Attacks on an independent judiciary

by Walter Olson on October 20, 2012

Washington Post columnist Steven Pearlstein’s smear job on D.C. Circuit judge Brett Kavanaugh over an environmental ruling shouldn’t go unanswered, and thanks to Ed Whelan at NRO it hasn’t.

{ 1 comment }

1 Max Kennerly 10.21.12 at 4:42 pm

Whelan doesn’t even try to defend Kavanaugh’s opinion, he just quotes some of Kavanaugh’s self-serving defenses.

The opinion is indefensible. Kavanaugh looked at a 32-year-old statute and came up with an interpretation that (1) had been rejected by the DC Circuit twice before (2) hadn’t even been argued by the States until after litigation began, and thus past the time demanded by Congress by an unambiguous statute (3) was contrary to the plain meaning of the statute (4) makes no sense whatsoever. The full details are at my post, linked here.

The fact that Kavanaugh has in other cases taken a position that “conservatives” want to call “liberal” doesn’t mean anything. This opinion was a political hatchet job intended to gum up EPA regulation, and it deserves public criticism.

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