What does that mean for rat infestations? "If rats are able to suffer—and no one really doubts that they are—then their interests are relevant to the question how, and perhaps even whether, they can be expelled from houses," Sunstein writes. "At the very least, people should kill rats in a way that minimizes suffering. And if possible, people should try to expel rats in a way that does not harm them at all."
Sunstein never explicitly says we should have class action suits brought by rats. But it's easy to see where Beck gets it. "Your dog should have an attorney" is how he summarizes it. "I don't know about your dog," Beck says, "but my dog, I don't think he likes attorneys."
Sunstein's defenders make two points. First off, they say, Sunstein is an academic. Academics are supposed to make provocative arguments. "Their job is to be exploring the bounds of the biggest, hardest questions that our country faces," says Kenneth Baer of the Office of Management and Budget. "That's what they do for a living. There are no attack ads in academia."
Second, they say, he's not actually advocating these policies. It's just legal analysis. That would make sense—if Sunstein made it clear the views were not his. In his paper, he does at times go out of his way to distance himself from his arguments. Rather than saying, "I reject …," he'll say, "This position requires rejection of …." But other times, he takes a stance. In the last section of his essay, he concludes that "private suits should be permitted to prevent illegal cruelty and neglect." As for banning hunting or minimizing cruelty in animal food processing, "I believe that steps in this direction would make a great deal of sense."
Lost in the heat is the fact that animals already have all sorts of rights. You can't legally beat a dog. You can't work a horse beyond exhaustion. You can't make cocks fight for your entertainment. The reason these activities are banned is that they cause suffering. What, then, is the difference between abusing a dog and crushing a rat with your foot (other than size and cuteness)?
Furthermore, animals already have some degree of legal representation. If you kick someone's dog, for example, they can sue you for damages. "I'm not suing on behalf of their dog," says California animal rights lawyer Shannon Keith. "I'm suing on behalf of them on behalf of their dog." Nor do they have to be the animal's owner in order to sue: They can sue you even if you kick a stray dog. In 2007, private citizens sued the Los Angeles Zoo to keep the zoo from constructing a new exhibit that would separate the two elephants living there. (A judge dismissed the suit, saying the plaintiffs should take it to their local politicians.) People can also file private suits for animal abuse on grounds of emotional distress—they saw the animal suffering, and they in turn suffered. In California, private suits can even be brought based on criminal statutes, according to Keith. From there, it's a short step to saying I can sue a food company for grinding up baby chicks.
At a certain point, the discussion becomes what it was at the start: academic. Sunstein's personal views on animal rights and hunting are not going to influence policy. OIRA doesn't make laws; it coordinates regulation among the different agencies as they apply laws already passed by Congress. Nor are Beck's concerns shared by most conservatives. White House officials point out that Sunstein was endorsed by conservative stalwarts from the U.S. Chamber of Commerce to C. Boyden Gray to the Wall Street Journal editorial page.
But that doesn't make Sunstein's saga any less important politically. His confirmation was held up first by Sen. Saxby Chambliss, then by Sen. John Cornyn, out of concern about his record on hunting. (Sunstein wrote letters to both affirming his commitment to the Second Amendment.) It also shows that even the most respected scholars in their fields—most law students know Sunstein as the co-author of their Constitutional Law textbook—are not immune to attacks. Sunstein is hardly the first appointee to have his academic writings held up to the cable news glare. Health policy adviser Ezekiel Emanuel was accused of advocating euthanasia in a paper on end-of-life decision-making. (His words were twisted, according to FactCheck.org.) "Science czar" John Holdren was criticized for a book he co-wrote in 1977 in which he discussed putting chemicals in drinking water that would sterilize people in order to control population. If you want to work in the White House, the message seems to be, don't tackle any difficult subjects.
Then again, Emanuel, Holdren, and Sunstein all squeaked through. The Constitution is still intact. The nation remains stable. And, for now at least, you can kill as many rats as you want, however you want, without fear of retribution.