In a Cass by himself II

Cass Sunstein oddly opines that Roberts is A-Ok, so far, at any rate. We'll see if the good professor holds this view through Roberts' confirmation.

Along the way, though, Professor Sunstein first tells us that there are bad conservatives out there who are "the most serious danger" because they have a strong view of constitutional interpretation:

Fundamentalist conservatives do not believe in small steps. They think that in the last 50 years, constitutional law has gone badly, even wildly, wrong. They want to reorient it in major ways.

Then, not two paragraphs later, he tells us they are "the mirror image" of the people they oppose:

[T]here is great overlap between [fundamentalist conservatives'] constitutional vision and the politics of the extreme right wing of the Republican Party. In this way, fundamentalist conservatives are the mirror-image of the aggressively liberal federal judges of the mid-20th century.

I guess you have to be as smart as Sunstein to figure that, of two groups behaving badly, it ought to be obvious that it is the second group that's a problem. Myself, if the first group has behaved badly, and the second group is merely correcting the first, I have to think that's perfectly sensible. The least Cass could do is make an argument either that he thinks the first group behaved badly, but was right to do so, or, that the passage of time makes it impossible to correct their errors. Neither argument holds any water, but at least he wouldn't look quite as silly.

He includes other gems: When Supreme Court nominees read the Constitution in a way that squares with a political platform, both the Senate and the nation should be greatly concerned.

I see. So a platform that says judges should interpret the law, not make it, is a concern. Well, to Cass and the Democrats, I suppose it is. (And let me assure readers that I have every confidence that Professor Sunstein lies awake at night, fretting whether Bader Ginsburg's views reflect the Democrat platform.)

But I think my favorite part of the whole piece is the series of naked assertions at the beginning:

1) there are two types of conservative judges, fundamentalists and minimalists;
2) There is a HUGE (Huge!) difference between them; and
3) Unless we understand that HUGE difference, we will NEVER understand something or other.

Every columnist (and every academic) is tempted frequently by such hyperbole, but it's rare that it's worth spit. Sounds more like Cass is trial balooning the title to his next book or law reveiw article: Fundamentalists and Minimalists: Constitutional Jihad in an Age of Republican Extremism