Rand’s Reservations: Why Paul Is Skeptical Of The Kavanaugh Pick

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Kevin Daley Supreme Court correspondent
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GOP Sen. Rand Paul of Kentucky has expressed serious misgivings about Judge Brett Kavanaugh’s nomination to the U.S. Supreme Court, offering the most blunt critiques of Kavanaugh yet to emerge in the Republican caucus.

Though the senator says he is genuinely undecided with respect to his confirmation and promises to approach the matter with an open mind, Paul is concerned with Kavanaugh’s views on the Fourth Amendment, which protects against unreasonable searches and seizures.

Civil libertarians of the Paul variety are particularly troubled by a short concurring opinion Kavanaugh wrote in a case called Klayman v. Obama, a challenge to the National Security Agency’s metadata collection program. A federal court in Washington concluded that the program was unconstitutional in 2015. The U.S. Court of Appeals for the D.C. Circuit, the court on which Kavanaugh serves, stayed that decision, allowing data collection to continue.

Kavanaugh’s brief opinion argued that metadata capture was consistent with existing Supreme Court precedent. He cited the 1979 Smith v. Maryland decision, a landmark ruling that allows government to access records held by a third-party — like telephone companies — without a warrant.

He went on to explain that government can lawfully conduct a search without individualized suspicion in light of “special needs,” like protecting the country from terrorist attack. (RELATED: Mitch McConnell Is Ready To Play Hardball To Get Kavanaugh Confirmed)

“The government’s program for bulk collection of telephony metadata serves a critically important special need — preventing terrorist attacks on the United States,” he wrote. “In my view, that critical national security need outweighs the impact on privacy occasioned by this program.”

Paul himself joined a class action lawsuit against metadata collection in February 2014 in conjunction with FreedomWorks, a political group aligned with the tea party.

“There’s a huge and growing swell of protest in this country of people who are outraged that their records are being taken without suspicion, without a judge’s warrant and without individualization,” the senator said at the time.

Still, the senator will meet with Kavanaugh on Tuesday and is willing to extend the judge some latitude, given President Donald Trump’s record on judicial selection.

The defection of even a single Republican senator could prove devastating to Kavanaugh’s confirmation prospects. If GOP Sen. John McCain of Arizona is unable to reach Washington for the confirmation vote, the Republican Senate majority will fall to a tenuous 50-49 margin. Paul’s “no” vote would relieve significant pressure on red state Democrats to support Kavanaugh, potentially resulting in a 49-49 tie.

Speaking at the White House Monday, press secretary Sarah Huckabee Sanders said the administration is optimistic that Paul will ultimately vote in Kavanaugh’s favor.

“We’re certainly hopeful that Senator Paul will do the right thing and vote to confirm this highly-qualified nominee,” Sanders said.

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