"The word voluntary is a little complicated...." and it actually somehow includes forcing you to do what we think you should do.

Cass Sunstein in full Orwellian mode (back in 2001):



Text:

Sites of one point of view agree to provide links to other sites, so that if you're reading a conservative magazine, they would provide a link to a liberal site and vice versa, just to make it easy for people to get access to competing views. Or maybe a pop-up on your screen that would show an advertisement or maybe even a quick argument for a competing view. [break] The best would be for this to be done voluntarily, but the word "voluntary" is a little complicated, and sometimes people don't do what's best for our society unless Congress holds hearings or unless the public demands it. And the idea would be to have a legal mandate as the last resort, and to make sure it's as neutral as possible if we have to get there, but to have that as, you know, an ultimate weapon designed to encourage people to do better.

I got to the link from Jonah Goldberg, and I also heard the audio on the Rush Limbaugh show yesterday, and I took the text from Media Matters, which critiques Rush (for associating Elena Kagan with the idea and for botching the meaning of "net neutrality") and refers us to a 2008 Bloggingheads diavlog in which Sunstein calls his own idea "bad." Here's the Bloggingheads segment (with Eugene Volokh!). I have not listened through it to figure out how far Sunstein may have walked back from his idea (and why).

"Sunstein has nothing to do with the 'czars' or the problems with the ‘czars.'"

"The ironic thing is that anybody else who might be appointed to this job would be less qualified, and more liberal. I disagree with what Sunstein writes in 'Nudge.' But what he advocates is not as bad as the views likely to be held by other people who could run [the Office of Information and Regulatory Affairs]."

"[T]he number of people who believe that the President has larded the government with communists (!) was astonishing."

Says Joe Klein, who attended a town hall meeting in Nebraska:

One woman said there were four known communists in the government and that she'd researched it on the internet. When I asked her afterwards, she said environmental adviser Van Jones, legal advisor Cass Sunstein (who was last spotted being excoriated by the left for supporting the FISA revisions), someone named Lloyd and she didn't remember the fourth. And wasn't it suspicious that Obama had all these czars working for him--that was a Russkie commie term, wasn't it? When I asked, the woman admitted that, among other things, she occasionally listened to William Bennett's conservative radio show. I pointed out that Bennett had once been the Drug Czar, appointed by Ronald Reagan. Life sure can be complicated sometimes.

Wow. Joe got a lot out of one woman in Nebraska! But remember, what he asserts is "astonishing" is "the number" of people who think there are communists in the government. I certainly agree that the number one is astonishing. You'd think, by now, a lot more would be plunging ahead and using the inflammatory word.

I was later told by a local observer that many of these vomitous, disgraceful notions were the fruit of Glenn Beck's fruitful imagination. "We are living Glenn Beck's fantasy life," said this audience member. The amazing thing remains not only the unwillingness of responsible Republicans--a term that is in danger of becoming an oxymoron--to call bull-- on this, but also the willingness of many prominent Republicans to join in the slinging of garbage.

Astonishing... amazing... poor Joe is continually surprised by ordinary things. What's amazing? Blech... I have to reread: not only the unwillingness of responsible Republicans... to call bullshit on this, but also the willingness of many prominent Republicans to join in the slinging of garbage. So what's amazing — to plow through Klein's verbiage — is that Republicans use and put up with inflammatory rhetoric.

Yawn. I don't really think Klein is astonished and amazed by any of this. He's just doing the old I'm-surprised-at-you routine beloved of kindergarten teachers. I'm sure he'd love conservatives to stop putting their arguments in such stimulating and colorful terms. (Look out! It's a death panel!)

Michelle Cottle reports that there are Republican-sanctioned efforts afoot to have parents not send their children to school on September 8 because the President is scheduled to address the nation's school-children that day and they are afraid that he will fill their little heads with socialist propaganda. That is somewhere well beyond disgraceful.

