Strengthening Constitutional Self-Government

No Left Turns

Is Sunstein Obama’s Best Choice?

This originalist says so. He’s an impressive scholar, a good guy, a "judicial minimalist," and is for cost-benefit analysis.

Discussions - 21 Comments

I offer this purely as an incidental remark about the state of identity politics in the U.S. The author of the article observes, "...Cass Sunstein is also white." That is, it's two aspects (including "male") of the demographic same-old, same-old among our rulers.

Now, "whiteness" wasn't and wouldn't have been simply ascribed to Louis Brandeis during his Court nomination less than a century ago. Obviously, the article's author mentioned Sunstein's whiteness in the contemporary context, to speak to the possibility of his "representing" on the Supreme Court, and his whiteness dims this prospect (however liberal Sustein's general views). But from the broader view, I think the statement's very matter-of-factness shows how far the U.S. has come in equal citizenship -- i.e., how our ruling majority has encompassed, and continues to encompass, more and more ethnic (and religious) minorities (whose minority status then becomes irrelevant officially or legally).

Can we expect, then, that a hundred years from now, an article on a Supreme Court nominee (of, say, Mexican or even African derivation) would omit, or see no reason to remark on, his "whiteness" or lack thereof?

If so, would this require the deliberate, sustained, political defeat of identity politics? Or would less deliberate influences (say, flourishing commerce) be enough?

The Second Bill of Rights: FDR's Unfinished Revolution and Why We Need It More than Ever is the title of his book. His bio seems filled with contradiction and he is divorced from the former student he married (one for all the hard line social conservatives). On the one side it says he is for judicial restraint and for just deciding cases rather than making laws. However, the work done on behavioral economics seems a strange place for someone who just needs to interpret the constitution.

I think a Sunstein pick would be in keeping with what I argued and Steve H. seconded would be the best possible scenario given the political situation. It seems to me that the only way to expect improvement on the Court is to get the best and most articulate defenders of the respective views of the Constitution on that Court to duke it out in print. For one thing, it will make for interesting reading. But, more important, it has a better chance of bringing about clarity. The stakes will be higher, of course . . .

Julie, do you really think cases are decided on the merits of the briefs? Just take a gander at the dissents in Casey, and ask yourself who got the better of the argument. And did it any of it sway O'Connor, or Kennedy, --------- not in the slightest.

Dan I didn't say anything at all about the briefs nor did I imply anything about them. You're right that O'Connor and Kennedy wouldn't recognize a good one if it bit them in the . . . and that's rather the point. Wouldn't you rather see people on the Court who can make a good strong case for their thinking IN THEIR OPINIONS (even if they disregard good briefs) than to see more lightweights added to the bench who can't recognize a good brief because they can't make a good argument themselves? Such people muddy the waters with their unclear thinking and torture us with poorly written and badly argued opinions. We may not agree with Sunstein, but we will be able, at least, to hope for some clarity about the disagreement.

But from the broader view, I think the statement's very matter-of-factness shows how far the U.S. has come in equal citizenship -- i.e., how our ruling majority has encompassed, and continues to encompass, more and more ethnic (and religious) minorities (whose minority status then becomes irrelevant officially or legally).


You have got to be kidding me. We are accepting the act that his being a member of a certain sex and race is a count against him, and you somehow manage to see in this the increasing irrelevance of "minority status"?

This is not "equal citizenship", this is a naked racial spoils system.

John M., you miss my point. By now in the U.S., Jews (like any American citizen who's, say, ethnically Irish, Italian, Polish, Swedish, Hungarian, Croatian, Chinese) are "white" -- they are of the majority, they are ineligible for special ethnic preferences from government and they're unlikely to demand them on behalf of their oppressed kinfolk).

If Obama nominates Sunstein, even liberals will admit that he's Jewishness is irrelevant to his nomination. He wouldn't be on the Court to "represent" the special political interest or point of view of Jews. The same probably could not be said about any Mexican-American or African-American or woman that Obama might nominate.

Politics as the expression of race or ethnicity is irrational as well as embittering; it cannot lead to justice or the common good.

If the political consensus is that Sunstein, however liberal, is "white" (again, that has no axe to grind for "his people"), one important political consequence is: fellow citizens can question his opinions without being accused of being racist (a real conversation-killer). Sunstein may not change his views one iota, but at least the tone of politics is lifted above, say, Zimbabwe or Nazi Germany.

Julie, at the end of the day, a Brennan does infinitely more damage than a Marshall. I've no desire to see another Brennan on the high court, I would prefer he send dolts, who soon become the plaything of their clerks, and allow them to formulate and churn out their poorly written, overly cited rulings.

