On Tuesday, top Obama legal advisor Cass Sunstein appeared on Democracy Now! While it's not yet certain precisely what position he might occupy in an Obama Administration, he did clear up any doubts about his position in the afterlife, as those familiar with Dante's Inferno--Canto III, to be precise-- immediately realized. That is where Dante encountered "the melancholy souls of those/Who lived without infamy or praise," along with the angels who stood neutral between God and Satan. These are the moral triangulators between Good and Evil, and as Dante found them, they "Were naked, and were stung exceedingly / By gadflies and by hornets that were there."
Although they are not even within Hell, proper, Virgil tells Dante:
These have no longer any hope of death;
And this blind life of theirs is so debased,
They envious are of every other fate.
Sunstein is hardly alone, of course. But, first at Netroots Nation, then in his Democracy Now! debate with Glenn Greenwald, Sunstein has clearly staked out his leadership position in arguing against any sort of moral compass.
In his Democracy Now! appearance, Sunstein revealed three facets of the moral vacuum that lies disturbingly close to the heart of the Obama campaign. In the segment with Glenn Greenwald, he both defended Obama's FISA betrayal, and attacked the notion of any accountability for Bush Administration lawlessness. In a short followup segment on his book, Nudge (discussed by Matt in his diary yesterday here), Sunstein argued for an extreme minimalist approach in dealing with catastrophic market failures such as global warming.
What all three facets share in common is the basic acceptance of the rightwing hegemonic order established under Nixon, Reagan, Bush I, Gingrich and Bush II. Under the rubric of listening to all sides, what is actually happening is that thoroughly discredited rightwing ideas are being accepted as defining the common sense framework inside of which Obama is proposing to make modest gestures in a progressive direction on one or another various issues. In short, Obama is trying to end the culture wars by surrenduring on the most basic of issues of defining political reality.
The exhange on Democracy Now began with Sunstein promoting the big lie that Bush/Cheney were eager for a law protecting civil liberites and providing strict oversight, which the ACLU vigorously opposed. Curiously, he did not try to sell Amy a bridge:
AMY GOODMAN: Cass Sunstein, your response to those who talk about--particularly concerned about Barack Obama, for example, shifting on the FISA bill, saying he would filibuster and now actually voting for the bill that granting retroactive immunity to the telecoms. You spoke about this at the Netroots conference this weekend--Netroots Nation.
CASS SUNSTEIN: Yes, I think it's--this is widely misunderstood. What the bill isn't is basically a bill that--whose fundamental purpose is to give immunity. It's a bill that creates a range of new safeguards to protect privacy, to ensure judicial supervision, to give a role for the inspector general. So it actually gives privacy and civil liberties a big boost over the previous arrangement.
It also does contain an immunity provision, which Senator Obama opposed. He voted for the substitute bill that didn't have that. But he thought that this was a compromise which had safeguards for going forward, which made it worth supporting on balance, compared to the alternative, which was the status quo. So there's been no fundamental switch for him. He's basically concerned with protecting privacy. And this is not his favorite bill, but it's a lot better than what the Bush administration had before, which was close to free reign.
So many lies, so little time. Glenn did his best to keep up with them all:
AMY GOODMAN: Glenn Greenwald, you've written a lot about this, as well.
GLENN GREENWALD: Well, you know, it's one thing to defend Senator Obama and to support his candidacy, as I do. It's another thing to just make factually false claims in order to justify or rationalize anything that he does.
The idea that this wasn't a reversal is just insultingly false. Back in December, Senator Obama was asked, "What is your position on Senator Dodd's pledge to filibuster a bill that contains retroactive immunity?" And at first, Senator Obama issued an equivocal statement, and there were demands that he issue a clearer statement. His campaign spokesman said--and I quote--"Senator Obama will support a filibuster of any bill that contains retroactive immunity"--"any bill that contains retroactive immunity." The bill before the Senate two weeks ago contained retroactive immunity, by everybody's account, and yet not only did Senator Obama not adhere to his pledge to support a filibuster of that bill, he voted for closure on the bill, which is the opposite of a filibuster. It's what enables a vote to occur. And then he voted for the underlying bill itself. So it's a complete betrayal of the very unequivocal commitment that he made not more than six months ago in response to people who wanted to know his position on this issue in order to decide whether or not to vote for him. That's number one.
