Monday, May 25, 2009

Why I Think Obama Will Pick Sunstein For SCOTUS


People never think about it until one of two things happens; 1) a SCOTUS judge announces retirement or 2) there's a Presidential election. Well we've now had both events occur relatively soon to each other, so the topic is hot, the nominee will soon be known, so why don't I be just as wrong as anybody else on the topic? Hmm? OK.

I predict Obama's SCOTUS nominee will be Cass Sunstein.

The HELL you say! There's Kagan, Woods, Sotomayor, and oh, BTW there's so many white men on the Court already! Pah, you foolish blogger! You Know Nothing!

Well, we have equal opportunities to be wrong in this regard. After all there's no reason to believe under the "Yes We Can (But That Doesn't Necessarily Mean We're Going To [thanks, John Stewart])" banner that um, Sotomayor or any of the SCOTUS front runners have anything going for them from Obama's practical point of view.

Campaign promises about DADT aren't manifesting today.
Campaign promises about ENDA aren't manifesting today.
Campaign promises about DOMA aren't manifesting today.
Campaign promises about closing GITMO aren't manifesting today; neither is the Executive Order (but it's true that the EO gives until January 22, 2010 to be completed)
Campaign promises about IRAQ aren't manifesting today.

Need more? (There is more, but Health Care, Social Security and other issues are for a different post.) The election was, after all, about politics and practicality; Yes We Can! (But that doesn't mean we're necessarily going to.)

And there really weren't any true campaign promises about SCOTUS appointments, so that really leaves everything open, now that you think about it, eh?

So how about this Sunstein cat?

Dahlia Lithwick [glurp] wrote this, about Sunstein and Thaler's book, "Nudge": [UC - emphases added]

The premise of Nudge—the authors caution in their very first footnote that this is not to be read as noodge (noun: from the Yiddish, meaning, "You never call; you never write. ...")—is that in framing public policy, "choice architects" should gently guide us to make better choices, the sorts of choices Albert Einstein or Star Trek's Mr. Spock* might make or that we would make if we were to consult such men on our personal decisions about, say, giving up smoking. Laissez faire economics holds that faced with a broad menu of choices, most of us will choose wisely. Sunstein and Thaler fear that some of us might pull a Homer Simpson and try to eat the menu.


If Sunstein and Thaler are right that we live in a world of too many choices, with insufficient time and information to make the best one and little feedback about the stupid choices we've made in the past, the question is not so much whether we should be steered toward the smart ones as: Where should we be steered instead? Given that someone someplace is often setting the defaults anyhow, wouldn't we prefer that the guy in charge be Mr. Spock? Could any of us agree, however, about which Mr. Spock is truly worthy of making these decisions? The authors urge that "if the underlying decision is difficult and unfamiliar, and if people do not get prompt feedback when they err, it's legitimate, even good to nudge a bit."
Where does one begin? With Lithwick or the damn book? They're both specious and egotistical. "You Cannot Be Trusted, Mere Mortal - (so basically) You Shut Up, Let Me Decide."

This could be expected from Lithwick, but from Sunstein? The dissonance is painful; "The invisible hand of the marketplace compels you, but since you weren't compelled correctly, you need compelling."

So somebody's invisibility, compellingess or correctness is totally fucked up. I get it!

But about Sunstein's political/legal views - Greenwald, July 19th, 2008, re: FISA fiasco:
Writing from the Netroots Nation conference, The Nation's Ari Melber detailed what he calls "Bipartisan Attacks on the Rule of Law," and specifically highlighted the fact that close Obama adviser, Professor Cass Sunstein of the University of Chicago, "cautioned against prosecuting criminal conduct from the current Administration" during a Conference panel. As Melber wrote:
Prosecuting government officials risks a "cycle" of criminalizing public service, [Sunstein] argued, and Democrats should avoid replicating retributive efforts like the impeachment of President Clinton -- or even the "slight appearance" of it.
As I documented last week, the idea that the Rule of Law is only for common people, but not for our political leaders and Washington elite, is pervasive among the political and pundit class, in both parties.
Cass: Don't risk cycles! After all, you weren't compelled correctly, and need better compelling.

