The Judge Kavanaugh Hearing and Tech Policy

The circus that is going on in Washington isn’t too much of an actual hearing.  It’s a circus.  The votes are already counted and none of the Senators are going in with an open mind.   Senators are going in to advocate for or against entrenched positions or they are trying to feather their own political ambitions which is exactly what Cory Booker and Kamela Harris did Thursday.  They are both running for President in case you didn’t realize it.  By the way, Booker had his fundraising website go live prior to the hearing.  Cynical I know but you can’t be too cynical these days.

An aside, I disliked the stupid protestors during the hearings for justices nominated by President Obama and I dislike them now.  I am of the opinion that the room ought to be sealed against anyone from the public and the hearing simply televised.  A court that was not supposed to be politicized has become very politicized since Senator Kennedy went after Judge Robert Bork.  My own personal opinion is that abortion isn’t that big of a deal compared to things like individual property rights and individual liberty.  That’s really what the protesting on each side is about.

A lot of people in the tech community have been misinformed that Kavanaugh is against an open internet.  I was reading an American Enterprise Institute article that people should read to set them straight.  With the repeal of Net Neutrality, America has seen a faster internet.

Instead of looking at talking points, it pays to delve deeper into what the role of the courts are and how things proceed through the courts.  Courts are there to interpret law, not make law.  Unfortunately, when political parties try to set policy and lose the game at the ballot box, they have gone to the courts to make law from the bench. That leads to long term consternation.

With regard to Kavanaugh and his prior rulings when it comes to net neutrality, the tech community should have nothing to fear.  Kavanaugh has been misinterpreted by most.  They say he has an agenda as being against a free and open internet.  In fact, when he ruled the ruling was based on process.  Who should be setting the policy, Congress or the Agency?

In Kavanaugh’s ruling he relies on precedent and the Chevron case.  Of that case he has written, “it (Chevron) has no basis in the Administrative Procedure Act. So Chevron itself is an atextual invention by courts. In many ways, Chevron is nothing more than a judicially orchestrated shift of power from Congress to the Executive Branch. Moreover, the question of when to apply Chevron has become its own separate difficulty.”

Activists would not be in favor of a judge that would allow a scrum between the Congress and the Executive branch.  They’d rather a judge set the law, and compel the Executive branch to rigorously enforce it.  Unfortunately, that’s not how our system of government is designed to work.

I think it’s safe to say the future Supreme Court justice has no opinion at all on net neutrality.  He has a very strong opinion on the separation of powers and the risks that accompany a very strong executive branch of government.  It seems like he favors individual property rights over the collective, and that could lead to a lot of competition.  If anything, that ought to give people who want a free and open internet comfort because Kavanaugh would likely rule against an edict or executive order mandating something that didn’t go through the legislative process.

What is abundantly clear to me is that the current internet policies and regulations stem from a 1934 act on telephones which bear no resemblance to the current state of technology.  The reinterpretation in 1996 bears no resemblance to the current state of technology.  It would pay to have Congress rewrite the entire policy, vote on it, have the President sign it and then have the FCC enforce a new policy.  Ideally, instead of a rules based policy it would be based on principles so that there would be flexibility to adapt to future changes in technology.