At the end of April 2022, announcing President Joseph Biden’s latest round of federal judicial nominations, the White House hailed the nominees not only as “extraordinarily qualified,” but as reflecting “the diversity that is one of the greatest assets as a country.”
The official statement highlighted the selection of one judge who comes from both the Hispanic and LGBTQ communities. There was a public defender and a consumer litigator on the list. The hard-won confirmation of soon-to-be Associate Justice Ketanji Brown Jackson will bring to the Supreme Court a qualified woman of color, known in part for her experience as a public defender and her work to reduce unwarranted sentencing disparities – experience opponents to her nomination recast as being soft on crime.
There is no question these are important characteristics for a well-balanced judiciary presiding over the laws of a diverse nation. But, according to New York Times lead economics and business writer Binyamin Appelbaum, the president and the Democrats are missing an equally essential qualification.
“To make a lasting change in the enforcement of antitrust laws, [President Biden] needs to borrow a page from President Ronald Reagan’s playbook and put antitrust experts on the federal bench,” Appelbaum wrote in his June 1 opinion piece. Reagan’s objective was to leave big business alone, however, and since that time “even Democratic administrations have treated antitrust law as obsolete.”
To undo the work of the “anti-antitrust academics” President Reagan installed – Robert Bork, Richard Posner, and Antonin Scalia – and “advance a new understanding” of antitrust law, we need to “put a new generation of intellectuals into black robes,” Appelbaum wrote. President Biden needs to select, Appelbaum explained, judges who are committed to “economic justice.” He pointed out that even the most lionized liberal judges “played key roles in gutting the nation’s antitrust laws,” namely, Ruth Bader Ginsburg and Stephen Breyer, and even Thurgood Marshall.
A “jaded view” of antitrust laws and the belief that enforcement was “inconsistent” and “counterproductive” – feelings expressed by judges from right to left – have left us a “woefully inadequate” check on corporate concentration, according to Appelbaum, “harming consumers, suppliers, employees — and democracy itself.”
The White House said President Biden has now nominated 95 judges. Appelbaum points out that 18 of Reagan’s judges are still on the bench.