Fast forward - Obama wins, and lo, the appointments come. From Ezra, January 8th, 2009:

There's some confusion over a celebrity thinker like Cass Sunstein being appointed to head an office as obscure and bureaucratic as the Office of Information and Regulatory Affairs. But OIRA is important! It's just also boring.

OIRA was birthed in the 1980 Paperwork Reduction Act as part of the effort to streamline the federal government's regulatory processes. If Carter had won reelection, the department probably wouldn't matter. But he didn't. Tucked deep within the Office of Management and Budget, OIRA received relatively little notice until David Stockman, Reagan's young turk of a budget director, realized that, properly applied, OIRA could be used to shut down the government's regulatory functions by tying new regulations up in endless rounds of analysis and bureaucratic justification.


The point of all this is that OIRA is quiet, but important. It's the chokepoint of the entire federal regulatory apparatus. If used wisely, it facilitates the flow, provides welcome analysis and judgment, and aids in implementation. If used as an anti-government weapon, it can do a lot of damage. Sunstein can do real good there. But why would he want it? He's shown a taste for celebrity, and OIRA very much does not provide that.

It's worth remembering that Sunstein has recently achieved great fame for Nudge, a book which basically argues that we need to apply the insights of behavioral economics to the construction of regulation. And Director of the Office of Information and Regulatory Affairs is the ultimate staging ground for those ideas. Reagan understood that OIRA was the central clearinghouse where you could affect the whole of the regulatory state all at once. He wanted to virtually shut it down. Sunstein wants to "nudge" it.

Ezra was a wee bit early - FDL gets to the meat of the matter 2 days later on January 10th this year. Kirk Murphy, PhD:

Who does PEBO want to put in command of OMB's health and environmental rules? A Libertarian who predictably opposes "mandates and bans". Meet the new Borgias -- same as the old Borgias. Meet our new BFF, Cass Sunstein.

But of course. Why should Cass waste his time on environmental justice when the AEI can write him checks? In a free market, everything's for sale. Right, Cass?

For a long time, the nation has been split between two types: old-style Democrats, favoring mandates and bans, and new(ish)-style Republicans, insisting that markets and free choice should be respected. Richard Thaler and I think that there is a way to avoid mandates and bans, and to respect free choice, while also helping people to make better decisions.

In short, we hope that libertarian paternalism might provide a real third way.... Thus, for example, libertarian paternalism offers fresh ways of thinking about the mortgage crisis, credit card reform, savings for retirement, prescription drugs, health care, environmental law...

If you have small children, good ol' Cass's lucrative ideology gives them the freedom to suck down a whole lot more poison. Does it give us the freedom to have our food and water free of man-made poisons? Not so much. Folks, can't you just feel the post-partisan love?

Oh Brave New OMB to have such sophists in it!

Here's the thing; Obama and Sunstein are both friends, they're both Chicago Economics School, Obama already has Sunstein past Congress once, Obama knows Sunstein's Constitutional views.

Did I mention Sunstein is one of the most widely cited legal scholars? Amy Goodman's folks said so, and look - here's Glenzilla debating the execrable Sunstein on Democracy Now! July 22nd, 2008.

Since there was no real push for Dawn Johnsen for OLC from the Whitehouse, and so on regarding other matters, I just would not be surprised if we wake up one day soon to headlines with "CASS SUNSTEIN NOMINATED FOR SCOTUS" with the ensuing right wing hissy fits, wich would account for nothing, as Cass, having worked for AEI, along with his body of work, is one of their own Villagers. He is, in fact, already head of OIRA.


But here's hoping I am wrong about the SCOTUS thing. But I got this nagging feeling...

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