I make the case in my latest New Ledger column:
I start with the obvious: Cass Sunstein would not be my pick for the Supreme Court were I President of the United States, simply because he and I do not share the same judicial philosophy. I want my judges and Justices to adhere to original public meaning jurisprudence, and Cass Sunstein is not an originalist. As such, my view is that his approach to interpreting the Constitution is not the best approach. (Doubtless, he would say the same thing about my approach.)
But I will follow up with something just as obvious: Cass Sunstein is plenty bright and plenty learned enough–to say the least!–to be a Supreme Court Justice. While originalists like me disagree with him, we can still find areas of doctrinal commonality between us. A Justice Sunstein would be both a worthy opponent for originalists, and, perhaps more often than some might expect, a valued ally. For this, his nomination to the Supreme Court by President Obama to fill the seat being vacated by Justice Souter, ought to be desired across ideological lines.