- The Senate on Tuesday voted to confirm Jonathan Kantor to become the assistant attorney general for the Justice Department’s Antitrust Division.
- Cantor is considered a progressive favorite, along with Federal Trade Commission chair Lina Khan and National Economic Council adviser Tim Wu.
- As the DOJ’s new antitrust chief, Kantor will inherit the lawsuit against Google filed during the Trump administration.
The Senate voted 68-29 Tuesday to confirm Jonathan Cantor as assistant attorney general for the Justice Department’s Antitrust Division.
Progressives applauded President Joe Biden’s decision to nominate Cantor, completing the trifecta of antitrust reformers named printed on coffee mug, Others are Federal Trade Commission chair Lena Khan and National Economic Council adviser Tim Wu.
As the DOJ’s new antitrust chief, Kantor will inherit the lawsuit against Google filed during the Trump administration. But it’s unclear whether Cantor will recuse himself from the case, given his previous work for rivals Google, including Yelp and Microsoft.
Cantor told lawmakers that if confirmed he would hold discussions with ethics officials at the DOJ. Nevertheless, he will be in a position to appoint representatives who can support his view of antitrust.
Cantor has won the support of senators across the aisle who have argued that too few tech companies control a significant amount of electricity. Several Republican senators voted in favor of Cantor’s confirmation, including Sens Chuck Grassley, R-Iowa, and Mike Lee, R-Utah, ranking members of the Judiciary Committee and its antitrust subcommittee, respectively.
His nomination was earlier dropped from the Judiciary Committee in a voice vote.
John Cornyn, R-Texas, was the only member of the Senate Judiciary Committee to be asked on the floor to mark the vote against the progress of Cantor’s nomination. Cornyn said that while he shared some of Cantor’s concerns with the tech industry and supported legislation to curb industry influence, “the DOJ’s antitrust division is much broader than just dealing with Big Tech.”
Cornyn said he is “disturbed” by Kanter’s criticism of the consumer welfare standard, the prevailing judicial framework that has guided antitrust decisions for decades, and is hesitant about the “broad standard”, he says. are in favor of. Anti-reformist scholars and practitioners have argued the standard, which often observes whether prices move up or down for consumers, is too narrow to assess modern market realities, such as those created by digital platforms.
Cornyn said Cantor’s openness to the use of antitrust enforcement to strengthen labor rights, for example, does not fit that statute.
“I share Mr. Cantor’s goal of ensuring that markets work for the American people, but I do not support diluting important antitrust legal principles in the service of short-term political goals,” Cornyn said.
Sen. Amy Klobuchar, D-Min., chair of the antitrust subcommittee, responded to Cornyn by pointing to Cantor’s support by Trump’s antitrust chief, Maken Delrahim. Dellerheim was one of nine former antitrust chiefs of the DOJ who signed a letter to the leaders of the Judiciary Committee encouraging Kanator’s speedy confirmation.
“Overall, that’s where this committee is about how we’ve talked about this,” Klobuchar said of Cantor. “This is a moment where we can unite and be behind a nominee, like I fell behind Maken Delrahim when Donald Trump nominated him because I understood we had to move on.” , even if it was not my first choice for disbelief.”
Once Kanter gets started in the antitrust division, the business and his lawyers will be watching closely for policy signs and indications of how he will run the organization as separate or different from Khan’s FTC.
While Khan and Cantor were seen as progressive favorites prior to their nominations, Cantor’s background has placed them closer to the type of lawyers who would bring merger and competition concerns before the agency. Before leaving to start his own law practice, he worked for the law firm Paul, Weiss, Rifkind, Wharton & Garrison. Khan, the youngest person sworn in to lead the commission at age 32, left a teaching job at Columbia Law School after helping to write a report for the House Judiciary Subcommittee on Antitrust on Competition in Digital Markets. had come.
Khan has already implemented several policies on the competition side that have left lawyers on the job before scratching their heads before the commission. For example, under his leadership, the FTC has begun Asking broad questions about the potential effects of the transaction, like labor markets. Some antitrust practitioners say that such questions are not directly relevant to evaluating damage to competition, although the FTC has indicated that it wants to take a more detailed view of the effects of competition.
Cantor has indicated that he may not follow the same approach. At his confirmation hearing, antitrust subcommittee ranking member Lee asked whether Kantor would ask subjects of the antitrust investigation about his ESG (environmental, social and governance) policies in an assessment of competitive disadvantage.
“I don’t see situations where ESG policies that are unrelated to competing issues are relevant to antitrust enforcement,” Cantor said.
The Antitrust Division shares jurisdiction with the FTC on civil antitrust conduct matters as well as merger review. Agencies usually divide up work through a process known as clearance. For example, with hospital mergers often falling to the FTC, experience in matters involving a particular industry is usually a key consideration in the evacuation process. But some industries, such as technology, are less clear, because each agency has experience in those matters.
The clearance has been a point of contention among agency chiefs as recently as during the Trump administration between then-FTC chairman Joe Simmons and then-antitrust division chief Delrahim. In 2019 the two ended ownership of the tech antitrust investigation, with the FTC taking on Facebook and Amazon and the DOJ taking on Apple and Google, according to reports from multiple outlets.
Cantor said in his written responses to the record that if confirmed, he would “strive to ensure an efficient and fair division of responsibility between the DOJ and the FTC, including avoiding unnecessary duplication.”
He also referred to his previous work as an FTC attorney, saying, “I hope my approach will enhance the collaboration between the two agencies.”
This story is developing. Check back for updates.
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