Antitrust and Big Tech | Why Conservatives Should Tread Carefully

I had the chance to sit down and speak with Ashley Baker, an expert in antitrust. We discussed antitrust and big tech, and how conservatives should fight back against tech. Ashley is the Policy Director for the Committee for Justice, Expert at the Regulatory Transparency Project, and works with the Alliance on Antitrust. So, she knows what she’s talking about, and it shows. Dive into the conversation below to learn more about these issues and what Ashley recommends.

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What is Antitrust?

Antitrust is basically a set of legal principles, laws, and precedents that inform us on how to handle anti-competition behaviors of companies. Big businesses may work with other organizations to undermine competition in the economic landscape, which is what antitrust seeks to prevent. Since businesses are built to beat their competition, they can hinder their competition’s ability to succeed. However, they cannot work to destroy competition itself. And, that is where antitrust comes into play. There are many examples of antitrust violations we can point to, but the basics of antitrust is that we want to promote a competitive environment.

Antitrust Laws and How They Relate to Big Tech

You may be familiar with antitrust laws like the Federal Trade Commission Act, which gave us the FTC, or the Sherman Act. But, antitrust law is much more than a couple acts passed by Congress. In fact, much of what governs antitrust policy is precedent, and that's where conservatives have to be careful. If we are to regulate big tech companies through antitrust policy, we need to beware of how it'll effect other aspects of law. That's why I am so grateful to Ashley for coming on to discuss the antitrust efforts and big tech. She shows how antitrust cases inform our laws, and how we might apply that to Google, Facebook, Twitter, and Amazon.

Antitrust and Big Tech

We must do something about big tech need, but what? First we must understand a few things. Are big tech companies monopolies? Does big tech violate antitrust law in the United States? What can we do to regulate big tech? We'll find the answers to each of these questions in the particulars. There's no simple answer. Rather, the devil is in the details.

Holiday Readings at eBooks.com

How Conservatives Should Fight Back Against Big Tech

Our politics leans towards slogans and partisanship, rather than real solutions. The answer to this problem won't fit neatly in a 10-point plan or some ideology. Instead, we have to grapple with the principles at play and the particulars of the situation. Through prudence, we can find a solution.


Nick Jamell (00:00):

How do we handle the problem facing our country today with big tech?

I have one expert Ashley Baker who will be discussing just that. And more, much more hon all sorts of topics about law, but I just want to say my name is Nikki mellow, the creator and host of the conversation for our generation. So thank you for tuning in and where, where I'm. So I guess, tuning into the conversation for our generation, that is where I'm solving the problems of today with the wisdom of the past.

And if you're new to the show, I hope you're very ready for a interesting episode with Ashley Baker, who is the policy director at the committee for justice? She's an expert at the regulatory regulatory transparency project. Ashley does antitrust for the Alliance on antitrust and has worked on the confirmations for Brett Kavanaugh Amy Coney Barrett, and for Neil Gorsuch. She's really just an incredibly smart lawyer that I came across on Twitter and reached out to you about coming on to talk about antitrust, because I think that that is a huge problem right now facing our country is how do we keep these big tech companies in check?

Conversation of Our Generation Promotions

Nick Jamell (01:25):

And I, she has a lot of thoughts about ways we can do that and the problems and the changing definitions of antitrust and ways. We need to be careful about changing that and tweaking that as conservatives. And also she talks a lot about how to get the right kinds of judges appointed and how to peruse through that record and make sure that they are going to be a good judge. So we discussed that as well, as well as some of the chaos around some of the confirmations she worked on.

So lots of cool stuff, lots of great information. And if you are enjoying the conversation for our generation, please go to conversation for our generation.com/subscribe to support my work for just five bucks a month. You get access to all the premium content, my community on discord, the as well as I copy of my book since you, so definitely check that out and find out more, or you can just go to wherever you're listening to the podcast or watching this on YouTube, just subscribe, make sure you leave a good rating and review or comment on YouTube and those things just helping the album.

Nick Jamell (02:26):

That's a freeway that takes 10 seconds of your time. If you're already listening or watching to just help out and get more people involved in the conversation of our generation. And so that really helps. So please do that and let's get to the interview now with Ashley. Welcome to the conversation for our generation today. Ashley, thanks for coming on. Thank you for having me. Awesome. And so for those who are listening to the podcast and do not know who you are, how about, could you give them a little bit of a background on who you are and what you do?

Introducing Ashley Baker

Ashely Baker (03:00):

Sure. So my name is Ashley Baker. I'm director of public policy at an organization called committee for justice committee for justice works in Washington, DC. We work on issue constitutional issues issues facing the judiciary and other issues. Including antitrust law is something I've been focusing on for the past couple of years, as well as judicial confirmations.

Nick Jamell (03:21):

Awesome. Great. And so right now one of the reasons why I wanted to talk to you today is there's a lot going on. I saw that you follow me on Twitter or reacted to something randomly. And I was like, Oh, this, I just looked in because I was curious and it was, I just saw what you're up to and I had to reach out because it's interesting cause you're working in antitrust, you're working in, you know, the judges, which really right now with big tech and everything going on with antitrust involved in that, but also with crazy nominations, like we've had you just mentioned before we started with Brett, you worked on the Brett Kavanaugh nomination and all of that. I think that you're kind of at the center of very hot button issues politically and culturally too, because that's really seeped in, but I wanted to get your thoughts on antitrust and probably before we get your thoughts on it, could you give a brief background on what that is and how you approach the subject?

Basics of Antitrust

Ashley Baker (04:20):

So just, you know, at a really broad level, what antitrust itself is, is it refers to the regulation of the concentration of economic power particularly with regard to trust and monopolies. It's an area of law that's been pretty much well settled since around 1977. This makes it a really interesting time to work at any trust right now. Is there a lot of proposals out there and ways to change the law?

But essentially the antitrust laws they developed in a common law type way essentially through the courts of the Sherman act. What the background there really is that is that the sexual instrument ad habits activities that were straying trades, if those restraints are restrictive of palpitations or unreasonably restrictive of competition in a relevant market, but what the actual text of the Sherman act says is a little bit different and it's restricting it to the point that it could not really be applied.