No, Joe. Because they are disgusted at the melding of partisan political power and education and the prospect of a child made to accept compulsory school in the form of gazing upon the face of our leader. Imagine if Bush had proposed such an exercise for all of the children on the first day of school. Well, Bush would never have proposed such a thing because: 1. He didn't have the fawning approval of the vast majority of teachers, and 2. He never acquired the idea that his countenance and voice could inspire the masses. But if he did you know very well, Joe, that you'd have been disgusted at Bush, not the people who objected to his absurd display.

Could I just say that the intensity of this getting pretty scary...and dangerous?

Could I just say... may I be so bold... timid little me... can I please just say something... I'm scared! It's dangerous!!!1!!111!

We are heading toward a cliff and the usual brakes of civil discourse are not working.

Get a grip, Joe, you timorous mouse of a man. But that's just a joke. I know you're not really concerned about "civil discourse" in the abstract. You're annoyed that the people have started paying attention and are not sitting back in awed reverence like the most confused and cowed first grader watching that nice man on TV. You thought that when the Democrats won — "I won!" — they'd be able to roll up their preferences into 1000-page bundles and there wouldn't be anything people could do about it. But — lo and behold! — they used speech, free speech, they spoke their minds, sometimes harshly and with hot emotion, but they got themselves heard. If you think that is "heading toward a cliff" without "the usual brakes," then I say you don't believe in a free democratic society.

Indeed, the Republicans have the pedal to the metal--rushing us toward a tragedy far greater than the California health care forum finger-biting Karen describes below.

What tragedy? Not passing a sprawling, amorphous, unproven rearrangement of the way health care is paid for? Who is plying overheated, irrational rhetoric? That lady in Nebraska? Glenn Beck? Or Joe Klein?

Barack Obama has not flip-flopped or betrayed his lefty fans. You need to understand: He's a "visionary minimalist."

Cass R. Sunstein offers up a useful term — so that everyone can always understand everything about Barack Obama:

Of course Obama is a progressive.... But, by nature, he is also an independent thinker, and he listens to all sides. One of his most distinctive features is that he is a minimalist, not in the sense that he always favors small steps (he doesn't), but because he prefers solutions that can be accepted by people with a wide variety of theoretical inclinations.

When he offers visionary approaches, he does so as a visionary minimalist -- that is, as someone who attempts to accommodate, rather than to repudiate, the defining beliefs of most Americans. His reluctance to challenge people's deepest commitments might turn out to be what makes ambitious plans possible--notwithstanding the hopes of the far left and the cartoons of the far right.

He is infinitely complex, people. It's you that need to get up to speed. Readjust. Visionary minimalism makes everything right.

And, no, it's not a new round of triangulation. Don't pin that on the new man:

Just as he resists ideological templates, Obama does not believe in "triangulation"; his skepticism about conventional ideological categories is principled, not strategic.

(Did that hurt, Bill?)

Obama does not follow old-line political orthodoxies. Above all, Obama's form of pragmatism is heavily empirical; he wants to know what will work.

That can't be wrong.

[I]n his empiricism, his curiosity, his insistence on nuance, and his lack of dogmatism, Obama is indeed a sort of anti-Bush--and perhaps the best kind. If the Bush administration has often operated on the basis of the president's "instinct," we should expect to see, from Obama, a rigorously evidence-based government....

The larger point is that Obama's departures from left-wing orthodoxy should not be understood as a betrayal of his own beliefs, or as a kind of "tacking to the center." Instead, they reflect something altogether different: an independence of mind, and a rejection of doctrinal filters, that we do not often see in candidates for public office.

If I could know that's all true, I would vote for Obama. But it could just as well be a guise, a cover, to get me to fall for something I'm not going to want at all. After you do all that listening and evidence-collecting and cogitating, you still have to make the call. It can't be pure science. The instincts will tip the answers one way or the other. But Cass Sunstein insists that there's a rejection of doctrinal filters. I don't know that it is possible to think without something like a "doctrinal filter." But maybe it's possible that Obama does -- or at least comes closer to unfiltered thinking than anyone else is likely to do.

