Brett Kavanaugh Tries to Explain Opinion Opposing Net Neutrality

WASHINGTON, D.C.—Donald Trump’s second United States Supreme Court nominee, 53-year-old federal circuit court judge Brett Kavanaugh, alarmed net neutrality advocates last year, filing a lengthy dissenting opinion in a case in which the federal district court in Washington, D.C., ultimately upheld the open-internet rules.

On Wednesday, on Day Two of his Senate Judiciary Committee confirmation hearing, Kavanaugh attempted to explain—and soften—his opposition to net neutrality rules, answering questions from Minnesota Senator Amy Klobuchar by saying that he “felt bound by precedent” in his dissenting opinion, according to a report on the hearing by the trade news site Broadcasting & Cable

In his dissenting opinion in the net neutrality case, as well as in his Wednesday testimony, Kavanaugh cited the “major rules” doctrine, which says that courts should not defer to Congress in cases involving “major” laws or regulations when Congress has been ambiguous in its intentions when putting those rules in place.

In the instance of the 2015 net neutrality rules, Kavanaugh said that because Congress had not outlined a clear doctrine for regulating the internet, the rules were not lawful and should be thrown out.

"It's OK for Congress to delegate various matters to the executive agencies to do rules, but on major questions of major economic or social significance, we expect Congress to speak clearly before such delegation, and that's what had not happened, with my view, with respect to net neutrality and I felt bound by precedent,” Kavanaugh said at the Wednesday hearing.

But according to technology law expert Gigi Sohn, who served as counselor to the FCC when it put the 2015 rules in place, Kavanaugh is simply making up the “major rules” doctrine.

“The Supreme Court really hasn’t adopted a ‘major rules’ doctrine—he cobbled one together from bits and pieces of law review articles and examples from prior cases,” Sohn wrote in an essay for NBC News. “His theory on ‘major rules’ also directly contradicted Supreme Court precedent: In a 2005 decision, the court ruled that the FCC has the discretion to decide how and under what part of the Communications Act broadband providers should be regulated.”

Klobuchar wasn’t buying Kavanaugh’s explanation either, telling the judge that she believed his opinion in the case was part of his pattern of inserting himself into legislative and regulatory decision-making.

Kavanagh also claimed that he has not shown a preference for striking down government regulations, despite an earlier statement from the Trump White House boasting that he “has led the effort to rein in unaccountable independent agencies.”

“I don’t know what that’s referring to,” Kavanaugh said. “I know my record. I’m sure I’ve upheld agency decisions dozens and dozens and dozens of times.”

Photo by U.S. Court of Appeals for the District of Columbia Circuit