Attacks on Sunstein Frustrate Conservative Fans

Created: September 09, 2009 00:01 | Last updated: July 31, 2020 00:00

Cass Sunstein (Harvard Law Record) Cass Sunstein (Harvard Law Record)

On January 8, The Wall Street Journal broke the news that Harvard Law School Professor Cass Sunstein would be nominated to run the White House Office of Information and Regulatory Affairs. It was a surprising choice for a job, created in 1980, that monitors and manages the federal government’s regulatory apparatus. And it was welcomed as an olive branch from an incoming Democratic president to conservatives and libertarians.

“[Sunstein's] writings on regulation and the herd mentality deserve a voice in the incoming Administration,” the newspaper’s editorial board wrote, in one of vanishingly few positive assessments it has given Barack Obama’s White House. “Mr. Sunstein brings important qualifications to [the Office of Information and Regulatory Affairs], and Mr. Obama has made a savvy choice in putting him there.” The editorial’s headline emphasized just what a happy surprise the appointment had been: “A Regulator With Promise – Really.”

Image by: Matt Mahurin Image by: Matt Mahurin

Nine months later, Sunstein is still not working at the regulatory office. In May, he went through confirmation hearings before the Senate Committee on Homeland Security and Governmental Affairs. In June, Sen. Saxby Chambliss (R-Ga.) placed a hold on his nomination, citing concerns about Sunstein’s opposition to hunting. In July, Sen. John Cornyn (R-Texas) placed another hold on Sunstein, for the same reason. On August 7, before leaving for recess, Sen. Harry Reid (D-Nev.) filed for cloture on the nomination. But another senator, who has not made his or her name public, has placed a hold on Sunstein, making it unclear when the Senate might take up his nomination.

After the departure of Van Jones, the former White House special adviser for green jobs, enterprise and innovation, Washington has begun to take more seriously an argument made on July 30 by Rep. Eric Cantor (R-Va.) — that  Obama is attempting to expand the number of “czars” in order to sneak radicals into his administration. The president, wrote Cantor in The Washington Post, has appointed a “virtual army of ‘czars’ — each wholly unaccountable to Congress yet tasked with spearheading major policy efforts for the White House.” And Sunstein is often included in that list. According to Rep. Jack Kingston (R-Ga.), who has introduced legislation that would cancel the salaries of presidential appointees who haven’t been confirmed by the Senate, Sunstein is one of 34 such “czars.” Glenn Beck, the TV and radio host who has taken credit for the campaign that ousted Jones, has attacked the man he calls “Regulatory Czar Cass Sunstein” on no fewer than 12 episodes of his Fox News show.

The campaign against Sunstein has largely written itself. One of the most regularly cited legal scholars, the author, co-author, or editor of dozens of books — two of them published since he was nominated to run OIRA — Sunstein has left a trail of theoretical writings and speeches that have provided plenty of ammo for conservative opponents. StopSunstein.com, a Website launched in February by the American Conservative Union, is festooned with out-of-context quotes (“We ought to ban hunting”) and fake newspaper headlines written as if Sunstein’s opinions had become law — “Guns Banned!” and “FCC Pulls Plug on Limbaugh!” Much of the damaging material comes from “Nudge,” a thoughtful 2007 book Sunstein wrote with the University of Chicago’s Richard Thaler, which investigates the possibilities for “libertarian paternalism,” not government control, to encourage good behavior. This, for example, is where the conservative CNSNews.com drew its damaging allegation headlined “Obama Regulation Czar Advocated Removing People’s Organs Without Explicit Consent.”

All of this has proven confusing and frustrating to Sunstein’s conservative and libertarian admirers — some of whom were outspoken opponents of Jones, and opponents of the “czars” who, unlike Sunstein, do not need to be confirmed by the Senate.

In January, the libertarian blogger and law professor Glenn Reynolds wrote a hearty endorsement of Sunstein, telling readers that the nomination “shows that the Obama Administration is perhaps willing to look at new and less intrusive approaches to regulation.” Today, he sees the lengthy campaign against Sunstein as an unflattering example of “how the messed-up appointments process works.”

