Why I’m still a great big fan of Cass Sunstein

Cass Sunstein, a legal scholar and adviser to Barack Obama, has been attracting a good bit of critical notice mainly from the liberal side of the blogosphere. I’ve read much of it with interest; I’ve seen no defenders. After finishing KathyG’s post on Sunstein (Ken Houghton says it’s a “must read”), I took to the keyboard. A storm (a sign) knocked out my Internet and delayed this post.…

I am and have been a fan of Sunstein’s since at least the early 1990s. I was attracted to him first for his provocative thinking on the First Amendment, which has shaped and informed my own. I have never thought the liberal label a perfect fit for him. Rather, like Larry Lessig, I find him to be a fascinating and original thinker working within the existing legal framework. And stretching while refusing to be budged beyond what he sees as the boundaries set by it.

Almost every day I wish we could just tear that framework down and start fresh, but I don’t see that as a realistic possibility. And when I find myself in arguments with thinkers like Sunstein or Lessig — and I have been privileged from time to time in my life to have such occasions — I am frustrated that I can’t move them beyond those boundaries. In the end I believe that our legal and political system and structures are as inelastic as their intransigence suggests. And so I settle for working with them towards incremental change.

Speaking of change, I do consider myself a liberal (happy to have found a blog home here at TMV) and will cling to that appellation even as others insist I must move further to the Left to earn it. Obama is a fascinating study in that regard, both for the change — and the status quo — that he represents. That is, I’m convinced, the secret ingredient in his winning formula. And possibly a reason Obama and Sunstein are, in my view, such a good fit.

The change I want is not merely a liberal label tacked on to the same retaliatory, partisan, vindictive politics and practices I’ve decried since the Clinton impeachment. When I say I want a more empathetic citizenry, a less punitive legal system, and more thoughtful governance, I’m looking for it across the board. My call for restorative justice — as opposed to our too punitive retributive justice — is not one reserved only for the poor criminal.

So I find myself in agreement with the Sunstein quote that’s been so roundly criticized in some Lefty blogs from his Democracy Now appearance with Glenn Greenwald:

I speak just for myself and not for Senator Obama on this, but my view is that impeachment is a remedy of last resort, that the consequences of an impeachment process, a serious one now, would be to divide the country in a way that is probably not very helpful. It would result in the presidency of Vice President Cheney, which many people enthusiastic about impeachment probably aren’t that excited about. I think it has an understandable motivation, but I don’t think it’s appropriate at this stage to attempt to impeach two presidents consecutively.

In terms of holding Bush administration officials accountable for illegality, any crime has to be taken quite seriously. We want to make sure there’s a process for investigating and opening up past wrongdoing in a way that doesn’t even have the appearance of partisan retribution. So I’m sure an Obama administration will be very careful both not to turn a blind eye to illegality in the past and to institute a process that has guarantees of independence, so that there isn’t a sense of the kind of retribution we’ve seen at some points in the last decade or two that’s not healthy.

Sounds like a law professor to me! As it turns out, Kathy was once his student:

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.

Again I find myself in agreement with Sunstein. Here he details his critique of Roe. And in this discussion of Justice Ruth Bader Ginsburg’s dissent in last year’s Supreme Court ruling on “partial-birth” abortions, he seems to suggest one right way might have been for the court “to justify the right to abortion squarely in terms of women’s equality rather than privacy.”

Whatever the merits of his critique, Sunstein isn’t even included in the legal criticisms by liberal scholars section of the decision’s Wikipedia entry. And this language, which made it past their ever vigilant neutrality police, adds some significant credence to the political backlash claim:

Roe v. Wade reshaped national politics, dividing much of the nation into pro-Roe (mostly “pro-choice”) and anti-Roe (mostly “pro-life”) camps, and inspiring grassroots activism on both sides… In response to Roe v. Wade, most states enacted or attempted to enact laws limiting or regulating abortion, such as laws requiring parental consent for minors to obtain abortions, parental notification laws, spousal mutual consent laws, spousal notification laws, laws requiring abortions to be performed in hospitals but not clinics, laws barring state funding for abortions, laws banning abortions utilizing intact dilation and extraction procedures (often referred to as partial-birth abortion), laws requiring waiting periods before abortion, or laws mandating women read certain types of literature before choosing an abortion.

