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Why Rand Paul Is 'Very Concerned' About Brett Kavanaugh and the Fourth Amendment

The Republican senator questions the record of the SCOTUS nominee.

Gage Skidmore / Foter.comGage Skidmore / Foter.com"I am honestly undecided. I am very concerned about his position on privacy and the Fourth Amendment." Those are the words of Sen. Rand Paul (R-Ky.), speaking to Politico last week about whether or not he will vote to confirm Judge Brett Kavanaugh to a seat on the U.S. Supreme Court. With the Senate currently divided almost equally along party lines, Paul's vote on the Kavanaugh nomination could prove decisive.

"Kavanaugh's position is basically that national security trumps privacy," Paul observed. "He said it very strongly and explicitly. And that worries me."

Paul has reason to be worried. In 2015, Judge Kavanaugh argued that the federal government's wholesale warrantless collection of every Americans' telephone record metadata does not violate the Constitution. "In my view," Kavanaugh wrote, "the Government's metadata collection program is entirely consistent with the Fourth Amendment."

Furthermore, Kavanaugh continued, "even if the bulk collection of telephony metadata constitutes a search," the program is still permissible because the Fourth Amendment "bars only unreasonable searches and seizures. And the Government's metadata collection program," he asserted, "readily counts as reasonable" because it "serves a critically important special need—preventing terrorist attacks on the United States." He concluded: "That critical national security need outweighs the impact on privacy occasioned by this program."

Such views would seem to put Kavanaugh directly at odds with Paul, who has made a name for himself in the Senate as a prominent voice in favor of broad Fourth Amendment protections.

During his 2013 filibuster over domestic drone strikes, for instance, Paul faulted the Bush administration for "wiretap[ping] phones without a warrant." Paul then applauded President Obama for saying that "we should have warrants before we tap people's phones and that we shouldn't be trolling through people's records."

In that same filibuster, Paul lambasted his fellow conservatives for failing to take the Fourth Amendment seriously. "I always kind of joke that if you go to a conservative meeting and you talk about the Second Amendment, everybody pats you on the back and they all love you—until you get to the Fourth Amendment." But as Paul explained, such conservatives only reveal their constitutional illiteracy. "How are your guns going to be protected if they can come in your house without a warrant? You have to have the Fourth Amendment."

Two years later, when he filibustered against the reauthorization of the Patriot Act, Paul doubled down on his Fourth Amendment advocacy while sharply criticizing warrantless government surveillance and bulk metadata collection.

"Is the standard to be if you have nothing to hide, you have nothing to fear but that everything should be exposed to the government, that all of your records can be collected?" Paul asked. His answer: "The bulk collection of all Americans' phone records all of the time is a direct violation of the Fourth Amendment." Paul was referring to the very same government program that Kavanaugh described as "entirely consistent with the Fourth Amendment."

To be sure, it is possible that Kavanaugh has changed his mind about the underlying constitutional issues and now regrets writing that opinion. If so, that would be a welcome development. The members of the Senate Judiciary Committee should press him during his confirmation hearings to further explain his views on this crucial legal matter.

The future of the Fourth Amendment is one of the most significant issues facing the Supreme Court. Given his judicial record in this area, Brett Kavanaugh has given Rand Paul and other critics cause for concern.

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  • Fist of Etiquette||

    ...Paul's vote on the Kavanaugh nomination could prove decisive.

    Someone probably better keep his head on a swivel on the Senate floor. This would be the advise and consent version of leaving unsightly grass clippings in the wrong part of his property.

  • Rich||

    "The bulk collection of all Americans' phone records all of the time is a direct violation of the Fourth Amendment." Paul was referring to the very same government program that Kavanaugh described as "entirely consistent with the Fourth Amendment."

    So we need a tie-breaker. What does that famous Constitutional scholar Obama say?

  • Ken Shultz||

    Rand Paul is an excellent guy in opposition, but its times like this when he demonstrates that he's either not ready or not capable of being an excellent leader when he's not in opposition.

    The alternative to ObamaCare reform was not repeal. The alternative to reform was ObamaCare. By insisting on full repeal, Rand Paul effectively perpetuated some of the worst parts of ObamaCare indefinitely, things we could have gotten rid of forever. The reform Rand Paul opposed would have cut $1.022 trillion in government spending--$772 billion of it from Medicaid.

