Partner Carl Hittinger and Associate Jeanne-Michele Mariani authored an article published Oct. 26, 2018, by The Legal Intelligencer. The article, “Justice Kavanaugh’s Antitrust Testimony Before the Senate Judiciary Committee,” examines the testimony of U.S. Supreme Court Justice Brett Kavanaugh during his confirmation hearings last month, before his nomination was approved in the Senate. They write that when asked about his Court of Appeals dissents in antitrust cases, he provided little indication that he had wavered in his apparent pro-merger attitude, even when it conflicts with previous binding Supreme Court decisions regarding antitrust law, which he boldly claimed “had not stood the test of time.”
In a previous article, Hittinger and associate Herrold Tyson had noted that Kavanaugh’s dissents illustrate his view that the antitrust laws are designed to promote consumer welfare and business efficiency at the expense of competition when those two goals are at odds, which is reminiscent of onetime Supreme Court nominee Judge Robert Bork’s controversial thinking.
Hittinger and Mariani also write that U.S. Supreme Court justices are more likely to change their judicial philosophies once appointed than any other nominee to the federal court system, as some presidents have lamented, and it remains to be seen if and how Justice Kavanaugh’s viewpoint evolves.