Source: United States Senator Amy Klobuchar (D-Minn)
Klobuchar was the first senator at the Supreme Court nomination hearings to highlight antitrust law
Klobuchar: “Effective antitrust enforcement plays a critical role in protecting consumers and workers, promoting innovation, ensuring new businesses have an opportunity to compete.”
WATCH KLOBUCHAR REMARKS AND QUESTIONS HERE
WASHINGTON – Today, on the second day of the Senate Judiciary Committee’s hearing to consider the nomination of Judge Ketanji Brown Jackson to the Supreme Court, U.S. Senator Amy Klobuchar (D-MN), Chairwoman of the Senate Judiciary Subcommittee on Antitrust, Competition Policy, and Consumer Rights, questioned Judge Jackson on the need for strong, effective antitrust laws to protect consumers.
Pointing to Justice Stephen Breyer’s statement that “if you’re going to have a free enterprise economy then you must have a strong and effective antitrust law,” Klobuchar highlighted the critical role effective antitrust enforcement plays in “protecting consumers and workers, promoting innovation, ensuring new businesses have an opportunity to compete.”
Judge Jackson characterized the goal of antitrust laws as intended to “protect competition and, as you said, therefore, protect consumers and competitors and the economy as a whole.”
Klobuchar also emphasized the need for Congressional intent to play a key role in how the Supreme Court interprets antitrust laws. Klobuchar voiced concern that some “justices have actually substituted their own ideologies for the intent of Congress,” when considering antitrust cases.
Judge Jackson affirmed that “courts are not policymakers, and judges should not be importing their own policy preferences,” underscoring that judges should give appropriate consideration to congressional intent in interpreting the antitrust statutes.
Klobuchar’ questions are given below, and are available for TV download HERE and for online viewing HERE.
Senator Klobuchar: I’m going to turn to an area that Senator Lee and I, we both chaired the Subcommittee on Antitrust, and so it’s near and dear to my heart, so I thought I would spend a little time — it usually gets relegated to the second round, but I’m putting it up on the docket here. U.S. antitrust law has been described as a comprehensive charter of economic liberty and I agree. And effective antitrust enforcement plays a critical role, as you know, in protecting consumers and workers, promoting innovation, ensuring new businesses have an opportunity to compete. It actually, from really early on in our country’s history, has been a very important part of assuring that capitalism works. And in January, for the first time since the dawn of the internet, the Senate passed a tech competition bill out of the Judiciary Committee, it’s a bill that Senator Grassley and I lead, many of the members of this committee supported the bill, 16-6 vote. It’s called the American Innovation and Choice Online Act. It’s now headed to the Senate floor. I’m not going to ask you about that bill obviously, but I want to put this in some context. While tech monopolies have seized from 50 to 90 percent market share in major parts of their business lines, it is clear to me when you look at the plain language of the Sherman Act, Clayton Act, laws that are in place, that these monopolies are not okay. However, court rulings for decades in antitrust have created some major obstacles to taking on these cases, and it’s not just court rulings. It is on us with, as I said, the dawn of the internet, decades having passed. It is on us, the Senate and the House, to update our laws this year to give enforcers the resources to do their jobs. Something you, if confirmed, would not have a role in, but the role of the courts is also very critical. You have been nominated to replace Justice Breyer, who came to the Court with a strong background in antitrust law. I know you handled a case — you and I discussed it in my office. I think it got — I think it got decided — the merger was abandoned so you didn’t have to rule on the merits of it. It was back in 2017. An FTC challenge. But I’ll just quote something that Justice Breyer once said. He told this committee: “if you’re going to have a free enterprise economy then you must have a strong and effective antitrust law.” Do you agree with Justice Breyer’s statement, and how would you characterize the goals of our antitrust laws?
Judge Jackson: Well, thank you, Senator. The antitrust laws protect competition and, as you said, therefore, protect consumers and competitors and the economy as a whole. And the Sherman Act and the Clayton Act are broad in their statements, in their protections, and there’s a lot of precedent in this area. If I were confirmed, I would use my methodology to look at the precedents in these areas to ensure that any legislation that I was considering is interpreted according to the text consistent with Congress’ intent. And in the area of antitrust, that is ensuring that there is consumer protections.
Senator Klobuchar: Very good. And just — to play it out a little bit, since the 1980s, the Court in cases like Trinco and Credit Suisse, Ohio v. American Express, has really made it increasingly difficult to enforce the antitrust laws and protect competition. And during that same time, and I know many of my colleagues know this, we have seen a rise in industry consolidation, market power, not only in tech with companies like Google and Amazon and Facebook and Apple, but also across our economy, really, in everything from pharma to cat food to caskets. What role do you think that congressional intent should play in the Court’s interpretation of the antitrust laws? And I say that because I think that we’re dealing with some cases where justices have actually substituted their own ideologies for the intent of Congress in originally passing the laws. And I think it was Justice Souter who once said before this committee: “when we are dealing with antitrust laws, we are dealing with one of the most spectacular examples of delegation to the judiciary that our legal system knows,” and he added this: “certainly, a respect for legislative intent has got to be our anchor for interpretation.” So, what role do you think congressional intent should play in the Court’s interpretation of the antitrust laws?
Judge Jackson: Thank you, Senator. So, I’ve interpreted a number of statutes in my near decade on the bench. And in every case, the text of a statute is what the Court looks at in order to ascertain what the legislature intended and that is important because, as I’ve said, courts are not policymakers, and judges should not be importing their own policy preferences. Judges are restrained in our constitutional scheme in order to affect the will of Congress in terms of their interpretation of the laws.
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