More on Antitrust Law

Ashley Baker (05:20):

It was meant to be developed through judicial interpretations, what the actual text says. It says it, you know, actual end of this every contract combination in the form of trust or otherwise, or conspiracy in restraint of freed or commerce along the several States or with foreign nations is declared to be illegal. And under that plain text reading of the Sherman act, essentially everything's illegal. And it took the courts a couple of decades to kind of explore that issue and realize that anything can be we're spraying a trade, a contracts or strange crates to sold in pairs any sort of business transaction that is inherently binding. So the courts kind of grappled with that for years until about the 19 seven.

Nick Jamell (06:03):

So basically like a nondisclosure agreement, anything really that, because once you make a transaction, you're restraining your ability to make other transactions is basically what you're saying, right? Like if you read it textually

Ashley Baker (06:17):

That that, that could be true. I and NDA can still technically violate antitrust law. It all depends on the details of course. But just any business contracts just a commercial contract at a very basic level. Isn't, you know, commerce was a lot less sophisticated and a lot more localized in those days too, which is something to, to remember in the broad context of how antitrust law developed, but it was meant to be developed through the courts, through judicial interpretations through the year.

Examples of Antitrust Being Used

Nick Jamell (06:46):

Okay. And so what are some, or what are some examples of antitrust being used in the past that maybe people would be familiar with or at least familiar with the companies involved in it?

Ashley Baker (06:59):

Sure. So, I mean, they're, they're the standard cases or the, you know, classic cases that everyone refers to the 18 PKC standard oil case Alcoa and that's, you know, aluminum company and a few others, those classic ones. Those are all very, quite different pieces. So it'd be hard to get into each one of them. I'll bring up a case more recently since we're talking a little bit more about tech and which it's ultimately did the court did sign them with the consumers and that is Apple versus pepper. And if you remember, that is the case that the Supreme court heard and 2018 decision in 2019, and it was over whether or not you as a consumer or someone who uses the app store can consume the consumer Apple because of you know, because they put a 30% fee on top of the for the developers.

Complications of Antitrust Law

Ashley Baker (07:57):

So th the law before that essentially says that you can't have passed down damages in a way that you have to be the direct purchaser. The court's opinion was really constrained in just that case. So it, didn't not overturn the underlying press, which is Illinois brick, which has the direct purchaser will, and maybe that should be overturned. The court was never asked to do so. There's a lot of theory there, but essentially they said yes, and their reasoning was, I think, I think it was superficially correct. It was one of those opinions, where are they, you know, they got to the right place. But it was more risk, you know, breasted, open fact, essentially that you can log on to your iPhone and click purchase. And I mean, that makes sense as a very basic rationale of, and I think the court by the one prank, there was a private suit though which is notable. And that was brought through citizens and not brought through CAGS or through the DOJ or FTC.

Nick Jamell (08:51):

Interesting. So what they were doing then that violated was they were saying, we the app store and they were putting up app upcharges there, but you can only buy basically the apps through the app store. So they kind of, they were passing on extra costs is what you're saying.

Difference Between Antitrust and Standing to Sue

Ashley Baker (09:07):

The it's not, it doesn't necessarily mean that they're guilty of antitrust violations. It gives the consumer standing to Sue. So we'll see, you know, as these, as this litigation plays out whether or not plaintiffs become successful. And I think, you know, maybe in a few cases they will, and a lot, you know, with any sort of anything that involves a plaintiff's bar, you do have a lot of cases too, that probably won't survive on the merits. But it does, it gives them that capability, which is really important, I think.

Nick Jamell (09:38):

Interesting. Okay. And so, as we're talking about big tech, I think that that's the place where the antitrust, the reason why I think this debate has come up recently is because you have Google has like over 90 something percent of the search traffic, Facebook and Twitter are the two social media platforms. And we've seen them, you know, gang up to shut down other social media platforms with parlor between the different tech companies and Amazon.

I don't remember the last time I bought anything offline that wasn't off Amazon, just because they're the one place that you really can go for it now with all these big tech companies and the way that they've also been wielding power, how should we look at this from like, from your perspective as someone who works in antitrust, what are some of the solutions you see to maybe restraining some of the power that they've been, I would say misusing or overstepping their bounds on?

Case for Privacy Protections

Ashley Baker (10:34):

Yes. So let me back up a bit to fill in a bit more about what some violation of infantry school and what, you know, just to company being big. And then also there are lots of things that can be done about perfect power potentially. But you know, you mentioned Amazon, my quick point, her dies Amazon actually naturally does not have that big of a percentage of furious all market. I think that one's a little bit skewed.

The other companies, I mean, they are massive, so it was AOL. So, I mean, look at Microsoft which that's another case. That's an example that one's a bit more complex. The Google case is a little bit modeled after that. They eventually fell to build to innovate and move into the mobile market is what really brought them down. So you see over the years, you know, MySpace was there, their headlines that says my space is the next monopoly.

Monopolies aren't as Strong as People Think

Ashley Baker (11:24):

How do we take out my space? How we take them, why the journal is one that was in like Forbes or something. And these are cyclical and they're eventually replaced. I do see, you know, concerns about the amount of data they have and about their current size and the actions against the parlor, for example, or just, you know, concept moderation in general. A lot of those though are not competition law concerns.

So competition one in the United States at least is not illegal to harm your competitor, just can't harm the competitive process and therefore harm the consumer. So, you know, the nature of competition is essentially you are harming the competitor on one way or another. I mean, there's certain things that are legal, obviously under lots of other laws, but you know, in the EU to kind of just fills it. So that is you can't, Tarm protects the competitor.

Big Tech and Privacy Problems

Ashley Baker (12:18):

And there's a reason why they don't have these large companies like a video. So as imperfect as they are, at least we do have them. And that's really put it right now from a competitive perspective, but yeah, it's, that's kind of the core of the problem is who is harmed and there, it's hard to prove consumer harm in some of these cases when they really w you know, why and where the area of like privacy law. Okay. I think we need to pass a federal baseline privacy bill.

