Cass dismissed (Cass Sunstein slapdown)

Harvard Law Review ^ | 10/2003 | Adam White

[mnehring]

CASS SUNSTEIN WANTS TO prove that ideology sends judges in the wrong direction, but all he's proven is that ideology sends Cass Sunstein in the wrong direction.

Sunstein, University of Chicago-based legal scholar and advisor to Senate Democrats in the judicial nomination battles, published a draft study on the relationship between political ideology and judicial decisionmaking.

He's rather proud of his findings, in case you didn't notice. Then again, considering that he promoted them months ago in a New York Times op-ed, in an issue of The American Prospect and in his latest book, it's been hard not to notice.

As Sunstein purports to demonstrate (available at http://papers.ssrn.com/abstract=442480), GOP- and Democrat-appointed appellate judges tend to reach judgments in accordance with traditional values of the respective parties that nominated them, and that tendency is exacerbated when the panel on which they served includes more judges appointed by the same party.

Even ignoring for the moment critics of his statistical analysis (and there already are eager critics), Sunstein's conclusion does not at all follow from the numbers. He argues that, because ideological panels reach more partisan results, the Senate should aim for a more diverse federal judiciary in its confirmation process.

"Diversity," in Sunstein's world, still "is our greatest strength."

But this conclusion is only warranted if all judicial ideologies (represented by proxy in his study by the political ideology of the President making the appointment) are created equal. I certainly won't grant him that assumption.

First, one party as a matter of principle nominate judges who judge according to the constitutional text, and those judgments may tend to align with that party's platform. Or a party may focus on results, nominating judges whose judgments align with the party's political outcomes, and those judges tend to arrive at those results after engaging in a textualist analysis (while the approaches seem like two sides of the same coin, they differ in intention: either principle- or result-driven). But in either of these hypothetical cases, while Sunstein's stat work may be correct, his prescription is wholly unwarranted. In each of those cases, confirmation of more "diverse" (i.e., fewer Originalist) judges will weaken the judiciary's ability to fulfill its Constitutional task.

Critics of Textualism will object to my presumption that it furthers "good judging." Fair enough - that is the key debate. And there lies Sunstein's major failing: he discards without argument Originalism and Textualism, assuming that in some cases there are no "right" answers, and further assuming that a "diverse" judiciary leading to non-ideological outcomes will further "good" judging.

He discards the possibility that textualist or originalist analysis is inherently superior. He warns that, without diversity, "judicial panels are will [sic] inevitably go in unjustified directions." He doesn't explain what justifies the judgment of the court. He won't point to Constitutional text. He only points to "diversity."

In short, Sunstein's core argument for diversity is held together, without argument, by a jurisprudence worthy of Golden Oldies radio:

You say "toe-may-toe" -

I say "toe-mah-toe".

You say "power to regulate interstate commerce" -

I say "plenary power to regulate all aspects of societal activity."

Let's call the whole thing off!

Sunstein's analysis does not go so far as to argue that there are no objectively correct legal judgments: "[T]he domain of appropriate diversity is limited. What is necessary is reasonable diversity." He would not agree with a judicial prohibition of abortion, even if ten thousand diverse judicial panels affirmed it. His restriction contradicts his own analysis; while he won't agree that there is an objective standard underlying the Law, he knows, somehow, that there is an objective standard underlying the standard underlying the Law.

(I hope that that doesn't keep him up at night.)

The failures of Sunstein's study aside, the deeper problem with Sunstein's work is that he has cloaked in the robes of nonpartisanship a deeper, highly partisan motivation. He does not want diversity for diversity's sake. He wants diversity because it is the immediate means by which he can further his own political preferences.

His political preferences are easily located; in TAP they included: maintaining a distinction between commercial and political speech in order to control commercial advertising by tobacco companies; minimizing application of the Takings Clause to environmental and other regulatory legislation; and, of course, protection of affirmative-action programs.

Sunstein, like the Democrats on the Senate Judiciary Committee - and, dare I say, much of the HLS faculty - is well aware that his political sensibilities cannot be fulfilled within the four corners of the constitutional framework and the statutes enacted under that framework. His policies are best protected by an exclusively liberal judiciary. His policies are often protected by a "diverse" judiciary - at least more often than by a textualist judiciary. Given the current state of political affairs, his best opition is not available. Of course he embraces "diversity."

