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Cass Sunstein confirmed for top regulatory post

The U.S. Senate on Thursday, Sept. 10, confirmed Harvard Law professor, prolific author and friend of President Obama, Cass Sunstein, to be administrator of the Office of Information and Regulatory Affairs. The vote was 57-40 (roll call here).

Fox TV host Glenn Beck had made Sunstein a target a la Van Jones, citing his writings on animal rights and the Second Amendment, and the Twitterverse was active inveighing against the nominee. Republican Senators cited similar concerns and found Sunstein "outside the mainstream." However, as noted by Sen. Susan Collins (R-ME) on the Senate floor (statements), Sunstein was supported by the U.S. Chamber of Comerce, the American Farm Bureau and the National Association of Manufacturers (my employers). Sunstein is a respected legal scholar and author, an expert in regulatory policy and an advocate of cost-benefit analysis. That's a far cry from the left-wing radicalism of Van Jones.

The media (and I) missed another factor that contributed to GOP Senators' opposition to Sunstein's nomination, that is, resentment of his role in politicizing and polarizing the judicial confirmation process. In 2001, Sunstein and Lawrence Tribe spoke to a Senate Democratic retreat where they argued the case for aggressively resisting President Bush's judicial nominees on the basis of political philosophy. Writing in The Wall Street Journal, Robert Bork decried the "Blue-Slip Blackmail":

The New York Times reported that one attendee said of the panel: "They said it was important for the Senate to change the ground rules and there was no obligation to confirm someone just because they are scholarly or erudite." Political correctness is apparently the new standard to which nominees are to be held.

The panelists themselves are well to the left on constitutional matters. Mr. Sunstein, for example, published in the New York Times the preposterous argument that President Clinton "chose centrists like Justices Ruth Bader Ginsburg and Stephen Breyer" for the Supreme Court. Centrists they may be on mundane legal topics but when it comes to major cultural issues, they are two of a four-justice adamantine liberal bloc.

Mr. Sunstein went on to say: "We are now in the midst of a remarkable period of right-wing judicial activism. The Supreme Court has moderates but no liberals."

Paul Gigot also mentioned Sunstein's role in Gigot's June 29, 2001, Potomac Watch column on Senator Schumer's machinations, "Ground Chuck. And here's Sunstein's New York Times column from April 26, 2001, "Tilting the Scales Rightward.

You can appreciate the argument that must have crossed the minds of some of Sunstein's Senate opponents, even though the OIRA post is not a judgeship: "You've helped poison the confirmation process. Well, we're going to hold you to the standard you yourself promoted: There's no obligation to confirm someone just because they're scholarly or erudite."

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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.