Number two, the idea that this bill is an improvement on civil liberties is equally insulting in terms of how false it is. This is a bill demanded by George Bush and Dick Cheney and opposed by civil libertarians across the board. ACLU is suing. The EFF is vigorously opposed. Russ Feingold and Chris Dodd, the civil libertarians in the Senate, are vehemently opposed to it; they say it's an evisceration of the Fourth Amendment. The idea that George Bush and Dick Cheney would demand a bill that's an improvement on civil liberties and judicial oversight is just absurd. This bill vests vast new categories of illegal and/or unconstitutional and warrantless surveillance powers in the President to spy on Americans' communications without warrants. If you want to say that that's necessary for the terrorist threat, one should say that. But to say that it's an improvement on civil liberties is just propaganda.
The one thing Glenn didn't do was get into the guts of the argument, which he has blogged about in excruciating detail since the FISA violations first became public early in his blogging career. When he says, "This bill vests vast new categories of illegal and/or unconstitutional and warrantless surveillance powers in the President to spy on Americans' communications without warrants," those familiar with his blogging know full well just how much detailed argument he has already made to back up that assertion. But radio debate is not particularly conducive to the level of detail that blogging affords. That's why the citation of those supporting and opposed is so significant. To swallow Sunstein's argument, one has to believe not only that Bush was eager for a bill restricting his powers and protecting civil liberties, but that the ACLU, EFF, Russ Feingold and Chris Dodd were bitterly opposed to such a wonderful civil liberties bill. Like I said, "Where do I sign for the bridge?"
Sunstein's response is to try to paint Greenwald as an over-emotional DFH:
AMY GOODMAN: Cass Sunstein?
CASS SUNSTEIN: Well, I appreciate the passion behind that statement. I don't see it that way. And Morton Halperin, who's been one of the most aggressive advocates of privacy protections in the last decades, is an enthusiastic supporter of this bill on exactly the ground that I gave. My reading of it, just as a legal matter, is that it ensures exclusivity of the FISA procedure, which the Bush administration strongly resisted, it creates supervision both on the part of the inspector general and the legal system, which the Bush administration had said did not exist previously. So the view that this is an improvement over the Bush administration status quo, I believe, is widely accepted by those who have studied the bill with care.
I do appreciate the concern about retroactive immunity. Senator Obama did oppose that, voted for the opposing bill. But I don't share the extreme negativity about this compromise that the speaker endorses.
Let's be clear. The existing law "ensures exclusivity of the FISA procedure" without weakening it an any way. So how, exactly does drastically weakening the FISA proceedure, and then reasserting its exclusivity improve the law in any way? Sunstein claims it improve things, because "the Bush administration strongly resisted, it creates supervision both on the part of the inspector general and the legal system, which the Bush administration had said did not exist previously." But, clearly, the Bush Administration was just lying. If they really didn't believe that any rules applied, then they wouldn't have even asked Congress in the first place. And they would have had their asses handed to them in court.
Facet II: Lawlessness
Next, Goodman turned to the issue of holding the Bush Administration accountable for its illeagl actions. Typically of his utter superficiality, Sunstein even floats the canard that impeachment "would result in the presidency of Vice President Cheney," as if Congress were somehow powerless to impeach both men simultaneously for the same lawless acts they oversaw:
AMY GOODMAN: Glenn Greenwald, let me move on to another issue, and that is the issue of holding Bush administration officials accountable. This is also an issue, Professor Sunstein, that you addressed this weekend in Austin at the Netroots Nation conference. And on Friday, the House Judiciary Chair John Conyers is going to be holding a hearing around the issue of impeachment, with those for and against impeachment speaking through the day. Your assessment of the whole movement and your thoughts on this, Cass Sunstein?