“I think he should be confirmed,” Reynolds told TWI. “Do I think Sunstein will push a hunting ban? No. Do I think he’s sympathetic to hunting, particularly? No. But what Obama appointee is likely to be? As the Van Jones affair indicates, there are a lot of people worthy of more concern than Sunstein. If I were advising Republicans, I’d tell them to focus their attentions elsewhere.”

That advice was echoed by Ed Morrissey, a conservative blogger at HotAir.com, which published dozens of posts about Jones until he finally withdrew. “I’d prefer to see someone more conservative or moderate in [Sunstein's] position,” said Morrissey, “if it should exist at all. I’m not going to endorse Sunstein, but don’t think that he presents a good target for Republicans to attack. I think that there is a big problem with lumping the ‘czars’ in with those like Sunstein who need Senate approval and have Congressional oversight.”

Ilya Somin, a libertarian law professor at George Mason University, has written at the popular Volokh Conspiracy lawblog that “the czar system does circumvent the regular appointment and confirmation process.” Like Morrissey and Reynolds, he was critical of Beck and other Sunstein critics.

“Sunstein has nothing to do with the ‘czars’ or the problems with the ‘czars,’” said Somin. “The ironic thing is that anybody else who might be appointed to this job would be less qualified, and more liberal. I disagree with what Sunstein writes in ‘Nudge.’ But what he advocates is not as bad as the views likely to be held by other people who could run [the Office of Information and Regulatory Affairs].”

Even if the “czar” issue fades, the attacks on Sunstein’s more controversial views may stick. By far the most damaging critique has been the one that prompted the senatorial holds: Sunstein’s view of animal rights, including the view that humans may sue on the behalf of animals. “If confirmed,” Sunstein told Cornyn in a July 31 letter that effectively ended the hold, “I certainly would not use my position at [the Office of Information and Regulatory Affairs] to promote animal standing in civil litigation.” But David Martosko, a spokesman for the conservative Center for Consumer Freedom, has hammered Sunstein for his views, and done so on two episodes of Beck’s show.

“You can say anything you want during a confirmation hearing,” Martosko told TWI. “Once you’re in place, administrator of [the Office of Information and Regulatory Affairs] is really an ideal job for an animal rights zealot to have. You could decide that the government was no longer able to buy eggs from hens that are kept in cages. All of a sudden, there’s a 90-day warning on the new policy against buying eggs from cooped-up hens.”

On TV and in his interview with TWI, Martosko said that Sunstein was a “disciple” of Peter Singer, the Princeton University ethicist who has taken controversial stands on, among other things, the morality of killing disabled infants “if that was in the best interests of the baby and of the family as a whole.” In an email to TWI, Singer said that he had only worked with Sunstein once, and that Martosko was wildly off base.

“Cass Sunstein has developed his own views on this issue,” said Singer. “You might as well say that Glenn Beck is a disciple of Lyndon LaRouche because they agree on opposing the public health care option.”

But Martosko argued that Singer’s influence on Sunstein was “obvious” from the nominee’s own writing, and from private conversations. “You can never elevate animals,” said Martosko. “All you can do is lower humans to the level of animals. If you’re intellectually honest — and Sunstein is a Harvard Law professor, so I’m sure he has thought through this — you can draw the conclusion from there to organ donation without consent, or to rationing of end-of-life care. There’s nothing special about you. You’re just another animal.”

In the face of that criticism, hardened by the “czars” controversy, Sunstein’s supporters remain frustrated by their lack of progress. Richard Epstein, a libertarian-leaning law professor at the University of Chicago who edited a book about the 2000 election with Sunstein, told TWI that he supported Sunstein’s nomination “notwithstanding the many substantive disagreements between us.”

“The Beck stuff,” said Epstein, “is well over the top.”

*You can follow TWI on Twitter and Facebook. *