That would be very helpful. We need to actually enforce our intellectual property rights more strongly, and, you know, what are the tech companies are some of the biggest infringers on IP. And I think really patents are kind of one of the best anti monopoly devices ever invented, because you can have someone who's just like anyone come out of left field with an invention that they came up with and disrupt an entire market and have a property right in that.

Section 230 and Big Tech

Ashley Baker (13:16):

And you would've mentioned and that's really quite strong. And that's something that I think, you know, even for the sake of, you know, some of the companies and the businesses too, it should be enforced. There's, there's a lot of copyright infringement, for example, online, especially during the digital age and patentability is a huge issue as well, especially after Alice, it's harder and harder to get a patent if you're patenting software.

So that's one thing that would help. I'm not an expert on section 230. I know that's a huge, controversial issue. I have some thoughts about that, but I think, you know, I haven't seen a solution that I really liked that I would be in favor of something that very, in a very targeted way, neuro net doing away with it entirely would make the problem significantly worse for everyone. But I then, like I said, I'm no expert, so I haven't seen, I don't know what effective two 30 reform would look like.

Big Tech Isn't Bad for Being Big

Nick Jamell (14:09):

Yeah. It seems to me, I do like your point that you made about, it's not wrong to be big necessarily. And, you know, that's, I think important it's about abusing your power and disrupting the ability for others to compete. That's really what I think bothers me the most. And I don't, like, I don't necessarily have a problem with companies. I get big because I know, like you said, with Mike, with MySpace, but they also like someone posted that next to a, like, it was like my space next to Facebook and Yahoo had the same thing where it's like, Yahoo's the next monopoly. And then next to Google.

You're like, Oh yeah, a lot change. And those things were in the last 15 to 20 years that those Rose and declined. So there is obviously that competitive landscape for people to do that. It's I guess when they are abusing things, like one of the things that I've seen is I built up a Facebook page that has a thousand followers or so, and three people see a post each time unless I pay a bunch of money.

Unclear Terms and Conditions of Big Tech

Nick Jamell (15:12):

And that was not the case. When I signed up, it seems to me that there's a lot of bait and switching and unclear stuff about rules for like, as a content creator how they distribute my content and they change it constantly. And I get that, they're trying to improve the algorithm for the user in some ways, but they also are. It seems like there's a lot of fishy things happening there from the creator side.

And I think, I guess I wonder what sorts of things can be done about that. It's I know that there's people bringing fraud or false advertising lawsuits against Facebook. But do you see something like that? Like maybe individual suing the companies because of things like false advertising, fraudulent, or not upholding their terms of service, things like that versus an actual government action would maybe be the best way to put a check on these companies or do you think the government needs to step in?

How to Solve issues with Terms of Service

Ashley Baker (16:08):

Well, I, I think if you have a good plan regarding the terms of service and that's, you know, a case by case sort of thing I do, let me brought up your page. Don't I think there are a couple of aspects going on there. One of them is actually a bad thing, but a good thing for corporate power is that these operations are kind of getting a lot less effective as, or not as effective as what they used to be.

And some of that's because of regulation and some of that's because too, just having a ton of data, the more data that you have, it's not that it's, if it gets better, when we hit a point kind of a diminishing returns, you don't, you can't really build a data moat that is so deep. There's this great. And drew said core what's article about data modes, like what it's advising midsize company, at what point should you stop investing in getting from data?

Changing the Terms of Service

Ashley Baker (16:52):

And I think it's, it's a really good point, but you know, there's are solutions in contract while I think privacy while there's, you know, a lot of she's there, but I do agree with you that they, they make up the rules as they go on Twitter, particularly make some rules as they go. Some of the others, I, I think make Morgan faith efforts and sometimes too. So when you see all these tech hearings, do you see people from both sides of the aisle, they both want to regulate them. They both want to, for example, reform two 30, but they have totally opposite reasons for why they want to do it.

The left wants to do it so they can crack down more on speech and the right ones to do out so that they, you know, their content won't be regulated, which in reality is not really what's going to happen. And it's there's also this push and pull and that they bring the CEOs in front of Congress and kind of tell them what they want and that certainly affects how they behave. But they're being told you're from both sides. I think, you know, which one they, if it's a, I don't know if it's a, of which one they decide to listen to, or just conflicting messages or just trying to appease them and not, you know, have a disastrous regulation.

Would Section 230 Help with Big Tech Issues?

Nick Jamell (17:59):

Yup. I think that's a great point. And I wonder if, I guess what I wonder is how can you take some of those companies? And I don't know if it's section two 30 or what, but make them liable on the intellectual property side, like at least make them choose, because right now they're playing this in-between space. I think this is something that a lot of conservatives are upset about where it's like, we're just a publisher, but also we're really curating content a lot. And we're pushing certain things down in the algorithms and pulling certain things up.

So it seems like they're really playing both sides of it quite a bit to get all the benefits of being a publisher, but also all the benefits of being able to push, you know, what they, you know, or rather, sorry, I should say all of being all the benefits of being a platform. And then also being able to kind of act as a publisher in many ways. Do you, I guess, do you think that that's something that needs to be reformed first or do you think that there are other channels that we should look at if we want to curb some of their abuses that I think are pretty evident?

Antitrust & Section 230

Ashley Baker (19:09):

So I think that's one tool in the toolbox and I'm overall you know, I'm overall, I think that two 30 has done more good than harm through the years. I do think it, perhaps it know, I'm glad that Congress was revisiting it. But the publisher platform that caught me is not exactly how it really works in the law. It's more like distributor of content versus publisher. And it's, I think it's hard to decide really, which you know, what to take down, but I think it will be go like pirated content.

It's a very obvious one that should, there should be more enforcement of that, for example, but to their credit, the platforms do do a really great job of taking down the truly awful stuff. And I was not aware of how much, really awful content there is on these platforms and not just their, their percentage of getting a, which I know there's the New Zealand incident recently, but they hit like 99.8% or something of terrorist related content picked up before and when it sees it so the algorithms have been pretty good for that.

Intellectual Property

Ashley Baker (20:13):

They need to help that for like IP, but then, you know, you have the problem with potentially over moderating. So I think, you know, overall I prefer less moderation worn. I definitely prefer more speech the less but I, I don't know. It's a tough question. And like I said, I don't know what a nuance, you know, look at two 30 as the book. I know that phrase, otherwise objectionable is something, a lot of people talk about how that's very broad and it was intended to be brought up in time.

