The Horrible Prospect of Supreme Court Justice Cass Sunstein

A media consensus has emerged that the retirement of Supreme Court
Justice John Paul Stevens, the 90-year-old Ford-appointee who became the
leader of the Court's so-called "liberal wing," is now imminent. The New
York Times' Peter Baker has an
article today on Obama's leading candidates to replace Stevens, in
which one finds this strange passage:

The president's base hopes he will name a full-throated champion
to counter Justice Antonin Scalia, the most forceful conservative on the
bench. . . . The candidates who would most excite the left
include the constitutional scholars Harold Hongju Koh, Cass R.
Sunstein and Pamela S. Karlan.

While that's probably true of Koh and Karlan, it's absolutely false
with regard to Sunstein, who is currently Obama's Chief of the Office
of Information and Regulatory Affairs. From the beginning of the War on
Terror, Cass Sunstein turned himself into the most reliable Democratic
cheerleaders for Bush/Cheney radicalism and their assault on
the Constitution and the rule of law.

In 2002, at the height of
controversy over Bush's creation of military commissions without
Congressional approval, Sunstein
stepped forward to insist that "[u]nder existing law, President
George W. Bush has the legal authority to use military commissions" and
that "President Bush's choice stands on firm legal ground." Sunstein
scorned as "ludicrous" the argument
from Law Professor George Fletcher that the Supreme Court would
find Bush's military commissions without any legal basis. Four years
later -- in
its Hamdan ruling -- the Supreme Court, with Justice
Stevens in the majority, held that Bush lacked the legal authority to
create military commissions without approval from Congress, i.e.,
the Court (and Stevens) found Bush lacked exactly the "legal authority"
which Sunstein vehemently insisted he possessed. Had Sunstein been on
the Court then instead of Stevens, that decision presumably would have
come out the opposite way: in favor of Bush's sweeping claims of
executive authority.

Worse still, in 2005, Sunstein became the hero of the
Bush-following Right when, in the wake of revelations that the Bush
administration was illegally eavesdropping on Americans, he quickly
proclaimed that Bush was within his legal rights to spy without
warrants in violation of FISA. Sunstein defended Bush's NSA program by
embracing the two extremist arguments at the core of Bush/Cheney
lawlessness: that (1) the AUMF silently authorized warrantless
eavesdropping in violation of FISA and, worse, (2) the President may
have a
plausible claim that Article II "inherently" authorizes warrantless
eavesdropping regardless of what a statute says.

In a
March, 2006 Washington Post article, Sunstein solidified
his credential as Leading Democratic-Law-Professor/Bush-Defender by
mocking the notion that Bush had committed crimes while in office:

[Harvard Law Professor Laurence] Tribe wrote [Rep. John] Conyers,
dismissing Bush's defense of warrantless surveillance as "poppycock." It
constituted, Tribe concluded,"as grave an abuse
of executive authority as I can recall ever having studied."

But posed against this bill of aggrievement are legal and
practical realities. Not all scholars, even of a liberal bent,
agree that Bush has committed "high crimes and misdemeanors."
Bush's legal advice may be wrong, they say, but still reside within the
bounds of reason.

"The Clinton impeachment was plainly unconstitutional, and a Bush
impeachment would be nearly as bad," said Cass R. Sunstein, a professor
of constitutional law at the University of Chicago. "There is a very
good argument that the president had it wrong on WMD in Iraq but that he
was acting in complete good faith."

Sunstein argues that Bush's decision to conduct
surveillance of Americans without court approval flowed from Congress's
vote to allow an armed struggle against al-Qaeda. "If you can kill them,
why can't you spy on them?" Sunstein said, adding that this is
a minority view.

In 2008, Sunstein became the leading
proponent of the Bush/Cheney-sponsored bill to legalize Bush's
warrantless eavesdropping program and to immunize lawbreaking telecoms, a
bill which Obama -- advised by Sunstein -- ended up voting for in
violation of his pledge to filibuster. The same year, Sunstein provoked
widespread anger among progressives by insisting
(again) that investigations and prosecutions of Bush officials
would be inappropriate
and harmful. As summarized by
Talk Left's Armando, a long-time lawyer: "Cass Sunstein has
been defending the Bush Administration's illegal actions and the Bush
Administration's preposterous claims for many many years now. This is
who he is." Hey, Left: doesn't the thought of Supreme Court
Justice Cass Sunstein make you tingle with "excitement," just as Peter
Baker said?

