Why I'm not a fan of Cass Sunstein

By Kathy G.

As I've often said, although I strongly support Barack Obama and believe it is vital that he be elected president in the fall, his politics seem to me to be far more centrist than they are liberal, and I don't believe he's a reliable ally for progressives. One the reasons is I believe this to be true is the people he surrounds himself with. Take, for example, Cass Sunstein, whom Matt Stoller has described as "an important influence" on Obama (also, Sunstein is married to Samantha Power, who has been one of Obama's foreign policy advisers). Sunstein, a prolific legal scholar who teaches at Harvard, probably has as good a shot as anyone as being named to the Supreme Court, should Obama become president.

I took Sunstein's labor and employment law class when he was here at the University of Chicago, and I'll say for this him: he is an cogent and engaging lecturer and an excellent teacher who, unlike so many other superstar professors, remains accessible to students (when I was taking his class and emailed him questions, he never failed to respond within minutes).

That said, though, I haven't been impressed with what I've read of Sunstein's writings, and while he's often characterized as a liberal, many of the ideas and policies he supports don't seem very liberal to me. For example, although he doesn't believe Roe v. Wade should be overturned, he has argued that the case was "wrongly decided," and he's made the dubious argument that the Roe decision ended up being counterproductive because it caused a political backlash. He's written in quite a Heather-ish way about the threat that the internet allegedly poses to democracy -- see this issue of the Boston Review for his argument, and for the responses of a number of scholars who do a fairly thorough job of debunking it.

Then there's Sunstein's most recent book which concerns behavioral economics and which, as Stoller points out, accepts many dubious conservative frames and notions about markets. This is especially troubling news to keep in mind if Sunstein gets on the Supreme Court, given how far right the Court has lurched on economic issues over the last couple of decades, especially recently. Sunstein has also shown extremely poor judgment by supporting  John Roberts' nomination to the Court and by saying flattering (but misleading) things about the judicial philosophy of Samuel Alito.  And let's not forget Sunstein's warm regard for the work of John Yoo, either.

Above all, though, what has really chapped my hide are Sunstein's recent comments defending the FISA bill, opposing impeachment, and pretty much just shrugging his shoulders at the contempt for democracy and the rule of the law that the Bush administration has repeatedly shown. Glenn Greenwald at Salon and Paul Rosenberg at Open Left pretty much say it all about this subject, but I just wanted to add my disgust at the fact that Bush et al. are being defended not by one of their many right-wing stooges but by a man who is allegedly a liberal and who is most definitely one of the most respected constitutional scholars in the country. To see a distinguished expert on the constitution bend over backwards to avoid saying anything worse than mildly critical about the Bush regime's desecration of the constitution is an incredibly depressing spectacle to witness.

The thing I find most disturbing about Sunstein is how he always seems to go out of his way to make nice to the right. It may have something to do with the fact that he taught for so long at the University of Chicago Law School, which has one of the most conservative faculties in the country (Antonin Scalia used to teach there, and its current dean recently admitted that he's never once voted for a Democrat). But I believe it goes far beyond that. I think Sunstein is an extremely ambitious man who basically would run over his own grandmother for a seat on the Supreme Court (well, he'd think seriously about doing so, anyway). Seeing how powerful the right wing has been in this country (at least until recently), especially regarding the courts, Sunstein must know that if he wants to be a Supreme Court justice, it would help if he were cosy with the right and accepted many of their basic ideas (such as judicial "minimalism," which he has advocated), albeit with a more centrist spin. It obviously would also help his popularity with the right if he were to refrain from bruising conservatives' tender feelings by pointing out such inconvenient truths as the fact that the current administration is a pack of dangerous, despotic war criminals.

When I had him as a professor for my labor and employment law class, Sunstein steered clear of politics and his ideology wasn't easy to discern. I did know he had a reputation for being a liberal, though -- which is why I was startled at remarks he made during one campus event. I can't remember what it was about, exactly, but I do remember that the Federalist Society -- the ultra-conservative legal group dedicated to jampacking the courts and the federal bureaucracy with their own and fighting off liberal nominees and liberal ideas by any means necessary -- was hosting the event, and Sunstein, I believe, was introducing the speaker. In his introduction, shamelessly sucked up to Federalist Society. It wasn't just the usual polite "thank you for organizing this event" kind of thing -- Sunstein went on and on about wonderful the Federalist Society was, and how much they'd improved the tone of the debate and nurtured the discussion of "ideas." He also defended them from what he'd said were unfair attacks by liberals, and I think he may have even said something to the effect that they really weren't all that conservative.

