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Senate Confirms Ketanji Brown Jackson For Supreme Court

 |  April 7, 2022

The United States Senate confirmed Judge Ketanji Brown Jackson to the Supreme Court, making her the first Black woman to serve on the top US court.

The 53-47 final vote tally showed bipartisan support for Jackson, with three Republicans joining all their Democrat counterparts to elevate the 51-year-old federal judge to a lifetime appointment.

In February, while introducing  Jackson at the White House, Biden declared “I believe it’s time that we have a court that reflects the full talents and greatness of our nation.” The landmark appointment is important beyond its effects on the US legal and political landscape, with strong cultural and social significance at a moment of hightened polarization.

Jackson joined the US Court of Appeals for the District of Columbia Circuit in June 2021 after seven years as a trial judge on the DC federal court. Before taking the bench, Jackson served as an assistant federal public defender, a commissioner on the US Sentencing Commission, a lawyer in private practice at several firms, and a law clerk for Justice Stephen Breyer, whose big shoes she has been nominated to fill.

While much has been talked about regarding her historic nomination, it is hard to determine where Jackson might fall on issues related to antitrust. She was reassigned from a class-action lawsuit targeting Facebook, Google and Alphabet last June after being elevated to the D.C. Circuit, while the remaining antitrust cases she faced on the district court rarely delved into substantive issues. Most opinions issued by Jackson on this subject dealt with procedural or jurisdictional matters.

At least one antitrust hawk is already a fan, however. Jonathan Kanter, the DOJ’s head of antitrust and an outspoken skeptic of market concentration in the tech industry has a long history representing tech companies, like Yelp and Microsoft, in lawsuits accusing Google of anti-competitive behavior.

Kanter is leading several Justice Department competition cases against Big Tech, including a monopoly lawsuit against Google alleging that the company maintains an illegal monopoly in the digital ads market. “Ketanji is a person of tremendous character and intellect,” Kanter stated, adding that he “could not imagine a better selection.”

While Jackson does not have a strong antitrust background in either private practice or on the bench, her predecessor and former boss, Stephen G. Breyer, has left an indelible mark on antitrust case law in the United States. One of Breyer’s best known antitrust opinions was for the majority in the court’s landmark 2013 ruling in Federal Trade Commission v. Actavis. That case stemmed from the FTC’s challenge of agreements ending patent litigation over the testosterone drug AndroGel that enforcers said unfairly delayed the entry of cheaper, more accessible generic versions of the drug.

Related: Sen. Klobuchar Questions Supreme Court Nominee On Antitrust

Last month, Senator Amy Klobuchar was able to ask about topics the senator has focused on in Washington, including voting and antitrust laws. Klobuchar had a similar focus during recent Supreme Court confirmation hearings, for Justices Kavanaugh and Coney Barrett.

“What role do you think that Congressional intent should play in the court’s interpretation of the antitrust laws?” Klobuchar asked.

Jackson answered in part that “courts are not policymakers and judges should not be importing their own policy preferences.”

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