ADDED: This isn't the first time Sunstein has expatiated on Obama's "visionary minimalism" in TNR. Here's his piece from last January.

Cass Sunstein and Eugene Volokh on Bloggingheads.

Looks like a good one.

"Justice Clarence Thomas is the winner of the Partisan Voting Award for the most politically skewed voting pattern."

According to Thomas J. Miles and Cass R. Sunstein.

Justice John Paul Stevens is the runner-up...

The Judicial Restraint Award, for the most humble exercise of judicial power, goes to Justice Stephen G. Breyer....

The Judicial Activism Award, for aggressive use of judicial power, goes to a most surprising winner: Justice Antonin Scalia....

And Anthony Kennedy is the most neutral, followed by David Souter.

Agree?

ADDED: This is making me think of that radio show I did with Sunstein the day Samuel Alito was nominated to the Supreme Court:

Cass Sunstein came ready with statistics based on reading 41 Alito dissents and concluding that Alito was a predictable conservative vote, a point he repeated at least five times. And then he accused me of spinning.... Isn't this like "he who smelt it, dealt it"? He who detects spinning is the spinner?

IN THE COMMENTS: Henry writes:

I'm sure Sunstein's and Miles' methodology is spot on. So, in the spirit of the Emmy's, I suggest the following:

The Consistent Application of Principles Award goes to Justice Clarence Thomas.

The What-Side-of-Bed-Did-I-Get-Out-of-Today Award goes to Justice Anthony Kennedy.

The Check Executive Power Award goes to Justice Antonin Scalia.

The Check? Moi? Award goes to Justice Stephen G. Breyer.

(As an aside -- remember how concerned the left was with the idea that Roberts and Alito would be too prone to defer the executive branch? Apparently deference is a good thing!)

Thanks for the opening, Professors.

Very well put! I haven't examined the empirical methodology, so I have no idea what skewing and bias may lie therein, but Miles and Sunstein have skewed the labels like mad. Thanks to Henry for doing the reverse-skew so well.

Sunstein on Dworkin.

Cass Sunstein reviews Ronald Dworkin's "Justice in Robes." Excerpt:

Dworkin agrees that judges generally must be faithful to existing legal materials, but he insists that they are not merely "following" something. The law is often unclear. Dworkin contends that when resolving real disputes, judges must select the principle that puts previous decisions in their most attractive light. For this reason, the task of interpretation requires judges to think seriously about what morality requires, and they might well end up moving the law in dramatic and novel directions. ...

... Dworkin's central arguments are right. Legal reasoning typically works by attempting both to "fit" past decisions and to "justify" them, by making them into sense rather than nonsense. Too much of the time, politicians and judges ignore the fact that judicial judgments, about principle and policy, play an inevitable role in determining what the law is. ...

Dworkin's second claim is that the Supreme Court should adopt an approach that calls on the justices to make large-scale judgments about the meaning of our highest ideals. I think that the Court should, most of the time, refuse to assume such a role. It should refuse to do so because fallible judges ought to avoid engaging, in particular cases, with the most fundamental problems in morality and politics. No theory of interpretation can avoid moral and political controversy, but it is possible to adopt, on moral and political grounds, a theory of interpretation that asks judges to decline to deploy their own moral and political judgments as weapons against the democratic process.

"A remarkable pattern" of "almost uniformly conservative" dissents?

On Monday night, I was on a radio show with lawprof Cass Sunstein, talking about the nomination of Samuel Alito, which Bush had announced just that morning. Sunstein stressed a study of 41 Alito dissents, which he had -- amazingly -- completed that day. I see that he published an opinion piece about his study in the Washington Post yesterday:

As an appeals court judge, Samuel Alito has compiled a massive record that includes more than 240 opinions. Of these, the most illuminating may well be his 41 dissents -- opinions that he has written by himself, rejecting the views of his colleagues.

