THE LATEST FRONT IN THE LEFT’S “WAR ON CAPITALISM”
By Bill Wilson || Selective outrage has long been the professional left’s stock-in-trade, but the over-the-top invective hurled at U.S. Court of Appeals judge Brett Kavanaugh this week has exposed something darker and more sinister than just your garden variety political hypocrisy. This smear is the latest flanking maneuver in an often-overlooked (but rapidly unfolding) front of Barack Obama’s “War on Capitalism” – the attempted castration of judicial review.
Angry that overreaching regulations promulgated by the Environmental Protection Agency (EPA) were struck down by Kavanaugh’s court, liberal columnist Steven Pearlstein penned what at first glance appears to be a boilerplate “kill the messenger” piece for The Washington Post, where the longtime leftist masqueraded for many years as an objective “journalist.”
But Pearlstein’s assault wasn’t just a hit piece on a potential conservative Supreme Court nominee – it was an effort to intimidate Kavanaugh (and other federal judges) into surrendering to the Nanny Statists currently running this country into the ground. Make no mistake: This is no conventional judicial character assassination – it is a carefully crafted instrument of political propaganda aimed at advancing the unchecked regulatory authority of an oversized, overreaching and overbearing federal bureaucracy.
“Kavanaugh is nothing more than a partisan shock trooper in a black robe waging an ideological battle against government regulation,” Pearlstein inveighs, accusing the judge of turning the courts “into just another dysfunctional branch of a dysfunctional government.”
Dysfunction? Consider this: Kavanaugh was nominated for his seat on the U.S. Court of Appeals by former president George W. Bush on July 25, 2003 – yet was blocked by Democrats on exclusively partisan grounds for more than three years. And now liberals want to play the “dysfunction” card against him?
Evidently so. In fact according to Pearlstein, Kavanaugh’s refusal to rubber stamp Obama’s EPA overreach makes him a “judicial radical” in need of being reined in by “more intellectually honest conservatives” on the bench.
Pearlstein – who once referred to opponents of Obamacare as “political terrorists” – does his best to characterize Kavanaugh’s ruling as judicial activism run amok, but the facts of the EPA case simply do not support his conclusion. In attempting to subject states to new environmental penalties that far exceeded their culpability, the EPA plainly violated important language of the clean air statute – and Kavanaugh’s court ruled accordingly. In fact the EPA overreach was so galling that it was struck down on its face – as opposed to being classified as an “arbitrary or capricious” exercise of agency authority. In other words the government’s efforts to regulate which way the wind blows (and to fabricate untold costs associated with it blowing) constituted an unlawful usurpation of authority – not enforcement of the law.
Pearlstein also neglects to mention that the one judge who dissented in this case – Judith Rogers – has a history of “radical” activism far worse than anything he’s attempting to pin on Kavanaugh. In 2005, for example, Rogers wrote the court’s majority opinion in AFL-CIO v. Chao – a ruling that completely ignored statutory language on labor union disclosure requirements in favor of an invented standard that was infinitely friendlier to corrupt labor bosses.
This ruling occurred while Kavanaugh’s nomination was being stonewalled, incidentally.
So – was there a similar “judicial jihad” outcry from Pearlstein when regulations aimed at exposing union corruption were struck down? Of course not: Because that component of the “regulatory state” did not conform to his leftist ideology.
In this case ideology is everything.
Obama’s “War on Capitalism” includes a “War on Coal,” and the EPA is simply doing its part to make this energy source so expensive that other government-subsidized options become economically feasible. Obama’s administration couldn’t get a carbon tax pushed through Congress, so it is attempting to accomplish these objectives through regulation.
Will the left’s judicial smearing achieve its objective – advancing the ongoing crusade against what remains of the American free market?
It already has. Look no further than the recent “switch” committed by U.S. Chief Justice John Roberts, whose fateful decision to appease this mentality turned what would have been a 5-4 ruling overturning “Obamacare” into a 5-4 ruling upholding the constitutionality of this abomination.
No wonder leftists like Pearlstein are doing everything they can to bully other judges into submission.
Bill Wilson is president of Americans for Limited Government. Follow him on Twitter @BillWilsonALG and read more of his columns over at Net Right Daily. This column – reprinted with permission – originally appeared on Forbes.com.