May 1, 2009

More on Why I Think Cass Sunstein Will Be Obama’s Nominee

Posted in Law tagged , , , , at 10:33 am by Andrew

Here’s my case:

1. From a political perspective, Sunstein passes the only litmus test of the past 20 years: he’s unambiguously in favor of maintaining Roe v. Wade. (Personally, I think the Democratic Party might actually fare better in the electoral sense if Roe were overturned and they were forced to build grass-roots coalitions at the state and local level, but it doesn’t matter; no Democrat is going to nominate someone who opposes Roe, just as no Republican is going to nominate someone who supports it.)

2. Sunstein was an early and vocal Obama supporter.

3. Obama taught Constitutional Law at U. Chicago — here’s a copy of his Con Law exam, if you’re amused by those sorts of things — and, as a result, my intuition is that Obama is more likely to care about the jurisprudential minutiae of his SCOTUS nominees than other Presidents right or left. As such, I would be surprised if Obama viewed the Supreme Court in the kind of starkly political terms that we saw from Clinton and Bush.

All of that suggests to me that Obama is looking for someone he regards as a first-rate legal mind for this appointment. That doesn’t rule out some of the popular short-listers like Elena Kagan, but I think it does rule out merely “distinguished” appellate court judges like Sonia Sontomayor — let alone starkly political appointees like Hillary Clinton and Jennifer Granholm.

4. In picking Joe Biden as VP, Obama has demonstrated a prior willingness to ignore the classic Democratic identity politics. Right now, all of the news channels are focusing on whether Obama will pick a woman, a Hispanic, an Asian, whatever. It wouldn’t surprise me if Obama zigged while everyone expects him to zag and picked a white male.

5. Sunstein is an interesting guy from a jurisprudential perspective; he’s clearly a lefty, but he’s also a true judicial minimalist. One of the frustrating things us lawyers have noticed over the years is the religious right’s hijacking of the word “judicial activist” to mean “judges who rule against us” as opposed to its actual meaning. For example: none of my colleagues — right or left — would dispute that Antonin Scalia is a conservative judicial activist who seeks to repudiate existing precedent where it disagrees with his personal philosophy.

I think it would be difficult for the Republicans to filibuster and/or pigeonhole Sunstein because of his atypical jurisprudential views. You simply cannot pigeonhole him as a guy who wants to legislate from the bench (because he doesn’t).

6. The real impediment to picking Sunstein is that he has a very long written record, and the trend in recent years has been to pick judicial nominees who can’t reliably be pinned down and urge them to stonewall Congress during the nomination process. Sunstein can’t do that; he’s written 40 books on law, and if he tries to claim “I haven’t thought about that,” Senators will be able to produce 5,000 pages he’s written on that subject.



  1. Mike said,

    Good analysis; I’ve liked Sunstein as a writer for some time now, and his book, The Cost of Rights, has been rather influential on my thinking on the subject. I wonder, though, whether his judicial minimalism might get in the way on occasion – sometimes a court has to “legislate from the bench”, as in the recent SSM case in Iowa. Sometimes it’s appropriate.

  2. Andrew said,

    Personally, I hope Obama nominates Sunstein protege Diane Wood, who seems to be the only short-lister with a committed strict separationist judicial philosophy.

  3. Mike said,

    She seems like an interesting candidate; her dissent in Bloch v. Frischholz seems specious, though, having skimmed it.

  4. Sabio said,

    If you like freedom on the web, hope Sunstein doesn’t get on board !

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