Even in domestic policy, Sunstein is far away from "the Left." As Matt
Yglesias put it last April after Obama nominated him to be head of
White House regulatory policy: his "views on regulation are, if
anything, somewhat more conservative than those of most
Democrats." In reviewing Sunstein's domestic policy book, Nudge,
Matt Stoller
pointed out that several of his ideas are "exactly 100% out of the
conventional wisdom from the 1960s conservative movement," that he
steadfastly exempts the Pentagon and the Surveillance State from claims
that the Government is too large, and even holds up Rahm Emanuel as a
"liberal," just to give a sense of how Sunstein views the political
spectrum. As I discussed
earlier this year, Sunstein also proposed a consummately creepy
plan for the government to "cognitively infiltrate" online discussions
which spout views that Sunstein deems false.

Along with
TNR's Jeffrey Rosen, it was Sunstein who took a leading
role in telling Democrats that John
Roberts was a good choice for the Court. While Rosen has acknowledged
he was wrong in his assessment -- because Roberts turned out to be
exactly the judicial radical which liberals said he was (while
Rosen/Sunstein derided liberals for saying so) -- Sunstein continued to praise
Roberts and Sam Alito for their rulings. A former student of
Sunstein's at Chicago Law School, the very smart liberal blogger
Kathy G, detailed
Sunstein's record in a comprehensive post, including his expressed
affection and admiration for the executive-power-loving radicals of the
Federalist Society which, among other things, produced John Yoo (she
also notes Sunstein's view that Roe v. Wade was "wrongly
decided," though he doesn't favor its overruling). As she aptly put it:

I think Sunstein is an extremely ambitious man who basically
would run over his own grandmother for a seat on the Supreme Court
(well, he'd think seriously about doing so, anyway). Seeing how powerful
the right wing has been in this country (at least until recently),
especially regarding the courts, Sunstein must know that if he wants to
be a Supreme Court justice, it would help if he were cozy with the right
and accepted many of their basic ideas (such as judicial "minimalism,"
which he has advocated), albeit with a more centrist spin. It obviously
would also help his popularity with the right if he were to refrain from
bruising conservatives' tender feelings by pointing out such
inconvenient truths as the fact that the current administration is a
pack of dangerous, despotic war criminals.

Indeed, for all of these reasons, Sunstein has been praised
by the Right as one of Obama's best picks while consistently
opposed by "the Left."

Given all this, I have no idea what would possibly lead Baker to
claim that Sunstein would be a favorite choice of the Left for
the Court, though I can guess: the fact that the incoherent Glenn Beck
-- for some inexplicable reason -- has made Sunstein a prime target of
his deranged rantings about The Imminent Takeover of Leninism leads
Baker to believe that Sunstein must be beloved by the Left. He most
assuredly is not. Ironically, with this administration and in our
political culture, the perception that a Sunstein appointment would
"excite the Left" is probably the best way to ensure he is not
chosen for the Court, as nothing is more fatal in Washington than being
viewed as Liked by the Left. Just ask Dawn
Johnsen about that, if
you can find her (indeed, reflecting How Washington Works, Baker
immediately says of the candidates he identifies as The Left's
Favorites: "insiders doubt Mr. Obama would pick any of them now"). So
it's arguably productive to let this view of Sunstein stand, as false as
it is.

The person who many believe is the leading candidate to replace
Stevens -- Obama's Solicitor General Elena Kagan -- has a record
that is almost
as bad as Sunstein's when it
comes to executive
power abuses, civil
liberties, and "War
on Terror" radicalism. Unlike the Sotomayor-for-Souter
substitution, which essentially maintained the Court's balance,
replacing Stevens with the likes of Cass Sunstein or Elena Kagan would
move the Court dramatically to the Right, especially in the areas of
executive power and civil liberties, where a fragile 5-4 majority has
provided at least some minimal safeguards over the last
decade. Whatever else one might want to say about Cass Sunstein -- or,
for that matter, Elena Kagan -- it is simply false to claim that they
would fit within the so-called "liberal" wing of the Court on matters of
executive power and civil liberties. The replacement of John Paul
Stevens could have a very radical impact on the Supreme Court, and it's
certainly not too early to begin combating pernicious myths about the
leading candidates.