[Congressional Record (Bound Edition), Volume 155 (2009), Part 16]
[Senate]
[Pages 21378-21380]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

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

  Mr. SESSIONS. Madam President, the nominee to be Administrator of the 
Office of Information and Regulatory Affairs, Mr. Cass Sunstein, is 
before the body. He will be, if confirmed, a part of the White House 
Office of Management and Budget. He will have a number of 
responsibilities. It is certainly a very significant position.
  This job has the responsibility of renewing all regulations proposed 
by all the Departments and agencies of the government. The regulations 
they issue are many. Laws are passed in this Congress, sometimes in 
haste, leaving the details of execution to the various agencies of our 
government--the Department of Defense, the Department of Homeland 
Security, the Department of Agriculture, all the agencies.
  They have powers to effectuate the statutes passed by Congress. They 
set forth the details of how it is done. There are thousands of pages 
of regulations enacted every year. They are published in the Federal 
Register. No Senator or Congressman, to my knowledge, has ever sat down 
and read the Federal Register.
  Federal regulations have much the same force as law. Indeed, people 
can go to jail for violating Federal regulations, and some do go to 
jail for violations of Federal regulations.
  Some of this is, in fact, a product of necessity. For example, you 
create a park. When does the park open and close? And if people come in 
and litter, or people come in after hours, they can be punished, 
arrested, put in jail. Often those regulations and the punishment are 
set forth through regulation and not through the statute that created 
the park to begin with.
  But it is a matter of real importance. Persons who produce these 
regulations are nameless and faceless denizens of the bureaucratic 
deep. They possess enormous power. As a prosecutor, I prosecuted cases. 
At the DEA, many of the drug regulations enforced by the Drug 
Enforcement Administration are based on regulations they pass, not what 
was actually required by the Congress of the United States. Major 
policy decisions are often set forth in that fashion, including 
environmental regulations, health care regulations, and reimbursement 
rules and hospital requirements. Financial institutions can be done 
through regulations and controlled through them. Truly, there is a 
concern about the disconnect between the democratic accountability we 
are known for in our country and this process of administrative 
regulations.
  During President Reagan's time, I believe, Congress passed a law that 
created this position: the Administrator for the Office of Information 
and Regulatory Affairs, the idea being to have another unelected 
bureaucrat--and that is what this one is--but to be a central 
clearinghouse for all the proposed regulations and to question the 
lawfulness or the necessity or the cost of these thousands of 
regulations that get promulgated on a yearly basis.
  It is an important position that can protect and at least somewhat 
ensure that our constitutional liberties are not being eroded.
  Enter Mr. Sunstein. He is a most likable person, a national 
intellectual, always interesting, sometimes taking positions that those 
on the left--of which he clearly is a part--disagree. Indisputably, he 
is a man of the left. However, he has taken, over the years, quite a 
number of positions, some of which are pretty shocking. So I think he 
is not normally the kind of person you would appoint to this kind of 
green-eyeshades position--somebody who would be sitting down on a daily 
basis reading the regulations and studying them and researching them--
to be a free spirit, as our nominee is. So I have some concerns about 
it.
  Over the course of his career in academia, Professor Sunstein has 
clearly advocated a number of positions that are outside--well 
outside--the American mainstream. While much of the criticism of his 
nomination rightly has focused on his animal rights advocacy, where he, 
in effect, and plainly said he thought animals should be able to have 
lawyers appointed to defend their interests--and these are 
controversial matters--but he has other legal writings that are 
controversial also and do not just deal with the question of animal 
rights. I would like to highlight just a few of those positions.
  In his 2008 book titled ``Nudge: Improving Decisions About Health, 
Wealth and Happiness,'' Professor Sunstein advocates an approach to the 
law based on economic and behavioral principles which he dubs 
``libertarian paternalism.''
  Under Professor Sunstein's theory, the government can take steps to 
``nudge'' individuals toward making what he would say are better 
decisions, and at least what the government considers to be more 
desirable social behavior.
  Professor Sunstein argues that the government can achieve these goals 
while not being actively, or at least obviously, coercive. His theory 
operates on the assumption that the average person is ``lazy, busy, 
impulsive, inert, irrational, and highly susceptible to predictable 
biases and errors.''
  So the government needs to be a little paternalistic, he suggests, 
and take care of them and issue regulations and pass laws that keep 
them from doing things that some bureaucrat or some Congressman thinks 
is not socially desirable.
  As Professor Sunstein argues:

       For too long, the United States has been trapped in a 
     debate between the laissez-faire types who believe markets 
     will solve all our problems and the command-and-control types 
     who believe that if there is a market failure then you need a 
     mandate. The laissez-faire types are right that . . . 
     government can blunder, so opt-outs are important. The

[[Page 21379]]

     mandate types are right that people are fallible, and they 
     make mistakes, and sometimes people who are specialists know 
     better and can steer people in directions that will make 
     their lives better.

  That is what he has said.
  Presumably, in Professor Sunstein's view, the ``specialists'' who 
``know better'' than ordinary Americans are government bureaucrats. He 
seems to believe Americans are ``lazy'' and ``inert,'' and I think this 
is not a healthy view. So I question whether anyone who thinks 
Americans are fundamentally lazy can perform his role as the gatekeeper 
of government regulation in the Obama administration.
  Professor Sunstein's approach is consistent with much of what we have 
seen from this administration, I have to say, which seems to believe 
that government control of health care, the financial markets, and the 
business community generally is preferable to free market policies. 
Americans are not comfortable with this.
  I have been out having townhall meetings. I know they are not 
comfortable with it. According to recent polling, 52 percent of voters 
worry that the government will do too much to ``help'' the economy.
  That is from a Rasmussen poll of June 2, 2009. Fifty-nine percent of 
voters believe the financial bailouts were a ``bad idea.'' The masters 
of the universe thought it was going to be great. We spent $800 
billion, the largest expenditure in the history of the American 
Republic, and every penny of that is going to the national debt because 
we were already in debt. We borrowed every penny of it. We have had 
very low stimulative effect from that. The American people are right 
about that.
  Only 31 percent of voters believe this stimulus bill has helped the 
economy. And we do not need a poll to tell us how uncomfortable the 
American people are with the President's effort to overhaul health 
care.
  So the American people ought to understand if we confirm Professor 
Sunstein, he will be the chief architect and gatekeeper over all of the 
regulations that this administration will be attempting to implement in 
a myriad of areas--not just health care and financial markets but 
agriculture, the environment, energy, a host of areas that impact the 
people of our country. I think his views make him a person who should 
not be in this position.
  Let's take another issue that is important to a lot of people. 
Professor Sunstein has taken an extremely aggressive position with 
respect to abortion. Under his views, laws restricting access to 
abortion ``co-opt women's bodies for the protection of fetuses.''
  According to Professor Sunstein, such laws ``selectively turn women's 
reproductive capacities into something for the use and control of 
others.'' In his view, ``abortion should be seen not as murder of the 
fetus but instead as a refusal to continue to permit one's body to be 
used to provide assistance to it.'' Failure to accept this view, he 
wrote, is simply a product of one's accepting the preexisting baseline 
of women as child-bearers. The role of involuntary child-bearer, he 
argued, results ``only from government interference limiting the 
capacity to choose not to bear a child involuntarily.''
  Well, I think this is a disturbingly far-reaching and excessive view 
on this important issue of abortion. It fails to recognize in any way 
the moral aspect of this debate which has divided America since the 
Supreme Court decision in Roe v. Wade. I think his view mocks those who 
have a different view based on their deep beliefs and analysis of what 
that life is that is within the mother.
  What about the question of affirmative action? We talked a good bit 
about that during the Judge Sotomayor hearings in the firefighters 
case. Professor Sunstein has taken an extreme view, I think, in these 
issues, arguing that affirmative action programs ``should generally not 
be thought to raise a serious constitutional issue.'' In his view, 
``the current distribution of benefits and burdens along racial lines 
is an outgrowth of a long history of discrimination.''
  Professor Sunstein has returned to this theme repeatedly. In 1992, in 
an article, he again argued that existing law depends heavily on 
``existing distributions of wealth and power.'' Specifically, he argued 
that the conservative objection to affirmative action programs--namely, 
that discrimination is discrimination regardless of the pretext--simply 
takes as a given existing distributions of wealth and power without 
considering the historical and legal context that led to those 
distributions.
  Professor Sunstein further argues that the constitutional text 
imposes no clear ban on affirmative action. Well, the Constitution says 
everybody should be given due process and equal protection of the laws. 
When you advantage one person because of their race, you disadvantage 
another person because of their race. It is not a zero sum game.
  He goes on to say that there is ``no clear moral argument [that] 
requires courts to treat affirmative action policies with great 
skepticism.''
  In 1997, after the Fifth Circuit struck down the University of Texas 
School of Law's affirmative action admissions policy as a violation of 
the equal protection clause of the U.S. Constitution, Professor 
Sunstein dubbed the Fifth Circuit's decision in Hopwood as hubristic 
and compared it to Dred Scott v. Sanford, stating:

       [A] court opinion outlawing affirmative action is closely 
     analogous to Dred Scott, and defective--abusive, 
     overreaching--for the same reason: It would be an amazing act 
     of hubris.

  As we discussed in some detail during the recent nomination of Judge 
Sotomayor, the Supreme Court's jurisprudence in this area requires any 
government discrimination--and that is what happens when you have a 
quota--that any discrimination by the government be subject to strict 
scrutiny of the courts because on its face it seems to be unfair. We 
know that as a result of long-term systemic discrimination, 
particularly against African Americans, courts have found that to 
remedy that, it is perfectly all right to remedy this lack of equal 
protection by fixing it and imposing certain remedies that favor groups 
that have been discriminated against as a remedial act. But when you 
pass the remedial stage and you are in a stage of objectivity, as we 
have in most of America today, then if you favor one group over 
another, the Supreme Court says that has to be looked at under strict 
scrutiny. You have to be careful you are not overreaching here. It 
seems Mr. Sunstein has no sympathy for that whatsoever. And that is the 
Adarand decision basically by the Supreme Court. He seems to hold the 
view that such discrimination is not only permissible but that the 
strict scrutiny standard announced in Adarand and other Supreme Court 
cases is totally inappropriate. I question whether someone who holds 
these views should be put in a position to make the kinds of decisions 
he will be making as the regulations czar, some might say.
  With regard to the nominations of Federal judges, he has taken some 
positions that I think have been unhealthy for the country.
  Back in 2001, the New York Times had an article. It was a very 
significant little article. It wasn't a big article, but it was very 
important and significant. It reported that Professor Sunstein, along 
with Professor Tribe and Marcia Greenburger--lawyers all--attended a 
private retreat where they lectured Democratic Senators on how to block 
Republican judicial nominees by ``changing the ground rules.'' The 
title of the article by Neil A. Lewis was ``Democrats Readying for a 
Judicial Fight.'' And, indeed, they did. I think this Senate has been 
less healthy as a result of what they accomplished through the 
filibuster of judges on a routine basis.
  Again, according to the New York Times, it was reported that they 
argued at the meeting that:

       It was important for the Senate to change the ground rules 
     and there was no obligation to confirm someone just because 
     they were scholarly or erudite.