CASS SUNSTEIN: Well, I speak just for myself and not for Senator Obama on this, but my view is that impeachment is a remedy of last resort, that the consequences of an impeachment process, a serious one now, would be to divide the country in a way that is probably not very helpful. It would result in the presidency of Vice President Cheney, which many people enthusiastic about impeachment probably aren't that excited about. I think it has an understandable motivation, but I don't think it's appropriate at this stage to attempt to impeach two presidents consecutively.
In terms of holding Bush administration officials accountable for illegality, any crime has to be taken quite seriously. We want to make sure there's a process for investigating and opening up past wrongdoing in a way that doesn't even have the appearance of partisan retribution. So I'm sure an Obama administration will be very careful both not to turn a blind eye to illegality in the past and to institute a process that has guarantees of independence, so that there isn't a sense of the kind of retribution we've seen at some points in the last decade or two that's not healthy.
AMY GOODMAN: I recently spoke to Democratic Senator Russ Feingold of Wisconsin, who's been a leading congressional voice against the Bush spy program. This is some of what he had to say.
SEN. RUSS FEINGOLD: The President takes the position that under Article II of the Constitution he can ignore the Foreign Intelligence Surveillance Act. We believe that that's absolutely wrong. I have pointed out that I think it is not only against the law, but I think it's a pretty plain impeachable offense that the President created this program, and yet this immunity provision may have the effect not only of giving immunity to the telephone companies, but it may also allow the administration to block legal accountability for this crime, which I believe it is.
AMY GOODMAN: Cass Sunstein?
CASS SUNSTEIN: Well, there has been a big debate among law professors and within the Supreme Court about the President's adherent [sic] authority to wiretap people. And while I agree with Senator Feingold that the President's position is wrong and the Supreme Court has recently, indirectly at least, given a very strong signal that the Supreme Court itself has rejected the Bush position, the idea that it's an impeachable offense to adopt an incorrect interpretation of the President's power, that, I think, is too far-reaching. There are people in the Clinton administration who share Bush's view with respect to foreign surveillance. There are past attorney generals who suggested that the Bush administration position is right. So, I do think the Bush administration is wrong--let's be very clear on that--but the notion that it's an impeachable offense seems to me to distort the notion of what an impeachable offense is. That's high crimes and misdemeanors. And an incorrect, even a badly incorrect, interpretation of the law is not impeachable.
What Sunstein is doing here is essentially making Bush's argument for him. Indeed, if the Repuiblicans on the House Judiciary Committee had half a brain, they would have called him as a witness, since he is saying virtually the same thing that their stooges said, but he doesn't have their same partisan stench.
Boy, is Greenwald ready for this!
AMY GOODMAN: Glenn Greenwald?
GLENN GREENWALD: You know, I think this mentality that we're hearing is really one of the principal reasons why our government has become so lawless and so distorted over the past thirty years. You know, if you go into any courtroom where there is a criminal on trial for any kind of a crime, they'll have lawyers there who stand up and offer all sorts of legal and factual justifications or defenses for what they did. You know, going back all the way to the pardon of Nixon, you know, you have members of the political elite and law professors standing up and saying, "Oh, there's good faith reasons not to impeach or to criminally prosecute." And then you go to the Iran-Contra scandal, where the members of the Beltway class stood up and said the same things Professor Sunstein is saying: we need to look to the future, it's important that we not criminalize policy debates. You know, you look at Lewis Libby being spared from prison.
And now you have an administration that--we have a law in this country that says it is a felony offense, punishable by up to five years in prison and a $10,000 fine, to spy on Americans without the warrants required by law. We have a president who got caught doing that, who admits that he did that. And yet, you have people saying, "Well, there may be legal excuses as to why he did that." Or you have a president who admits ordering, in the White House, planning with his top aides, interrogation policies that the International Red Cross says are categorically torture, which are also felony offenses in the United States. And you have people saying, "Well, we can't criminalize policy disputes."
And what this has really done is it's created a two-tiered system of government, where government leaders know that they are free to break our laws, and they'll have members of the pundit class and the political class and law professors standing up and saying, "Well, these are important intellectual issues that we need to grapple with, and it's really not fair to put them inside of a courtroom or talk about prison." And so, we've incentivized lawlessness in this country. I mean, the laws are clear that it's criminal to do these things. The President has done them, and he--there's no reason to treat him differently than any other citizen who breaks our laws.
