"In fact, Sen. Obama never voted to confirm a Supreme Court justice," Hatch said. "He even voted against the man who administered the oath of presidential office, Chief Justice John Roberts, another distinguished and well-qualified nominee."
I decided to investigate some of Obama's statements during the confirmation hearings of John Roberts and Samuel Alito, and I found one comment that I think is particularly unfair -- especially coming from a constitutional law professor.
In a floor statement during the confirmation hearing of Justice Samuel Alito, then-Senator Obama said:
And when I examine the philosophy, ideology, and record of Samuel Alito, I am deeply troubled.
. . .
[Judge Alito has] overturned a jury verdict that found a company liable for being a monopoly when it had over 90% of the market share at the time.
It's not just his decisions in these individual cases that give me pause -- it's that decisions like these are the rule for Samuel Alito, not the exception.
I'm sure that President Obama is aware that market share is not the sole criterion upon which firms are evaluated with regard to the Sherman Antitrust Act. In fact, the Supreme Court has repeatedly ruled that monopoly power does not automatically imply a violation of the Act.
Section 2 of the [Sherman Antitrust Act] forbade monopoly. In Section 2 cases, the court has, again on its own initiative, drawn a distinction between coercive and innocent monopoly. The act is not meant to punish businesses that come to dominate their market passively or on their own merit, only those that intentionally dominate the market through misconduct, which generally consists of conspiratorial conduct of the kind forbidden by Section 1 of the Sherman Act, or Section 3 of the Clayton Act.
Why would President Obama cite this as an example of Judge Alito's 'troubling' record, without offering the necessary context for the decision?
Update: A list of Supreme Court precedents on the subject of monopoly power.