When they touch on issues that split people along political lines, Alito's dissents show a remarkable pattern: They are almost uniformly conservative. In the overwhelming majority of cases, he has urged a more conservative position than that of his colleagues. In his dissents, at least, he has been a conservative's conservative -- not always in his reasoning, which tends to be modest, but in his ultimate conclusions.

"Almost uniformly" -- what does that mean? There were 41 cases. In how many of the dissenting opinion did he take a position that Sunstein could code as "more conservative" than that taken by the rest of the panel (that is, the other two other judges from what, Sunstein concedes, is the "relatively liberal" Third Circuit)?

The WaPo piece doesn't give the number, but on the radio show -- which you can listen to here -- Sunstein says twice that "two dozen" of the dissents go in the conservative direction. 24 as compared to 17 is a "remarkable pattern"? 58% of the time is "almost uniformly"? I don't get it!

Or is it that there is some subcategory of the 41 cases that Sunstein viewed as containing "issues that split people along political lines"? So how many dissents in fifteen years are we talking about? Perhaps it's 27, because he did also mention that there were 3 cases in which he coded Alito's dissent as more liberal than the rest of the panel.

Can someone replicate the coding and counting of the Alito dissents? Apparently, it's a one-day job.

Also, when a judge dissents is he "rejecting the views of his colleagues"? Judges' conclusions upon analyzing legal issues aren't "views," and a disagreement among a panel of three judges isn't properly characterized as a "rejection" aimed at colleagues. They simply reached different conclusions and are saying as much.

UPDATE: Cass Sunstein emails:

In terms of counting: I looked over 41 dissents (not including the 14 or so concurring and dissenting opinions). Some of them are easy to code in ideological terms; some of them aren't. Somewhere between 13 and 20 are best treated as "neutral," that is, no ideological valence at all. Of those with an ideological valence, somewhere between 100% and 85% are to the majority's right. My best estimate is on the high end of that range. -- Reasonable people can differ, of course, about the precise calculation, but by any objective count, I think, the overwhelming majority (of those with an ideological valence) are to the right -- and more important, in a distinctive and interesting way, that is, they ask for deference to powerful institutions (and hence show little or no discernible libertarian streak). -- I confess that I wasn't looking (or hoping) for this pattern. It really surprised me. I really want to be in favor of Alito and haven't made up my mind -- this is a just a source of concern.

So, spread out over 15 years on the bench, we're talking about maybe one case a year. I'm not so ready to feel concerned about this. I'd like to see the actual cases. It could be that Alito is just turning out workmanlike analysis where the other two judges were stretching for a liberal result. Are the dissents on panels with especially liberal judges or in cases where it was tempting to the majority to overreach in a liberal direction? Are the dissents clustered in his early or later years or evenly spread over the years? Somehow these statistics don't speak to me other than to say: examine this more closely.

Radio alert!

I'll be on Open Source, a nationally distributed public radio show based in Boston and hosted by Christopher Lydon, at 7 Eastern, 6 Central Time -- in other words, in a few minutes. I'll be talking about Supreme Court nominations along with Cass Sunstein, Eric Muller, and Charles Fried. You can listen live here. And it's Halloween, with kids coming to the door.... Crazy day! And I've got a final edit on an op-ed to turn around before I go on. Gotta run!

UPDATE: That was interesting. Cass Sunstein came ready with statistics based on reading 41 Alito dissents and concluding that Alito was a predictable conservative vote, a point he repeated at least five times. And then he accused me of spinning.... Isn't this like "he who smelt it, dealt it"? He who detects spinning is the spinner?

Although I'm detecting it now, so....

Oh, lord! I am hitting the wall tonight!

And where are all the trick-or-treaters? I've got sooooo much extra candy! Two tiny kids came to the door just now and I held out a giant bowl o' candy and said "Take as much as you want."

Spiderman and the Princess each took one piece.

"Go ahead, take as much as you want."

No reaction.

"Go ahead, take two."

Answer: "I already have one."

Awwwww.... little kids are so sweet!

UPDATE: Here's the recording of the show.

