 |
|
|
| 10/23/2009 9:51:00 AM | Email this article • Print this article | Cass Sunstein: Obama's radical or conservative hope?
Anti-hunting, but skeptical of government regulation
In September, amid a storm of controversy over President Barack Obama's policy czars, the U.S. Senate voted 57 to 40 to confirm Cass R. Sunstein, a Harvard Law School and University of Chicago Law School professor, as the president's administrator of the White House Office of Information and Regulatory Affairs.
The department itself is obscure - located within the Office of Management and Budget, it reviews draft regulations to make sure they follow certain principles, such as considering various alternatives and conducting an analysis of potential benefits and costs - but Sunstein's confirmation process was anything but obscure.
Almost immediately, Sunstein ran into a media buzz saw from conservative commentators such as Glenn Beck, to cite just one example, who included him on their list of policy czars, or officials these critics say the president appoints without any oversight or accountability.
It's a sneaky way for Obama to bypass the Senate and slip extremists into his administration, some say.
In fact, that was not the case with Sunstein's position, which the Senate had to confirm. But Sunstein went on to hit dark clouds in the Senate itself when two GOP senators claimed he was an anti-gun, anti-hunting radical. Sen. Saxby Chambliss of Georgia and Sen. John Cornyn of Texas both put the nomination on hold.
For several months the debate flared, as conservatives trotted out a string of Sunstein's writings, in which they said Sunstein took positions outside the American mainstream - far outside the mainstream - including the forced harvesting of human organs after a person dies.
Conservatives gleaned that position from Sunstein's book, Nudge, co-authored with Richard H. Thaler, a professor of economics and behavioral science at the University of Chicago. In the book, Sunstein advocated a policy of "libertarian paternalism," in which government allows people to make their own choices but encourages them to take a specific direction, in other words, nudges them toward the "right" choice.
One example of libertarian paternalism might be organ donation, in which the government would automatically harvest the organs of all people who die, unless they had specifically requested that it not do so. That would reverse the current method of taking organs only from people who had previously volunteered them.
By making people opt out rather than opt in, the government would be "nudging" people toward making organ donations.
Unfortunately for Sunstein, bloggers and commentators morphed his actual position into a rash of misleading and outright false headlines and statements, such as Beck's Sept. 9 claim that Sunstein "believes that everyone must be an organ donor."
Sunstein over the top, too?
Still, while some claims about Sunstein may be out there, the intellectual heavyweight has given conservatives enough ammunition in his own words and actual positions to legitimize their opposition, and even their claims of a socialist outlook.
For instance, in his book, The Second Bill of Rights, Sunstein endorsed Franklin Roosevelt's concept that every American should be guaranteed the right to a job, to a decent home, to adequate medical care and to a good education, among other things, in an economic Bill of Rights.
While the Second Bill should not be formally added to the constitution, he stated, it could nonetheless eventually become a de facto component of the document. The Second Bill of Rights "should count among our constitutive commitments; it should be similar to the Declaration of Independence in status," he asserted, and "if the nation becomes committed to certain rights, they may migrate into the Constitution itself."
That raised the hackles of various conservatives and libertarians who thought changes to the constitution had to come through formal amendments and could not simply "migrate" in and who correctly observed that such an economic Bill of Rights was laden with socialist precepts.
If that didn't rile them enough, Sunstein has also said Americans should celebrate paying taxes.
"In what sense is the money in our pockets and bank accounts fully 'ours'?" he wrote in a 1999 Chicago Tribune Op-Ed with Stephan Holmes. "Did we earn it by our own autonomous efforts? Could we have inherited it without the assistance of probate courts? Do we save it without support from bank regulators? Could we spend it (say, on the installment plan) if there were no public officials to coordinate the efforts and pool the resources of the community in which we live?"
Without taxes there would be no liberty, Sunstein and Holmes added, and there is no liberty, either, without dependence, they declared.
Hunting, animal rights
However many eyebrows all those controversial musings raised, they served as mere prologue to the main card on the Senate floor this summer: Sunstein's writings and talks on animal rights and hunting.
As the National Rifle Association has pointed out, Sunstein has a long history of advocating a ban on hunting. For example, in a Harvard speech in 2007, he put it bluntly: "We ought to ban hunting, if there isn't a purpose other than sport and fun," he said. "That should be against the law. It's time now."
Here's what he said in The Rights of Animals: A Very Short Primer. He wrote:
"... The anti-cruelty provisions of state law contain extraordinarily large exceptions. They do not ban hunting, and generally they do not regulate hunting in a way that is designed to protect animals against suffering."
And: "If we focus on suffering, as I believe that we should, it is not necessarily impermissible to kill animals and use them for food; but it is entirely impermissible to be indifferent to their interests while they are alive. So too for other animals in farms, even or perhaps especially if they are being used for the benefit of human beings. If sheep are going to be used to create clothing, their conditions must be conducive to their welfare. We might ban hunting altogether, at least if its sole purpose is human recreation. (Should animals be hunted and killed simply because people enjoy hunting and killing them?)"
Animals should have legal standing to bring a lawsuit, too, Sunstein has also maintained in both his work, Animal Rights, and in the Primer.
"If, for example, a farm is treating horses cruelly and in violation of legal requirements, a suit could be brought, on behalf of those animals, to bring about compliance with the law," he wrote in the Primer. "In a sense, this would be a dramatic proposal, because it might well be understood to mean that animals should be allowed to sue in their own name - and whoever the nominal plaintiff, there would be no question that the suit was being brought to protect animals, not human beings. The very idea might seem absurd."
