Many conservatives are celebrating President Donald Trump’s Supreme Court pick, Judge Brett Kavanaugh, but several civil libertarians have raised concerns with Kavanaugh’s record on the Fourth Amendment.
The most prominent critic is Republican Rep. Justin Amash of Michigan, who called Kavanaugh a “disappointing pick” and panned Kavanaugh’s decision regarding the NSA metadata collection program.
Kavanaugh wrote a two-page opinion in 2015 concurring with the D.C. Circuit Court’s decision to not rehear Klayman v. Obama, a case that raised questions about the constitutionality of the NSA’s metadata collection program.
Kavanaugh argued that, “Government’s program for bulk collection of telephony metadata serves a critically important special need—preventing terrorist attacks on the United States. In my view, that critical national security need outweighs the impact on privacy occasioned by this program.”
Amash took issue with the decision and tweeted about it Monday.
Amash followed up by slamming Republicans who had been against former President Barack Obama expanding NSA spying, but supported Trump extending FISA Section 702 spying.
The American Conservative and Reason, two outlets friendly to civil libertarian views, published articles critiquing Kavanaugh’s Fourth Amendment record. The American Conservative’s Curt Mills also cited Kavanaugh’s concurrence in the D.C Circuit’s decision not to rehear a case about the NSA metadata collection program, writing that Kavanaugh “went of out of his way to defend the judgment.”
“Kavanaugh went out of his way to defend the judgment, releasing a concurring statement with the decision,” Mills wrote. “While conceding that the Supreme Court held final sway ‘in our system of absolute vertical stare decisis,’ Kavanaugh rather preposterously suggested the judiciary had no role to play in this matter of core constitutional concern.”
Reason’s Jacob Sullum observed that Kavanaugh seemed to have a “narrower view of Fourth Amendment rights.”
“In 2010 he dissented from the D.C Circuit’s decision to not rehear a case three-judge panel had ruled that police violated a suspected drug dealer’s Fourth Amendment rights when they tracked his movements for a month by attaching a GPS device to his car without a warrant,” Sullum wrote.
The Supreme Court ruled in June that a search for this type of data required a warrant.
Some of Kavanaugh’s supporters have defended his government surveillance opinion, saying that his analysis was well within court precedent.
“Judge Kavanaugh was merely pointing out — quite correctly — that the collection of telephone numbers that one dials is not considered a search under the Supreme Court’s decisions in Smith v. Maryland, and that even if it were, the Supreme Court has also developed a ‘special needs’ doctrine under the Fourth Amendment that would seemingly apply here,” attorney Miguel Estrada told the Washington Examiner.
Fourth Amendment scholar Orin Kerr told the Washington Examiner that Kavanaugh’s belief that the collection of metadata was not a search “was consistent with Supreme Court precedent — “although at least in academic circles that view was controversial.”
This doesn’t mean that civil libertarians are against Kavanaugh as a Supreme Court Justice. Ken Cuccinelli, the president of the Senate Conservatives Fund, praised Kavanaugh as an excellent judge, though he did worry about Kavanaugh’s perspective on the Fourth Amendment and said it was “troubling.”
“As someone who sued the NSA over their metadata gathering as a violation of the Fourth Amendment, he and I disagree on that point, and I think a lot of liberty-minded folks are going to have that as a major concern,” Cuccinelli said to the Washington Examiner.
However, the one civil libertarian that might present a challenge to Kavanaugh’s nomination, Sen. Rand Paul of Kentucky has not signaled if he opposes or supports Kavanaugh.
So far, Paul has only tweeted that he would keep an “open mind” about the Supreme Court nominee.
Kavanaugh would represent a rightward shift in the Supreme Court, as the Daily Caller News Foundation reported on July 9.
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