Maybe, maybe we need to look at that. I don't know what a solution would look like. Privacy is another issue though that I think we need to tackle. And, you know, we were getting to earlier about, you know, parlor, and this is really to not be able to start up companies that would bring up one plan that, so I was testifying before the Senate judiciary committee on antitrusts about three weeks ago.

Antitrust and Parlor Situation

Ashley Baker (21:00):

And Senator Lee asked me a question, it's a very good question. And he was stating, you know, they tell you, you should build her on. They tell you, get you to build your own, and then you can't build her on. And then something like, you know, parlor happens. And, and I won't get into the specifics of the power situation because it's legally a lot more complicated than it seems. It's not really as much of an necessarily an antitrust issue. It's, it's a problem, but it's not necessarily any distrust issue, but I would point out that, you know, there are many entrepreneurs who are just building another Facebook source. Some people want to build another platform for conservatives or for your niche, but the innovation is going on in things like clubhouse, for example, look at the massive VC investment. And that recently entrepreneurs, they kind of, you know, they come in from the side, not to her place.

Nick Jamell (21:49):

Yup. Yeah, I work my, so this is my side thing that I enjoy doing, but I do work in a tech company and I see, and we're kind of at, I see a lot of the tech companies in our space and it's really interesting what they're able to create for sure. But yeah, I think that that parlor thing seemed very, very fishy as you just saw a domino effect of like, I don't know, everything kind of getting taken away from them one by one. And it just, and I also, I guess here's another one that concerns me is companies like Stripe, or I don't think PayPal has done this, but Stripe, I feel like has where they'll not process payments for certain people.

An Economy Segregated by Politics

And, you know, it's like, how far are you from the point where, because of your political views, you can't get a visa card either when they're discriminating on those sorts of things. I, I think that that's another place where I, I don't want to over-regulate, but you also have to be concerned about the fact that you, all of these things seem to be targeted at a certain section of people as well, because it's generally targeted at conservative content creators or conservative businesses that all these companies seem to gang up. And I don't wanna say gang up against, because that's probably legally opening myself up for evacuations, but it, there, they all seem to be against the same things ideologically.

Ashley Baker (23:16):

Yeah. And I would add that they're not against the same things because there's collusion. Cause that's what arguments have been. They're just all again, you know, they're all liberal because they're Silicon Valley companies and one of them makes a decision to pick Trump off the platform. And like once the first shoe was dropped, then the rest of them do it. I don't know as much about the issue relating to plied and people. I have heard a bit about that happening. And I think that's less of a frequent occurrence in a contract violation, but I don't know if there's a way to maybe make these contracts so that you can't necessarily just me. I know I've seen some proposals to essentially on the state and even, I don't think the scaffold on federal level, but make conservatives a protected class under civil rights law.

Wariness of Political Discrimination Laws

Ashley Baker (24:02):

I am overall wary of opening that up because of, you know, where it has been opened up in the past, but it also has been opened up so broadly, already. Don't know, I'm not a civil rights attorney. I think that's a creative idea. I had not heard that until recently. And I, I don't know if there's a way to apply, you know, like fair, reasonable and non-discriminatory terms to these contracts without them being public utilities, because you don't want to go into the territory of a company becoming a public utility. That's when you really have the regulation concern.

Nick Jamell (24:33):

Yep. Yeah. I thought about that too. And it's almost like then you have to let you know, Democrats into the GOP and, you know, Republicans in the deans and all that, like you can't, you know, so that would be very tough to not be alone.

Ashley Baker (24:47):

I was practicing the wrong way. It's illegal. Like, yeah. Then you're excluding other yeah. Specific protected classes that are already there. It gets really complicated. I let some of my concerns though today are, you know, obviously the, what the platforms are doing is bad that I look at antitrust law through the lens of more broadly antitrust. And not, I don't look at this as specifically a tech issue, I suppose, because I was working on a lot of these regulatory issues before they became tech hush deals. And now unfortunately they're tech issues.

Issues with Antitrust Regulation

But a lot of the proposals that are on the table today would go way far beyond the tech industry. And those would really upend the consumer welfare standard, which you know, came into being around around 1977 was recognized in 1977, 1978, that in your waiter B Supreme court actually recognized the Sherman act, dizzy consumer welfare prescription.

Ashley Baker (25:45):

And that's been since then has developed as the guideposts, it's become this neutral underlying standard that is, it's not statutory, obviously it's a set of principles that guide rules and regulation and analysis. That gives judges something to go by something that's tractable because before the anti festival in the 1960s and fifties was a complete mess it was being used or, and in speaking of, you know, using things for left-leaning purposes, you can use antitrust law for environmental purposes for redistribution of wealth, which is what they're blatantly trying to do with it right now.

You can use it for like any left-leaning cause under the sun, the right can't really use it for much. I mean, not that we should, I, you know, we're principally opposed to that. We're also not very good at it. At the end of the day, they have decades of experience doing that. You know, something I say halfway jokingly, but that the law can be weaponized very easily and this area, especially considering that it took so long to go. And that's why I wish a lot of conservatives would realize, you know, that they're really tearing down the fence that took a long time to build and it's built for a reason.

Antitrust and the Consumer Standard

Nick Jamell (26:58):

Yup. And the consumer standard is basically that what antitrust should be applied when the consumer is harmed. Correct. That's what you're talking about here

Ashley Baker (27:10):

Competent when the competitive process, which is dynamic, it is hard and that causes harm to the consumer. It's a bit broader than that. And one of the misconceptions about the consumer welfare standard, by the way, you hear a lot of people saying, well, it's only conservative price. How do you apply it in digital markets? It's been applied to narrow set of other things that's been, you know, affects on innovation supply you know, several different factors. The Microsoft case for example, is it is an example of you know, non-price factor. So it is a bit broader than that, but it's not broad enough that anything that doesn't belong there within competitive law, but nothing there could be addressed. And it gives a guidepost for judges.

