Kevin Daley, DCNF
GOP Sen. Rand Paul of Kentucky will support Judge Brett Kavanaugh’s confirmation to the U.S. Supreme Court, despite early misgivings about his nomination.
The senator’s support, initially in doubt, staves off a fatal defection that could have proved disasterous to Kavanaugh’s comfirmaton prospects.
In a lengthy tweet thread posted Monday morning, Paul said he was satisfied with Kavanaugh’s legal writings in a range of areas, despite his concerns about the judge’s views on the National Security Agency’s (NSA) metadata collection program. The senator specifically identified the First and Second Amendments, separation of powers, property rights, and agency law as topics on which Kavanaugh “will carefully adhere to the Constitution and will take his job to protect individual liberty seriously.”
After meeting Judge Kavanaugh and reviewing his record, I have decided to support his nomination. No one will ever completely agree with a nominee (unless of course, you are the nominee). Each nominee however, must be judged on the totality of their views character and opinions.
— Senator Rand Paul (@RandPaul) July 30, 2018
Speaking after Kavanaugh’s nomination, Paul said he was dissatisfied with a short concurring opinion the judge wrote in a 2015 case called Klayman v. Obama, a constitutional challenge to the NSA’s collection of metadata. Kavanaugh’s opinion argued the program was consistent with existing Supreme Court precedent.
In his Monday tweet thread, Paul noted that the Supreme Court’s Fourth Amendment doctrine has since developed in an important way. In June, a five-justice majority delivered a major victory for digital privacy, finding that law enforcement cannot seize cellphone location data without a warrant in a case called Carpenter v. U.S.
The ruling may implicate federal mass surveillance programs, as it involved a traditional Fourth Amendment rule on which such programs rely. Federal courts have long held that individuals have no privacy right in information they voluntarily share with third parties like banks or phone companies. In the June case, however, the Supreme Court declined to extend this rule to cellphone location information given the “seismic shifts in digital technology.”
Since Kavanaugh’s 2015 opinion relies in significant part on the third-party rule, Paul hopes the judge will reconsider his views in light of the Carpenter decision.
In reviewing his record on other privacy cases like Jones, and through my conversation with him, I have hope that in light of the new precedent in Carpenter v. United States, Judge Kavanaugh will be more open to a Fourth Amendment that protects digital records and property.
— Senator Rand Paul (@RandPaul) July 30, 2018
The parallels between June’s decision and NSA bulk surveillance are not exactly the same, however. The agency’s metadata collection largely archives communications records, while the June decision relates specifically to location data cellphones generate in the normal course of use.
With Paul’s commitment to vote for Kavanaugh, the only members of the Republican caucus whose support for the judge is in question are GOP Sens. Susan Collins of Maine and Lisa Murkowski of Alaska, two moderate, pro-choice lawmakers who have broken with the party in recent years on healthcare and funding for Planned Parenthood.
Kavanaugh’s confirmation hearings have not yet been scheduled, though GOP Sen. Chuck Grassley of Iowa has requested access to records the judge produced as a White House lawyer, a key step toward setting a definitive timeline for his nomination.
White House officials believe the judge is strongly positioned for confirmation.
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