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Cass Sunstein for Souter slot?

Posted By -NO AUTHOR- On 05/02/2009 @ 1:00 am In Front Page | Comments Disabled


Cass Sunstein

WASHINGTON – The announced retirement of Supreme Court Justice David Souter could result in Barack Obama’s nomination of a man who has been an outspoken proponent of tough restriction on gun sales and ownership, a ban on hunting, animal rights and what has been characterized as a “Fairness Doctrine” for the Internet.

Cass Sunstein, a law professor friend of the president and his current nominee to be regulatory czar, is on a list of eight possible names, including Secretary of State Hillary Clinton, to replace Souter in an article in Atlantic Monthly.

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“Among those who might make the list of replacements: incoming solicitor general Elena Kagan, formerly the dean of the Harvard Law School, Cass Sunstein, a brilliant constitutional law prof who now works at Obama’s Office of Management and Budget, Secretary of State Hillary Clinton, appellate judge Diane Wood, and Leah Ward Sears, the chief justice of Georgia’s Supreme Court,” reports Marc Ambinder. “A dark horse might be Judge Nicholas Garaufis of the Eastern District of New York. Less known but equally potent candidates would be Stanford’s Pam Karlan, an intellectually brilliant liberal, and Johnnie Rawlinson, an appeals court judge and the first African American woman appointed to that circuit. Of all these candidates, Wood and Karlan are probably the brightest lights, and Wood would be most palatable to conservatives. Cato’s Ilya Shapiro, a former Wood student, said that she’d offer a “seriousness of purpose and no ideological ax to grind, this making her the best nominee for supporters of constitutionalism.”

WND reported earlier this week on Sunstein’s advocacy for a “Fairness Doctrine” for the Internet that would require opposing opinions be linked and his suggestion that angry e-mails should be prevented from being sent by technology that would require a 24-hour cooling off period.

The revelations about Cass Sunstein, Obama’s friend from the University of Chicago Law School and nominee to head the White House Office of Information and Regulatory Affairs, come in a new book by Brad O’Leary, “Shut Up, America! The End of Free Speech.” OIRA will oversee regulation throughout the U.S. government.

Sunstein also has argued in his prolific literary works that the Internet is anti-democratic because of the way users can filter out information of their own choosing.

“A system of limitless individual choices, with respect to communications, is not necessarily in the interest of citizenship and self-government,” he wrote. “Democratic efforts to reduce the resulting problems ought not be rejected in freedom’s name.”

Sunstein first proposed the notion of imposing mandatory “electronic sidewalks” for the Net. These “sidewalks” would display links to opposing viewpoints. Adam Thierer, senior fellow and director of the Center for Digital Media Freedom at the Progress and Freedom Center, has characterized the proposal as “The Fairness Doctrine for the Internet.”

“Apparently in Sunstein’s world, people have many rights, but one of them, it seems, is not the right to be left alone or seek out the opinions one desires,” Thierer wrote.

Later, Sunstein rethought his proposal, explaining that it would be “too difficult to regulate [the Internet] in a way that would respond to those concerns.” He also acknowledged that it was “almost certainly unconstitutional.”

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Perhaps Sunstein’s most novel idea regarding the Internet was his proposal, in his book “Nudge,” written with Richard Thaler, for a “Civility Check” for e-mails and other online communications.

“The modern world suffers from insufficient civility,” they wrote. “Every hour of every day, people send angry e-mails they soon regret, cursing people they barely know (or even worse, their friends and loved ones). A few of us have learned a simple rule: don’t send an angry e-mail in the heat of the moment. File it, and wait a day before you send it. (In fact, the next day you may have calmed down so much that you forget even to look at it. So much the better.) But many people either haven’t learned the rule or don’t always follow it. Technology could easily help. In fact, we have no doubt that technologically savvy types could design a helpful program by next month.”

That’s where the “Civility Check” comes in.

“We propose a Civility Check that can accurately tell whether the e-mail you’re about to send is angry and caution you, ‘warning: this appears to be an uncivil e-mail. do you really and truly want to send it?’” they wrote. “(Software already exists to detect foul language. What we are proposing is more subtle, because it is easy to send a really awful e-mail message that does not contain any four-letter words.) A stronger version, which people could choose or which might be the default, would say, ‘warning: this appears to be an uncivil e-mail. this will not be sent unless you ask to resend in 24 hours.’ With the stronger version, you might be able to bypass the delay with some work (by inputting, say, your Social Security number and your grandfather’s birth date, or maybe by solving some irritating math problem!).”

Sunstein’s nomination to the powerful new position will require Senate approval. He is almost certain to face other questions about his well-documented controversial views:

  • In a 2007 speech at Harvard he called for banning hunting in the U.S.

  • In his book “Radicals in Robes,” he wrote: “[A]lmost all gun control legislation is constitutionally fine. And if the Court is right, then fundamentalism does not justify the view that the Second Amendment protects an individual right to bear arms.”
  • In his 2004 book, “Animal Rights,” he wrote: “Animals should be permitted to bring suit, with human beings as their representatives …”
  • In “Animal Rights: A Very Short Primer,” he wrote “[T]here should be extensive regulation of the use of animals in entertainment, in scientific experiments, and in agriculture.”

The American Conservative Union is offering an opportunity for Americans to sound off on Sunstein’s agenda. The organization has created a website called Stop Sunstein through which readers can submit petition signatures to members of the U.S. Senate.

“As one of America’s leading constitutional scholars, Cass Sunstein has distinguished himself in a range of fields, including administrative law and policy, environmental law, and behavioral economics,” said Obama at his nomination of his regulatory czar. “He is uniquely qualified to lead my administration’s regulatory reform agenda at this crucial stage in our history. Cass is not only a valued adviser, he is a dear friend and I am proud to have him on my team.”

O’Leary disagrees.

“It’s hard to imagine President Obama nominating a more dangerous candidate for regulatory czar than Cass Sunstein,” he says. “Not only is Sunstein an animal-rights radical, but he also seems to have a serious problem with our First Amendment rights. Sunstein has advocated everything from regulating the content of personal e-mail communications, to forcing nonprofit groups to publish information on their websites that is counter to their beliefs and mission. Of course, none of this should be surprising from a man who has said that ‘limitless individual choices, with respect to communications, is not necessarily in the interest of citizenship and self-government.’ If it were up to Obama and Sunstein, everything we read online – right down to our personal e-mail communications – would have to be inspected and approved by the federal government.”

For media inquiries for Brad O’Leary, please send an e-mail here.


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