Earlier this year, President Bush nominated Susan E. Dudley of the Mercatus Center to replace John Graham, PhD, as the head the Office of Information and Regulatory Affairs (OIRA). The office oversees all of the Administration’s regulatory policies, including public health and environmental rules, and is often the last major hurdle faced by agencies like OSHA or EPA before a new regulation can be proposed. As Senator Susan Collins (R-ME) noted at Ms. Dudley’s November 13 confirmation hearing, OIRA lacks name recognition among the public, but its work has tremendous “impact on the lives of all Americans.”

“Regulations affect virtually every part of our lives. They make us safer and healthier. ….I am particularly interested in the influence that OIRA has on the development of environmental regulations…[which are] vital to the protection of our lakes and rivers and the air we breathe.”

Despite Ms. Dudley’s insistence that she “cares deeply about the environment,” she didn’t impress the members of the Senate Committee on Homeland Security and Governmental Affairs. The Bureau of National Affairs (BNA) is reporting that chairman Collins says a vote on the nomination is “pointless” because

“it appears there is no Democratic support on the committee for Susan Dudley.” Moreover, BNA reported “Collins declined to say whether Republicans on the committee also objected to the nomination.”

When I learned about Ms. Dudley’s nomination, I examined some of her work, including one of her most recent articles “Defining What to Regulate: Silica and the Problem of Regulatory Categorization” (with Andrew P. Morriss, in Administrative Law Review, Summer 2006). I was appalled to read her perilous misunderstanding of silicosis, evidence by statements such as:

“There are serious problems in identifying the cause of lung damage from silica exposure,” and the scientific evidence ‘comes from extremely limited sources,”

and her stern warnings, as only a conservative economist can do, about regulatory interference (that means you OSHA) in the free-market system.

As I wrote in “Bush’s Disturbing Nominee”, an op-ed for the Louisville Courier-Journal (August 24, 2006), Ms. Dudley follows a script popularized by the tobacco industry: when faced with regulation to protect the public’s health, raise doubt and manufacture uncertainty about the scientific evidence. Grass-roots organizations such as Consumers Union, opposed Ms. Dudley’s nomination, with Public Citizen and OMB Watch issuing the report “The Cost is Too High: How Susan Dudley Threatens Public Protections” and Jordan Barab of Confined Space critiquing Ms. Dudley and exposing the failure of “market failure” explanations.

Had the Republicans maintained control of the Senate, I wonder whether the organized opposition against Ms. Dudley would have sunk her nomination. Maybe, maybe not. What may have tipped the balance, however, (and compelled Senator Collins to retreat from the nomination vote,) was Ms. Dudley’s dismal performance at her confirmation hearing. (You can watch the whole thing for yourself.) Not only did she have difficulty answering questions about her writings—from her scholarly work to written comments submitted to federal agencies by the Mercatus Center—but even when the Senators asked general philosophical questions, she struggled to respond.

In a throwback to a notorious 2004 exchange between President Bush and White House correspondent Helen Thomas, Senator Tom Carper (D-DE) politely asked Ms. Dudley if she might reflect on any professional mistakes she’s made. He wondered if she might look back at her career experiences and in her writing, in a learning-lessons type of mode, to guide her for the OIRA post. She responded:

I’m proud of the things I’ve written. If I’d know that I was going to be nominated for a position, I might have written less. …I’ve always tried to be thoughtful and careful, and provactive, yes, challenge the ways people think about things. …I’m sure I’ve made lots of mistakes, but in terms of the things I’ve written, I think they’re sound.

Later in the hearing, she had a chance to redeem herself when Senator Collins asked the nominee to elaborate on a 1998 article published in Regulation, in which Ms. Dudley proposed that States engage in “air pollution trading.” Senator Collins describe it like this:

“A jurisdiction that expects ozone levels to exceed the standard might offer to compensate an upwind jurisdiction in order to reduce pollution. …This seems completely backwards to me. When I read this, I just don’t understand those comments. Can you illuminate what you meant, and whether you still hold to that viewpoint?”

Ms. Dudley responded:

“This is a perfect example of [when] you can be an academic theorist [and] you can talk in theory [but] …that’s not the way our statutes are written, and if I were confirmed as OIRA administrator, I assure you that is not the kind of proposal I would suggest.”

And, she acknowledged this proposal was a mistake and wished she could take it back.

With her teenage sons sitting behind her, Senator Carper reminded Ms. Dudley that as the OIRA Administrator:

“you’ll be shooting with real bullets,” not speculating about economic theory. “You may be in a position to decide what kind of air these guys have to breathe, and what kind of fish they have to eat, and what kind of oceans they will have to swim in, and what kind of pollution will be coming out of the cars or trucks or vans they drive.”

Now that her nomination looks doomed, I hope Senator Carper saves this closing script for the next OIRA nominee.

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