July 14, 2009

Sunstein Watch: The Nominee Breaks Silence to Placate Cattle Ranchers; He Isn’t Sonia Sotomayor

Bowing to right-wing political pressure, Cass Sunstein, nominee for “regulatory czar” in the Obama Administration, broke months of official silence to plead his case with the cattle ranchers and agribusiness lobby who have engineered a hold on the nomination by Senator Saxby Chambliss (R-GA).  Sunstein’s move was all the more troubling because his absence from the public eye has included an across-the-board refusal to meet with or respond to any inquiries from a wide range of progressive groups and mainstream news reporters.   Everyone who has tried to approach Sunstein has been shunned—from reporters at several top news outlets to representatives of labor unions and advocacy groups.   The strict wall of “no comment until I am confirmed” has persisted despite the fact that Sunstein has been working at OMB for months, actively participating in a series of decisions by the Obama Administration on regulatory matters.

Don’t get me wrong, on some level I feel some sympathy for Sunstein.  Once again foiled by his own eclectic, even lush, scholarship, Sunstein is in trouble because he has written that animals are widely mistreated in our society and even suggested that, like children, they may deserve to have their “rights” protected in court (see, for example, his 2002 article entitled “The Rights of Animals: A Very Short Primer”).  In the energetic and unrestrained tone that accompanies all his academic writing, Sunstein opined: “Do animals have rights? Almost everyone believes in animal rights, at least in some minimal sense; the real question is what that phrase actually means. [My argument] puts the spotlight squarely on the issues of suffering and well-being. … It strongly suggests, for example, that there should be extensive regulation of the use of animals in entertainment, scientific experiments, and agriculture.” He continues: “My argument—that we should consider refraining from certain practices if this is the only feasible way to avoid widespread suffering—raises a host of questions….Why couldn’t farms generally give their animals decent lives, as many farms now do? … If vegetarianism were widespread, would human health be undermined (as many contend) or improved (as many also contend)? … My suggestion is that on a reasonable reading of the facts, many practices will have to yield.” So, if Professor Sunstein is to be taken at his scholarly word, the cattle growers would be rightly as agitated as progressive groups have been about, for example, Sunstein’s equally provocative suggestion in a 2008 article that the Occupational Safety and Health Administration is unconstitutional.

Of course, the nominee has made the argument for months, through surrogates like his Clinton Administration predecessor Sally Katzen, that his academic writings should not be taken all that seriously because he was serving in the best tradition of a “public intellectual”—acting as a kind of cerebral gadfly or, to borrow the title of his own best-selling book, “nudging” policymaking to the envelope of innovation. (Katzen recently joined the Podesta Group and will represent a slew of Fortune 500 clients with every reason to hope all Obama Administration officials are practical and well-grounded.) At his Senate hearings, he promised to “follow the law”—inside-the-Beltway code for leaving behind his idealistic, even ideological, trappings as a reigning academic in favor of governing the country.

While I’m not completely convinced that Sunstein has abandoned his more rightwing views on health and safety issues, I think the proof will have to be in the pudding, and look forward to working with him, albeit in a watchful manner.

So, regardless of the merits of the concerns about his past life in academia, neither nominee Sunstein nor President Obama deserve this latest act of parliamentary obstructionism prompted by an agriculture lobby that never quits.  The Chambliss hold, in the worst tradition of this arcane Senate procedure, at least has the virtue of being public.   Too many such maneuvers are secret.

The consequence of a hold is that Senate leaders could have difficulty bringing a nomination to the floor without mollifying the member who has imposed the hold because the dissenter has an opportunity to object to consideration of the action item and even launch a filibuster of it.  Placing holds has become a commonplace tactic, further slowing President Obama’s efforts to populate senior management positions throughout the government.   In fact, news broke just yesterday that Senator George Voinovich has placed a hold on the nomination of Robert Perciasepe to become EPA Deputy Administrator not because Perciasepe has displeased him in any way but because the good senator does not like EPA’s analysis of proposed legislation addressing climate change.

To get some idea of how outlandish this parliamentary tactic has become, consider the circumstances of legislation designed to keep guns out of the hands of the mentally ill, which passed the House of Representatives by voice vote -- with the full support of the National Rifle Association -- in the wake of the shootings that killed 32 people at Virginia Tech University in April 2007.  The legislation was held up in the Senate for months by Senator Tom Coburn.

Given this absurd tradition, who knows what promises the agriculture industry is seeking to extract from Cass Sunstein behind closed doors?

Ironically, while Sunstein was rushing to placate the agriculture lobby, Supreme Court nominee Sonia Sotomayor was beginning her grilling by the Senate Judiciary Committee.  Scrutinized within an inch of her life for having said that her perspective as a Latina woman might give her enhanced understanding of some cases before the Court, Sotomayor offers a microscopic target for right-wing backlash in comparison to the expansive Professor Sunstein, who has also been mentioned as a potential Supreme Court nominee.  Sotomayor’s experience could serve to persuade Democrats that they owe it to the President to go to the partisan barricades to support his nominees.  Anyone up for calling Senator Chambliss to the floor to filibuster the Sunstein nomination?

Rena Steinzor, Professor of Law, University of Maryland Carey School of Law. Bio.

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