I was shocked and appalled. Here was a man I greatly respected as a teacher, who was saying things that were breathtakingly shallow and naive -- either that, or they were baldfaced lies. I must say, it left a really icky taste in my mouth. At that moment, to me, he forever became the legal world's equivalent of Alan Colmes -- the conservatives' favorite liberal, because he accepts their terms of the debate and has no compunction about kissing their asses with the utmost enthusiasm, the honor of liberalism, or his own self-respect, even, be damned. Either he has no clue how dangerous and destructive these right-wing extremists are, or he doesn't care. And I'm not sure which is worse.

Comments

[Brian Schmidt]

1. I read the link and didn't see anything about the dean never voting for a Democrat. Maybe you meant another link?

2. I went to Stanford Law School in the late 90s, and the on-campus Federalist Society there limited its public events to hosting debates on legal topics that were always scrupulously fair (I speak as a non-righty). If the Chicago group did the same, and if Sunstein only meant to refer to the campus group, his remarks would have been appropriate (although Sunstein maybe should've been clearer about the distinction between student and non-student groups).

You should also look into the run-in between student members of the Federalist Society and the right wing hack John Lott, and you'll see that at least for some on-campus student aspects of the Federalist Society, they've received an unfairly bad rap.

[robertdfeinman]

There are more than two dimension in public policy and Sunstein is on one of the extra ones.

I would broadly characterize him as an elitist, libertarian. By this I mean he thinks the elite should run things (like Plato's philosopher-king). His recent book is about "nudging" people to do the right thing, but who does the nudging and how they know what right is remains a bit undefined. Obviously he offers suggestions on what the correct choice is making him the implicit philosopher-king.

In addition he favors the libertarian utopian ideas of personal responsibility and assumes that bad luck or bad choices are moral failures. If you get duped by a mortgage broker then you weren't paying proper attention. If you get sick from some external cause then you didn't evaluate the risks properly.

Utopians are really the most dangerous, because they have no sense of compassion. Scalia also falls into this class, but I think the basis of his belief is his strict Catholic upbringing.

[Kathy G.]

Brian, the quote where the dean says he's never voted for a Democrat is on the second page of the article I linked to. It's in the last two sentences of the piece.

[Mitchell Freedman]

Kathy G.,

Thank you for expressing my precise concerns about Cass Sunstein. Sunstein is a Sixties liberal who wouldn't know a labor union if he fell on one. He too often buys into many assumptions that animated Ronald Reagan speeches during the 1970s, let alone when Reagan was president.

Just as importantly, Sunstein fails to appreciate the brilliant jurisprudence of Justice Blackmun's decision in Roe v. Wade. I could explain that here, but it would take too long. My blog has a long ago written post on Roe that at least partly explains why Sunstein's doubts about the jurisprudence of Roe is deeply misplaced:

http://mitchellfreedman.blogspot.com/2005/09/excellent-article-on-roe-v-wade-in-la.html

[Brian Schmidt]

Thanks Kathy - thought I read the link carefully, but not carefully enough.

Crooked Timber covers the John Lott v. Federalist Society here:

http://crookedtimber.org/2005/07/23/ideology-and-integrity/

I didn't remember that it was the University of Chicago Federalist Society.

[Low Key]

John Lott is a stone fraud. To object to him isn't a mark of honor. It's common sense. Dog bites man. And Brian Schmidt runs aground when he holds up the Federalist staging of formal debates as the health of their intellectual culture. Intellectual inquiry includes and requires debate; but debate is not as such a form of intellectual inquiry. It is a discipline of performance, and often a nihilistic performance where to dazzle brings greater rewards to enlighten.

And to stage debates can be a quite cunning political strategy to move the center to the right (or left, were the left successful at doing this). Stage a battle between a relatively mainstream liberal position, and a formerly less-than-mainstream conservative position, and--voila--you've legitimized the formerly less-than-legitimate. You hornswoggle apparently fairminded folks like Brian Schmidt into accepting a symmetry which did not exist before.

[Low Key]

I mean "to dazzle brings greater rewards THAN to enlighten."

[david]

This is great, and deserves wide circulation. Sunstein appears able to say whatever he wants and still be tagged a thoughtful liberal -- he's veering towards academic Liebermanism.

[Sir Charles]

Kathy,

I missed Sunstein's recent appearance here in DC, but one of my friends went and characterized him as "squishy soft," a man looking endlessly for ideals to compromise. Sunstein is also enamored of using the term "third way" -- everytime I hear those words I reach for the safety of my metaphorical revolver.

[drip]

It doesn't sound like you need any more evidence but here is Sunstien failing to debate Glen Greenwald on Obama's odious FISA vote on Democracy Now!

http://www.democracynow.org/2008/7/22/obama_adviser_cass_sunstein_debates_glenn

[jason]

I do not agree with Sunstein much, but his version of minimalism, while not liberal, per se, really is not conservative either; in fact, it seems tailor-made to counter the intellectual influence of Scalia-style textualism and originalism as a doctrinal framework for constitutional interpretation.