Absurd or not, Sunstein thought it both simple and conventional.
"Of course any animals would be represented by human beings, just like any other litigant who lacks ordinary (human) competence; for example, the interests of children are protected by prosecutors, and also by trustees and guardians in private litigation brought on children's behalf," he wrote. "It would make sense to build on this idea by allowing suits on behalf of animals too."
Sunstein's position on the Second Amendment has also sent conservatives' blood pressure spiraling. Simply put, he does not believe it conveys an individual right to own a gun, at least he didn't before this summer.
According to a University of Chicago summary of a 2007 appearance there, Sunstein said the Second Amendment was designed to protect state militias, though, he argued, because the nation is so polarized, the High Court should not reject an individual right.
Earlier this year, in an attempt to remove the holds on his appointment, Sunstein wrote a letter to Chambliss both verifying his support of Second Amendment individual rights and assuring Chambliss he would not promote an animal-rights agenda if appointed.
"I strongly believe that the Second Amendment creates an individual right to possess and use guns for purposes of both hunting and self-defense," he wrote. "I agree with the Supreme Court's decision in the Heller case, clearly recognizing the individual right to have guns for hunting and self-defense. ... Let me be very clear: If confirmed, I would not take any steps to promote litigation on behalf of animals. In particular, federal law does not create an individual right to bring lawsuits, on behalf of animals, against agriculture."
No kidding: Some conservatives like him
It is said politics makes for strange bedfellows, and the Sunstein affair is no exception. Since his nomination was announced, not a few major conservative and libertarian voices have defended him.
There are at least two ideological reasons. One is his belief in judicial minimalism, a moderate philosophy of judicatory restraint in which judges make narrow, case-specific rulings relying heavily on precedent and avoid sweeping decisions with far-reaching social effects.
Perhaps more important to conservatives is his skepticism toward government financial regulatory schemes and his belief in competition.
That skepticism earned Sunstein the early editorial support of the Wall Street Journal, which in January called Obama's pick "a savvy choice."
"We still don't know much about how Barack Obama plans to overhaul our financial regulatory system, but his reported appointment of Cass Sunstein to an important post is a promising sign," the January editorial proclaimed. "Mr. Sunstein, a professor at Harvard Law School, is no conservative - far from it. But his writings on regulation and the herd mentality deserve a voice in the incoming Administration. From his new post as Administrator of the Office of Information and Regulatory Affairs inside the White House, he would have an opportunity to put into practice some of the ideas he has written about as an academic."
The editorial recalled Sunstein's Op-Ed in the Journal the previous year, in which Sunstein warned of a serious danger that government regulators would overreact in the current economic crisis, and in which he stated "the fundamental line of defense should be improving market competition, not eliminating it."
Writing in Forbes.com, another supporter, Glenn Harlan Reynolds, a libertarian law professor at the University of Tennessee, cited Sunstein's questions about the legality of the government's Occupational Safety and Health Administration.
"They told me if I voted for John McCain, we'd wind up with Chicago-school White House appointees who wonder if the Occupational Safety and Health Administration is unconstitutional," Reynolds wrote in January. "And, sure enough, I voted for John McCain, and we've got a nominee for head of the Office of Information and Regulatory Affairs who has taught at the University of Chicago and who recently wrote an article entitled, 'Is OSHA Unconstitutional?"'
The author, of course, was Sunstein, and Reynolds reminded readers it was Richard Nixon who created OSHA in the first place.
"So while conservatives and libertarians may not want to relax entirely, the Sunstein appointment shows that the Obama Administration is perhaps willing to look at new and less intrusive approaches to regulation, something that should make almost everyone (except, perhaps, a few lawyers with investments in business as usual) happy," he wrote.
Sunstein's views on regulation have not gone unnoticed by liberal groups, either.
In January, the Center for Progressive Reform, a nonprofit liberal think tank devoted to protecting health, safety and the environment, expressed its own concerns about Sunstein. The report questioned Sunstein's support for cost-benefit analysis and other "methods the Bush Administration used to weaken and defeat badly needed regulations."
"Unless he turns over a new leaf, or unless President Obama keeps a careful eye on OIRA, we fear that Cass Sunstein's reliance on cost-benefit analysis will create a regulatory fiefdom in the White House that will deal with needed regulations in very much the same way that the Bush Administration did," CPR president Rena Steinzor said. "We desperately need change in this area, so we hope that if he is confirmed, Professor Sunstein moderates his past-stated views on these issues."
For 27 years, Sunstein taught at the University of Chicago Law School, and is now a Harvard Law School professor, on leave during his tenure in the Obama administration.
|
Reader Comments
Posted: Friday, October 23, 2009
Article comment by:
ANon
If Obama can appoint good people like Sunstein to offset the damage done by the Bush Administration catering to industry and lobbyists for the past 8 yrs., and encourage business -- for whatever reason -- to change its abusive ways, then more power to him -- maybe there's hope for us all yet!
Posted: Friday, October 23, 2009
Article comment by:
Kerry Thomas
For more on Cass Sunstein you can also read my September 10 column about him at http://kerrythomas.com/Archives/Sunstein.htm
I also include a link to 12 more pages of his quotes.
|
Comment on this story
|
|
|
|
