For many years, Senators Ted Cruz (R-Tex.) and Mike Lee (R-Utah) were my favorite United States Senators. Maybe one or two of them will be again, after a while, but recently I've been very disappointed in them (particularly, those pictures of Senator Lee hugging people at Justice Barrett's Rose Garden presentation, and obviously Senator Cruz's Cancún trip; his 1/6 speech is reasonably debatable but I don't think he can be blamed for the Capitol riots in any way).
Late on Tuesday, Senator Lee issued a statement according to which presumptive FTC nominee Lina Khan, "being less than four years out of law school, [...] lacks the experience necessary for such an important role as FTC Commissioner."
No one in the United States Senate is less credible when raising such concern over a lack of experience. He was interviewed by then-President Trump for a potential Supreme Court nomination and known to be interested in a job on the highest court in the land with zero judicial experience. I nevertheless wrote in 2018 that the tech industry should lobby Trump to nominate Sen. Lee because of his positions on standard-essential patents. So I'm not being inconsistent. But he shouldn't apply such obvious dual standards. According to Politico, he would "of course" have been interested in becoming an Associated Justice of the United States, and he was still on the list in September.
Sen. Cruz called Sen. Lee the best candidate. I hope Sen. Cruz disagrees with his friend from Utah on this nomination.
A SCOTUS decision is not appealable anymore. By contrast, if the FTC has a unilateral-conduct issue with a company, it can't even issue an appealable decision (unlike the European Commission's DG COMP), but has to sue, and then there's room for appeals.
Sen. Lee was 39 years old when he took his Senate seat. The average of United States Senators is above 60, and even the average age of new senators elected in 2018 was well over 50. There's nothing wrong with his own career path, but there's everything wrong with his criticism of Lina Khan's forthcoming nomination.
It doesn't make Sen. Lee's statement any better that on top of warning against an FTC commissioner "learning on the job" he also attacks her positions ("ideology and politics", "wildly out of step with a prudent approach to the law"). Far from being an extremist, the American Economic Liberties Project notes that "Professor Khan is the intellectual architect of the bipartisan suits against Facebook and Google" (emphasis added). Those suits were brought not just by the federal government but joined by state AGs from red and blue states alike.
If Sen. Lee is serious about reining in Big Tech, he should welcome this nomination.
If the average number of years of professional experience of all FTC commissioners was brought down to four years, or even to eight years, one might be concerned about whether they still have to learn on the job as Sen. Lee puts it (same thing if the average Associated Justice of the United States had zero judicial experience prior to nomination). One brilliant scholar, however, may very well prove to be a huge asset to the Commission, and I hope at least some Republicans concerned about Big Tech will vote to confirm her.
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