US: Klobuchar questions Kavanaugh on antitrust

Senator Amy Klobuchar (D – MN)  joined fellow Democrats Wednesday in grilling Supreme Court nominee Brett Kavanaugh  over his views on  antitrust issues.

Klobuchar, ranking member on the Senate Judiciary Antitrust Subcommittee, said that Supreme Court decisions on antitrust issues in recent years, including the decisions in Ohio v. American Express, Leegin Creative Leather Products v. PSKS and Bell Atlantic v. Twombly,  have made it harder to enforce our antitrust laws.

Klobuchar: “Senator Lee and I run the Antitrust Subcommittee…and in recent years…the Supreme Court has made it harder to enforce our antitrust laws in cases like Trinco, Twombly, Leegin, and most recently Ohio v. American Express. This could not be happening at a more troubling time. We’re experiencing a wave of industry consolidation. Annual merger filings increased by more than 50% between 2010 and 2016. I’m concerned that the Court, the Roberts Court, is going down the wrong path and your major antitrust opinions would have rejected challenges to mergers that majorities found to be anticompetitive. I’m afraid you’re going to move it even further down the path. Starting with 2008, in the Whole Foods case, where Whole Foods attempted to buy Wild Oats Market. Very complicated. I’m going to go to the guts of it from my opinion. The majority of courts and…what happened is the Republican majority FTC challenges a deal, and you dissent and you apply your own pricing test to the merger. My simple question is: where did you get this pricing test?”

Kavanaugh: “I would have affirmed the decision by the district judge in that case which allowed the merger and the district judge is Judge Friedman, an appointee of President Clinton’s to the district court. I was following his analysis of the merger. The case is very fact specific…it really turns on whether the larger supermarket sells organic food or not.”

Klobuchar: “Where did you get the pricing test…? You used different tests. I’m trying to figure that out. What legal authority actually requires a government to satisfy your standard to block a merger? …I remember in our discussion you cited these non-binding horizontal merger guidelines that you used to come up with this test.”

Kavanaugh: “You’re looking at the effect on competition and what the Supreme Court has told us, at least from the late 1970s, is to look at the effect on consumers and what’s the effect on the prices for consumers and the theory of the district court and Judge Friedman in this case was that the merger would not cause an increase in prices because they were competing in a broader market that included larger supermarkets that also sold organic food. The question is whether there an organic food market solely or a broader supermarket market.”

Klobuchar also asked Kavanaugh questions about net neutrality, consumer regulation and other issues. She suggested that the public may be focused more on economic issues than the Supreme Court, but “it’s our case to make that it does matter.”

Klobuchar: “Or in another case you wrote a dissent against the rules [that] protect net neutrality, rules that help all citizens, and small businesses have an even playing field when it comes to accessing the Internet. Another example that seems mired in legalese, but is critical for Americans, antitrust law. In recent years the conservative majority on the Supreme Court has made it harder and harder to enforce the nation’s antitrust laws, ruling in favor of consolidation and market dominance. Yet two of Judge Kavanaugh’s major antitrust opinions suggest that he would push the court even further down this pro-merger path. We should have more competition and not less.”

Klobuchar also repeated her objections to hundreds of thousands of documents related to Kavanaugh that remain secret, including 100,000 documents the White House has declared off limits from the five years that Kavanaugh worked for President George W. Bush.

Klobuchar: “Do you personally have any objections to the release of the documents from your time as staff secretary?”

Kavanaugh: “Senator, I’m not going to take a position. That’s in my view a decision for the committee in consultation with the executive branch.”

Klobuchar: “So you’re not going to say whether or not you have a problem with it?”
Kavanaugh: “I’m not, I don’t think it’s my role to say one way or another.”