In TAP, Sunstein criticized conservative judges who "seem to think that the Constitution should be interpreted to overlap with the latest Republican party platform." He utterly dismisses the possibility that the platform is, relative to the Democrat platform, more aligned with the limitation and separation of powers under the Constitutional framework. This state of affairs is not a failing of GOP-appointed judges; it is a failing of a Democrat party eager to enact its policies, Constitutional text be damned.

* * *

Even if Sunstein is absolutely correct in all of his analysis, then conservative law students should take heart. If courts would benefit from diversification of their personnel, then so would law schools (assuming, of course, that law schools are still in the business of teaching law). And given that HLS's faculty is, at its most moderate, firmly Center-Left, local adherents to Sunstein's theories should begin "diversifying" the faculty by demanding the addition of conservative professors.

How wonderfully diverse.

[BertWheeler]

Isn’t the word “diversity” a part of the family of the word “diversion”? Don’t con artists try to divert your attention using a diversion only to trick you? I don’t see Lefties adding diversity by bringing in an equal ammount of Righties and vice versa. Maybe we should search for Truth and let the chips fall where they may.

[marsh2]

The problem with this is that it fails to recognize the sanctity of individual retained rights in the United States. For instance, consistent with formative legal traditions expressed in Supreme Court cases, individuals are protected from unrestrained regulation to achieve any public goal advanced under the rhubric “public benefit.” Sunstein does not recognize the primacy of these protections. It appears that as far as he is concerned, legal theories of free regulation based on achieving a perceived public benefit have no restraint. Sunstein would only apply a cost/benefit analysis to the regulation.

(1) Regulation must be for a “legitimate public purpose. “ It must have a legitimate substantial relationship to the protection of public peace, health, safety and morals from substantial noxious, dangerous or injurious use.
(2) Permits are essentially conditional permission to engage in an activity that could otherwise be absolutely prohibited as injurious. The permit conditions must have a relationship to avoiding, minimizing or mitigating the injury the activity would cause. (“essential nexus.”)
(3) The conditions imposed must be “roughly proportional” to the harm imposed.
(4) Regulation to promote the public interest rather than prevent injury to the general public is likely to create a compensable property takings protected by the Fifth Amendment of the Constitution of the United States. One exception to this is a business that is a monopoly or constitutes a public franchise, such as a public carrier (railroad) or a utility. The state may regulate public franchises in all matters affecting their relationship with the public.
(5) Regulation must serve the interests of the general public and not some single or particular class of interests. They must not unfairly discriminate against a class of interests.
(6) Enforcement of regulations is governed by rules of “proximate cause.” There must be substantial forseeability or predictability that specific actions would cause injury or harm within an uninterrupted period of time. The actions must be voluntary. There is also the quality of direct causation – that there is no intervening cause between the original act and resultant injury. The action must be the primary act from which the injury results and without which the injury would not have occurred.
(7) The injury caused must be substantial – significant or appreciable.
(8) The legislature cannot make a regulatory permit for private businesses that are not public franchises conditional upon relinquishment of a constitutionally protected right – such as due process, compensation for property takings, etc.
(9) Regulation must be reasonably necessary and not unduly oppressive upon individuals. It cannot pose an unwarranted interference with the constitutional rights of individuals to carry on a lawful business, to make contracts, or to use and enjoy property. It cannot interfere with the constitutional right of the citizen to pursue any trade, business, or vocation which in itself is recognized as innocent and useful to the community. The Legislature can not, under the guise of police regulations, enact laws not pertaining to the public welfare, public health, or public morals in which impose onerous and unnecessary burdens upon or arbitrarily interfere with business and property.

[CPT Clay]

bump

[4woodenboats]

Obama’s Dingalings Splat Ping!

[sunny48]

I just got this from eagleforum.org

Tell Senators: Vote NO on Obama’s “Czar” Today! Tell your Senators to Vote NO on Obama’s “Czar” Today! Take Action!

September 9, 2009

Congress is back, and one of the Senate’s first orders of business is to vote on one of President Obama’s appointed “Czars” to be the next head of the Office of Information and Regulatory Affairs (OIRA) within the White House Office of Management and Budget. President Obama has nominated his “Regulatory Czar,” Cass Sunstein, to this powerful position within the Executive Branch.

Since 1990, Cass Sunstein has written 35 books which advocate changes to U.S. law in the following issue areas:
Expanding radical animal rights, specifically granting the right to legally sue to animals and banning hunting.
Rationing medical care for the elderly as a major component of health care reform legislation.
Increasing gun control legislation because he views “almost all gun control legislation as constitutionally fine.”
Advocating federal law to provide for ‘presumed consent’ rather than ‘explicit consent’ for human organ donation to science after death.
Censoring freedom of speech, particularly on the internet to crack down on “falsehoods” and “rumors.”
Of course, these are just the tip of the iceberg! Cass Sunstein is yet another radically left-wing Obama “Czar” who will be in a powerful position to make decisions about how Obama’s loosely-defined health care policies are “regulated” from within the White House!

