Why Did Cass Sunstein Think Sitting for an Interview with Isaac Chotiner Was a Good Idea?

The most famous classic blunder is getting involved in a land war in Asia, but there are other classic blunders, including the only slightly less well known classic blunder of wagering against a Sicilian when death is on the line. In The Princess Bride, Wallace Shawn as Vizzini recounts these blunders as admonitions: "Never get involved in a land war in Asia." "Never go in against a Sicilian when death is on the line." I would add another classic blunder to Vizzini's list: "Never agree to be interviewed by New Yorker reporter Isaac Chotiner."

Has anybody ever emerged unscathed from an interview with Chotiner? Not to my knowledge, although some interviewees come off worse than others.

Cass Sunstein is Chotiner's latest interviewee/victim. Chotiner interviews Sunstein about the topic of his new book defending liberalism, very broadly defined. Per his usual approach, Chotiner mostly confronts Sunstein with his own words and then asks the equivalent of "do you really mean that? Really?" It is a painfully effective technique.

Throughout the interview (and presumably the book), Sunstein defends the view that a great many people we code as politically conservative within the domain of ordinary politics are liberal in the sense that matters most to Sunstein: a commitment to "freedom, pluralism, and the rule of law." Sunstein cites Ronald Reagan, Robert Nozick, and Friedrich Hayek as examples of conservatives and libertarians who fit under his big-tent liberalism.

Chotiner pushes back by pointing to what various conservatives Sunstein counts as liberals supported. Hayek, he points out, thought "Near Eastern" students were "fundamentally dishonest" and supported the anti-democratic coup in Chile in 1973. Sunstein says he didn't know about the former and that he doesn't "mean to endorse everything" Hayek said.

Later, Chotiner notes that Sunstein's notion of liberalism includes human rights but that the Reagan administration's foreign policy in Latin America is hard to square with a commitment to human rights. Sunstein retreats:

O.K., so you’re right to press on human rights. I would single out as the holy trinity freedom, pluralism, and the rule of law. I do refer to human rights as part of what liberals are committed to. You can believe in human rights while disagreeing about what falls in the category.

It gets worse. Chotiner asks Sunstein how he reconciles his own commitment to human rights with his long-time friendship with Henry Kissinger. Sunstein answers with a non sequitur:

I’ll tell you a story. I wrote a book a few years ago on Star Wars. We invited Dr. Kissinger to my Star Wars book party, and he said, “You wrote a book about Star Wars? Why’d you write a book about Star Wars?” He was puzzled and courteous, but really confused. And then he came to the book party, which was quite generous. He was a busy person.

It then takes another four questions by Chotiner and three deflections by Sunstein before Sunstein finally admits that maybe he ought to have examined the reasons why so many people think of Kissinger as a war criminal before giving him a pass simply because Kissinger took time out of his busy schedule to come to Sunstein's Star Wars themed book party. Sunstein's answer seems to be that Kissinger probably wasn't as bad as Stalin, which is where he draws the line. Think I'm kidding? Here's a statement by Sunstein from near the end of that exchange:

Well, on [Kissinger] and his role in government, that’s not something I’ve particularly studied, so I don’t know. I know some people who think he was a horrible historic figure. They would say, “Would you be friends with Genghis Khan? Would you be friends with Stalin?” And I wouldn’t be friends with Stalin, so I concede that.

Chotiner has a (suitably) snarky reply, to which Sunstein responds that while he understands that some people think they shouldn't be friends with people who did terrible things, Kissinger was "an extraordinarily generous friend." Chotiner thanks Sunstein for the interview, and Sunstein adds this in parting: "If we go light on the Kissinger part, I wouldn’t complain, because it could dwarf everything else."

And so of course the published version not only doesn't go light on the Kissinger part but, by concluding with it, calls extra attention to it. Because what did Sunstein expect? He went in against a Sicilian when death was on the line.

I'm tempted to leave it there but I want to add two further points.

First, I find Sunstein's views on Kissinger at best puzzling. I can imagine discovering that a good friend did something seriously immoral but remaining friends with them because our friendship pre-dates either or both of the doing of the seriously immoral thing or my discovery of the immoral thing. But I can't imagine that's true of Sunstein's friendship with Kissinger. 

I have found no indications that Kissinger and Sunstein became friends before 2014, when Kissinger and Sunstein's wife Samantha Power--then the U.S. ambassador to the United Nations--enjoyed a Yankees-Red Sox game together. Perhaps Sunstein met Kissinger earlier, but it would have had to have been much earlier for Sunstein not to have been aware of the charge that Kissinger was responsible for tens of thousands of deaths and human rights abuses in Cambodia and Latin America in the early 1970s. Yet how would such a pre-1970s meeting, much less friendship, have developed? Sunstein was only 16 years old in 1970 and didn't graduate from law school until 1978. We have every reason to think that Sunstein befriended Kissinger long after there were well-known concerns about Kissinger's human rights record.

Second, and unrelated to Kissinger, consider Sunstein's view of Justice Alito. At one point in the interview, Chotiner asks whether Sunstein has faith that the current Supreme Court is committed to liberalism. Sunstein says he does. Chotiner follows up by zeroing in on Justices Alito and Thomas. Here's what Sunstein says about Justice Alito:

Alito is an extremely careful lawyer and a very precise judge. He is clearly taken with a certain view of our culture that is shared by many of Trump’s supporters. But is it possible to find an opinion in which he says, I’m going to go this way because the President is the law, or anything that verges on that? I think that’s very hard to find. Is there anything in his opinions that shows disrespect for freedom of speech or freedom of religion?

Wait, what? Among the very many influential works of scholarship by Sunstein are a number of excellent empirical investigations into how judges decide cases. For example, in the 2006 book, Are Judges Political?, Sunstein and his co-authors examine thousands of case outcomes to determine what drives judicial decision making. In other words, to discern jurists' commitments, Sunstein and his co-authors examine what jurists do, not what they say. Sunstein is not a radical legal realist but surely he is not so naive as to think that at this point in our history--when the forces of illiberalism that control the executive branch of the government have not yet fully triumphed over all resistance--an illiberal Supreme Court Justice would proclaim his illiberalism, as opposed to merely voting for the autocrat in most cases while, in a very carefully lawyerly and precise way, paying lip service to constitutional values and the rule of law.

To be clear, I'm not saying that I know that Justice Alito is an illiberal or anti-liberal just waiting for the opportunity to provide a judicial seal of approval for the final transformation of the United States into an authoritarian regime. What I am saying is that given Justice Alito's voting record, the fact that he hasn't said that's what he is in any of his opinions is not sufficient evidence to justify Sunstein's conclusion that Justice Alito is committed to liberalism.

Perhaps in other circumstances--when not drawn into a land war in Asia, for example--Sunstein would be able to point to better evidence.

--Michael C. Dorf