And Julie, when I used "briefs" in that post, I didn't confine my meaning to the material of the briefs, but encompassed within the term the notes shuffled back and forth between the Judges. Breyer and Ginsburg are openly advocating for the ability to reach out to foreign jurisdictions for the "precedents" they desire. They're no longer confined by precedent, facts or existing law. They're out there.

I expect him to get whoever he wants. I don't expect Republicans to offer any more resistance to Obama's nominees than they offered to Ginsburg.

JQA, we already have Jews on the Supreme Court, Ruth Bader-Ginsberg. If we had none, and had never had one, you'd better believe there would be pressure to appoint the first one.

If the political consensus is that Sunstein, however liberal, is "white" (again, that has no axe to grind for "his people"), one important political consequence is: fellow citizens can question his opinions without being accused of being racist (a real conversation-killer).

I've seen plenty of people offering criticism of Sunstein, and they were never met with accusations of racism for it. This is not attributable to Jews finally being regarded as "white". Louis Brandeis was appointed to the Court in 1916! In spite of what the idiot left (which is frequently Jewish) may tell you, Jews were always "white" in America.

I should add that we actually have two Jews on the Court at present, Ginsberg and Breyer. So a more realistic impediment to Sunstein may be some reluctance to put three Jews on the nations highest court, when Jews make up such a tiny fraction of Americans.

If he puts Cass Sustein on the supreme court then I will become a legal expert.

If he didn't already have Elena Kagan as Solicitor General she might make an interesting choice.

I certainly agree with the chicago school, new institutionalist, behavioral economics trajectory but I was thinking 7th circuit, maybe Diane Pamela Wood, Richard Posner or Frank Easterbrook.

Now Wood is a woman and younger and appointed by Clinton as opposed to Reagan, but it is unclear(to me) how much difference really exists between the three.

I agree with JQA, I think justices should be selected purely on the basis of legal philosophy.

The supreme court should be packed with the best minds first and foremost.

I don't think Ayn Ayres is a potential choice but in the vein that enjoys making predictions(supercrunching the supreme court no less!)

In this vein my best educated guess is that Obama will nominate Diane Pamela Wood.

I am not sure that Wood isn't Obama's best choice, and this according to the logic of Sunstein no less.

"It is precisely these “broad, sweeping judgments” that get people so rightly and understandably riled up about judicial activism; such judgments only serve to take power that rightfully belongs in the political sphere and place it instead in the judicial sphere." I COULD NOT AGREE MORE.

The supreme court should be packed with the best minds first and foremost.

I'm afraid I have to disagree. There is nothing in the job of justice which requires the best minds in the country. Done properly, it is a rather boring and routine job with zero room for creative genius.

What about Cass Sunstein's former partner, Martha Nussbaum, a non-lawyer but a sometimes interesting writer. What the heck, why not Stanley Fish, another non-lawyer who has taught at law schools.

Like Sunstein, Nussbaum and Fish are Jewish.

The Constitution deserves to have the best minds at work in interpreting it. I would hope that every president--regardless of whether I agree with his understanding of the Constitution--would use that as his standard in choosing a justice. Of course, they don't always do that . . . but I think it is to be lamented.

Dan makes an interesting and maybe even a fair point in saying that Brennan (because he was smarter) did more harm to the Constitution than Marshall did. But this only highlights the poor quality of the justices then on the court who represented something more akin to Dan's view of the Constitution. I don't think we are in the same position now. There may be something left to be desired by some of the so-called "originalists" on the Court . . . but perhaps someone like Sunstein will help them rise to the occasion. In any event, I think the bumbling of a Marshall or other lightweight liberal just obfuscates the central issues in even more layers of political BS. And we have enough of that coming from the White House and Congress. I'd rather see intellectual honesty coming from the Court.

Scalia and Roberts don't need a Brennan or a Sunstein to spur them on towards their best efforts. And Thomas, unremarked upon as it is, is quietly laying out his own take on the Constitution, concurring with Scalia, but often times for different reasons.

We've sustained enough damage to the country by Lefties getting real creative like with the Constitution, especially the 14th Amendment. Sunstein promises but more of the same, another Brennan, but not nearly the wordsmith of Brennan.

We will have to agree to disagree, Dan. And Thomas' jurisprudence is not unremarked upon or unnoticed here. I am eager to see whether it doesn't get more notice when he has a worthy opponent.

Though I am not a lawyer, I have a sense that the "best minds" among law students cut their teeth on appellate decisions and come to admire them for their tightness as well as their creativity -- though we want them to see through those qualities and not admire them too much. Such minds go on to a culture of litigation where cases have high stakes and attract for hire the "best minds." Therefore, appellate judges, and above all SC Justices, do better with comparable horsepower lest they decide on the basis of merely admirable briefs. In short, here as elsewhere "best and brightest" is necessary but not sufficient.

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