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Tillis Leaning Toward Yes

Favorable GOP Response Bodes Well for DOJ Nominee Kanter

Senate Republicans offered favorable impressions of DOJ Antitrust Division chief nominee Jonathan Kanter after his confirmation hearing last week. Sen. Thom Tillis, R-N.C., told us he’s leaning toward a yes vote.

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The nominee “obviously didn’t answer some of my questions” in the Senate Judiciary Committee hearing Wednesday, but “in fairness it was difficult for him to because he’s in the nominations process, but I suspect I’m leaning” toward a yes, said Tillis. He noted his staff met with Kanter and described the nominee as “very thoughtful.”

I had a good meeting with him,” Sen. Ted Cruz, R-Texas, told us. “He certainly seems to have subject matter expertise. We had a good discussion in particular about Big Tech, but I’ll continue to assess his nomination on the merits. Haven’t made a decision yet.”

Remarks from Tillis and Cruz echoed what ranking member Chuck Grassley, R-Iowa, said at the hearing. The committee’s top Republican called Kanter a “forceful critic of Big Tech companies. So am I.” The “market power and size of companies like Facebook and Google enable them to exert substantial control over how Americans get and share information,” said Grassley, highlighting claims of censorship against conservatives on social media.

Told that Kanter’s reception from Republicans has been similar to that of FTC Chair Lina Khan during her confirmation process, Senate Commerce Committee ranking member Roger Wicker, R-Miss., laughed Thursday. “I can’t help you,” he said. Asked in August about how he views his vote for Khan in retrospect (see 2108040071), Wicker said, “I’m not sure.”

Sen. John Cornyn, R-Texas, said he read about Kanter, and it sounds like he has bipartisan support. “But I honestly have not dug deep to see if there’s any problems,” he said. “I’m not aware of anything” disqualifying at this point. Chairman Dick Durbin, D-Ill., described Kanter on Thursday as “very talented.”

He's an excellent antitrust attorney, and my impression is that he’s widely regarded as such within the antitrust bar,” said Morrison & Foerster's David Shaw, a former DOJ Antitrust Division deputy chief of staff who interacted directly with Kanter when Kanter represented clients before DOJ. One difference between Kanter and Khan is that Kanter brings decades of experience as an antitrust practitioner working within the agency and in private practice, said Shaw: That could result in potentially different judgments between Kanter and Khan. Shaw noted an “institutional difference” between DOJ and the FTC: There’s more case law defining the Sherman and Clayton acts but disagreement about how far FTC Act Section 5 extends beyond those acts. Changes at DOJ under Kanter could be “more incremental” than those seen at the FTC under Khan, he said.

Like Tillis, Grassley seemed to indicate at the hearing he would be a yes, said Hunton Andrews' Kevin Hahm, former FTC Mergers IV Division director. Hahm noted discussion at the hearing between Kanter and Sen. Mike Lee, R-Utah, who asked whether antitrust agencies should be probing outside the scope of traditional competition and asking questions in investigations about unionization, environmental issues and corporate governance. Lee suggested the FTC is reportedly asking those questions in investigations under Khan. Kanter told Lee the purpose of antitrust law is to protect competition. Environment, social and governance policies unrelated to competition aren't relevant to antitrust enforcement, said Kanter. Hahm said the antitrust community is also closely watching to see what Kanter might do with the 2020 vertical merger guidelines, which the FTC withdrew from (see 2109150061). Shaw expects Kanter to follow President Joe Biden’s executive order on competition and “revisit” the merger guidelines with the FTC.