The U.S. Senate confirmed Cass R. Sunstein to a top federal regulatory post on Thursday over the objections of some conservative organizations and commentators who had sought to brand the prominent legal scholar and political theorist as a liberal extremist on animal rights, gun control, and other issues.
The Senate voted 57 to 40 to confirm Mr. Sunstein as head of the White House’s Office of Information and Regulatory Affairs following eight months of debate over his writings as a professor of law at Harvard University and, before that, as a professor of law and political science at the University of Chicago. The Senate’s confirmation followed a 63-to-35 vote Wednesday to preclude a potential filibuster over the matter.
In deliberations leading up to Thursday’s vote, it was clear that many senators remained strongly opposed to Mr. Sunstein’s selection based on his past academic writings.
Sen. Jon Kyl, an Arizona Republican and the Senate minority whip, said Mr. Sunstein’s views may be fine “in elite academic settings” but were “bizarre” for someone in the post to which he had been nominated, which oversees the development of federal regulations for the White House’s Office of Management and Budget. Sen. Jeff Sessions, a Republican from Alabama, charged that “over the course of his career in academia, Mr. Sunstein has clearly advocated a number of positions that are well outside the American mainstream.”
In overcoming such opposition, Mr. Sunstein, whose views on matters of public policy are complex and often difficult to pigeonhole, very likely benefited from the support of libertarian and conservative scholars who rallied to his defense.
Among them, Ilya Somin, an assistant professor of law at George Mason University and a prominent libertarian, wrote on the Volokh Conspiracy blog that Mr. Sunstein was “well-qualified for the job and is better from a libertarian perspective than most others whom the administration could have appointed.” Glenn H. Reynolds, a professor of law at the University of Tennessee who often takes libertarian positions on his blog, InstaPundit.com, praised Mr. Sunstein as an “open-minded” liberal whose views have at times been misrepresented by his opponents.
In an interview just before Thursday’s Senate vote, Mr. Reynolds said the debate over Mr. Sunstein illustrates why it is difficult for many scholars to make the transition from academe to government.
“When you are an academic, you are rewarded for saying interesting things and thought-provoking things, and that is what we do,” Mr. Reynolds said. “The reason politicians seldom say interesting or thought-provoking things is because in their business they are punished for it.”
Hard Nudges From the Right
Being exceptionally prolific—having written or co-written more than 30 books and more than 300 articles—Mr. Sunstein provided his opponents with plenty of material to comb through in search of ammunition to use against him.
When the Obama administration announced Mr. Sunstein’s nomination to the regulatory post in January, it was liberals who initially expressed the most concern about him. The Center for Progressive Reform issued a white paper declaring that his “long track record on regulatory issues is decidedly conservative,” with his writings calling for regulations to be subject to analysis seeking to balance their cost against what is gained by them. The Wall Street Journal, meanwhile, published an editorial headlined “A Regulator With Promise—Really,” which said that “Mr. Obama has made a savvy choice.” Business groups such as the National Association of Manufacturers and the U.S. Chamber of Commerce also got behind him.
It did not take long, however, for some conservative groups to sound alarms about the nominee. In February the American Conservative Union launched the Web site StopSunstein.com, which declared, “President Barack Obama has nominated Cass Sunstein, a radical anti-hunting, anti-gun, animal-rights law professor to be his ‘regulatory czar.’”
More recently, some prominent conservative commentators sought to gin up opposition to Mr. Sunstein’s nomination. Glenn Beck of Fox News sent out a Twitter message on September 3 urging his followers to “find everything you can on Cass Sunstein,” and has attacked the nominee repeatedly on his show. In an article posted Wednesday on the Fox News Web site, Mr. Beck cited Mr. Sunstein’s academic writings in support of animal rights to suggest that the nominee would seek to bar people from removing rats from their homes if the rats might be caused pain in the process.
Much of the conservative attack on Mr. Sunstein has focused on statements made in the book Nudge: Improving Decisions About Health, Wealth, and Happiness (Yale University Press, 2008), which he wrote with Richard H. Thaler, a professor of economics and behavioral science at the University of Chicago. Nudge advocates “libertarian paternalism,” an approach to government regulation that lets people choose their own path while encouraging them to take a particular one.
Among the passages that have been seized upon by Mr. Sunstein’s critics, Nudge argues that the need for donated organs for the sick would be better met if people were required to make the choice of whether or not they wished to be organ donors, rather than simply given an opportunity to volunteer to donate. The conservative Web site CNSNews.com has pointed to that part of the book in accusing Mr. Sunstein of advocating the harvesting of organs from anyone who has not explicitly said they do not wish for their organs to be taken.