  • Ken Shultz||

    Likewise, what's the alternative to Kavanaugh?

    Here's the calculation: the Democrats are likely to retake the senate in four months. If and when that happens, what are the chances that a Democrat controlled senate will confirm someone better than Kavnaugh?

    The correct answer is that it's unlikely that we'll get someone better than Kavanaugh.

    I doubt Trump would restrain himself from putting a stamp on the Supreme Court for the foreseeable future to the point where he would simply refuse to appoint anyone until 2020, when the Republicans stand a good chance of retaking the senate. After all, Trump could lose in 2020. But, for the sake of argument, imagine that Trump refuses to appoint anyone until 2020 or that Trump can't get a better nominee confirmed by the senate?

    Well, then we're at a 4-4 tie on the Supreme Court on all sorts of issues between now and then. I don't see how that helps Rand Paul or any of us pursue our goals of constitutional liberty.

    If leadership is about persuading people to do the smart thing when the smart thing isn't obvious or easy, then Rand Paul keeps demonstrating a lack of leadership.

  • Enjoy Every Sandwich||

    I have to agree that Kavanaugh is likely the best we can hope for. I'm also of the admittedly pessimistic view that the Fourth Amendment is pretty much gone, anyway. It seems to have no real supporters outside of us libertarian kooks.

  • Quo Usque Tandem||

    For obvious reasons, given possible outcome of the next elections, this may well be the last chance of putting a less worse [90%] justice on the Supreme Court. So I ask myself, which would I rather have: Kavanaugh or Garland? I hope we do not forgo the good for the [non existent] perfect.

    And, in other news, Ginsberg is not going anywhere anytime soon, unless death do her part.

  • Libertymike||

    Perhaps, Rand Paul's objections actually demonstrate that, under the circumstances, the President is the one who has fumbled the ball on the goal line.

    Here, the President had an opportunity to nominate a jurist who actually respected all of the liberties championed by the framers. Trump had an opportunity to pick a legal mind who understood that the bill of rights are not a catalogue of admonitions, but, rather, absolutes put in place to restrain those who would not hesitate to seek and exercise power upon the basis of threats to security.

    The President also had an opportunity to mate his selection with his solemn promise to drain the swamp. Said otherwise, he had a great chance to reject deep state and swamp criteria for his pick. He didn't not have to choose any person with an Ivy pedigree; he didn't have to pick somebody who has fed at the public trough his entire adult life; and he did not have to pick a sitting judge or law professor.

    What did the President do? He fumbled the ball.

    Rand should stick to his guns.

    Why approve of a guy that is the ultimate swamp creature?

    Why approve of a guy that has failed to demonstrate that he can make and produce in the private sector?

    Why approve of a guy that is a life long public sector hack?

    Why approve of a guy that buys the deep state narrative?

    Why approve of a guy who has already proven that he does not respect the 4th amendment?

  • Ken Shultz||

    "Perhaps, Rand Paul's objections actually demonstrate that, under the circumstances, the President is the one who has fumbled the ball on the goal line."

    I'd appreciate that argument more if Rand Paul's vote weren't the deciding vote.

  • chemjeff radical individualist||

    Yes yes, it's more important to push Team Red's nominee over the finish line than to stick up for something as quaint as the Fourth Amendment! Because TEAM BLUE WILL DESTROY MURICA

  • chemjeff radical individualist||

    Actually, the electoral math for the Democrats taking the Senate is very poor in 2018. They would have to run the table defending almost all of their candidates - and there are some very vulnerable ones - PLUS pick up a few seats in red states. They stand a much better chance at retaking the House, but even that is not a given.

    But here's the thing: if you aren't willing to draw a line in the sand on the Fourth Amendment with this particular nominee, then where ARE you willing to draw the line?

    Rand should refuse to vote for him, and let Trump and his minions bully some red-state Democrat to try to get a vote to push Kavanaugh over the top.

  • creech||

    If Dems take over the Senate in 2018, in face of the economic news, then U.S.A. is down the shitter and it won't much matter if Kavanaugh is approved or not.

  • chemjeff radical individualist||

    "If X takes over Y in year Z, then the USA is toast!"

    Substitute appropriate values for X, Y and Z.

  • Giant Realistic Flying Tiger||

    If [Michael Hihn] takes over [the Reason comments section] in year [2019], then the USA is toast!

