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Confirmation hearing scheduled for Cass Sunstein

The Senate Homeland Security and Governmental Affairs Committee has scheduled a hearing on the nomination Cass Sunstein to head the OMB's Office of Information and Regulatory Affairs for 10 a.m. Tuesday. (Details.) Sunstein will be introduced by Sen. Dick Durbin (D-IL), who counts as his homestate Senator from Sunstein's time at the University of Chicago (1981 to 2008), and by Sen. Amy Klobuchar (D-MN). Klobuchar earned her J.D. from the University of Chicago in 1985, so that's a connection.

Coincidentally, Sunstein and Klobuchar are both listed as possible Obama Supreme Court nominees at today's NBC News First Read blog.

Given Sunstein's record and critical thinking on regulatory matters, as well as his friendship with President Obama, it's unlikely he'll face any confirmation difficulties. Nevertheless, the zealous advocates of the regulatory state at OMB Watch are making some noise. From The Fine Print blog:

Sunstein's nomination raised eyebrows. While he is a respected legal scholar, he holds controversial views on the regulatory process. Sunstein is a proponent of cost-benefit analysis in rulemaking whereby agencies try to show that hard-to-calculate benefits (like deaths avoided or ecosystems saved) exceed the regulation's potential cost to industry.

We've heard rumors that Sunstein may also support the controversial "does it make any sense" standard.

UPDATE (Saturday): Sunstein is mentioned in an op-ed in today's WSJ, "When It Comes to Judges, 'Pragmatic' Means Unprincipled" by David Lewis Schaefer, a political science professor at the College of the Holy Cross:

Interestingly, Mr. Obama's wish to use the courts as an instrument for economic redistribution echoes the views of one of the leading candidates to replace Justice Souter -- Cass Sunstein. In a 1985 article titled "Interest Groups in American Public Law," Mr. Sunstein, a former colleague of Mr. Obama's on the University of Chicago law faculty, called for "vigorous . . . judicial intrusions" into the political process on behalf of such causes as income redistribution so as to overcome the supposed domination of the legislative process by "powerful private groups."

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.