Kavanaugh's Chevron, Net Neutrality Views Seen Certain Nomination Hearing Topics

Senate Judiciary Committee members are certain to bring up Supreme Court nominee Brett Kavanaugh's views on the Chevron doctrine and net neutrality during his confirmation hearing, lawmakers and lobbyists told us. They cautioned those issues will compete for attention with higher-profile ones like limits of executive power, abortion and same-sex marriage, as happened during 2017 confirmation hearings for now-Justice Neil Gorsuch (see 1703200051 and 1703210065). Kavanaugh's hearing begins at 9:30 a.m. Tuesday in 216 Hart and continues through Thursday or Friday.

Senate Judiciary Chairman Chuck Grassley, R-Iowa, and ranking member Dianne Feinstein, D-Calif., told us they expect substantial committee interest in Kavanaugh's views on Chevron deference by courts to agency expertise. Kavanaugh's views on Chevron as a U.S. Court of Appeals for the D.C. Circuit judge make him a polarizing judicial figure within the communications sector because he's considered likely to raise the bar for FCC regulations if confirmed (see 1807100020). Gorsuch also was viewed as potentially shaping the Supreme Court's direction on Chevron (see 1702010028).

Grassley said he might ask Kavanaugh about Chevron during a second round of questions, but during the first he will focus on the nominee's views on executive and congressional power, as well as Chevron-adjacent issues with the Administrative Procedures Act. “If it does come up, I would guess what he would say is that it's something Congress ought to be doing something about” under APA, Grassley said: “I would expect [Kavanaugh] not in any way to give any idea how he might rule." Grassley hopes there's “a lot of interest on the court generally, and not just in Kavanaugh's opinion, in taking a look at it again. Because once in a while, they'll say 'we made a mistake'” in a past ruling. Grassley noted Justice Antonin Scalia had expressed interest in revisiting the doctrine shortly before his 2016 death.

“It's [Kavanaugh's] record we'll be looking at," Feinstein said Tuesday, shortly before the Senate adjourned early for the Labor Day weekend: “I'm still doing my work” on potential questions.

The ruling is among a host of issues in the telecom and tech space “that are potential topics for questions, and all of them are relevant and important,” said Sen. Richard Blumenthal, D-Conn. “Whether I'm the one who asks them depends on how quickly [Kavanaugh] answers, how much time I have and whether others ask him about it before my turn.” Blumenthal vowed to bring up Kavanaugh's dissent in the D.C. Circuit's 2017 en banc affirmation of 2015 net neutrality rules in USTelecom v. FCC (see 1808280054). “It's likely” other Senate Judiciary Democrats also will seek answers about the nominee's net neutrality views, Blumenthal told us: “It's a natural area of questioning” given the judge's USTelecom dissent.

Chevron “probably will be an important component” of the Kavanaugh hearings “primarily because of the larger push” to overturn or modify the precedent, said American Action Forum Director-Technology and Innovation Policy Will Rinehart: “It'll be interesting to see how it's framed” by members of both parties, particularly if Democrats choose to use the issue as a “line of attack” against Kavanaugh.

“It's not just the Chevron deference issue per se that will come up” but how it relates to his view of APA and his USTelecom dissent, said Public Knowledge Senior Counsel John Bergmayer. Kavanaugh's mention in the dissent of the major rules doctrine, which emphasizes the need for clear congressional authorization for major agency-driven rules, could be one potential avenue for questions, Bergmayer said: “Overturning Chevron is one route, but there are a lot of ways to constrain agencies using a grab-bag of different theories” like major rules that would fall short of a full precedent reversal.

Blumenthal's interest in Kavanaugh's net neutrality views is driven partially by the nominee's opinion that the 2015 net neutrality rules violated the First Amendment. That's an argument that has also been used as a deregulatory tool, Bergmayer said: “I would expect you're going to see some questions about Kavanaugh's view that the First Amendment protects ISPs” against net neutrality rules. A telecom lobbyist was skeptical that the issue will get much attention from many: “It's a lightning rod issue,” but “I can't imagine there will be much time spent on it because it's just not as consequential compared to” broader social policy and executive power issues that have greater national resonance given the nature of the Donald Trump presidency.

Nomination Notebook

Senators should ask Kavanaugh if the government should be required to obtain a warrant to access data from cloud-based IoT devices, said the Center for Democracy & Technology Wednesday. CDT outlined questions for Kavanaugh on privacy and surveillance, among other topics. CDT is seeking Kavanaugh’s thoughts on the Supreme Court’s recent Carpenter decision (see 1807050025) that government collection of at least seven days of cellsite location information constitutes a Fourth Amendment-protected search. The group also seeks comments on Spokeo v. Robins.