After intense speculation, President Trump announced today that he has selected Judge Brett Kavanaugh as his nominee to succeed retiring Justice Anthony Kennedy. In his announcement, the president introduced his nominee as a jurist with “impeccable credentials” and as “a judge’s judge.”
Kavanaugh, who was nominated to the US Court of Appeals for the DC Circuit by George W. Bush, where he currently serves, certainly has a notable, if likely controversial, record on tech policy issues. His addition to the highest court in the country could vastly reshape the digital landscape. While it’s difficult to anticipate exactly which issues might come before the court, his past rulings suggest a reliably conservative voice on tech.
Perhaps most concerning for supporters of net neutrality, Kavanaugh issued an important dissent as part of a hearing on the FCC’s 2015 net neutrality order, which put in place consumer protections for internet users. Kavanaugh wrote that the “net neutrality rule is one of the most consequential regulations ever issued,” but that it was “unlawful and must be vacated” for two reasons. The first was simply that the FCC was not clearly granted the authority to make the rule, and thus overstepped by implementing it, Kavanaugh argued.
Additionally, Kavanaugh wrote, restricting the actions of internet service providers amounted to intruding on their “editorial discretion.” As a result, he argued, the net neutrality rule violated First Amendment protections. (The rules blocked ISPs from favoring certain kinds of internet traffic.) Despite Kavanaugh’s dissent, the court ruled against a petition for a re-hearing, supporting the FCC’s authority on the issue.
Kavanaugh has already taken heat on the dissent. Last week, Sen. Chuck Schumer tweeted that “Kavanaugh frequently sides with powerful interests rather than defending the rights of all Americans like when he argued that the FCC’s #NetNeutrality rule benefiting millions of consumers was unconstitutional.”
Kavanaugh frequently sides with powerful interests rather than defending the rights of all Americans like when he argued that the FCC’s #NetNeutrality rule benefiting millions of consumers was unconstitutional. https://t.co/jq3ve5pWU2
— Chuck Schumer (@SenSchumer) July 3, 2018
As flagged by Politico, Kavanaugh also wrote in favor of a decision on the US government’s metadata surveillance efforts spearheaded by the NSA. As part of a challenge to the program, Kavanaugh wrote that “the Government’s metadata collection program is entirely consistent with the Fourth Amendment.” Kavanaugh argued that the collection of records was not unlawful because the data was obtained through a third party, and would not constitute “unreasonable” collection based on past case law.
While Trump and other Republicans will likely look ahead to a broader slate of issues, should Kavanaugh be confirmed, his influence on the internet could be felt for decades.