WOLFF ON LIGHTHIZER - ONCE MORE FOR EMPHASIS

"This past election differed from all others in memory by putting trade front and center as a high national priority. ... This is not a time to have an empty front row on America's professional trade negotiating bench." 

Alan Wm. Wolff
February 10, 2017

"We still don't have our Cabinet. I assume we're setting records for that. That's the only thing good about it is we're setting records. I love setting records. (Applause.) But I hate having a Cabinet meeting and I see all these empty seats. I said, Democrats, please, approve our Cabinet ... ."

It is the vacancy at USTR that concerns us here, and it was that vacancy that was the subject of the letter that Alan Wolff sent to the Chairman and Ranking Member of the Senate Finance Committee on February 10. His purpose could not have been stated more clearly. He began his letter to Chairman Hatch and Senator Wyden: 

"I am writing to urge the prompt positive consideration of Robert E Lighthizer to be U.S. Trade Representative."

"There has never been a time when the nation was more in need of seasoned, fully qualified trade negotiators. This past election differed from all others in memory by putting trade front and center as a high national priority. In the first days after the Administration took office, America's signature was removed by President Trump from the Trans Pacific Partnership (TPP) and the intent to renegotiate the North American Free Trade Agreement (NAFTA) was announced. This was followed by a series of pronouncements regarding potential negotiations with other major trading partners. This is not a time to have an empty front row on America's professional trade negotiating bench."

Alan Wolff, now Senior Counsel at Denton's LLP, is himself a former Deputy U.S. Trade Representative, the Chairman of the National Foreign Trade Council, and one of most distinguished, indeed most famous, trade lawyers. His letter stated clearly that he was "writing in my personal capacity." It is a personal capacity that commands a great deal of respect. Proof of that can be found in the numerous publications that have already written about his February 10 letter. Our excuse for adding to the list is simply the fact that the Lighthizer nomination is still stalled, and so it is still appropriate to underscore the need for action on it. 

So, what is holding it up? Our understanding is that two issues have come together to form a fairly stubborn barrier to action. One of these is the perceived legal impediment of this language in the Lobbying Disclosure Act of 1995: 

The other, we gather from reports, is a bit of horse trading, with some Senators insisting on a bailout for certain pension funds as the price for clearing the way for action on Mr. Lighthizer's nomination. 

 
There is no reference to the pension issue in the Wolff letter. So, let's put that aside for the moment. As for the "Limitation on Appointments," Mr. Wolff makes two points which, to our layman's eyes, have an importance far beyond the question of Mr. Lighthizer's nomination. One is that the statute does not (or should not) apply in this case. He writes: 

"An antidumping proceeding, which is what Lighthizer was trying to settle, is an administrative investigation in which none of the parties are adverse to the United States. There is no dispute with the United States in this kind of proceeding."

To take any other position, it seems to us, would logically call into question the neutrality and fairness of U.S. trade remedies. That said, we accept that there may be other issues here, and, in general, we have no quarrel with a conservative approach to statutory injunctions. Philosophically, however, this one is a bit problematic. We shall get to that in a moment. 

First, though, it is important to note that no one-no one to our knowledge anyway-is suggesting that the Lobbying Act is an absolute bar to Mr. Lighthizer's appointment. The issue is simply whether or not he will need another law, a waiver, in order to overcome that obstacle. 

 
The Senate is operating on the assumption that Mr. Lighthizer will need a waiver. That is our understanding, and that is where the second, horse-trading issue comes into play. 

 
Lighthizer and the Pension Fund. A February 17 article in The Daily Signal explains the link between the Lighthizer nomination on the one hand and a Democratic push to have the federal government bail out the pension plan of the United Mine Workers of America on the other. Rachel Greszler, the author of the piece, makes this argument:

"While it would be a shame for Senate Democrats to prevent Lighthizer from receiving a fair confirmation process based on his merits, the stakes are too high for Republicans to cave."

***

We are not here taking sides on the pension issue. We quote Ms. Geszler merely to underscore just how difficult this nomination could prove. And that is ironic, given both the high priority of trade and the impressive breadth of support Mr. Lighthizer seems to enjoy.

"Congress ought to exercise some degree of caution in expanding the scope of what would be a lifetime bar to senior government service in the trade field for anyone having appeared in an administrative proceeding on behalf of a foreign client. That would disqualify all too many talented, experienced trade professionals."

The philosophical point is not explicitly in the Wolff letter, and yet we think of it as part of that letter's larger argument. Let's start with the famous John Adams phrase, "a government of laws not of men." (We're old fashioned; for us: "the masculine includes the feminine and the singular includes the plural.") It is a good line, but we would amend it. The best governments are governments of laws and of men. In giving the Senate power to pass on the fitness of senior Administration officials [Article II, Section 2], the Constitution was putting its faith in the capacity of sitting Senators to make sound, human judgments about the qualities of those appointed to high office. In short, the Advice and Consent that is called for should be the product of the judgment of sitting senators, not the product of a legal algorithm.