  • perlchpr||

    If that stupid goatfucking robot is still around in 2019, I don't think it'll destroy the USA, but I dunno about the commentariat.

  • Rhywun||

    Given the power the Senate has over SCOTUS nominees, he's right.

  • DesigNate||

    Exactly right. Especially on Trump bullying some red-state Democrat (are there actually any of those?).

  • Tony||

    Not sure I understand what's so objectionable about liberal SC justices when contrasted to Republican-appointed ones who tend to favor cops, corporations, and government over individuals.

  • Juice||

    Do you like Merrick Garland?

  • Tony||

    He was the perfect nominee by a Democratic president with a Republican senate.

  • DesigNate||

    So I see you favor cops, corporations, and government over individuals.

    Not surprised actually.

  • Tony||

    No, court nominees palatable to Republicans do. But they wanted someone even more right-wing, so they stole the seat.

  • Just Say'n||

    Of course, Gorsuch is better than Garland was on government abusing its authority. So, it would appear that the more right wing option was the more pro-liberty option.

  • Tony||

    Depends on what liberties you're talking about. The right of a woman not to be forced at gunpoint to give birth against her will, not so much.

  • DesigNate||

    I'm sorry, I thought you supported Garland. Who was all of those things.

  • Calidissident||

    Rand has unique leverage to force Trump to nominate someone good (or at least decent) on the 4th amendment (like Trump did with Gorsuch). Why not use it here?

  • Ken Shultz||

    Because there's no time.

    If Kavanaugh fails, no Republican running for reelection in the Senate will want to take a stand on something controversial like a Supreme Court justice right before the election.

    What's his name stepped down now specifically so that he could be replaced by another Republican nominee.

    If he'd waited any longer, it would be too late.

    Time's up. It's Kavanaugh or roll the dice.

    Kavanaugh is good on the Second Amendment. We won't see another nominee like that if the Democrats take the Senate.

  • Libertymike||

    Withdraw the nomination today and announce the new, privacy respecting, 4th amendment friendly, nominee.

    Mitch McConnell's schedule need not be altered.

    Proceed with hearings in September.

  • Nardz||

    "the Democrats are likely to retake the senate in four months"

    Even the Ds aren't this delusional, and that's an insanely low bar.
    They might vet the House, though

  • Scarecrow Repair & Chippering||

    I thought you said we should only judge Trump on his actions, not his words. You refused to admit there was anything wrong with his words on tariffs because they were just words.

    These are just words.

  • Jerryskids||

    With the Senate currently divided almost equally along party lines, Paul's vote on the Kavanaugh nomination could prove decisive.

    The real reason Rand's neighbor attacked him was his #IStandWithTrump bumpersticker on his lawnmower. Rand won't display it in public, but, trust me, he's got one. He's got to get his virtue signaling to be sures out there first, but he'll bend in the end.

  • Rhywun||

    He'd be crazy not to.

    You know why the Democrats continue to get everything on their wish list over time? It's because they throw their principles away and vote in lock-step.

  • Just Say'n||

    Are we sure that Rand is the one virtue-signaling here or is it the people who suddenly think that a decision against en banc review makes a justice unqualified, while they were silent on other judicial nominees who threatened 1st, 2nd, and 4th Amendment rights?

  • Alan Vanneman||

    Okay, Rand isn't always ready for prime time--regardless of your specific political views, I would say--but look at Kavanaugh's "reasonable" test. Any search, in his view, becomes "reasonable" if it is connected to a "a critically important special need". Which is to say, courts have the power to turn the 4th amendment into a nullity. And I find it "bracing" for a libertarian to suggest that the 4th amendment is just as important as the 2nd.

  • Ahaz||

    Rand pulls this stunt all the time. He cries about civil liberties, privacy, etc, and then he votes for the President's nominee.

  • Longtobefree||

    So if Rand is such a fourth amendment guy, why haven't I seen any bills to explicitly ban asset forfeiture at the state and federal levels?

  • chemjeff radical individualist||

  • Just Say'n||

    Ah yes, the old "if Rand isn't talking about what I want him to talk about at this very moment than he sucks ass".

