Is Sunstein a good target on “czars”?

Dave Weigel reports on the effort to target Cass Sunstein as part of an overall attack on the explosion of “czars” in the Obama administration for the Washington Independent.  Glenn Beck and others have focused attention on Sunstein, sometimes inaccurately, as a radical cut from the same cloth as Van Jones.  Sunstein may be a liberal, but he’s no Van Jones — and for that matter, he’s no czar either, at least not in the common understanding of the term:

On January 8, The Wall Street Journal broke the news that Harvard Law School Professor Cass Sunstein would be nominated to run the White House Office of Information and Regulatory Affairs. It was a surprising choice for a job, created in 1980, that monitors and manages the federal government’s regulatory apparatus. And it was welcomed as an olive branch from an incoming Democratic president to conservatives and libertarians.

“[Sunstein's] writings on regulation and the herd mentality deserve a voice in the incoming Administration,” the newspaper’s editorial board wrote, in one of vanishingly few positive assessments it has given Barack Obama’s White House. “Mr. Sunstein brings important qualifications to [the Office of Information and Regulatory Affairs], and Mr. Obama has made a savvy choice in putting him there.” The editorial’s headline emphasized just what a happy surprise the appointment had been: “A Regulator With Promise – Really.”

Nine months later, Sunstein is still not working at the regulatory office. In May, he went through confirmation hearings before the Senate Committee on Homeland Security and Governmental Affairs. In June, Sen. Saxby Chambliss (R-Ga.) placed a hold on his nomination, citing concerns about Sunstein’s opposition to hunting. In July, Sen. John Cornyn (R-Texas) placed another hold on Sunstein, for the same reason. On August 7, before leaving for recess, Sen. Harry Reid (D-Nev.) filed for cloture on the nomination. But another senator, who has not made his or her name public, has placed a hold on Sunstein, making it unclear when the Senate might take up his nomination.

A “czar” does not get Senate confirmation.  The post for which Sunstein has been nominated requires Senate confirmation and is subject to Congressional oversight.  That differs greatly from the post Jones held, which had neither, with predictable results.  Czars exist outside of the checks and balances provided by the legislative branch on executive power, which makes them a dangerous expansion of presidential power, and worthy of a concerted campaign to end those appointments.  But Sunstein isn’t one of the czars.

The Senate and individual Senators have to decide what they feel is too radical for confirmation, of course.  However, the guiding principle for most of our nation’s history is that a President has the right to choose his advisers in order to implement his policies.  Absent evidence of, say, paranoid-conspiracy thinking, people usually allow that elections have consequences.  Sunstein is a liberal thinker, not one I’d promote for a policy position in a government.  Obama won the election, though, and gets to make those appointments.

In this argument, though, Sunstein opponents have a very handy precedent.  George Bush wanted to make John Bolton his UN ambassador, and Bolton had plenty of qualifications for the position.  Democrats blocked the appointment not because Bolton was unqualified, but because they didn’t like his politics.  Should that appointment have been blocked?  No, but it was, and Democrats set that precedent.

In the end, though, does Sunstein’s record really justify an extraordinary effort to keep him out of his appointment?  Obama will eventually fill that position one way or the other, and Sunstein will probably be the mildest candidate for the job.  We should focus on the very real threat of czars and presidential overreach rather than a mainstream liberal appointment.

Update: This is part of the reason that Cornyn and Chambliss have held Sunstein’s nomination:

The 2nd Amendment is no more based in fear than any of the others in the Bill of Rights. After all, each of them restrain government from tyranny. The Fifth Amendment keeps government from compelling testimony from defendants, the First Amendment prevents the silencing of political speech of the opposition, and so on. Did the shrieking of Bush critics over the NSA terrorist surveillance program and accusations of government snooping on their telephone calls not reflect hysterical fear? That’s a silly argument.

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