Back to Kathy:

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.

The issue of Boston Review Kathy links is from Summer 2001. Way back then I read and completely agree with Sunstein’s Republic.com, from which his piece is excerpted. Since that time I became a blogger who eagerly gobbled up views on both the Left and the Right and so when he released a 2.0 edition, I passed on it.

Still, his chapters on Fragmentation and Cybercascades and Social Glue and Spreading Information are strong and relevant and actually compliment rather nicely James Surowiecki’s The Wisdom of Crowds. Then just a few weeks ago a highly credible new study (available at SSRN — they’d like you to download from there if you’re signed up, pdf here if not) found:

Left wingers read left wing blogs, right wingers read right wing blogs, and very few people read both left wing and right wing blogs. Those few people who read both left wing and right wing blogs are considerably more likely to be left wing themselves; interpret this as you like.

I fit into that latter category and while I still will want to watch things evolve moving forward, Sunstein may have a point. It’s certainly worth considering.

On his most recent book, Nudge, I’ve been an unabashed fan. Not because I’ve read it (I haven’t) but rather because I have been following along as Sunstein and co-author economist Richard Thaler have developed their “libertarian paternalist” thesis. Here’s a podcast of Sunstein’s 2006 “Chicago’s Best Ideas” series lecture; their principal paper, Libertarian Paternalism Is Not an Oxymoron, is probably not nearly as entertaining or complete as the new book, but at a brief 45 pages it’s an easy read.

Kathy’s having none of it:

[A]s Stoller points out, [Nudge] 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.

Sunstein long record of critical skepticism of unrestrained markets outweighs Kathy and Matt’s belief that Sunstein is “firmly on the side of propping it up” and that his notion of nudges “is not new or particularly interesting.” I find it both new and very interesting. While I didn’t find the comment on John Yoo all that warm — it seemed rather lawyerly to me — I do agree that, to date, Roberts has not seemed nearly as minimalist as Sunstein predicted. That’s two for Kathy.

Liberal confidence in the likelihood of a Sunstein nomination to the Supreme Court is way premature, but I hope they’re right. I absolutely want him there. Among my main reasons, I think he can counter the originalists by going head to head with them; use their own language to call them on their stuff.

For example, here he uses historical understanding to call Clarence Thomas and Antonin Scalia on their “no affirmative action ever” originalist interpretation of the 14th Amendment:

Many fundamentalists assert that our Constitution is color-blind, and there can’t be any racial lines drawn by government. But the Congress that ratified–that produced the 14th Amendment–was eventually ratified by the states–itself had a body called the Freedmen’s Bureau, and the Freedmen’s Bureau engaged in affirmative action. There was a lot of discussion of whether the Freedmen Bureau’s special favors to the newly freed slaves was a form of discrimination. That was discussed. And the answer was special favors for newly freed slaves–in fact, special favors for people who were African-American–were just fine. The ultimate view in the country was this form of discrimination, so-called, wasn’t discrimination in the bad sense. It was a way of equalizing.

I’ve heard him make similar arguments around the First and Second Amendments. It would be important to have an originalist of Sunstein’s leanings on the Court. And fun to have one willing to point out that no less and eminence than Thomas Jefferson believed that the constitution should be rewritten with each generation; that no generation has the moral authority to bind later generations.

In the end the place where we differ most is also the root of the Left liberal fury. Kathy says “the Bush regime’s…a pack of dangerous, despotic war criminals.” She goes on:

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… to me [he's become] 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.

Again I’ll say that my vision of change is not a Left liberal version of the very thing I found most disturbing about the worst years of Republican rule. And that is exactly what I see in Kathy’s quote.

Fortunately for me and for America nothing I’ve seen, read, or heard from Obama suggests in the slightest that Kathy and those who speak like her or those who agree with her will be satisfied when he takes office.

Me, I will applaud a Sunstein appointment to whatever position, if any, Obama might make.