While Supreme Court justice nominee Brett Kavanaugh‘s views on net neutrality were not brought up much during his televised confirmation hearings last week, several senators asked him about the internet protections in follow-up questions that he responded to in writing.
Sen. Kamala Harris (D-Calif.) asked Kavanaugh if he would recuse himself from a hypothetical he may preside over in the future surrounding net neutrality and the First Amendment.
The question follows Kavanaugh’s dissent he wrote as a judge in the U.S. Court of Appeals for the D.C. Circuit in a case that upheld the 2015 Open Internet Order, a rule that enshrined net neutrality protections and was rescinded by the Federal Communications Commission (FCC) last year.
In the 2017 dissent, the now-Supreme Court nominee argued that the First Amendment rights of internet service providers (ISPs) were violated by net neutrality. Kavanaugh said that net neutrality rules were “unlawful and must be vacated.”
Harris asked him in her follow-up questions if he would recuse himself from any potential court case that touched on the First Amendment in relation to net neutrality.
“Given that you have already staked out such a clear position on the unconstitutionality of net neutrality, will you commit to recusing yourself from a case if the Supreme Court were to consider a future First Amendment challenge to net neutrality?” she asked.
The nominee declined to say he would recuse himself.
“As I discussed at the hearing, and in keeping with the nominee precedent of previous nominees, it would be improper for me as a sitting judge and a nominee to comment on cases or issues that might come before me, including a possible recusal,” he responded. “Litigants in future cases are entitled to a fair and impartial judge who has an open mind and has not committed to rule on their cases in a particular way. Likewise, judicial independence requires that nominees refrain from making commitments to members of the political branches. In keeping with those principles and the precedent of prior nominees, I therefore cannot provide my views on a potential recusal.”
Last month Sen. Edward Markey (D-Mass.) predicted that the “fate of the internet” would be decided in the Supreme Court, and with Kavanaugh in that position, he could “kill net neutrality rules forever.”
Harris was not the only senator who used the more than 1,000 questions submitted to the nominee to ask about net neutrality.
Sen. Patrick Leahy (D-Vt.), Sen. Chris Coons (D-Del.), and Sen. Richard Blumenthal (D-Conn.) also asked Kavanaugh about his dissent.
During the televised hearings, Sen. Amy Klobuchar (D-Minn.) also grilled Kavanaugh about his views on the internet protections and pressed why he injected “constitutional issues” into the case he dissented on regarding the Open Internet Order.
You can see all of the ffollow-upquestions submitted by lawmakers, and answered by Kavanaugh, here.
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