Opening Word document…

Can’t solve – bad antitrust policy is ingrained in the judiciary – means any changes will be circumvented.

Appelbaum ’22 [Binyamin; June 1; writes about public policy, often through the lens of economics; The New York Times Editorial Board, “When Picking Judges, Democrats Need to Stop Ignoring Economics,” https://www.nytimes.com/2022/06/01/opinion/judges-democrats-antitrust.html]

But Mr. Biden is missing a crucial opportunity to push back against corporate power. To make a lasting change in the enforcement of antitrust laws, he needs to borrow a page from President Ronald Reagan’s playbook and put antitrust experts on the federal bench.

Mr. Reagan suspended the government’s efforts to check corporate power, adopting instead a policy best described as nonintervention in the life of large corporations. He made it stick, too. Since then, even Democratic administrations have treated antitrust law as obsolete.

The public face of Mr. Reagan’s paradigm shift was William French Smith, the corporate lawyer whom the president tapped as his attorney general, who declared in June 1981, “We must recognize that bigness in business does not necessarily mean badness.”

Much of the work, however, was done by a group of anti-antitrust academics picked by Mr. Reagan to serve as federal judges, including Robert Bork, Richard Posner and Antonin Scalia. The letter of the nation’s antitrust laws hasn’t changed, but those judges rewrote the meaning of the laws. To undo their work — to advance a new understanding of antitrust — it is necessary to put a new generation of intellectuals into black robes.

So far, there are no antitrust experts among the 27 people Mr. Biden has nominated to federal appeals courts, according to William Kovacic, who led the F.T.C. under President George W. Bush and is now a law professor at George Washington University. “There’s nobody who’s got that deep academic experience looking at economic regulatory matters,” Mr. Kovacic said.

Mr. Biden has a limited number of chances to pick judges and has other worthy priorities. He has emphasized the need for the judiciary to better reflect the nation’s diversity, and he has selected a significant number of public defenders, legal aid lawyers and civil rights lawyers.

But Mr. Biden needs to pay attention to economic justice, too. It is a mistake to assume that judges with progressive outlooks on social issues will necessarily favor constraints on corporate power. Some of the most celebrated liberal justices of recent decades, including Thurgood Marshall, Ruth Bader Ginsburg and Stephen Breyer, played key roles in gutting the nation’s antitrust laws. If the Biden administration is serious about checking the power of corporations, it needs to nominate jurists who are intellectually committed to that goal.

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