[sniflheim]

I stopped reading at Power is his wife. She denounce, reject, pie.

[sniflheim]

I left out "must."

[Sue]

Cass Sunstein deserves to be treated like Rev. Wright was by the media more than anybody else Obama's life.

[Sam-I-am]

Where did the meme come from that Obama was a progressive? He's a centrist, always has been, picks and chooses from the left and right. That was obvious from the start, when his economic policy advisors came from the Hamilton Project.

This needs to be recognized as a separate voting bloc. Someone who holds liberal values while hewing to _slightly_ conservative economic frames. Among academic economists, this is probably the largest group.

And as I liberal, I just hope that Obama, Sunstein, Furman, and the rest are central enough to win.

[ozma]

Interesting that Samantha Power also usually hews to the straightforward neoliberal interventionist model. She has no deep analysis of any kind of the international security apparatus. Sunstein strikes me as similarly uncritical--fond of the 'common sense' approach, i.e., the status quo.

They are sort of just a smidge away in intellectual depth from Friedman and Kristol, basically in the sense that they repeat the kind of simplistic neoliberal line but somehow come across as serious and concerned to people.

I find it strange sometimes that they are thought of as 'serious' people with something weighty, original or important to say but then I guess it is not strange when someone gets ahead as a parrot (but creative parrot) of current ideology.

[ozma]

Interesting that Samantha Power also usually hews to the straightforward neoliberal interventionist model. She has no deep analysis of any kind of the international security apparatus. Sunstein strikes me as similarly uncritical--fond of the 'common sense' approach, i.e., the status quo.

They are sort of just a smidge away in intellectual depth from Friedman and Kristol, basically in the sense that they repeat the kind of simplistic neoliberal line but somehow come across as serious and concerned to people.

I find it strange sometimes that they are thought of as 'serious' people with something weighty, original or important to say but then I guess it is not strange when someone gets ahead as a parrot (but creative parrot) of current ideology.

[John Emerson]

I just wanted to add my disgust at the fact that Bush et al. are being defended not by one of their many right-wing stooges but by a man who is allegedly a liberal and who is most definitely one of the most respected constitutional scholars in the country.

I'll add constitutional law to my list of fraudulent intellectual enterprises. Most of those guys are worse than Sunnstein, right? People like Posner?

We're basically doomed.

[sparky]

The criticism here is correct but it strikes me as misplaced. Sunstein is a legal academic, and it's important to keep that in mind. Definitionally, legal academics, if they want to be taken seriously within their realm, are not going to propose anything much beyond increasingly elegant frameworks (with a "nudge") for the status quo (the large exception here is for "social" issues). It's a waste of energy to criticize people working in a deeply conservative institutional framework for not being daring.

[David]

Sunstein's views on a robust executive (forget Bush or Reagan -- imagine an Obama presidency in the mold of Jackson, Lincoln, and Roosevelt) and judicial minimalism provide exactly the resources that liberals need in this new political era. We'll have control of the elected branches, but the Court will be frozen solid for another decade. As for a Sunstein appointment, we would be so lucky to have such an intellectual giant on the Court. He's left of the median vote on every issue, and when you don't have the votes, the way to prevail is through a dissent that is studied for generations. I can imagine a few of those flowing from Sunstein's pen.

[JimmyM]

Do you know anything about Sunstein? Do you know that he wrote a book called "Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America"?

[Brandon]

Seriously--I echo JimmyM. There is a real paucity of actual facts around here.

And the bit about debates was priceless. Yes, nothing is more invidious than a public airing of ideas! Wait, sorry, I mean..."ideas"!

[Linda]

It is clear that you must know what is in Cass Sunstein's heart and head, while many of us cannot see it. Apparently, if he is even a little to the right of you (and apparently, what intelligent person isn't?), he is a right-wing reactionary. Geez. You must not have been paying very close attention to what he TAUGHT you. You are willing to write these innuendos about his beliefs without ever REALLY reading what he has written.

And, by the way, behavioral economics is as free market oriented as Michael Moore.

[Ben]

I'm not sure what Cass Sunstein really believes in beyond his own ambition to be on the Supreme Court. I've always thought his "third way" approach, his equivocations and posturings and his courting of conservative "legal thinkers" was his way of ensuring that Republican Senators would not oppose or filibuster if he was ever nominated to the Supremes by a Democratic President.

It would serve him right if he is now seen not progressive enough on business and economic issues to be nominated to the court by Obama. Unfortunately, I fear that's not the case.