  • chemjeff radical individualist||

    C'mon Rand. I'm getting a little tired of your concern trolling. Say outright that you will oppose Kavanaugh's nomination due to his terrible position on the Fourth Amendment. Or, just say that you will vote with Team Red because loyalty to the tribe is more important than fundamental liberties. But stop this equivocation game.

  • Libertymike||

    What about loyalty to the tribe of liberty?

    Loyalty to the tribe that abjures the faith of the deep state?

    Loyalty to the tribe that abjures the faith in Ivy pedigrees?

  • chemjeff radical individualist||

    Not sure why I should abjure Ivy pedigrees.

  • Libertymike||

    Maybe because those with them have done such terrific damage to liberty, peace, and prosperity?

    Maybe because those with them have had such a propensity to be swamp creatures?

    Maybe because those with them have had such a propensity to be progressive nightmares?

  • Tony||

    I genuinely don't know--what are your thoughts on the individual liberty, peace, and prosperity of Latin American migrants to the US?

  • chemjeff radical individualist||

    Maybe we should not look at "Ivy pedigrees" with a collectivist bent, and should instead judge people by their individual merits?

  • Libertymike||

    Why would a genuine individualist want to matriculate at, or have respect for, an Ivy school, knowing that its grads have contributed so much to Woodrow Wilsonism, Teddy Rooseveltism, FDRism, war, socialism, NAP violations, progressivism, stagnant incomes, ZIRP, crony-capitalism, and Clintonism?

  • chemjeff radical individualist||

    Because individuals deserved to be judged on their own merits, and not smeared by association?

  • Libertymike||

    Sometimes, not always by any means, I think that you misinterpret my position by mistakenly
    attributing to me a certain admiration of, or least respect for, collectivism.

    You also have a tendency to conflate condemnation of certain choices, freely and voluntarily undertaken, with collectivism.

    Choosing to attend an Ivy and choosing to be a life long public sector hack and choosing to embrace matters near and dear to the deep state and the MIC are choices rightfully condemned.

    So, you take any Ivy grad who has been on a public payroll for a significant portion of his adult life and has embraced the deep state and has embraced the MIC and has embraced security kabuki theatre and does not care about your privacy.

    The foregoing are his own merits.

  • Just Say'n||

    Why weren't these sudden concerns for the 4th Amendment ever raised when Elena Kagan was nominated and "libertarian leaning Senator Ron Wyden" (which has been repeated on these pages several times) unquestionably backed her nomination?

    Seems like only Rand is held to these standards

  • ducksalad||

    Like chemjeff says, "very concerned" doesn't cut it anymore. This is the probably the only time in his career he has the power to single-handedly force the prez to pick someone decent, and he should not let it go to waste.

    He needs to say right now that it's No, and name which judges on Trump's long list he'd be willing to support.

  • Overt||

    If I had to bet, Rand will vote for the confirmation if the GOP needs it to get over the hump. But that doesn't make his "stand" meaningless. As KS notes above, if Kavanaugh is not confirmed, the alternative is probably much worse. However, by calling out his poor 4th Amendment record, Paul is calling attention to a very important cause. There have been several articles written in Reason about this, and the various political rags are going to have to at least bring up his objections in their horse race articles.

    Additionally, Rand Paul puts the administration on notice that if they do have another pick in the next 2-6 years, they will know the qualities necessary to get his vote.

    So all that said, I don't think the confirmation is in jeopardy, and the longer Rand bleats about this, the better.

  • Libertymike||

    Wouldn't it be better for Trump to withdraw the nomination and select somebody who abhors the deep state and security kabuki theatre?

    Remember, Kavanaugh is a swamp creature. He is a deep state stooge.

  • Just Say'n||

    All this from a vote against en blanc review?

  • Libertymike||

    What?

    One vote against en banc review does not make one an Ivy grad, public sector lifer who inhabits the swamp.

  • Nardz||

    Yes, kavanaugh is a swamp creature and I'm not a fan,
    But
    Kennedy handpicked him and probably required a commitment by Trump to pick him for Kennedy to step down. The pro-swamp Rs are in lock step on this one. Were Trump to withdraw the nomination, they wouldn't support any other pick because they'd rather a D nominate someone than let the power of the Fed get rolled back.
    There are lots of Progressives in the Rs too.

  • Longtorso, Johnny||

    Rand just said yes.

  • Just Say'n||

    People are literally going to die

  • Tony||

    You could knock me over with a disgruntled neighbor.

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