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On Monday, the Senate Judiciary Committee voted to confirm President Biden’s attorney general nominee, Merrick Garland. The full Senate should think twice before doing the same.
Throughout his two-day confirmation hearing, Democrats and Republicans questioned Judge Garland extensively on his plans to tame and regulate the Big Tech behemoths. The bipartisan focus was understandable: While the Biden administration has faced wide scrutiny for its proximity to Big Tech and appointments of former Facebook and Google leaders, its choices for the Justice Department warrant no less concern.
Vanita Gupta, Biden’s nominee for associate attorney general, for example, has encouraged Facebook censorship. Last summer, she called it “incomprehensible” that the social media giant allowed some of then-President Donald Trump’s posts to remain up. As an activist, Kristen Clarke, Biden’s pick to head the department’s Civil Rights Division, was “instrumental” in getting Facebook to ban users from its platform.
With radicals such as these in place at DOJ, it’s clear that if Judge Garland isn’t serious about confronting Big Tech, his staff will take charge, and not in a pleasant way. And yet, not once in his two days of questioning did he call Big Tech’s assault on competition and free speech a problem. He could only mouth vague platitudes and nebulous talking points, casting significant doubt on his commitment to bringing justice and accountability to these digital monopolies.
It’s easy to claim you take antitrust enforcement seriously while looking the other way or believing no government action against Big Tech is necessary. Sen. Ted Cruz (R-TX) made this point when he asked Garland whether Big Tech’s political donations to Biden could influence a Garland-run DOJ’s operations. The judge ominously responded, “I don’t expect to talk to any donors. I have no conflicts. I don’t own any Google stock.”
Garland’s ability to dodge, duck and weave would make Muhammad Ali proud. Although he insists he doesn’t have any personal Big Tech conflicts, he refused to explain how or if an Attorney General Garland would ensure possible Biden administration’s conflicts don’t impact Justice’s proceedings, which is supposed to operate independently of the executive branch.
Perhaps Garland couldn’t answer because he knows how unpleasant the truth would be to Congress and the American public. Congress can’t afford to rule out Garland deference to the White House, especially given how he conceded he might follow the emerging administration-wide trend of naming Big Tech allies to key posts.
The importance of isolating the Department of Justice from Big Tech’s political power cannot be overstated. After all, it’s the independence of the DOJ from the executive branch that many believe initiated this whole movement against Big Tech in the first place.
Despite the administration’s close ties to Silicon Valley, the Obama Justice Department in 2015 filed a brief against Google, arguing that the firm engaged in significant intellectual property theft in creating Android. Thanks in part to a similar friend-of-the-court brief filed by the Trump DOJ, lawyers now consider the action to be the copyright case of the century because it could help stop what appears to be one of Big Tech’s primary means of monopolizing the digital marketplace — intellectual-property theft.
Given Big Tech’s clout with the Obama White House, would this case have gotten to this pivotal point without an independent DOJ? Perhaps not. Nevertheless, the Senate is now poised to vote on an attorney general nominee who declined to even say whether potential White House tech conflicts will influence his behavior.
The judge’s silence and indirectness should tell Congress everything it needs to know about where he stands: Lack of candor is strong grounds for suspicion, especially regarding a matter as important as Big Tech’s monopolistic power to censor voices it doesn’t like and dictate the terms of public debate.
At this pivotal moment, America simply can’t afford to hand its justice system over to someone who refuses to pledge his full independence and support for holding these behemoths accountable. If Garland doesn’t provide clearer answers soon — either in person or in writing — members should think twice before confirming him. Accountability should always trump political expediency.
Harmeet K. Dhillon is a civil-rights lawyer and the CEO of the Center for American Liberty.
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