Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: MONDAY, July 18, 1994 TAG: 9408100008
SECTION: EDITORIAL PAGE: A4 EDITION: METRO
SOURCE:
DATELINE: LENGTH: Medium
Nothing damning emerged, and neither the judge nor senators said anything to cast doubt on the wisdom of this nomination. Controversy over Breyer's investments doubtless will fade.
More interesting, in any case, was discussion during the hearings about Breyer's views of regulation. His scholarly works on the subject may have little to do with the duties of a Supreme Court justice. But they bear significantly on a major failing of the federal government - as Judiciary Committee Chairman Joseph Biden Jr., with a shrilly defensive outburst, unwittingly confirmed.
Breyer's writings have suggested what common sense discerns and only entrenched officials would deny: that the feds do a rotten job of assessing risk and setting priorities when they try to protect health, safety and the environment.
Breyer has argued that government often over-regulates, burdening businesses with excessive costs. He has criticized strict Environmental Protection Agency standards, for example, that aim to eliminate "the last 10 percent" of toxic materials at a dump site.
But his complaint is not with over-regulation as such. It's with the failure to maximize public benefit from regulation. It's with spending too much for too little gain - with bureaucratic priorities that bear little relationship to the actual, relative risk of threats addressed by the government.
"The problem," said Breyer during last week's hearings, "is spending a lot of money over here to save a statistical life that may not even exist, at the same time that there are women with breast cancer who would live but who don't, because they can't afford or find a place for the mammograms."
Such observations, reasonable on their face, threw Biden into a fit. Don't you understand, he admonished Breyer, that American culture leads Congress to regulate in ways that aren't always the most cost-effective?
As an example, noted the senator, "We've concluded that as a culture we are going to, rightly or wrongly, spend the money . . . on the elderly."
Biden did not stop there. "I think it's incredibly presumptuous and elitist for political scientists to conclude that the American people . . . would change their cultural values if, in fact, they were aware of the cost-benefit analysis."
Oh? Politics cannot and should not be removed from government, of course. But Biden seems to assume that politicians have no role in trying to lead public opinion; that they should only reflect it, no matter the realities of relative risk.
He also appears to be saying that the public could become much better informed - about, say, the cost of medical care spent in the last six months of life, versus the benefit of diverting some of those dollars to primary care for children now lacking it - and Americans still would choose to allocate spending exactly as they do now.
"I am delighted that as a judge you won't be able to take your policy prescriptions into the court," the senator told the nominee.
Americans should be less than delighted that many in the legislative and executive branches apparently prefer Biden's prescriptions to Breyer's.
by CNB