Greenwald was not the only one to find fault with Sunstein's argument, however. That same night, Keith Olbermann had Jonathan Turley on Countdown!
OLBERMANN: The "Boston Globe" reports that Bush is being inundated with requests for pardons, at this point mostly from names running the gamut from John Walker Lindh to disgraced Olympian Marion Jones. But one former Reagan DOJ official is pushing for preemptive action and tells the "New York Times" that would be to prevent long term investigations and protect people who proceed in, quote, good faith. Otherwise, she says, no one will ever take chances. Yes, that's kind of the idea here.
The White House response, "we are going to decline to comment on that question, since it is regarding internal matters." Just as disturbing perhaps, Obama legal adviser Cass Sunstein saying only the most egregious Bush administration crimes should or would be prosecuted. As reported in "The Nation," quote, "prosecuting government officials risks a cycle of criminalizing public service, and Democrats should avoid replicating retributive efforts, like the impeachment of President Clinton, or even the slight appearance of it."
This is, of course, utter nonsense in about ten different ways. I'll just stick to three: (1) The impeachment of Clinton wasn't a "retributive effort." It was an attempted coup. Clinton's crime was winning an election--something that movement conservatives could not abide, since hard-core conservatives don't really believe that anyone else but them deserves to hold political power. Because Clinton was poor white trash, the rest of official Washington agreed, and the hunt was on. (2) It's not prosecuting lawbreaking officials that "criminalizes" public service. It's the lawbreaking by public officials that criminalizes public service. (3) Prosecuting public officials who violate the law is not, primarily, retribution. It is deterrance. It is also a duty under the Constitution.
Nest, Olbermann brought on Jonathan Turley, law professor and constitutional law expert from George Washington University.
OLBERMANN: Bottom line here, between the Bush pardon possibility and what Cas Sunstein said, did we just see accountability go out the window for good?
TURLEY: Well, that would probably wrap it up. If he pardons people and the Obama administration refuses to prosecute people, that wouldn't leave much else. He could order pizzas late at night to his house or sabotage his MySpace page, but that would be it. The important thing is that there are very few obligations that a president has to do under the constitution, but one of them is not to violate the laws that he is supposed to enforce.
What really concerns me about Cass Sunstein's statement is I don't know what a non-egregious crime by a president or an administration might be. I think all crimes committed by the government, particularly the president, are egregious. But what bothers me most is this is consistent, as you know, with Speaker Pelosi's position that she will not allow an impeachment of the president, no matter how strong the evidence. And it's part of this pattern that there are certain crimes that you simply won't prosecute.
I don't understand why some Democrats can't just simply accept a very straight forward proposition that we'll prosecute any crimes committed by this administration, an Obama administration, a McCain administration, because they're crimes. They're all egregious. And, so Cas Sunstein's statement has led many to lose a great deal of faith about the commitment to the future, because we have had eight years of moral relativism and the avoidance of legal process. And to start a major campaign with the suggestion that we're going to distinguish between egregious and non-egregious crimes promises more of the same.
Boy howdy! Now there's someone I woulnd't mind having as Attorney General. What is so hard to grasp about this?
Quite contrary to Barack Obama's delusional history of the culture wars, Cass Sunstein is the epitome of the Democrat's old politics of the last 30-some years. At the very beginning of the Iran/Contra investigations, for example, the Democrats announced that "no one is talking about impeachment" for Ronald Reagan. Knowing that in advance made it much easier for everyone involved to devise strategies for blameshifting and evasion. It's precisely this sort of refusal to stand up for the rule of law that has served as a primary enabler of Republican lawlessness. And here we are, having more of the same shoved down our throats in the name of a "new politics"?
OLBERMANN: Let's split this thing back into the two component parts. The John Dean argument against proactive pardoning by Bush was the same one that Richard Nixon used in not pardoning his own people before he resigned. If we do that, we are collectively and individually admitting guilt. Does that no longer count in the Bush thinking about this?