Nick Jamell (27:52):

Yep. Yeah. Like if you're, it doesn't matter on price in the medical world, if it's means that you're not getting, you know, you're doing something maybe to not allow new drugs to come to market or new innovation happened there that could cure illnesses. That could be something where you're harming the competitive world, but it may not affect my price, but it may mean that I don't, we don't have access to new drugs that could potentially come and cure us of illnesses.

Implementing Consumer Protection Antitrust Laws

Ashley Baker (28:13):

I mean, yeah, that could be one analysis. It can be, you know, if that's that's analogy to give the stream, something could be per se illegal. That's when you have kind of a really bad criminal behavior, which it's pretty black and white actually. And those are, those are the really bad cases that really do protect consumers are the naked price fixing type cases and cartels and that sort of

Nick Jamell (28:38):

Okay. That's, that's really interesting. And so we've kind of gotten into how these things get enacted a little bit here and there, but I'm curious, cause you also work with holding judges accountable as part of your work. And you mentioned that it's not as much looking at them after they're in, but how like vetting them as they come in and their nomination process. So what could you give people a little bit, I guess, a background on what you do there and what that work entails?

Judical Appointments' Influence on Antitrust

Ashley Baker (29:08):

Sure. let me tie that into the antitrust first, if that's okay. I think that actually the th there there's, there's a commonality between what I want to talk about in the consumer welfare standard, but there's this misconception and people who are talking about antitrust now who you know, do who do support constitutionalist judges who are saying that antitrust law was developed the way it was developed was through judicial activism which isn't true, but it's as the history of the tarmac said, and that's Amy Coney Barrett said during her confirmation hearing by way.

And also justice Gorsuch said there as a Scalia said well, he said during his that he didn't understand antitrust law during law school because there was nothing to understand. And that now he does. But it's just like it as I'm kind of out of the antitrust litigation.

Ashley Baker (29:58):

So I think those two things are mutually exclusive and that you could have something that develops essentially as Commonwealth through the course and also have that judges, but that's when you get a ton of rulings that are completely unpredictable and you have the ability to apply it to other new policy modems. That's something that keeps judges on track and to kind of, to circle back now to what I've done on judicial confirmation. So my reserves, we, we work on helping confirm and confirm constitutionalist judges, textualist, and originalist who are going to uphold the text of the constitution as written.

How Judges Are Reviewed

We also analyze their lower court records. We talk about Supreme court cases a number of them there on the dock in each term, and about federal judges as well. And we really advocate for a strong passenger selection.

Nick Jamell (30:51):

That's really interesting. And so that's actually one thing that I'm, I am curious about because at least one thing that you mentioned is checking people's records. What, because I, here I, as a layman who has not gone through law school and everything, I hear this all the time when a Supreme court nominee comes up and they're like, Oh yeah, we're looking in the record. Here's this and that. What sorts of things do you look for and how do you research that just their previous cases and what the arguments were and how they decided, or is there more that goes into it?

Ashley Baker (31:23):

Right. I mean, aside from the basic set of things that would get them nominated in the first place, such as field background, where they worked, you know, you'd have to be certain steps in your career to eventually get appointed. And you start with the cases with their opinions and it feel the, what, how many opinions that you have or in what types of them you have to evaluate really depends on the nominee. Kavanaugh, for example, there were, he had a huge, he had a long track record of 303 or something, I think, cases or sorry, opinions written in the DC circuit. And you're going to get a broader variety of things and more pieces, really administrative law and the government there. Whereas if you're stuck out like the sixth circuit, you're going to have a totally different caseload. So it's can't so you do have to look more at principals, and that's why it's important to look at, you know, principals and not outcomes.

Ashley Baker (32:13):

And they have different, you know, amounts of time that they've been on the bench. And I don't think, you know, more time on the bench as a federal judge necessarily means that they will be a better justice. They criticizes justice Kagan. For example, I choose full-service. And I think that's, you know, very relevant experience. I think it is possible to not, you know, be on the DC circuit for 12 years before being confirmed. I'm not, I'm not advocating for someone with no experience, but there are different types of experience in there. There are still things that give you insight into how they were rolled as long as there's enough of that record. We went through that and then secondary is kind of any of their extraditional writing. They're called speeches, given involvements and you know, Federalist society, the American constitution society, ABA you know, what university speeches and what they've written had kind of go is kind of a secondary consideration to kind of get a bit of insight into how they think and how they might roll.

Nick Jamell (33:17):

That's really interesting. I, I've always kind of wondered that what, all that, what all goes into that beyond, I figured that, you know, you'd look at their cases and where they went to school, but that's, that's interesting. Okay. And then, so you mentioned that you worked on the you know, Brett Cavanaugh's nomination from behind the scenes. I mean, a little bit as much as you can maybe tell, you know, what what's, that sort of process look like for you and kind of what's your role in that?

Ashley Baker (33:46):

Well, for any of them, particularly, let's just stick with the cabinet big and see, because he's actually, his cases were relevant to my expertise actually in that. So that worked out really well. He had a ton of administrative law and means, I think like 103 or something of his opinions were administrative law and agency related. So I, you know, first approached things from that area. That's my expertise, see how he looks at agency deference and different mostly issues involving the right agencies bill and deference, a lot of fourth amendment is something else that I focused on quite a bit. And anything that involves really commerce some of the second amendment stuff, it's, I, I, there are other people who are better at that than me, but those are really my focus areas. So with the Kevin on confirmation, there's plenty of material for me.

Nick Jamell (34:37):

Yup. Okay. Any rate on those issues. So, yeah, and that would be basically saying, you know, when a law gets passed and they're like, okay, EPA, you decide how this gets implemented. And that you're saying that those sorts of cases that come up and when people push back against the EPA doing something, those sorts of administrative laws, that's where you're focusing.

Ashley Baker (34:57):

Yeah. So, I mean, they, they arrive at the DC circuit in that case, in, in different ways different, you know, legal challenges and whether or not, you know, who should interpret a wall that's ambiguous should agency like interpret its own rules. And those, there's still a lot of lingering questions regarding that, but it also gives a good insight into how do they read the text, what statutory interpretation that's really important. I mean, spring for her, who said first thing you do is read the text, read the text for the text. I think that's a great quote and how they applied that I think makes a lot of sense. And one thing is during the confirmation hearings, you can't, well, some people do, but they will not answer questions related to how would you gauge from hypothetical about how they could potentially roll in a certain case or any questions, any question that's disguised as something else that's said, basically, how would you rule in Roe V Wade or any other matter?