  A month later, Professors Sunstein and Tribe, along with Ms. 
Greenburger, were invited to testify before the Judiciary Subcommittee 
on Administrative Oversight and the Courts in a hearing titled ``Should 
Ideology Matter? Judicial Nominations 2001.'' They argued at

[[Page 21380]]

that hearing that political ideology of nominees is a legitimate issue 
for Members to consider in their record. I think that has been an 
unhealthy thing, and we have had a number of debates and hearings on it 
since.
  I believe my Democratic colleagues, to their credit, have backed away 
from that. In other words, it is all right to dig deeply into a 
nominee's judicial philosophy and whether they are committed to the law 
and how they envision their process of interpreting the Constitution. 
But it is quite another to say that, if you have this political 
ideology or these views, that you can no longer be chosen to be someone 
who can decide cases fairly, because most judges have some personal 
views and they have to decide cases every day, setting aside those 
personal views.
  At the hearing, I thought he made an odd statement. He said that the 
current Supreme Court ``has no left at all.'' He believes that the 
people who have been generally reported to be activists or liberals 
were centrists and that presumably, I guess, the bad folks on the Court 
were the judges who believe in enforcing the law as written regardless 
of their personal views. Indeed, he testified at that hearing that he 
``can't think of a single nominee by President Clinton to the lower 
Federal courts who genuinely counts as a liberal.''
  Well, Mr. Sunstein has a lot of ability. He has taken some positions 
on animal rights that are clearly shocking and that are troubling in 
light of how important it is to have a person in this position who has 
good judgment to render good decisions about the regulations that would 
impact every American in this country.
  I don't have anything personal against this nominee. He has many 
friends. He is a prolific writer and commentator. But I think his views 
are outside the mainstream, and I will be voting against the 
nomination.
  I thank the Chair and yield the floor.
  The PRESIDING OFFICER (Mr. Franken). The Senator from Illinois is 
recognized.
  Mr. BURRIS. Mr. President, I ask unanimous consent to speak as in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The remarks of Mr. Burris are printed in today's Record under 
``Remembering Senator Edward M. Kennedy.'')
  The PRESIDING OFFICER. The Senator from Hawaii is recognized.
  Mr. AKAKA. Mr. President, I ask unanimous consent that the previous 
order with respect to the vote on confirmation of the nomination of 
Cass Sunstein be modified to provide that the vote on confirmation 
occur at 3:40 p.m., with the other provisions remaining in order.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Under the previous order, the question is, will the Senate advise and 
consent to the nomination of Cass R. Sunstein, of Massachusetts, to be 
Administrator of the Office of Information and Regulatory Affairs, 
Office of Management and Budget?
  The Senator from Minnesota is recognized.
  Ms. KLOBUCHAR. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from California (Mrs. Boxer) 
and the Senator from West Virginia (Mr. Byrd) are necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 57, nays 40, as follows:

                      [Rollcall Vote No. 274 Ex.]

                                YEAS--57

     Akaka
     Baucus
     Bayh
     Bennet
     Bennett
     Bingaman
     Brown
     Burris
     Cantwell
     Cardin
     Carper
     Casey
     Collins
     Conrad
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Franken
     Gillibrand
     Hagan
     Harkin
     Hatch
     Inouye
     Johnson
     Kaufman
     Kerry
     Klobuchar
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lugar
     McCaskill
     Menendez
     Merkley
     Mikulski
     Murray
     Nelson (FL)
     Reed
     Reid
     Rockefeller
     Schumer
     Shaheen
     Snowe
     Specter
     Stabenow
     Tester
     Udall (CO)
     Udall (NM)
     Voinovich
     Warner
     Whitehouse
     Wyden

                                NAYS--40

     Alexander
     Barrasso
     Begich
     Bond
     Brownback
     Bunning
     Burr
     Chambliss
     Coburn
     Cochran
     Corker
     Cornyn
     Crapo
     DeMint
     Ensign
     Enzi
     Graham
     Grassley
     Gregg
     Hutchison
     Inhofe
     Isakson
     Johanns
     Kyl
     LeMieux
     Lincoln
     McCain
     McConnell
     Murkowski
     Nelson (NE)
     Pryor
     Risch
     Roberts
     Sanders
     Sessions
     Shelby
     Thune
     Vitter
     Webb
     Wicker

                             NOT VOTING--2

     Boxer
     Byrd
       
  The nomination was confirmed.
  The PRESIDING OFFICER. Under the previous order, the motion to 
reconsider is considered made and laid upon the table.
  The President shall be immediately notified of the Senate's action.

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