Cass Sunstein's nomination to be head of the Office of Information and Regulatory Affairs has been approved by the Senate in a 57-40 vote. Sunstein is one of the nation's leading scholars on regulatory issues, and there is no question that he is well-qualified for the job. At the same time, I also think that Sunstein is wrong about a great many important issues, especially in the field of constitutional law.

That said, I believe that the conservative opponents of Sunstein's confirmation are missing the fact that most of his really controversial views have little connection to the office he was nominated for. On the regulatory issues covered by OIRA, Sunstein is actually less statist and relatively more sympathetic to free market approaches than are most other liberal Democrats. For example, in his book Nudge, Sunstein urges policies that are less coercive and paternalistic than those promoted by the existing regulatory state. Sunstein also is aware of the serious public choice problems with regulation, which he has written about in several publications. Obviously, he is still far more supportive of regulation than I am. But the relevant comparison from a libertarian point of view is that between Sunstein and anyone else likely to be appointed to the same position by Obama.

It's also worth pointing out that Sunstein's nomination has been attacked by pro-regulatory groups on the left, and that socialist Vermont Senator Bernard Sanders was among those who voted against confirmation (as did the strongly anti-free market Virgina Senator James Webb). In my view, Sunstein's left-wing opponents had a better grasp of the true significance of his nomination than his conservative ones.