On his nationally syndicated radio talk show Tuesday, host Mark Levin called out U.S. Supreme Court nominee Brett Kavanaugh for the judge’s position on tax provision in Obamacare, saying, “You have to assume that Kavanaugh would have voted with Roberts” on Obamacare.
“[Y]ou have to assume that Kavanaugh would have voted with Roberts on this because they both came at it from exactly the same position,” stated Mark Levin concerning the individual mandate in Obamacare. “He [Kavanaugh] is not Scalia; he is not Thomas; he is not Alito; and in this case, he wasn’t even Kennedy.”
Levin’s remarks stem from the oral argument in the Susan Seven-Sky v. Eric Holder, Jr. case on Sept. 23, 2011, “that took place in front of the DC Court of Appeals panel with Circuit Judge Kavanaugh, Senior Circuit Judges Edwards and Silberman. A few pages focused on the give and take between Judges Kavanaugh and the lawyer for the Appellants, a lawyer by the name of Edward White.”
Below is a transcript of Mark Levin’s comments from his show Tuesday:
Mark Levin: “Mr. Kavanaugh, the textualist, the man who understands the separation of powers, was rewriting the statute. And you know what he did in the end, Mr. Producer? He argued that his major concern was the Anti-Injunction Act, which prevents the court from hearing it until 2015. What that means is the case isn’t ripe because the tax – or the penalty – has yet to be applied to anybody, and so, you need to come back once that happens and make your argument all over again. In other words, in the end, he ducked. He made a technical decision.
“But throughout this oral argument it wasn’t the leftist on the court – the old Carter appointee, Harry Edwards – it was the Bush appointee, Kavanaugh, going on and on and on that it’s a tax. ‘What’s the big deal between a tax and a penalty?’
“The big deal is it made all the difference in the world.”
Fox News Host Brett Baier: “‘To say that the individual mandate merely imposes a tax is not to interpret the statute but to rewrite it. Judicial tax writing is particularly troubling,’ Justice Kennedy reading that from the bench in the joint dissent.
“It is something that is fascinating to watch, the Court always looking at the specific issues one by one. Each case is different, but this one has such a massive ramification.”
Levin: “Yes, it did. And you have to assume that Kavanaugh would have voted with Roberts on this because they both came at it from exactly the same position. He is not Scalia; he is not Thomas; he is not Alito; and in this case, he wasn’t even Kennedy.
“So, we’ll see. The conservatives on the judiciary committee politely and legitimately need to pursue this. This is a big deal.
“It goes to this issue of textualism and originalism.”