POLITICO: Biden’s last big antitrust pick faces Senate Judiciary

October 6, 2021

POLITICO

Completing the trifecta: Jonathan Kanter, President Joe Biden’s nominee to head the DOJ antitrust division, faces his confirmation hearing. MT will be watching for questions on recusals.

WHAT TO WATCH AT KANTER’S HEARING — Don’t expect Kanter’s confirmation hearing today before the Senate Judiciary Committee to get too contentious. He’ll face questioning alongside a slate of judicial nominees, who are expected to get the bulk of the attention.

Kanter will likely focus on his years of experience pushing for more “vigorous” antitrust enforcement, particularly against the major tech companies, as he wrote in his questionnaire. Kanter has represented Microsoft, and has emphasized that he believes antitrust action against Microsoft in the 1990s changed the company’s behavior for the better.

— Who’s backing him: Sen. Amy Klobuchar (D-Minn.) will introduce Kanter, saying his nomination comes “at a critical moment in antitrust,” when federal enforcers must take a tougher stand. “That requires leadership at the Antitrust Division with the experience, the legal skill, and the courage to take on some of the most powerful companies the world has ever seen,” she will say, per prepared remarks. “Jonathan possesses these qualities in spades.”

Progressive antitrust advocates hope Kanter will complete the “trifecta” of Tim Wu at the White House, Lina Khan at the FTC and now Kanter at the DOJ antitrust division. The Strategic Organizing Center, which represents major labor unions, supports his nomination, as does Mike Davis of the Internet Accountability Project, a conservative group.

— Who’s against: Kanter has drawn significant oppositionfrom tech’s lobbying apparatus, considering he’s made a career out of representing smaller tech companies against the giants. In addition to Microsoft, Kanter spent years representing “Big Tech” antagonists including News Corp., Yelp and Spotify, both during his years at the firm Paul Weiss and at his own practice.

NetChoice, the right-leaning tech industry group that counts Amazon, Facebook and Google as members, circulated a document to Hill offices calling on lawmakers to oppose Kanter’s nomination. The document accused Kanter of being a “progressive advocate” and representing “crony capitalism.” TechNet, another trade group, warned against “top-down regulatory overreach.”

— The recusal question: Questions about whether Kanter will have to recuse himself from some of the DOJ’s biggest tech fights, given his past clients, could come up at today’s hearing. The Justice Department hasn’t decided yet whether Kanter would need to stay out of cases like the Google antitrust suit or Apple probe.

That hasn’t stopped Google from trying to nudge DOJ ethics officials in that direction. In a court filing in the DOJ’s antitrust suit Tuesday, the search giant said Yelp — one of Kanter’s former clients — won’t hand over documents from Luther Lowe, Yelp’s senior vice president for public policy and the company’s chief advocate for antitrust enforcement against Google. Lowe is close to Kanter (and behind all those “Wu & Khan & Kanter” mugs) and documents featuring Kanter advocating for a case could make it harder for the DOJ to waive conflicts related to apparent conflicts of interest.

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