 44 percent have gone to new road construction or
road expansion, rather than repair. In the grand tradition of
high school drivers-ed movies like Blood On the Highway,
the AHUA is resorting to scare tactics. If the highway lobby really
wants safer infrastructure—and not just to pave more of America—it
would focus its energies on ensuring wise use of the ample funds
already set aside for roads and bridges.


Lawyers are not quite as detested as welfare mothers, but the
right's latest villain is the American Bar Association (ABA).
The charge is that the venerable association is soft on liberal

The right's brief, which has included a federal lawsuit and Senate
Judiciary Committee hearings, contends that the ABA's liberal
bias interferes with its supposedly objective role in evaluating
candidates for judgeships. These accusations of bias have prompted
Utah Republican Orrin Hatch, chairman of the Senate Judiciary
Committee, to seriously consider ending the ABA's semi-official
role in advising the Senate.

The ABA, through its 15-member Standing Committee on the Federal
Judiciary, has been offering evaluations of the professional qualifications
of proposed federal judges since 1953, when Dwight Eisenhower
asked for the association's assistance in reviewing judicial appointments.
In all cases, the ABA conducts an extensive investigation into
the individual's "judicial temperament, integrity, and professional
competence." Typically, these reviews consist of confidential
interviews with a minimum of 50 to 100 lawyers who possess firsthand
knowledge of the individual in question. When the reviews are
complete, the ABA passes judgment in the form of a rating—"Well
Qualified," "Qualified," or "Not Qualified."

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According to Republican Congressman Christopher Cox, writing in
the Weekly Standard, the ABA in the 1980s officially amended
its rules several times, introducing ideology and politics into
its evaluations. But it turns out the changes Cox cites come not
from ABA rules, but from a handbook intended for the general public
explaining the ABA's evaluative criteria. ABA officials say they
decided to change the booklet's wording simply because the public
seemed to misunderstand its historic role, which had always included
the consideration of philosophical beliefs that might affect "judicial
temperament, integrity, and professional competence."

Cox also trumpets a study by the American Enterprise Institute's
Daniel E. Troy that compares the ABA ratings given to judges with
similar qualifications and finds that the standing committee routinely
gives higher ratings to liberal nominees. But it's virtually impossible
to control for similar qualifications among nominees, and to do
so Troy has relied on equating nebulous paper credentials. Do
11 years of public-interest law and one year of government service
equal 12 years of private practice and several subcabinet posts?
It's hard to say. That's why the ABA's evaluation explicitly goes
beyond paper credentials.

Cox claims that the ABA's "left-wing bias has a chilling
effect on judges' support for judicial restraint," yet the
Reagan and Bush administrations managed to find plenty of aggressively
conservative legal minds during their successful 12-year crusade
to remake the federal courts. And it wasn't as if Reagan and Bush
were making these appointments over the objections of the ABA,
which rated only one Reagan appointee "Not Qualified"
and had no objections to any of Bush's selections. In fact, since
1960, only 26 candidates rated "Not Qualified" by the
ABA have been nominated to the federal judiciary, and 23 of those
"Not Qualified" candidates were nominated by Democratic

If Cox is worried that a Democratic president, such as Bill Clinton,
will take advantage of the ABA's "left-wing bias" and
attempt to undo the Reagan-Bush judicial legacy, he shouldn't
fear. A statistical analysis of Clinton's first-term judicial
appointments by Professor Donald Songer of the University of South
Carolina and his colleagues, Robert Carp of the University of
Houston and Ronald Stidham of Appalachian State University, found
that Clinton's appointees are generally moderate, with his district
court judges rendering liberal decisions in 46 percent of their
cases and his appeals court judges handing down liberal rulings
in only 36.5 percent of theirs. Clinton has conspicuously avoided
appointing judges who might offend Republicans on the Senate Judiciary

Taking objectivity to the extreme, the ABA gave its tacit seal
of approval to the Reagan-Bush judicial makeover, deeming archconservatives
like Robert Bork, Antonin Scalia, and David Sentelle "Well
Qualified." Indeed, if anybody should have a beef with the
ABA, it's liberals.


The right shouldn't be so quick to blame liberals for "politicizing
the judicial confirmation issue," as Orrin Hatch recently
did in the New York Times. After all, wasn't it Ed Meese,
writing in the January-February issue of Policy Review,
who urged the Senate to use its confirmation authority "to
block the appointment of activist federal judges"? In the
same piece, Meese notes that the Constitution "established
Senate confirmation to ensure that unqualified nominees were not
given lifelong judgeships."

Meese thinks a judge's qualifications should be judged first and
foremost on his or her "commitment to a philosophy of judicial
restraint." Does that sound political to you?

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