Magazine article The Wilson Quarterly

In Praise of Trimmers

Magazine article The Wilson Quarterly

In Praise of Trimmers

Article excerpt

THE SOURCE: "Trimming" by Cass R. Sunstein, in Harvard Law Review, Feb. 2009.

THE VESTIBULE OF HELL IN Dante's Divine Comedy (1308-21) was populated with ancient representatives of what Cass R. Sunstein considers an underappreciated class, the "trimmers: Dante wrote that a very large group of miserable souls had been sent to Hell because they had lived "without infamy and without praise." Today they might be denigrated as lukewarm in their allegiances, wishy-washy in their politics, flip-floppers in their beliefs. Sunstein, a law professor recently appointed director of President Barack Obama's Office of Information and Regulatory Affairs--in effect, the government's regulatory czar-springs to their defense. Not only is trimming pervasive, he says, it is also honorable.

Trimmers inhabit both the legal and political realms. They are part of a great group averse to extremes. One type of trimmer is the compromiser. "Seeking to reduce social conflict, attempting to avoid public outrage, and believing that the middle position is presumptively best, compromisers try to give something to both sides," Sunstein writes.

Then there are preservers. They come in two varieties. One group attempts "to discern what they believe, on the basis of their own independent inspection, to be the deepest and most valuable parts of opposing positions." Other preservers are "concerned, not with their own independent judgments but with what is thought, by those who hold opposing positions, to be deepest and most important."

Compromisers and preservers can both be defended, according to Sunstein, but he advances a feeble justification of split-the-difference compromisers. He says that sometimes a risk-averse judge might choose to compromise because the hazards of either side seem dangerous, or because he or she might not have the time or capacity to think carefully-or reach a firm conclusion-about which position is right.

But Sunstein bursts with more compelling arguments-some based on U.S. Supreme Court cases-in support of trimmers of the preserver persuasion. A "prominent example" of this kind of trimming is Supreme Court justice Lewis Powell's opinion in University of California v. Bakke (1978), which held that rigid quota systems for college admissions are unconstitutional, but that race may be treated as a "factor" in admissions decisions. …

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