Democrats have come up with a long list of reasons to oppose Brett Kavanaugh’s confirmation to the U.S. Supreme Court.
Critics of President Donald Trump’s nomination are skeptical of Kavanaugh’s views on abortion rights, executive power, environmental protection, health insurance mandates, voting rights, employment discrimination and more.
Detractors also are uneasy about Trump’s process for selecting judges, and angry over the decision to move forward with the confirmation process so close to an election, seemingly in contrast to Republicans’ decision not to take up former President Barack Obama’s last Supreme Court nomination in an election year.
They’re even questioning Kavanaugh’s personal finances, following reports he went deep into debt in order to buy baseball tickets (he’s a fan of the miserable Washington Nationals at that). The haters are throwing everything they can find at Kavanaugh. Almost.
However, largely missing from the Democrats’ list of complaints is Kavanaugh’s underwhelming record on Fourth Amendment issues. Few politicians on the left or the right have mentioned it at all. It’s another reminder that Democrats and Republicans alike are united in their support of our own government’s power to search and surveil American citizens.
Kavanaugh has served on the U.S. Court of Appeals in the D.C. Circuit since 2006, appointed by former President George W. Bush. His record as a judge is largely consistent with conservative and libertarian legal thought, with a couple concerning exceptions.
Americans learned about the enormous scope of the federal government’s domestic spying activities in 2013 from documents leaked by former federal contractor Edward Snowden. A legal challenge to the National Security Administration’s surveillance program, Klayman V. Obama, eventually reached the D.C. Circuit Court of Appeals.
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Kavanaugh wrote bluntly, “[T]he government’s metadata collection program is entirely consistent with the Fourth Amendment.” He argued collection of telephone metadata is not considered a ”search” under the Bill of Rights.
Kavanaugh argued in favor of warrantless searches in at least one other notable case. In United States V. Askew, a Washington, D.C. resident was charged with possessing a firearm as a felon after police frisked him and unzipped his jacket as part of an investigation into a robbery the man did not commit.
The majority of the court ruled police had violated the man’s rights when they unzipped his jacket, but Kavanaugh and three other judges dissented, arguing “unzipping Askew’s outer jacket to search for a weapon around his waist area was an objectively reasonable protective step to ensure officer safety.”
Kavanaugh, who is otherwise good on gun rights issues, put forth a legal rationale that would give the police vast authority to search Americans’ personal space when officers suspect, rightly or wrongly, that a subject is carrying a weapon.
These and several other civil liberties cases have drawn attention from some ardent Fourth Amendment advocates, but have not played a major role in discussion over Kavanaugh’s nomination to the Supreme Court.
U.S. Sen. Rand Paul — one of the few federal politicians who pays any mind whatsoever to the Fourth Amendment — initially raised concern over Kavanaugh’s record on privacy issues. Yet after meeting with Kavanaugh last week, Paul said he will support his confirmation, encouraged by a Supreme Court ruling this year against certain federal data-gathering powers.
“I have expressed my concern over Judge Kavanaugh’s record on warrantless bulk collection of data and how that might apply to very important privacy cases before the Supreme Court. … 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,” Paul wrote in a series of Twitter posts last week.
In addition to Paul, most of the other 50 Republicans in the U.S. Senate also have at least hinted they will support Kavanaugh’s confirmation, including Iowa Sens. Joni Ernst and Chuck Grassley.
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Grassley, chairman of the Senate Judiciary Committee, said shortly after Trump announced the nomination that Kavanaugh “has a very distinguished record of public service.”
“From my conversation with Judge Kavanaugh — and from his tremendous experience on the bench — I believe he is committed to the rule of law and the United States Constitution,” Ernst said in a statement released after her meeting with Kavanaugh last week. She made no mention of any particular legal issues, including Fourth Amendment issues.
Even with his Fourth Amendment blind spot, Kavanaugh still may be a wise choice to serve on the nation’s highest court. But at the very least, Americans deserve a thoughtful discussion of his whole record, not just on the political wedge issues Democrats have zeroed in on.
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