What keeps conservatives out of academia?

John Tierney has another column (behind TimesSelect) about the lack of conservatives in academia. He paraphrases the justifications various professors have offered:

1. Conservatives do not value knowledge for its own sake.

2. Conservatives do not care about the social good.

3. Conservatives are too greedy to work for professors' wages.

4. Conservatives are too dumb to get tenure.

Tierney rejects all of that, and blames the disparity on "the structure of academia, where decisions about hiring are made by small independent groups of scholars":

They're subject to the law of group polarization, derived from studies of juries and other groups.

"If people are engaged in deliberation with like-minded others, they end up more confident, more homogenous and more extreme in their beliefs," said Cass Sunstein, a law professor at the University of Chicago. "If you have an English or history department that leans left, their interactions will push them further left."

Once liberals dominate a department, they can increase their majority by voting to award tenure to like-minded scholars. As liberals dominate a field, conservatives' work comes to be seen as fringe scholarship.

"The filtering out of conservatives in the job pipeline rarely works by outright blackballing," said Mark Bauerlein, a conservative who is an English professor at Emory. "It doesn't have to. The intellectual focus of the disciplines does that by itself."

Suppose, he said, you were a conservative who wanted to do a sociology dissertation on the debilitating effects of the European welfare state, or an English dissertation arguing that anticommunist literature from the mid-20th century was as valuable as the procommunist literature.

"You'd have a hard time finding a dissertation adviser, an interested publisher and a receptive hiring committee," Bauerlein said. "Your work just wouldn't look like relevant scholarship, and would be quietly set aside."

That sounds accurate to me.

Tierney concludes that the phenomenon ultimately hurts liberals in the political sphere because they can't draw on the ideas of liberals in academia, who have veered too far left to produce ideas that are appealing to American voters.

Worrying about "The Constitution in Exile."

Do we have to read Jeffrey Rosen's long article in the NYT Magazine (poorly titled "The Unregulated Offensive")? It's an examination of what is characterized as a movement -- called "The Constitution in Exile" -- to bring back the Constitution as it was understood before the Court changed many interpretations beginning in 1937. The article, which is full of the usual warnings about Bush's judicial nominees, focuses on a few key proponents, for example:

Michael Greve, an active defender of the Constitution in Exile at Washington's conservative American Enterprise Institute, argues that to achieve its goals, the movement ultimately needs not just one or two but four more Supreme Court justices sympathetic to its cause, as well as a larger transformation in the overall political and legal culture. ''I think what is really needed here is a fundamental intellectual assault on the entire New Deal edifice,'' he says. ''We want to withdraw judicial support for the entire modern welfare state. I'd retire and play golf if I could get there.''

There's much more in the article, including a discussion of the theories of lawprof Richard Epstein, and a description of a clash between Epstein and Justice Scalia. I could excerpt more, but I recommend reading the article if you're not familiar with recent Supreme Court case law. If you are familiar with the cases, you might want to skim and then read the last page, which is oddly inconclusive.

UPDATE: This post by David Bernstein at Volokh Conspiracy is very helpful. He debunks the idea of a "Constitution in Exile movement" (there's really only "a very loose-knit group of libertarian-oriented intellectuals with many disagreements among themselves"), [MATERIAL DELETED because Bernstein deleted it as "unfair"], and observes that Bush is unlikely to try to appoint libertarians to the Supreme Court. About the phrase "Constitution in Exile," he writes:

[T]he phrase was pretty much ignored until 2001, when it was picked up and publicized by liberals. In October 2001, the Duke Law Journal, at the behest of some liberal law professors assumedly worried about what would happen to constitutional law under Bush appointees, published a symposium on the Constitution in Exile. Thereafter, other left-wingers, such as Doug Kendall of the Community Rights Council and Professor Cass Sunstein, began to mutter about some dark conspiracy among right-wingers to restore something called "the Constitution in Exile."

You can read that symposium issue of Duke Law Journal here. I was one of the participants.