I have mixed feelings about the nomination of Brett Kavanaugh to replace Justice Anthony Kennedy on the Supreme Court.
Kavanaugh is qualified by virtue of his twelve years on the D.C. Circuit Court of Appeals and his experience clerking for the U.S. Supreme Court. He also has a number of views on the Constitution that are laudable and consistent with the jurisprudence of the late Justices Scalia and current Justice Clarence Thomas.
The reservation I have and share with many in the Liberty Movement comes as a result of Kavanaugh’s very limited view on the Fourth Amendment.
I was excited for the prospect of Sen. Mike Lee (R-Utah) or Seventh Circuit Court of Appeals Justice Amy Coney Barrett being nominated because they would have been stronger choices than Kavanaugh. The conventional wisdom is that Kavanaugh is too much of an insider and his extremely long paper trail may end up being his undoing.
The one big plus that Kavanaugh has, in my view, is that he is going to be defined by partisan opponents, and many conservatives will want to drop the gloves to fight progressives. Like a Bull seeing red, many will be enraged when Sens. Elizabeth Warren (D-Mass.), Bernie Sanders (I-Verm.) and Kamala Harris (D-Calif.) — all who were opposed to Trump’s nominee sight unseen — use this nomination to raise money to run for president.
The ideological enemies of a textual view of the constitution are already bashing Kavanaugh for all the wrong reasons. Socialist Democrat flavor of the month, Alexandria Ocasio-Cortez of New York running for a House seat, accused Kavanaugh of believing “that a President cannot be indicted is an automatic disqualification from Supreme Court consideration.”
Left-wingers at Think Progress are making the case that Kavanaugh will “overturn Roe v. Wade,” and used as evidence a speech Kavanaugh gave praising the late Chief Justice William Rehnquist and statements by supporters of the nominee. The fear-mongering opposition will help Trump to get more support from middle-of-the-road voters who will determine the fate of many Democrats residing in states that Trump won during the last election.
A big plus, in my book, is that Kavanaugh represented the Miami family of Elian Gonzalez in the year 2000 fight to keep him in the U.S. My former boss Sen. Bob Smith (R-NH) wrote up legislation to provide Elian a green card, yet liberals wanted to deport him to a communist country because of partisan reasons.
Another plus is Kavanaugh’s involvement in the Federalist Society and the fact that he was vetted by my former employer, The Heritage Foundation. As a member of the D.C. Court of Appeals, Kavanaugh argued that the D.C. gun ban was unconstitutional in the Heller case that recognized the right to defend oneself with a firearm as a natural right recognized by the Constitution. On issues of originalism separation of powers, freedom of speech and religious liberty, Kavanaugh has a solid record.
Now for the problem: his restrictive view of the Fourth Amendment.
In the Klayman v Obama case decided En Banc in November of 2015, Kavanaugh exhibited an alarming view of the Fourth Amendment that rendered it a dead letter of constitutional law. For that case, Kavanaugh wrote, “In my view, the Government’s metadata collection program is entirely consistent with the Fourth Amendment.” He went on to argue, “In my view, that critical national security need outweighs the impact on privacy occasioned by this program.”
This is a case that mirrors the suit filed by my former boss Senator Rand Paul in February of 2014 where Senator Paul argued, “We will ask the question in court whether a single warrant can apply to the records of every American phone user all the time, without limits, without individualization.” Sen. Paul’s view is relevant on this case because he has a vote in the Senate on Kavanaugh’s confirmation.
The Fourth Amendment dictates that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” If you take Kavanaugh’s arguments as his view on the Fourth Amendment, the government could argue a need to search all the phone calls of all Americans at any time post-9-11 and intercept all communications, like email and texts, if the government argues that there is a national security need.
Yet, the Klayman case was merely on bad opinion by Kavanaugh.
In another case, Kavanaugh joined a number of justices arguing in the case U.S. v. Jones that the month-long monitoring of an individual with a GPS device attached to a target’s car did not require a warrant based on probable cause. They concluded that “GPS-augmented surveillance” is functionally no different than a visual surveillance conducted over a month.
Constitutional rights are not optional, and you can’t toss them aside just because the government makes a “reasonable” argument. The Bill of Rights details our natural rights that no government can take away. One could justify every single gun control idea, including allowing the government to seize all privately owned handguns, under the pretext of national security and preventing a possible domestic terror event, yet Kavanaugh would never side with that government argument.
Whether Kavanaugh’s restrictive view of one amendment to the Constitution disqualifies him from serving on the highest court in the land will be a decision made by the Senate this fall.
Brian Darling is a former staffer for Sen. Rand Paul (R-Kent.) and founder of the D.C. based firm Liberty Government Affairs.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.