TURLEY: I don't think it does, Keith. I think this would be the ultimate and final show of contempt by this president for the rule of law. If you remember, this was the same group that said we are absolutely certain of the legality of these programs. When they started to lose in court, Congress, including the Democrats, gave them new legislation to stop judicial reviews.
So I don't think there is any question about illegality anymore. I think this president would find it consistent to say, I can tell people to commit crimes and then I can pardon them for it. What is troubling is that there appear to be Democrats on the other side who would welcome that.
Indeed, there are Democrats who would not only welcome such lawlessness, they will attack other Democrats--and call them "far left"--if they do stand up and call for preserving the rule of law.
OLBERMANN: The other component part, why would Obama through his legal adviser punt not just on accountability, but even on the just the threat of accountability through the election?
TURLEY: I think it really does show that the Democrats are trying really hard to assure some voters and certainly a lot of politicians that they're not going to reopen these issues and that the Bush crimes will remain buried for all time. And I do think that all of these people have signed on to such a morally relativistic approach that it would start a new administration on the same level that George Bush left it. That is a very sad thing.
A new administration should commit to at least one thing, and that is to uphold the constitution and the laws, regardless of who may be the violator.
OLBERMANN: Constitutional law professor Jonathan Turley, working on those late-night pizza orders. Thank you, John.
TURLEY: Thanks, Keith.
Turley was really good in this segment, but there is one thing that I think he missed. It's not just that "Democrats are trying really hard to assure some voters and certainly a lot of politicians that they're not going to reopen these issues." They are also trying to assure the punditalkcrazy. And they are trying to avoid the wrath of the organized rightwing noise machine. In short--"It's the hegemony, stupid!"
This is the real connection between Nixon and Bush. Nixon was the brains that brought this Kafkaesque world into being. But he didn't have the institutional structures in place to support his vision. Thirty years later, those institutional structures dominate our political landscape to such an extent that a progressive presidential messiah only takes a little bit of flack when he mouths their plattitudes.
We are living in Nixonland, make no mistake. And until we confront and overthrow the Nixonian hegemonic order we are living under, we will not even begin to understand what it means to begin a new progressive era.
Did I just say, "progressive era"? Let me rephrase. You see, until we get out from under Richard Nixon, we can't even have an old-fashioned conservative era.
Here's conservative constitutional law expert Bruce Fein, being interviewed by Jane Hampshire. He calls Sunstein's Nixonian argument, "Nonsense on stilts." I dunno. Maybe a jetski....
Jane Hamsher: "Yesterday Cass Sunstein said,... he belives the Bush Administration is just acting under a different interpretation of the law.... and to prosecute them in this fashion would be the criminalization of politics and I wanted to know how you would respond."
Bruce Fein:: ....With regard to that observation, it's nonsense on stilts is basdically what he said. It's like saying saying when President Nixon said, 'when the president does it it's legal,' that, well he just had one view of the Constitution and those who subscribed to what the Consistitioon said had a different view, and you gave equal weight or respect to each side.
Most people, and that was true when I was there at the nixon impeachment and helped push it forward, thought that nixon was deluded into thinking, 'well if the president says its legal to burglarize the office of daniel ellsberg's psychiatrist, well then it's legal.'
Well how can that be? There's a fourth amendment there. And we have a Constitution based upon a Declaration of Independence that we all have unalienable rights to life, liberty and the pursuit of happiness. Now, 'unalienable' means the President can't take them away at his whim.
So cass sunstein, in my judgement, his argument is silly. because it suggests that anybody who can contrive any frivolous conceivable argument under the sun about what the Consituituton means should never be prosecuted criminally."
"These are not even close questions that what has been done is ciminal violation of the law, and, indeed, if it were true that the president believed he had constutiional auithoritey to run roughshod over FISA, why then did he erver come back to Congresss and ask for a statue authorizing what he had been doing in violatiom of the law for over five years?"
So, I just beg to differ very very strongly with Cass Sunstein. I just think it's a ridiculous arguments and would be the equivalent of authorizing a monarchical presidency."
