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 judges.

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 presidents.

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 Committee.

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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