Kathy G's Dishonest and Pathetic Attack on Cass Sunstein

I mentioned a couple of weeks ago that I'm not a big fan of Cass Sunstein, calling him "crazy overrated." So when I saw Kathy G's post, "Why I'm not a fan of Cass Sunstein," I was expecting the kind of thoughtful, rigorous, and (because I'm also not a fan of Sunstein) correct analysis that she regularly delivers. But instead, Kathy G's argument was (to steal a phrase from her own post) "breathtakingly shallow and naïve." Her post was also amazingly uninformed, and on one point, flat-out dishonest. And I'm someone who is also not a fan of Sunstein.

First, her blatant dishonesty. Kathy G rests much of her criticism of Sunstein on the fact that at a Federalist Society event she attended, Sunstein heaped praise on the Federalist Society. She was "shocked and appalled" that Sunstein would say such things about the Federalist Society, an organization she describes as:

[An] ultra-conservative legal group dedicated to jampacking the courts and the federal bureaucracy with their own and fighting off liberal nominees and liberal ideas by any means necessary.

This is a flat-out lie. The Federalist Society doesn't endorse, sponsor, or take positions on judicial nominees, or any candidates for public service for that matter. The society also doesn't take positions on legislation, file lawsuits, or write amicus briefs, by the way. If she knew absolutely anything about the FedSoc, she would know that it's impossible for the FedSoc to take positions on judicial nominees—it doesn't have an official judicial ideology, and its members subscribe to a wide range of competing theories (textualism, originalism, hard-core federalism, incrementalism, etc.). But Kathy G doesn't let pesky facts get in the way of portraying the Federalist Society as categorically evil. That, ladies and gentlement, is the definition of a dishonest smear.

(I'm a committed Democrat, but I have great affection for the Federalist Society. My closest friend in law school was a staunch Republican, and he dragged me to countless FedSoc events with him. Every FedSoc member I ever met was genuinely excited to have someone with very different policy preferences there; they were always eager to hear my views, and to debate them on the merits, all very respectfully. It's a fantastic organization. I wish there was an equivalent left-of-center organization.)

Kathy G is fond of attacking other people's qualifications—for example, she declared that because Megan McArdle doesn't have a Ph.D. in economics, she doesn't "know what the fuck she's talking about!" Well, Kathy G: on the law, you don't know what the fuck you're talking about. Policy isn't the same thing as law. Kathy G may be qualified to discuss policy, but she has absolutely no business arguing about legal interpretation theories. And she's definitely not qualified to say that Sunstein showed "extremely poor judgment" in supporting John Roberts' nomination!

Now, my Democratic bona fides stack up well against anyone's—not only am I a lifelong Democrat, but I actually worked for a Democratic political consulting firm in DC, where I helped get quite a few progressives get elected or re-elected to Congress. So I take no pleasure in admitting that on the whole, liberal judges—especially at the federal level—tend to be poorer jurists than so-called "conservative" judges. This is not to say that there aren't some top-notch liberal judges (there are); nor is this to say that there aren't some very poor conservative judges (there are). But a far greater percentage of the liberal federal judges are simply hacks.

Obviously there's not always a clear law/politics divide, and anyone who thinks there is is simply naïve. But a lot of liberal judges don't wait for the cases where there's no law/politics divide to impose their political preferences; they go out of their way to reach the result that matches their politics, statutory language and case law be damned. If they think a statute should favor the employee over the employer, even though it very clearly doesn't, they'll misrepresent and twist the law beyond recognition in order to reach their desired conclusion. Honestly, some of the opinions read like they were written for a judicial bloopers reel. It's legislative rent-seeking, pure and simple.

Kathy G, like a lot of liberal judges, seems incapable of separating her policy preferences from her views on the law; the cognitive dissonance is just too much. It's not at all inconsistent to be an originalist while simultaneously supporting liberal policies, for example. Cass Sunstein thinks Roe was wrongly decided, so Kathy G deems him not truly liberal. It's possible to be pro-choice and also think Roe was wrongly decided: you just have to believe that it's a state issue, and that the states should support a woman's right to an abortion. I seriously doubt that Kathy G could engage Sunstein in a legal debate on Roe.

Finally, Kathy G makes a bunch of statements that show how much she's talking out of her ass. She calls judicial "minimalism" a right-wing judicial philosophy, and criticizes Sunstein for advocating it. Umm, minimalism isn't right-wing at all; Sunstein created the philosophy of minimalism as a response to the rise originalism. She also states:

Either [Sunstein] has no clue how dangerous and destructive these right-wing extremists are, or he doesn't care. And I'm not sure which is worse.

Obviously, Kathy G hasn't read Sunstein's book, Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America, or any of his thousand op-eds on why extreme right-wing judges are going to end society as we know it. Her smug and not-so-subtle sense of intellectual superority is especially ironic in this post, because she clearly demonstrates that she has no fucking clue what she's talking about when it comes to the law, yet she has no problem condemning conservative Supreme Court justices as "dangerous and destructive." The whole post borders on incoherence.