Ashley Baker (35:53):

And it's when that thing just to make one last antitrust point is there was actually a house judiciary committee hearing about two weeks ago, which a seventh circuit judge who was actually considered a front runner for, to Supreme court seats during the bond administration or as close to a front runner was testifying on antitrust law. I think it's completely appropriate for a judge to come testify about cameras in the courtroom and things that affect just your more broadly when it comes to this more substantive type stuff you you're giving their future litigants who are watching to see how you might rule in a case. And that's one of what of, I would say two reasons why those questions can't be asked in confirmation hearings either. So Ginsberg actually. So this is how the Ginsburg standard she started doing first during her confirmation hearing, she refused to answer any questions related to how she might rule another case. Or she said, no pensive forecast, no previews. And I think that's so great then that's is a good standard to have.

Nick Jamell (36:54):

Yup. Cause I think it then circles around the philosophy that you have and you can have it and it brings back the debate. Then every time you have a Supreme court nomination, like the textualist versus I guess originalists is slightly different, right? And then I don't fully know the distinction between all the philosophies, but versus something that's more loose on what, you know, an interpretive you're able to have that discussion and allow the people to vote in someone who's going to rule with a certain, have a certain philosophy that they bring to the bench, rather than just, I don't know, electing another Senator who's going to vote a certain way basically is what kind of changes the, what you're doing there. It seems like,

Ashley Baker (37:37):

Well, one side would certainly like that. Kind of like the more politicians in robes run and that's, you know, that's the core of the differences between the, you know, Textless and originalist camp and the judicial activists, men living constitutionalist is they're focused just on outcomes. They're focused on policy outcomes. They're not focused on specifically the guidelines rules. How do we get there? And we also have guys conservatives have a further uphill battle to climate and, you know, any sort of in overturning any sort of bad decisions too, because by nature, conservative jurisprudence is very incremental and news very slowly. Conservatives are less likely to just directly, you know, overturn Roe V Wade in one fell swoop. I'm not saying that'll never happen. I mean, I'm just using that as kind of the stereotypical example of how cases are it takes a while often and that the dynamics of the court have shifted one picking up each new appointee is every time there's an injustice, it's it changes the overall dynamic of the courts both in little ways. And that it's what always, what should influences kind of each justice just by having that new person there, but also in the broader scheme of things. Even if you're not close to just a 50, 50 split or you don't fly for starting at 50 50, if you're going over, you know, one way or the other it's the direction of the court is really what it's about mutually, as opposed to it being about the individual justice.

Nick Jamell (39:08):

[Inaudible] That makes a lot of sense. And so you mentioned that you work with looking to get constitutionalist and textualist judges in there. What, what is the difference then between the textualist reading of something versus like originalism or is there a difference kind of like a distinction without a difference? Cause I hear both of those. It seems to me, from my perspective that, you know, the Gorsuch case where he decided with on, I forget what exactly it was about, but that transgenderism somewhat, it affects men. It's kind of is discriminating based on sex because you're saying that man, a man can't wear a dress, whereas the originalist look of it might be, well, that's not what we weren't looking at that we were trying to make sure that based on this law that you weren't saying, no men allowed not, I don't know is that like the originalist maybe takes more context into what people meant versus the textualist is saying, here's what the law says is that kind of the difference.

Ashley Baker (40:11):

That's kind of some stuff at a really broad level, but they're often kind of the same thing. You know, one can, you know, talk about original public meaning versus you know, statutory interpretation. Sometimes those can diverged and how you interpret certain specific laws, but overall it, they are, you know, parallel, well coherent, you know, intertwined to like, you know, methods of juristic of jurisprudence. They're very similar. We that, to the case you're referring to though that was the Bostock case, the title seven case which a lot of conservatives are very, very mad about. The backwash over that. I was, I mean, I understand that it was, it was a big volume, multiple case. I don't think that his decision there meant that justice versus just becoming a judicial activists. And it seems that it was interpreted by a lot of people that way, and that there were a lot of people who were even saying, you know, we should abandon originalism because of that one decision, which is I think really ridiculous.

Ashley Baker (41:12):

You know, what was talking about, you know, tearing down the fence. So we built for a good reason. It took the conservative legal community a long time also to get to where we are now with the majority of the court. And once we see that basic underlying principle that we have, we give it all away. We, we don't have anything and, but that's pretty much our opinion. And in my view, he, his analysis I think was flawed. It was I've described this and I've heard others, other people, I think he's kind of the same term as hyper literalism. He you know, he took the very, very basic literal meaning of the words to an extent that was almost over analytical in a way that this did not comport with the law. I think it was, you know, they don't bat at 100%.

Ashley Baker (42:02):

And that was a big case to, you know, swing and mess up. I'll give you that. But I don't, it's not been that the world. I think, I think he's not at all likely to become an activist. Judge. I think he's one of the ones who I have pretty strong confidence in that draft. He's not going to be adjusted. He's not justice Souter because of that. It's ridiculous the amount, and there's the argument now for common veteran journalism, a lot of it sprout sort of just that opinion. There were a couple of people who have been making that argument since beforehand. They're already deserved bit more a bit more nuanced and in some ways that I won't get into here, but there was a definitely a backlash after that opinion saying, Oh, you're originalism it, isn't working. Because of this one case, I know you've been appointing the wrong nominees for years. And there've been very specific reasons why they've been good dummies and will continue to be good. Nominees for Roberts has been a disappointment. But I think the person who would have been appointed instead of Roberts would have been a much more of a dozen white men and Robert spas. I think there's a lot of historical context that they're missing out on as well.

Nick Jamell (43:10):

Yeah. I was going to say, it's not like he's Roberts yet or anything like that.

Ashley Baker (43:14):

Yeah. He will never be. I mean, he's the work close to me.