Having seen some actual Constitutional law thinking directed Sunstein's way, you might actually start to feel sorry for the poor slob. He's clearly far out of his depth, despite--or perhaps because of--his reputation. But then he goes out and makes a fool of himself in a field where he doesn't even have a prestigious title to hide behind....
Facet III: The Audacity of Minimalism
As mentioned before, Matt's already done a diary about Sunstein's new book, Nudge. I'm just going to confine myself to commenting on what Sunstein said in his Democracy Now! interview segment on the book.
AMY GOODMAN: Nudge, lay out the theory.
CASS SUNSTEIN: OK. The basic idea is that the United States has been caught for many years between the people who say, "Markets, markets, markets, markets," and then they add, "Markets, markets, markets," and the people who say, "Mandates and bans. Whenever there is a problem, people are suffering, then we want the government to intervene and impose a requirement." What we think is that often this is a false dichotomy, that the "markets, markets, markets" will lead to undue suffering and deprivation, that the "mandates and bans" often are too rigid, they have unintended bad consequences, they sometimes have some of the defects of socialist solutions to problems.
Okay, stop right there. "The defects of Socialist solutions to problems"? What in the fucking world is he talking about? The Bible has mandates and bans. Agsainst usary, for exmaple. Is the Bible "socialist" and is the ban on usuary one of its socialist defects? This is a very pure example of how thoroughly Sunstein has absorbed the Friedmanite's market fundamentalist worldview. When he says "some of the defects of socialist solutions to problems," I honestly have no idea what he's talking about. But I'm quite sure that the Friedmanites do. He is speaking their secret code. He is not speaking Englisjh.
CASS SUNSTEIN: What we think, with the idea of Nudge, is that ordinary people, meaning all people, sometimes blunder; we sometimes have self-control problems; we sometimes don't have adequate information; we sometimes are too optimistic about our future, both as individuals and as nations, facing, let's say, hurricane or climate change or security threats; and that sometimes the best approach government can take is a nudge, which doesn't require anyone to do anything but can set up a situation or a context in a way that leads people and governments to make better decisions.
An example of a little nudge is that Congress should enact very soon a greenhouse gas inventory, by which American citizens see who are the big contributors to the climate change problem. Amazingly, there isn't a climate--a greenhouse gas inventory. That little nudge, there's every reason to think, would achieve considerable good, because no company likes to see in the newspaper that it's one of the worst contributors to the climate change problem. So information disclosure is a really simple, often costless and sometimes very effective nudge.
So much nonsense, so little time. Do people sometimes make mistakes? Boy, howdy! Do governments exist, in part, to shelter us from the consequences of individual mistakes? To replace individual vengeance-seeking with the impartial rule of law, for example? To reward virtuous behavior and discourage destructive behavior via any number of different rewards and punishments, both civil and criminal? Yes, indeedee! Governments have been doing that for a looooong long time.
So what, exactly, is the BIG NEW IDEA here? Let's do less? Because that damn sure sounds like what Sunstein is saying.
What exactly does he think that greenhouse gas registry would do? Does he know anything about the history of toxic substance registries, for example? Has he even seen a single corporate image ad on TV in the last 30 years? Does he have any idea how many more people such ads reach than boring old numbers in some registry somewhere? Does he live under a rock?
More importantly, does he have any idea of what sort of magnitude of change is required to avoid the worst case scenario global warming posses for us? Quite apparently not. The man is a blithering idiot. Non-blithering idiots should not be allowed near him, because of the bad influence he would have on them. Furthermore, they should not be nudged away from him. There should be a mandatory ban keeping him away from them, much like the flawed socialist ban of Typhoid Mary.
AMY GOODMAN: How do your views differ from those of another University of Chicago professor, Milton Friedman?
CASS SUNSTEIN: A lot. Someone whom I knew a bit and admired, Milton Friedman, was one of the "markets, markets, markets--pause--markets, markets, markets" guys. He was a defender of laissez-faire. And I think he's quite right to think that markets are often an engine of economic growth and government interference with markets often makes things worse rather than better, but what he didn't see is that sometimes there's a way of approaching markets through, let's say, a careful design, through an information disclosure strategy or through an educational campaign, so that people know something about the mortgages that they're buying rather than being sweet-talked by someone who gives them just part of a picture. There's a way for government to respect freedom of choice, not to ban, which Friedman hated, while also playing a constructive role in helping people who often find things confusing and complicated and, as a result, blunder.
