Broadcaster Glenn Beck has labelled Cass Sunstein “the most dangerous czar out there.” Sunstein is not a czar. He was named (and yesterday confirmed) to a Senate-confirmable position created back in 1980: the Office of Information and Regulatory Affairs within the Office of Management and Budget. And until Beck spoke out, ambulance the only people to think him dangerous came from the anti-business left.
When Sunstein’s nomination was announced at the beginning of the year, the Center for Progressive Reform, fretted that the Harvard scholar’s “track record on regulatory issues is decidedly conservative.” Frank O’Donnell, the president of Clean Air Watch, argued that the deregulation-minded Sunstein “shouldn’t get a pass just because he was nominated by Obama.” Their concern: Sunstein’s long record of academic writings urging more stringent review of the business impact of government regulation. In works like The Cost-Benefit State, Risk and Reason, Laws of Fear, and Worst-Case Scenarios, Sunstein has argued for strict cost-benefit analysis of government regulations. Ironically – given that Beck and others would later accuse Sunstein of environmentalist fanaticism – Sunstein’s most recent work has debunked the “precautionary principle,” the ultra-strict regulatory standard that European agencies have invoked to justify bans on genetically modified plants.
Beck has warned that Sunstein’s nomination “puts your gun rights at risk”. Sunstein’s writings again contradict this assertion. Not only has he endorsed the Supreme Court’s pro-gun ruling in District of Columbia v. Heller, but in an article in the Harvard Law Review, Sunstein argued for broader gun rights, writing:
[The Second Amendment] has a unique status in contemporary American culture; it has been recognized as a right, and with great intensity, by citizens and politicians of both parties. An interpretation of the Founding document that denied the right would likely create forms of public outrage, political polarization, and social disruption that have not been seen in many decades. Out of respect for the intensely felt convictions of millions of Americans, and with concern for the risks of potential disruption, perhaps the Court should hesitate before denying the right.
In a July letter to Senator Saxby Chambliss (R-GA), Sunstein restated his long-standing views:
I strongly believe that the Second Amendment creates an individual right to possess and use guns for purposes of both hunting and self-defense. I agree with the Supreme Court’s decision in the Heller case, clearly recognizing the individual right to have guns for hunting and self-defense. If confirmed, I would respect the Second Amendment and the individual right that it recognizes.
Beck has described Sunstein as an animal rights extremist, ranting that “this is a guy who thinks that rats should be able to have attorneys. If you have rats in your basement, you are not to poison rats. You can’t make this stuff up.”
Actually, you can make this stuff up – and Beck just did. Sunstein has opposed new animal-rights laws, calling instead for more effective enforcement of laws on the books, laws that date back to the 19th century in some states. Beck’s entire case against Sunstein rests on a throw-away suggestion in one speech that it might be a good idea to allow concerned individuals some standing to bring lawsuits on behalf of abused animals. But in a July letter to Sen. John Cornyn (R-TX), Sunstein made clear that he would not use his new position to advance this concept: “If confirmed, I certainly would not use my position at OIRA to promote animal standing in civil litigation; such standing would indeed be an intolerable burden on farmers, ranchers and hunters.” This pledge gains extra credibility from the obvious fact that the director of OIRA would have no power at all to grant such standing. These views have led the American Farm Bureau Federation to endorse the Sunstein nomination.
While Sunstein has been made an ideological litmus test for some Republicans, he himself has shown a willingness to work across ideological lines, publicly endorsing President George W. Bush judicial nominees like John Roberts and Michael McConnell, and Jim Haynes. (The latter rejected by a Democratic-controlled Senate.)
Sunstein’s willingness to work with those who might not agree with him has led to a remarkable amount of respect from his colleagues: “Cass Sunstein is one of the most respected and most cited legal scholars in the country – a brilliant, creative, and thoughtful man… I’m a moderate conservative… and of all the people [Obama] could appoint for the job, Sunstein is one of the very best,” remarked Eugene Volokh, UCLA Law Professor and founder of the popular law blog, The Volokh Conspiracy.
Deregulators have generally favored the Sunstein nomination. “His views on regulation consist of a hard-headed microeconomic cost-benefit analysis that would be considered very conservative,” explains Peter Van Doren, editor of the Cato Institute’s Regulation magazine, “he would strike non-academics as a very conservative, University of Chicago-type economist.”
Walter Olson, a senior fellow at the Manhattan Institute and founder of the Overlawyered blog agrees: “Cass Sunstein, of all the people who have joined the Obama administration, is the one with the most goodwill amongst Federalist Society-types.”
Which may explain why Sunstein’s nomination has also been endorsed by conservative legal eminences like C. Boyden Gray, Eugene Scalia, and Ken Starr, as well as by the National Association of Manufacturers and the U.S. Chamber of Commerce. Ted Olson, the former Bush Solicitor General, spoke highly of Cass Sunstein when reached for comment: “Cass is one of the most brilliant, creative and productive lawyers I have ever known, and a true gentleman. I respect him enormously.” Further, in an editorial in February, the Wall Street Journal editorial page hailed the choice of Sunstein as a “promising sign” for the new Obama administration.
Cato’s van Doren told NewMajority: “Conservatives ought to applaud his appointment. It is the job of OIRA and the OMB to say no to stupid things, [and in this regard] they’re not likely to get a better appointment.
The Manhattan Institute’s Walter Olson seconds this pragmatic assessment. “If he were to have withdrawn his nomination the person who replaced him would be much more liberal,” he added.
One of the conservative experts on regulation who knows Sunstein best is past American Enterprise Institute President Christopher Demuth. In an email to NewMajority, DeMuth wrote in praise of the Sunstein selection: “[Sunstein] has publicly and privately supported the most high-profile conservative judicial nominees in recent years, and it is a shame that his appointment as President Obama’s regulatory chief has been delayed for so long.”