[Congressional Record Volume 155, Number 127 (Thursday, September 10, 2009)]
[Senate]
[Pages S9229-S9230]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           EXECUTIVE SESSION

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  NOMINATION OF CASS R. SUNSTEIN TO BE ADMINISTRATOR OF THE OFFICE OF 
  INFORMATION AND REGULATORY AFFAIRS, OFFICE OF MANAGEMENT AND BUDGET

  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to executive session to consider the following nomination, 
which the clerk will report.
  The legislative clerk read the nomination of Cass R. Sunstein, of 
Massachusetts, to be Administrator of the Office of Information and 
Regulatory Affairs, Office of Management and Budget.
  Ms. STABENOW. Mr. President, I suggest the absence of a quorum and 
ask that the time be charged equally to both sides.
  Without objection, it is so ordered.
  The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. BROWN. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Ms. Stabenow.) Without objection, it is so 
ordered.
  Mr. KYL. Madam President, Professor Cass Sunstein's academic 
credentials are impressive. He has taught at the University of Chicago 
School of Law and at the Harvard School of Law, and has been a prolific 
writer on a wide variety of topics.
  He has some fine ideas on cost-benefit analysis, and I hope they will 
be reflected in his approach as administrator of Office of Information 
and Regulatory Affairs.
  I do, however, find that some of the arguments he has made, and the 
positions he has taken in his writings and speeches, fall outside the 
mainstream.
  One theme that has appeared repeatedly in his writings and speeches 
is his strange belief that animals should have legal standing in court. 
Professor Sunstein wrote in his book Animal Rights: Current Debates and 
New Directions that, ``We could even grant animals a right to bring a 
suit without insisting that animals are persons. . . . We could retain 
the idea of property but also give animals far more protection against 
. . . neglect of their interests.''
  He goes on: ``It seems possible that before long Congress will grant 
standing to animals in their own right. . . . Indeed I believe that in 
some circumstances, Congress should do exactly that, to provide a 
supplement to limited public enforcement efforts.''
  In a paper for the University of Chicago School of Law, Professor 
Sunstein wrote that, ``Representatives of animals should be able to 
bring private suits to ensure that anticruelty and related laws are 
actually enforced. If, for example, a farm is treating horses cruelly 
and in violation of legal requirements, a suit could be brought, on 
behalf of those animals.''
  Of course, no one favors animal cruelty. That is why there are laws 
against it. That should go without saying. But there is a big 
difference between having concerns about the treatment of animals and 
taking Professor Sunstein's position that an animal deserves a lawyer 
in court.
  An animal is not a person, and it cannot function as a plaintiff 
during a trial. Laws and regulations that would give animals legal 
standing in court could open the door to a flood of ridiculous lawsuits 
that would wreak havoc on research labs, restaurants, farms, and the 
like.
  Imagine what could happen if a group wanted to represent lab rats or 
farm chickens in a class-action lawsuit. Even if claims were found 
baseless in courts, someone, farms, laboratories, business owners, 
would still bear the costs of litigation.

[[Page S9230]]

  There may be room for this kind of thinking in academia. But it has 
no place in the executive branch of the U.S. Government, especially in 
the top regulatory office of the administration.
  As the Discovery Institute's Wesley J. Smith has written on Professor 
Sunstein's position on animal standing in courts, it ``would do more 
than just plunge the entire animal industry into chaos . . . the 
perceived exceptional importance of human life would suffer a 
staggering blow by erasing one of the clear legal boundaries that 
distinguishes people from animals.''
  Professor Sunstein was also out of the mainstream when, in a 2003 
paper, ``Lives, Life Years, and Willingness to Pay,'' he explained his 
views on a life-valuation system: ``No regulatory program makes people 
immortal. The only issue is life extension, and, in terms of welfare, a 
program that saves 10,000 life years is better than one that saves 
1,000 life years, holding all else constant. In welfare terms, a 
program that saves younger people is unquestionably better than one 
that saves older people.'' That is plainly not true if you believe in 
the moral equality of all lives.
  While discussions about the value of an older person's versus a 
younger person's life may be acceptable inside the cozy confines of 
elite academic settings, they raise serious concerns when written by 
the person nominated to be America's regulatory czar. This is 
especially true at a time when we are engaged in a debate over the 
future of our healthcare system and as Congress considers several 
proposed bills that call for the administration to act on new 
healthcare regulations that could end up under the purview of OIRA.
  Cost-benefit analysis is fine, but not as a means to ration 
healthcare, e.g., to America's elderly. Professor Sunstein's views call 
to mind the British basis for healthcare rationing: the Quality-
Adjusted Life Years, (QALY.)
  I am also troubled by the outcome of a Democratic retreat in which 
Professor Sunstein participated after the 2000 election. As the New 
York Times reported in May of 2001, the ``principal topic was forging a 
unified party strategy to combat the White House on judicial 
nominees.''
  The strategy that resulted from this retreat led to two fundamental, 
and I believe, corrosive, changes in the way judicial nominees are 
considered. The first was to encourage filibusters, previously unknown 
for judges, and the second was that when voting for a judicial nominee, 
a Senator should determine the political views of nominees and vote 
against those with whom you disagree.
  As the Times reported, one participant said of the panel discussion 
in which Professor Sunstein's participated, ``They said it was 
important for the Senate to change the ground rules and there was no 
obligation to confirm someone just because they are scholarly or 
erudite.''
  The net result, a very negative result, of these changes was a hyper-
partisan judicial confirmation process during the Bush administration, 
one that tarnished many nominees and in which too many votes were 
determined by party affiliation and ideology. Some very worthy 
nominees, such as Miguel Estrada, were filibustered and, therefore, 
wrongly denied a confirmation vote.
  I see this nomination as part of a broader pattern: One that shows 
that the Obama administration has repeatedly nominated or hired 
individuals with overly-partisan or bizarre views. Just last week, the 
facts came to light about the radical ideology and associations of Van 
Jones, President Obama's now-former green jobs czar, who was not 
subject to a Senate confirmation process.
  While he has tried to explain away some of his views and assure 
Senators that he won't try to apply his personal opinions as part of 
his official duties, I believe that Professor Sunstein's nomination 
reflects this administration's pattern of favoring out-of-the-
mainstream individuals for key jobs. If a Republican judicial nominee 
harbored such views, I have no doubt that the participants at the 
Democratic retreat in which Professor Sunstein participated would have 
found justification for a filibuster or negative vote, notwithstanding 
his fine legal credentials. While I have serious concerns about the 
standard, Democrats won that debate and now apply the standard. There 
cannot be one standard for Democrats and one standard for Republicans. 
Therefore, I must oppose this nomination.
  The PRESIDING OFFICER. The Senator from Florida.
  Mr. NELSON of Florida. Madam President, I ask unanimous consent to 
speak as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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