Nick Jamell (43:19):

He, and that's the thing is I, it was one bad case. And I think the next couple of weeks, a couple of things came out that were show real solid, like pretty hard line, you know, no nonsense as well on cases that you wanted that you should've been messing around with. So that was good. I think it, I was, I listened to a lot of Catholic radio and Catholic radio was not very happy at that point after that, but and understandably so, because you would hope that he would have probably, I think it was decided wrongly and I didn't like his logic when I was listening to it, her read, but I also, I'm not an expert. So I, you know, I, I have my thoughts, but I also know I didn't study for a lot of years. So I find it hard to criticize people like him or people in your position who have really gone through it. I've taken one business law class to get through my marketing classes. So

Ashley Baker (44:09):

Getting it from even understand, you know, a lot of these cases, but I do think you have to ask yourself, are these people, are they upset about the outcome, which is fine to be upset about the outcome and the reasoning. That's a totally reasonable position. I agree with people in that. But some are not as concerned about how big

Nick Jamell (44:29):

Yup, exactly. And that was my thing is I didn't like the twist that it could be. Cause then it's like, well, anytime you say no to a man on the basis of him being a man, then you have a lot of, or, you know, the way people dress and all those things that kind of opens it up for, I don't know, almost too wide a door on that with that very hyper-focused reading, you know, it's like there was the guy who wanted to start the church of cannabis so that he could smoke pot for his, as part of his religion. It's like, well, you know, we had under that reading, maybe that would stand, but I think they at least Indiana, I think it was Indiana Supreme court struck that down. I think it was here in Indiana when that happened a while back, probably happen in other places too. But yeah. So

Ashley Baker (45:15):

Of course it's methodology though. It reminds me of this quote that I really liked from judge ward at hand. He said you can't build a Fort for a settlement dictionary. I, I think that's really applicable there.

Nick Jamell (45:26):

I like that a lot. That's awesome. And so what are some paths forward with someone as someone who's, you know, been in hearings and Senate hearings and things like that? What are, I guess, what would you say is one of the biggest problems facing us right now in your area of expertise? And what would you say is the ideal solution for that based on what, based on your work?

Ashley Baker (45:53):

So by we do you mean just, you know, all of the United States or specifically, you know, my kind of, you know, camps, so to speak,

Biggest Problems Facing the US

Nick Jamell (46:01):

I would say biggest problem you see facing the United States at that policy level, like what the biggest problem that we have to figure out going forward and, you know, what is that solution, whether that's, you know, some of the things that we see with our senators who, you know, don't know the first thing about the internet asking, you know, trying to write antitrust laws against Facebook or whatever it might be. What, what would you say that is that biggest problem?

Ashley Baker (46:29):

I say there are two or so primary problems. And one is that Congress has usurped authority to the executive branch and they've seen it all of their power and they're no longer legislating, even as bad as I completed all these legislative proposals, how bad they are, they would have to go through, you know, more of a legislative process to you know, in order to pass legislation, that would be a good thing to restore the role of the first branch.

Politicization of the Supreme Court

And you also have the fact that the Supreme court, you should not have natural protests every time a justice passes away or retires, or every time there's a hearing there's far too much power going into and focused on just nine individuals that said also there's court packing is a proposal that is still, I would say, somewhat gaining suit. I, it would take a lot for court packing to actually actually happen.

Ashley Baker (47:23):

It, well, we would have to no longer have with the filibuster to start. I think that would probably fill there enough on the left, who realized would be bad for them in the long run, but that's a really dangerous idea. It's historically core package proposals have been there. There've been several periods in history, which you've seen a lot of these and it's not just and the new deal era, but through the years, these court reform type proposals, they're used to influence the judiciary and influence outcomes. Typically their size blitz as the chief justice, the most other right. I would argue, there are lots of different ways right now to influence John Roberts or some would say that. But it's definitely been used as a tactic to, so even in that extent, even if they're really going for that goal, you have the court restructuring issue.

Threats of Packing the Court

Nick Jamell (48:12):

Yep. Yeah. It's, it may not even be about actually packing the court. It's give us this decision that we want now, or we will do it sort of, it's kind of holding the court hostage to rule a certain way. That's I mean, that's really what FDR did. It was past my stuff that you think is unconstitutional or I'll just pack the court. I, yeah, yeah, it did. And, and I think that that's, and that to me seems like a huge threat right now.

And I, and I liked your point about the Congress seeding all of their power to the bureaucracy because, well, my representative is fairly entrenched. I don't think we're getting Andre Carson out anytime soon, but you know, considering he's basically inherited that from his aunt, but at the same time, there is a possibility of voting him or a Senator out. Whereas I can't vote out the EPA agent that's, you know, just saying, here's how I want to interpret this law and that's how it's going to be.

Influence of the Chief Justice on the Supreme Court

Ashley Baker (49:16):

Yeah, I agree that one quick, one last point about core package versus I mentioned to you, it is used to influence the chief justice I would add. And also I'm kind of somewhat defensive chief justice Roberts is the chief justice has a very much invested interest in preserving the court as an institution. And that's a very strong, compelling interest enough for them to want to rule maybe a certain way or, you know, nudge themselves and into a certain direction or nudge the other justices. That's kind of how that happens. But yes, that's a great way. I mean, you have your political appointees obviously, but you also have the fact that there are lower appointees who are being stuffed into agencies that are there for a very long time, you know, civil service and a lot of it too, is these agencies become, I mean, they're, it's, there's so much red tape. I mean, there's some bigger regulatory problem that you have those behemoths that do not function well and are packed by different political parties. And there are a lot of dynamics there, a lot of inefficiencies

Growth of the Federal Government

Nick Jamell (50:20):

[Inaudible]. Yup. I agree. I, and it's just a incredible swelling up of the federal government and the budget because of that too. And antitrust,

Ashley Baker (50:28):

By the way, I think it's one of the, so the consumer welfare standards, one of the largest narrowings of federal, federal power and the past past, and for you, I would say.

