April 9, 2010


The horrible prospect of Supreme Court Justice Cass Sunstein (Glenn Greenwald, 3/26/10, Salon)

In 2002, at the height of controversy over Bush's creation of military commissions without Congressional approval, Sunstein stepped forward to insist that "[u]nder existing law, President George W. Bush has the legal authority to use military commissions" and that "President Bush's choice stands on firm legal ground." Sunstein scorned as "ludicrous" the argument from Law Professor George Fletcher that the Supreme Court would find Bush's military commissions without any legal basis. Four years later -- in its Hamdan ruling -- the Supreme Court, with Justice Stevens in the majority, held that Bush lacked the legal authority to create military commissions without approval from Congress, i.e., the Court (and Stevens) found Bush lacked exactly the "legal authority" which Sunstein vehemently insisted he possessed. Had Sunstein been on the Court then instead of Stevens, that decision presumably would have come out the opposite way: in favor of Bush's sweeping claims of executive authority.

Worse still, in 2005, Sunstein became the hero of the Bush-following Right when, in the wake of revelations that the Bush administration was illegally eavesdropping on Americans, he quickly proclaimed that Bush was within his legal rights to spy without warrants in violation of FISA. Sunstein defended Bush's NSA program by embracing the two extremist arguments at the core of Bush/Cheney lawlessness: that (1) the AUMF silently authorized warrantless eavesdropping in violation of FISA and, worse, (2) the President may have a plausible claim that Article II "inherently" authorizes warrantless eavesdropping regardless of what a statute says.

In a March, 2006 Washington Post article, Sunstein solidified his credential as Leading Democratic-Law-Professor/Bush-Defender by mocking the notion that Bush had committed crimes while in office:

[Harvard Law Professor Laurence] Tribe wrote [Rep. John] Conyers, dismissing Bush's defense of warrantless surveillance as "poppycock." It constituted, Tribe concluded, "as grave an abuse of executive authority as I can recall ever having studied."

But posed against this bill of aggrievement are legal and practical realities. Not all scholars, even of a liberal bent, agree that Bush has committed "high crimes and misdemeanors." Bush's legal advice may be wrong, they say, but still reside within the bounds of reason.

"The Clinton impeachment was plainly unconstitutional, and a Bush impeachment would be nearly as bad," said Cass R. Sunstein, a professor of constitutional law at the University of Chicago. "There is a very good argument that the president had it wrong on WMD in Iraq but that he was acting in complete good faith."

Sunstein argues that Bush's decision to conduct surveillance of Americans without court approval flowed from Congress's vote to allow an armed struggle against al-Qaeda. "If you can kill them, why can't you spy on them?" Sunstein said, adding that this is a minority view.

In 2008, Sunstein became the leading proponent of the Bush/Cheney-sponsored bill to legalize Bush's warrantless eavesdropping program and to immunize lawbreaking telecoms, a bill which Obama -- advised by Sunstein -- ended up voting for in violation of his pledge to filibuster. The same year, Sunstein provoked widespread anger among progressives by insisting (again) that investigations and prosecutions of Bush officials would be inappropriate and harmful. As summarized by Talk Left's Armando, a long-time lawyer: "Cass Sunstein has been defending the Bush Administration's illegal actions and the Bush Administration's preposterous claims for many many years now. This is who he is." Hey, Left: doesn't the thought of Supreme Court Justice Cass Sunstein make you tingle with "excitement," just as Peter Baker said?

Evaluating Obama Advisor Cass Sunstein, and His New Book Nudge (Matt Stoller, Jul 25, 2008 , OpenLeft)
Sunstein is a prodigious legal scholar, putting out books at a stunning clip. Usually what he does is package a set of ideas from another sector into a marketable and media digestable recipe, and Nudge is no different. The authors go through the standard litany of important concepts; anchoring, herding, biases, imperfect information, defaults, incentives, and feedback. Anchoring, for instance, is the concept that the first price you hear for an item is forever the price associated with that item. If someone tells you a diamond is worth $5000, it is a luxury item and getting one for $4000 is a deal. If someone tells you a piece of artificial condensed carbon is worth $50 for industrial uses, you'll feel ripped off if someone puts a price tag of $60 on the same stone that was a steal at $4000. The Tipping Point basically told this story, but better.

Still, these are important ideas, because they undermine the notion that free markets exist as neutral arbiters, showing markets as artificial constructs with important regulatory choices built into them. This is a newly emergent set of ideas, and who controls their interpretation will control the public policy choices they imply. As we move into an era where free market fundamentalism dies, it's important to keep our eyes on the framers of the new intellectual moment. Ideas can be used to prop up the corrupt system we have now, or to renew it. Sustein and Thaler are firmly on the side of propping it up. In chapter 6, for instance, Sunstein and Thaler go into a long discussion of savings rates and the importance of opt-in versus opt-out strategies for getting people to save more for their retirement. This, though, is how it's framed, on page 103.

As all politicians know but few are willing to admit, we will eventually have to bite the bullet in order to make Social Security solvent, through some combination of tax increases or benefit cuts.

That is exactly 100% out of the conventional wisdom from the 1960s conservative movement, which treats Social Security as a ponzi scheme. It is unsupported by evidence, as the 'insolvency' date for Social Security keeps being moved up every few years, but it is the way that Sunstein supports his theory of 'libertarian paternalism', which is an updated version of the DLC mantra that we must find a solution between a socialist regulatory state and a free market. Here's how Nudge explains this philosophy and its political viability.

Libertarian paternalism, we think, is a promising foundation for bipartisanship. In many domains, including environmental protection, family law, and school choice, we will be arguing that better government requires less in the way of government coercion and constraint, and more in the way of freedom to choose. If incentives and nudges replace requirements and bans, government will be both smaller and more modest. So, to be clear, we are not for bigger government, just for better governance

The notion of 'nudges', or various things government and business can do to control human behavior without Stalinist regulation, is not new or particularly interesting. For instance, labor unions and business are locked in a multi-million death struggle about card check, which is simply a way of voting for or against labor representation. Labor wants to be able to use petitions or voting, business wants just voting. More examples include voter ID laws that help suppress the vote, ballot designs that privilege one candidate over another, and urban design and sidewalks that encourage or discourage driving. Yet more examples include economic assistance to low income women to reduce abortions, or the fight over abstinence-only education to lower the rates of STDs.

Thaler and Sunstein create new language to describe people who design the defaults in various systems, such as 'choice architect', but once again, this is not even close to a new idea. Bookshops have been charging money for retail placement for years; want your book at eye level, that'll be extra. No, the real point of this book is not to teach anyone about behavioral economics, but to enforce a Beltway orthodoxy that is anti-government to the core.

Here's how Thaler and Sunstein describe how appealing this idea is to politicians.

Libertarian paternalism with respect to savings, discussed in chapter 6, has received enthusiastic and widespread bipartisan support in Congress, including from current and former conservative Republican Senators such as Robert Bennett (Utah) and Rick Santorum (Pa.) and liberal Democrats such as Rahm Emanuel.

Rahm Emanuel a liberal? On what planet? He's a war supporter, a supporter of retroactive immunity for telecom companies, and wants to maintain the hedge fund loophole allowing hedge fund managers to retain more of their earnings than ordinary citizens. For Sustein and Thaler, Emanuel is a liberal because it's useful for Emanuel to be a liberal in the kabuki world that is the Beltway, where government is just too darn big.

At least with Ms Sotomayor the UR nominated someone the Left was constrained from criticizing for PC reasons, but this pick is likely to provoke their fury.

Posted by Orrin Judd at April 9, 2010 3:19 PM
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