More blithering idiothood. Milton Friedman would not have had any problem with a greenhouse gas registry. In fact, Friedman didn't even have a problem with "mandates and bans" and all their quasi-socialist defects in certain situations. For example, he was in favor of congestion taxes on automobiles in crowded city centers--a mandate, if not a band, that goes considerably farther than a Sunstein "nudge."
Like I said, blithering idiot.
Another way to put it is, Milton Friedman had a sense that everybody was a little like Mr. Spock of the old Star Trek show--that is, his sense, at least in his policy recommendations, attributed such knowledge and foresight to humanity that they looked like economic man. We think--that is, my co-author Thaler and I--that there's a little Homer Simpson in all of us, that sometimes we have self-control problems, sometimes we're impulsive, and that in these circumstances, both private and public institutions, without coercing, can make our lives a lot better.
Well, it's certainly true that Friedman & Co. subscritbed to an economic model cheerfully free of empirical foundations. And it's true that behavioral economics points out a good deal that Friedman & Co got wrong as a result. But it does not follow that (a) everything Friedman got wrong can be reduced to the individualist differences berween Homer and Lisa Simpson (Spock has nothing on Lisa), or (b) that mere "nudges" can suffice to turn Homer into Lisa. What we have here is simply a story, a narrative that attempts to make sense of the world, but that quickly falls to pieces under even the most cursory scrutiny.
Indeed, what Sunstein's narrative completely obscures from sight are two of the most fundamental economic discoveries of the early 20th Century. One is by John Maynard Keynes, and it consists of the recognition that there is not one single "market equilibrium" that the "invisible hand" in its unseen infinite wisdom moves us towards. Keynes realized that there could be a whole series of equilibriums, and that it was quite possible for an economy to get "stuck" at an equilibrium that was far below the optimal level for the economy as a whole. Getting stuck at a "local equilibrium" that's far from optimal can result, for example, in tens of millions of people out of work for months or even years at a time. Government action can change the economy as a whole, and move it from one local equilibrium regime to another. This insight has nothing to do with the micro-behavior of Homer vs. Lisa Simpson. But it has everything to do with why one should not regard the market as an untouchable holy instrument.
The second fundamental discovery that Sunstein is clueless about is Arthur Cecil Pigou's work on the concept of externalities--that is, positive, and more importantly, negative impacts of economic activity that are not captured in the marketplace. Pollution is a major example of such externalities, and global warming is a massive example of pollution as a negative externality. As with Keynsian multiple equilibria, Pigovian externalities have nothing to do with the difference between Homer and Lisa Simpson. In both cases, Lisa is quite likely to understand what's going on, while Homer does not. But her understanding alone is far from sufficient to solve the problems involved. For that, she needs to have an economic policy she can support--one with "mandates and bans" (far more of the former than the latter) and Bible-styled socialist defects (like a minimum wage and banning usary) galore.
Did I mention the fact that Sunstein is a blithering idiot?
[Virgil] We to the place have come, where I have told thee
Thou shalt behold the people dolorous
Who have foregone the good of intellect....
This miserable mode
Maintain the melancholy souls of those
Who lived without infamy or praise.
Commingled are they with that caitiff choir
Of Angels, who have not rebellious been,
Nor faithful were to God, but were for self.
The heavens expelled them, not to be less fair;
Nor them the nethermore abyss receives,
For glory none the damned would have from them....
[Dante] Forthwith I comprehended, and was certain,
That this the sect was of the caitiff wretches
Hateful to God and to his enemies.
These miscreants, who never were alive,
Were naked, and were stung exceedingly
By gadflies and by hornets that were there.
Or, as limpidglass wrote yesterday, in a comment to Matt's diary on Sunstein:
To borrow a biblical line: "I know thy works, that thou art neither cold nor hot. Would that thou wert cold or hot. Because thou art lukewarm, and neither cold nor hot, I will spew thee from my mouth!"