OIRA -- How Will it Evolve Under Obama?

Sunstein Confirmation Hearing

Before Chief Justice John Roberts stood before the Senate committee as a witness to his own qualifications for Chief Justice, Cass Sunstein opined on NPR and in several editorials about what sort of Supreme Court judge Roberts would be. Sunstein wrote in the Washington Post: "In recent weeks countless people have pored over his voluminous writings, but they have learned relatively little."

When Orrin Hatch (R-UT) asked Roberts if he had read any of Cass Sunstein's books, future Chief Justice offered a quick reply: "I didn't have a chance to read Professor Sunstein's book....He writes a different one every week. It's hard to keep up with him."

Of course these were just quips, the two legal scholars are of course familiar with each others work, but very judiciously portray that familiarity publicly. Sunstein said on behalf of the future Supreme Court Justice, that Roberts would be conservative but rule narrowly and not overreach. Sunstein wrote a book on the Supreme Court, arguing that for the court, a minimalist approach was better than fundamentalist one, which merely served a radical right agenda. Sunstein said over and again that Roberts was a minimalist. 1

Despite what Sunstein said about the volume of Roberts' record, most people expressed angst about Roberts' lack of published record, not its prolific volume. To those worried about Roberts' seemingly conservative views based on that writing, Sunstein provided considerable verbal and written reassurance. He advised analysts, journalists and Congress that to understand Roberts, they would have to listen to his confirmation testimony, not read any of the documents he wrote for the Reagan administration.

To Hatch's hearing question, Roberts explained modestly that he was "a modest judge". Liberals hoped for the best, hoped that "modest" meant minimalist. Naturally they were later disappointed when Roberts hewed to the Bush administration agenda. Sunstein's reassurances about Roberts didn't really pan out as liberals had hoped. Harry Reid (D) went so far as to claim recently (incredibly lamely, since in his position he should have been well aware of this while it was happening) that Justice Roberts had "lied" to the Senators.

Despite some public distancing, Sunstein and Roberts have more similarities then they might acknowledge. They both admired and worked for Reagan, they both claimed to be minimalists who approached their jobs as pragmatically and who worked strictly under direction. And they both thoroughly confused analysts of their previous writings by claiming their written work didn't reflect their current inclinations.

A Foolish Consistency is the Hobgoblin of Little Minds

If you write nothing, no one will know what you think. This is ok, but its much better to give the chattering classes something to latch on to. If your writings are voluminous, everyone will be left as confused as if they're nonexistent. So if you can predict ahead of time how ambitious you may become for public appointment in the future, you can strategize what you write, for whom, when. When you're in the company of liberal, you can say things that might appeal to liberals, and when you are in the company of conservatives, say things that would appeal to conservatives.

Crumbs for all sides, in essence leave no trace. Obviously, this might not even be strategy but an inadvertent response to scholarly immersion, changed personal politics, and professional enticements. One might mature over time, become more liberal or less, either because one gains wisdom, or because events influence one's thinking. One might take a lucrative position for Exxon-Mobil or CEI, in order to afford a nicer place or a better lifestyle. Or, perhaps one's political inclinations would change simply because as Ralph Waldo Emerson said, because "[a] foolish consistency is the hobgoblin of little minds.

When President Obama nominated Cass Sunstein to head the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB), people started reading Sunstein's voluminous writings and many books. The blog for his book "Nudge" announced Sunstein's nomination and linked to some "chatter" about the appointment.

Blogs of varying liberal slants quoted from his book "The Second Bill of Rights", while more conservative blogs quotes from his writings for free-market organizations like Cato. No matter what you think you can pick and choose among his writing to find a supporting or opposing idea.

The American Prospect blog wrote that the appointment was "a bit low on the totem pole for Sunstein", that Obama was trying to relive the "New Deal", and finally: "Bonus Sunstein Fact: He's married to foreign policy expert Samantha Power" -- as if his marriage merited a liberal stamp of approval -- magic Power dust.

The blog Maine Hunting Today wrote that Sunstein was a "Radical Rights Activist", based on one book he edited, which they seem to think predicted starvation for hunters. On the other hand, Sunstein's work on behalf of Exxon Mobil about juries' tendencies to overcompensate victims of corporate malfeasance was used by the Supreme Court in a case to rule in favor of Navy training that would further endanger whales, an end result that reflects a position that Sunstein has often written about and seems to agree with.

Sunstein's proposal in the book "Republic.com" that the internet was gymnasium of polarization and that among other things, websites should be forced to crosslink to politically opposed sites (something he later recanted) worried The Ayn Rand Center for Individual rights. The libertarian organization wrote wrote: "Welcome to the mind of a regulator: I will decide what's best for individuals. If I think conservatives don't read enough liberal articles, I'll devise some clever way to make them." The Wall Street Journal's piece "A Regulator With Promise - Really", said the opposite, noting in a recent editorial co-authored by Sunstein "argued that better disclosure, combined with technology, would be more effective than playing "regulatory whack-a-mole" with unpopular industry practices."

WSJ continued about Sunstein's idea of "availability cascades", noting that "It's also a useful concept for resisting political fads -- killer apples with Alar, silicone breast implants causing cancer, oceans rising to swallow Florida from global warning -- that can impose huge economic costs when not challenged." Notice the hyperbole, and the mix of the ill-fated alar controversy, with real threats proven by science, like global warming.

No matter what their political proclivities, organizations and individuals at every end and the middle of the political spectrum will claim Sunstein as either an ally or an enemy, apparently with equal ease and zeal. Cost benefit analysis will impede important environmental regulation, as it has in the past, say some people. Others hail 'Sunstein's unique more humanist take' on cost benefit analysis as superlatively sane.

The confirmation committee should have lots of questions -- I can't get through a page of any one of Sunstein's writings without at least ten -- all the better to fool me, I sometimes believe. And how will the nominee testify before the Senate? Probably just as smartly as he has crafted his reputation. The Senate hearing can be viewed by linking from here, and as I write, Chairman Joe Lieberman (CT) fawns over Sunstein in an introduction convening the committee.


1"Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America"

follow us on twitter!