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NYT: David Michaels, OSHA, Daubert and activists

The New York Times (via Greenwire, or vice versa) today does a pretty fair job of examining the controversy over President Obama's nomination of David Michaels to head the Occupational Safety and Health Administration, albeit with the hook as described in the headline, "Conservatives Raise Questions About OSHA Nominee."

Not to deny that some conservative activists -- former Ohio Treasurer Ken Blackwell, for example -- have gone after Michaels as yet another radical nominee from the Obama Administration. The Van Jones debacle inspired more examination. (Cass Sunstein, repeatedly praised at Point of Law, received the brunt of the attacks.)

Still, the policy objections to Michaels ARE substantative. In the article, CEI's Hans Bader cites Michaels' own book, "Doubt is Their Product":

Bader points to one chapter in which Michaels discusses a 1993 Supreme Court ruling, Daubert v. Merrell Dow Pharmaceuticals Inc., which set the standard for admitting expert testimony in federal courts. Bader said Michaels' views on that case suggest he supports relying on "junk science," which could dramatically alter OSHA's approach to ensuring workplace safety.

In an editorial earlier this month, the Washington Times called Michaels "one the nation's foremost proponents of allowing junk science to be used in jackpot-justice lawsuits."

At Point of Law, we've also written about Michaels' attacks against the plastics additive, BPA, a favorite target of the litigation industry as well -- posts in April 2008 and August 2009 that preceded the Van Jones hullabaloo. Those posts also noted that the project on Scientific Knowledge and Public Policy began with funding strangely allocated from the settlement in the silicone breast implant litigation.

At Overlawyered in August, Walter noted a Michaels' blog post after the Virginia Tech mass murders where Michaels characterized gun violence as a public health issue. That point of view -- familiar from the many lawsuits against gun manufacturers -- certainly has implications for workplace safety regulation.

So, serious points. But after a too broad-brush article September 15 in The Washington Times, "Conservatives hunt for next Van Jones," the left-leaning blogosphere quickly produced a spate of commentaries with the thesis: "Right-wing smears Michaels." The defense of Michaels too often boiled down to: He's a respected scientist, right-wingers are bad, so any criticism is a smear.

Even acknowledging his reputation, Michaels also has a long record advocating policies that would impose major burdens on the productive sectors of the economy while encouraging more cash-hunting litigation by trial lawyers. Calling for a presidential nominee to explain and defend those views is hardly a smear. It's accountability.

P.S. I should note that a colleague of mine at the National Association of Manufacturers provides a comment in the NYT story: "We're not opposed to his nomination, but ... some of the things he's said gives us concern that he might have an adversarial attitude toward manufacturers," [Hank] Cox said. "We think it's really important that the senators hold a hearing and talk to him to give him a fair chance to explain his views."

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Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.