TAKE ACTION!

The Senate has scheduled the floor confirmation vote for Cass Sunstein today!

Please call your Senators’ offices NOW and tell them you expect them to oppose and vote NO on Cass Sunstein to head the Office of Information and Regulatory Affairs!

Capitol Switchboard: 202-224-3121

[wardaddy]

looks like over half of Obama’s Czars were at least born Jewish?

is it something in the Torah? (or Talmud?) (or Kabalah?)

this is so fraught with contradiction...

calling Jews Czars...anyone care to tackle that one for a misnomer?

that is like calling me a Reconstructionist.

all these Jews drinking from the Obama well....a president who is no doubt more hostile to Israel than any president since Israel’s last founding...

this is not the first time Jews have had kapos in their ranks..sadly...it goes back to antiquity

what must Bibi think of these scalawags

[mnehring]

I have no idea how many actually are. Some have eastern European sounding last names and a few have names one associates with common Jewish families, but that is an assumption I wouldn’t make. It sure doesn’t seem like even stretching it is ‘over half’.

[wardaddy]

It’s the most Jewish administration I have seen in 50 plus years and yep I find that crazy considering his views and the folks he surrounds himself with regarding Israel

but considering that 80% of Jews supported him I guess they aren’t worried much about all that...or they are ill informed or they fear anything associated with Christian Conservatism..however remotely.. more than what happens to Israel

[mnehring]

I guess I just don’t look for it or see it. Just out of curiosity, I ran most of the Czar’s names through a name origins website and most were Anglo-Saxon or Germanic in origin. Only two of the Czars’ name origins listed as European-Jewish. I just don’t see who someone’s mother matters; it is their current ideology not genealogy that defines who they are.

[oneamericanvoice]

They’re trying to get this through quietly, but the legions of patriots have been alerted. Switchboard meltdown in progress! Now that’s the kind of progress I can believe in.

White House 202-225-1414
WH Comment Line 202-225-1111

[wardaddy]

well it might not matter to you but it sure appears to matter to Jews since they vote almost lockstep for this secular progressive and will do so in spite of the fact that the candidate they voted for are not supportive of Israel.

btw...after living in Manhattan 8 years and Miami and working in Israel I am no stranger to Jewish names

from the Czar list...only two?...you must think I am stupid....well I may seem that way at times granted...but not on this one:

oddly this is linked from Free Republic via Wash Independent:

Herb Allison
Alan Bersin
Ron Bloom
Tod Stern
Lyn Rosenthal
Lary Summers
Paul Volcker...whom I like btw
Jeff Zients
Cameron Davis...maybe
Dan Fried
Nancy DeParle..via marriage but so what eh?
Dennis Ross
Kenneth Feinberg
Cass Sustein

granted that is not half but it is a far sight more than just (2) and we’re not counting inner circle folks like Axlerod and Rahm and Froman and so forth

It’s not just me, there are plenty of articles out there from fellow Jews lauding this circumstance with pride...so I guess it matters to them:

http://www.jewishvirtuallibrary.org/jsource/US-Israel/obamajews.html

http://www.haaretz.com/hasen/spages/1037029.html

http://www.huffingtonpost.com/martin-lewis/barack-obama-americas-fir_b_143985.html

Now suppose a Christian Conservative like say Sarah Palin were POTUS and a large plurality if not a majority of her closest advisors and cabinet and other picks were White Charismatics, or Southern Baptists or Church of Christ?

Do you not think folks would be howling? of course they would....just as Clinton was called the first black POTUS, now some call Obama the first Jewish one..lol

personally I don’t care that he picks so many liberal Jews but I do find it odd they work for him and other Jews love him considering his stance on Jews who live in a tough neighborhood on the Jordan.

That a lot of Jews love a fellow travler is understood but it saddens me to see that trumps a more pressing matter...not to mention US security too while we’re at it.

[AlanGreenSpam]

Diversity = Divisiveness!

The whole focus in post-politically-correct-corrupt America has been on so-called “Diversity” but that should be discarded in the name of “Unity.”

We had a brief glimpse of that during the few weeks after 9/11 when everyone was proudly driving around with flags stuck on their cars.

Then the Democrap turncoats became evil and denied that they even voted for the war on Iraq.