Strong Competition Policy Requires A Judiciary That Believes In Enforcement of Competition Laws

November 14, 2023 Press Release

Washington, D.C. — In response to news that Representative Pramila Jayapal, Ranking Member Jerrold Nadler, and nine other Members of Congress have called on the White House to consider President Biden’s competition policy when selecting judicial nominees, the American Economic Liberties Project released the following statement.

“Representatives Jayapal and Nadler, along with their colleagues, have identified a critical component of the fight against economic concentration,” said Katherine Van Dyck, Senior Counsel at the American Economic Liberties Project. “For too long, both Democratic and Republican administrations have turned largely to corporate defense lawyers for lifetime appointments to the federal bench. President Biden has admirably nominated a more diverse set of judges with backgrounds in law enforcement and criminal defense. However, both the White House and the senators who have enormous influence over the candidate screening process and are ultimately responsible for confirming Article III judges—have long neglected to consider or even ask how nominees view our antitrust laws.”

Representatives Jayapal, Nadler, and their colleagues have asked the White House to consider candidate with antitrust backgrounds outside the world of corporate defense and to ask them their views on issues like what constitutes monopolization. As Ms. Van Dyck points out, ”These views matter because federal judges are charged with interpreting antitrust laws that are over 100 years old and whose meaning is hotly debated. Federal judges have the power to stop antitrust lawsuits in their tracks, or to let them go forward so the government and private plaintiffs can seek justice for the anticompetitive practices that plague our economy. When the federal bench is stacked with corporate defense lawyers, we see the former a lot more than the latter. We also see these judges be deferential to giant corporations demands during antitrust trials. Economic Liberties is thrilled to see Members of Congress recognize this problem, and we echo their call for a more robust consideration of how nominees think about competition issues.”

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The American Economic Liberties Project works to ensure America’s system of commerce is structured to advance, rather than undermine, economic liberty, fair commerce, and a secure, inclusive democracy. Economic Liberties believes true economic liberty means entrepreneurs and businesses large and small succeed on the merits of their ideas and hard work; commerce empowers consumers, workers, farmers, and engineers instead of subjecting them to discrimination and abuse from financiers and monopolists; foreign trade arrangements support domestic security and democracy; and wealth is broadly distributed to support equitable political power.