RAND PAUL: ‘I’m worried about his opinion on the Fourth Amendment…’
(Ben Sellers, Liberty Headlines) As President Trump’s Supreme Court nominee, Brett Kavanaugh begins the vetting process leading up to his confirmation hearings, not all of his opposition comes from the Left.
Conservative analysts have questioned some of his unorthodox decisions and raised the concern that Kavanaugh—like his Supreme Court predecessor, Anthony Kennedy—could flip on key decisions.
Several have pointed to his dissenting opinion on the Affordable Care Act in Seven-Sky v. Holder.
Kavanaugh asserted that the case lacked standing since the Obamacare individual mandate was, effectively, a tax.
That argument inadvertently provided the framework that Chief Justice John Roberts used to uphold Obamacare in 2012.
Meanwhile, privacy advocates point to a larger concern: Kavanaugh’s record of supporting government data-collection as being consistent with the Fourth Amendment.
Libertarians like the Ron Paul-affiliated Campaign for Liberty have said these decisions show a “need to keep a close eye on the confirmation hearings.”
In 2015, in the wake of whistleblower Edward Snowden’s revelations about the National Security Agency’s warrantless surveillance, Kavanaugh joined Chief Judge Merrick Garland and others to deny an emergency petition filed by Judicial Watch founder Larry Klayman over the NSA’s collection of phone-record metadata.
Among the reasons Kavanaugh cited were that the collection of phone records from telecommunications service providers did not constitute a search and that the Fourth Amendment did not prohibit all searches, only unreasonable ones.
Citing a litany of precedents, Kavanaugh stated that “The Fourth Amendment allows governmental searches and seizures without individualized suspicion when the Government demonstrates a sufficient ‘special need’ … that outweighs the intrusion on individual liberty.”
He offered as examples the drug testing of students, roadblocks to detect drunk drivers, border checkpoints and security screening at airports.
“To be sure, sincere and passionate concerns have been raised about the Government’s program,” he added. “Those policy arguments may be addressed by Congress and the Executive. Those institutions possess authority to scale back or put more checks on this program, as they have done to some extent by enacting the USA Freedom Act.”
But last month the Supreme Court ruled that police need a warrant before obtaining cell phone location data about a suspect from telecom companies.
As Politico noted, it was not the first time Kavanaugh gave a wide berth to surveillance efforts.
In 2010’s USA v. Lawrence Maynard, he supported the warrantless use of a GPS tracking device, saying there was no expectation of privacy—though Kavanaugh conceded that tampering with the vehicle may have violated property rights.
The Supreme Court later ruled that such tracking required a warrant, with Justice Antonin Scalia citing Kavanaugh’s latter statement.
In a message to supporters, Norm Singleton, the Campaign for Liberty president, said, “[W]e will pore through more of Judge Kavanaugh’s opinions to help make sure we don’t get another wolf in sheep’s clothing.”
Despite the concerns, however, Singleton supported the idea that Kavanaugh’s role was simply to interpret the Fourth Amendment and apply judicial precedent, not to legislate from the bench.
“At the end of the day, we want and need a justice who will adhere to a strict constructionist view of the Constitution,” he wrote.
Still, Kavanaugh must convince a majority of Senators to endorse his nomination.
Republican Rand Paul of Kentucky, perhaps the strongest advocate for citizens’ privacy rights in the Senate, has expressed concern about Kavanaugh while at the same time claiming to have “an open mind.”
“I’m worried about his opinion on the Fourth Amendment,” Paul said in Louisville on Monday, the Courier-Journal reported. “Kavanaugh ruled that national security trumps privacy … that worries me.”