Nick Jamell (50:39):

Yeah. And so some of the things that we, the proposal that we've seen on antitrust front would be potentially doing away with that in a foul sweep, whether it's from the right or the left, because of a lack of understanding really of what right is that

Ashley Baker (50:54):

It's in the proposal, but most, yes, most of them are pretty damaging. There are proposals out there that aren't so bad and, you know, eliminating some fins, for example, for it, from antitrust law, that's something I could support maybe giving agencies and I never argued for this agency budget. So I, you know, it was just talking with them, fleeing that agencies, but maybe the, the, our beds, they do have not as many resources that you need for those specific cases. Allowing them to pursue a little bit more litigation that would be helpful, walling them to pay their praising market rates. They're not going off to tech companies instead. That would all be helpful. Like there, there are certain things that I could get behind, but changing the underlying legal standards.

Nick Jamell (51:37):

Yep. I appreciate that. And great. Well, I think that wraps up our questions for today. Do you have anything else that you wanted to touch on before we sign off or anything else that you wanted to add on that?

Last Words and Wrap Up

Ashley Baker (51:49):

Gosh I wouldn't know where to begin. I can talk about confirmations for a long time. These are both really broad really brought us shoes that are really hot topics right now. I think I'm, I'm glad the, the conservative movement is having this conversation by the way over, you know, common, good Orientalism versus, you know, originalism and that that's, I, I think it's reading a lot of good conversations that need to be had. I think that one side of it is completely wrong. But I do think that there's some good in having that. I'm just, I'm worried of that division splitting the new men apart.

Nick Jamell (52:26):

Yup. I know that for me, I've come from a very hardcore libertarian side of things to be much closer aligned to a traditional more common, good even conservatism. I still think I still have very libertarian views when it comes to federal government versus me, but at like Memorial local level, I see a lot more of that common, good being, playing into it. And so I know I've been moved in. I see a lot of people that are young conservatives that are even probably more on the side of a traditional way of doing things versus people. My parents' age, who I would say when they're conservative are a little bit more libertarian on things you're kind of gen X level of people seem to be, have that kind of eighties Reagan sort of, or at least the how the eighties Reagan movement is portrayed in that you know, big business w you know, trickle down type of thing. So it's nationalism brand of conservatism

Splits in Conservatism

Ashley Baker (53:26):

Is dangerous right now, particularly as we're PRI as the economy is trying to repair from COVID as we're competing with China. I think it's really short-sighted and, you know, those values are, there's a lot of tech bashing going on. That's why, and dress has become such a tech issue. And when they've realized, Oh, well, privacy, privacy laws are really hard to pass. It's really hard to measure two 30, the view into justice, this hammer, and you're going after kind of everyone just kind of like throwing darks in the dark. And there are even, I've seen over the past few days, just with the unionization boats, with Amazon conservatives, arguing we in favor of those unions in ways that just, you know, would make absolutely no sense. They're saying things that are contradictory with citizens United.

There are some really core things that I, I think it's something that she was a matter of those views have not maybe necessarily developed with some people. I mean, I, that sounds, I don't mean to sound condescending in that way, but I think some of these, some of this is a learning process in terms of the context. And they kind of came into it from the Trumpian perspective. And I wonder how much of it is that factor and how much of it is really people rebelling against the establishment.

Anti-Establishment Pushback

Nick Jamell (54:37):

Yeah. It's like there needs to be a correction back towards that, somewhat, maybe, but I think that there's an overcorrection in the strong, like tariff everybody everywhere. And I'm like, I think you can have, there's an argument to be had about, you know, if China's going to play dirty and subsidize their steel and do all this stuff to, you know, fight against us then, okay, well then tariff Chinese steel. You know, if they're subsidizing that, that type of stuff, targeted things like that seem to me, like they make sense and preserving a free market and protecting yourself against a sort of a financial attack in that way or economic, you know, attacks. But there's also this sense that it's like, we just need to tariff everybody. And I'm like, no, that's not this, this broad based solution that's going to help everything is just going to raise your prices. I mean, that's already going to be probably highly inflationary period anyways. Yeah.

Final Thoughts

Ashley Baker (55:34):

Yeah. I mean, one thing to kind of tie all this really together is, so I said for quite a while that, you know, there's a massive overlap between the anti-trust populist dog, call them on those wanting weaponized antitrusts on the right of center and the the common gun originalism movement, nationals conservative. I mean, so much, we hadn't been diagrammed on the two. It just be complete circle. There's 100% overlap between these two issues. And it tells you, well, really at the end of the day, this isn't about originalism. I

t's not about it's not federalism, it's not about antitrust. It's just about power. They were out of power when the establishment was in power. And these are different, you know, ways of approaching that. Whether it's, you know, getting power from the left or from, you know, within the party you know, this is not really coming much to surface until after prompt is no longer an office. And now it's still, the Republican party has been doing it wrong for decades. Yup. Yup. I think that's an interesting point. And I think that is a pretty good note to leave it on. So I,

Nick Jamell (56:39):

I probably ought to get running and I know you probably ought to get running as well. So thank you so much for coming on today, Ashley. I really appreciate it. This was a really interesting discussion. So thank you so much.

Ashley Baker (56:50):

Yeah. Awesome. Well, thank you.


Nick Jamell (56:53):

I don't know about you, but I was amazed at that interview. Just I need to go back and listen, because I think I was understanding and following along, but I need to really digest it because especially with the legal stuff I know for me, I need to kind of hear it again when I'm not trying to follow in a way that I'm hosting a conversation, right. And making sure that I can dive into the details and catch more as well. So definitely need to go back and listen, but hopefully you got a lot out of this.

If you did make sure you subscribe to YouTube, if you're watching there or the podcast, wherever you're listening, or just to the blog, or even my newsletter, you can subscribe conversation for our generation.com/newsletter. And if you go there, you'll get my weekly rundown of top discussions. That also includes the two podcast episodes for the week, but we'll also have a lot more of what I'm listening to watching, et cetera, reading even sometimes.

Conclusion and Promotion

Nick Jamell (57:42):

So definitely check that out because I think it's a great way to stay up with kind of week to week. What are some of the big trends and topics that are affecting our dialogue as a, as a society, as a culture. And so I think that that is a great thing that we can, that I try to help offer. And then also, if you want to support my work, go to conversation for our generation.com/subscribe for just $5 a month, you can get all the premium content access to my discord channel, any future premium content that comes out as well as a copy of my book. So lots of great stuff for just $5 a month, I've already had some people were rolling through and subscribing more and more.

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