On September 5, U.S. Trade Representative Robert
Zoellick announced that the
United States
had nominated two candidates, Merit Janow and Robert Lighthizer, to serve
on the World Trade Organization’s Appellate Body. Comprised of seven
distinguished diplomats and jurists with academic backgrounds, the
Appellate Body is the rough equivalent in international trade law of the
Supreme Court. After being interviewed by a WTO selection committee,
either Janow or Lighthizer will replace the esteemed James Bacchus in
Geneva
, whose term expires at the end of this year.
Janow, a highly respected law professor at
Columbia
, is probably the obvious front-runner. Her many admirers include economic
authorities like Jagdish Bhagwati. The late, great legal scholar Robert
Hudec was another Janow admirer. It is easy to imagine Janow fitting in
comfortably in the collegial atmosphere of the Appellate Body in
Geneva
.
Imagining lawyer Lighthizer in such a setting is not so easy. While
I would never criticize any lawyer for his clients’ vulnerabilities, Bob
Lighthizer is known basically as hard-charging hired gun for the
U.S.
steel lobby. He’s dedicated to two causes — protectionism for his
clients, and the Republican Party.
For more than two
decades, Lighthizer’s main political benefactor has been Robert Dole,
for whom he served as chief of staff on the Senate Finance Committee,
followed by a stint as Deputy U.S. Trade Representative in the Reagan
administration. A Republican fundraiser, Lighthizer was treasurer of
Dole’s unsuccessful 1996 presidential campaign against Bill Clinton. But
he is best known as the head of the international trade department of
Skadden, Arps, Slate, Meager & Flom, where he has lobbied
vigorously on behalf of domestic steel clients who have used the
antidumping laws to try to fend off their allegedly “unfair” foreign
competitors.
This is the same Stand Up for Steel crowd that has regularly howled
with outrage and cried foul when it has lost cases before the U.S.
International Trade Commission, or before WTO dispute panels. And
Lighthizer has certainly not been shy about voicing his opinion that the
WTO’s dispute settlement process has been biased against his
U.S.
steel clients.
Speaking at a seminar on Capitol Hill in January, 2001, Lighthizer
called the key deal that sealed the Uruguay Round — requiring for the
first time that WTO member countries honor dispute-panel findings as
binding — “a mistake.” He charged that WTO panels are often
comprised of jurists who are “not qualified.” The Skadden, Arps lawyer
even said that he also suspects that some WTO panelists “may be crooked,
although I have no evidence of that.” But even if the panels were
“fair arbiters,” they still would be “a threat to sovereignty,”
Lighthizer added. “Our laws are being threatened in a very serious
way” (for additional details, see The U.S. Steel Lobby Targets the World
Trade Organization,” The Rushford Report, February 2001,
www.RushfordReport.com).
Earlier in his career as a congressional aide and
U.S.
trade official, Lighthizer was associated with
Washington
’s band of Japan-bashers. More recently,
China
has been his target. In April 1999, Lighthizer wrote an Op-Ed column for
the Seattle Post-Intelligencer that praised President Bill Clinton for
having “pulled the plug on the deal to bring China into the World Trade
Organization” in a White House meeting with visiting Chinese Premier Zhu
Rongji. Sending the Chinese premier packing was a “welcome” move,”
Lighthizer asserted. “Using economic pressure to counteract Chinese
military or diplomatic aggression is exactly what we need.”
Last year, Lighthizer raised objections on political grounds to the
fast-track trade promotion authority that President George W. Bush was
seeking to negotiate the WTO’s Doha Round of trade liberalization talks.
This time, the steel lawyer took up the cause of the domestic textile
lobby. Lighthizer argued that asking Republicans from textile districts in
states like the
Carolinas
for votes on fast track could cause their defeat. Thus, fast track could
weaken the chances for Republicans to control the House of
Representatives, Lighthizer reasoned.
While researching this article, I asked Lighthizer if he would
respond to the suggestion that he just doesn’t seem to have the kind of
judicial and diplomatic temperament that is usually associated with
members of the WTO’s Appellate Body.
“I think your point is a fair one,” he responded, acknowledging
that he has been a critic of the WTO’s dispute settlement system. But
Lighthizer emphasized that he really cares about the multilateral dispute
settlement system, and is interested in going to
Geneva
to try to improve it. “Your choices, in my view, are to do one of two
things,” he added. “Do you criticize the system and hope to kill it,
or do you think it is worthwhile to go to
Geneva
and apply a strict constructionist’s perspective, and add a certain
credibility?”
