White House press secretary Sarah Sanders said Monday that Sen. Rand Paul should “do the right thing” and vote to confirm Brett Kavanaugh to the Supreme Court, despite his concern about privacy rights.
The Kentucky Republican said in an interview published Monday that he’s undecided about Kavanaugh, citing the federal appeals judge’s views on the Fourth Amendment.
“We’re certainly hoping that Sen. Paul will do the right thing and vote for this very highly qualified nominee,” Sanders said at the daily White House press briefing.
[Opinion: If you are concerned about government surveillance, you should be skeptical of Brett Kavanaugh]
As a senator, few policy matters have been more important to Paul than opposition to domestic mass surveillance. Kavanaugh, a judge on the U.S. Court of Appeals for the D.C. Circuit, went out of his way to defend bulk record collection.
“I am honestly undecided,” Paul told Politico. “I am very concerned about his position on privacy and the Fourth Amendment. This is not a small deal for me. This is a big deal. Kavanaugh’s position is basically that national security trumps privacy. And he said it very strongly and explicitly. And that worries me.”
Paul previously said little about Kavanaugh, who was nominated on July 9. Because the Senate is so closely divided, just one Republican defection could jeopardize Kavanaugh’s chances at confirmation.
Privacy advocates are alarmed by a two-page concurrent opinion that Kavanaugh wrote in 2015, saying the opinion is remarkable both for its legal analysis and the fact he didn’t need to write it — attaching the concurrence to an otherwise perfunctory order rejecting an appeal.
Other appeals court judges offered no reason for denying the appeal, but Kavanaugh voluntarily wrote that he believed the dragnet collection of domestic call records, which Congress had ended as a matter of policy months earlier, was constitutional.
Kavanaugh wrote the collection wasn’t a “search” under the Fourth Amendment, citing the third-party doctrine of the Supreme Court’s 1979 decision in Smith v. Maryland. But he added if it was a “search,” authorities still could take the records without a warrant because there was a “special need” in preventing terrorism, overriding privacy interests.
Even before he was nominated, the opinion roiled conservatives who view the domestic call-record dragnet as both bad policy and unconstitutional.
“His Fourth Amendment perspective is troubling,” Ken Cuccinelli, president of the Senate Conservatives Fund, told the Washington Examiner as Kavanaugh’s name circulated as a finalist for the nomination.
Cuccinelli, a former Virginia attorney general, represented Paul in a lawsuit alleging the collection was illegal. The lawsuit became legally associated with a pending case filed by conservative legal activist Larry Klayman, who won an lower-court ruling before appeals judges found the lawsuit mooted by the USA Freedom Act. Klayman’s case was the one addressed by Kavanaugh.
“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 warned before he was nominated.
So far, Republicans concerned about government surveillance have been largely quiet on Kavanaugh, with the notably exception of Rep. Justin Amash, R-Mich., who called the pick “disappointing.”
“Future decisions on the constitutionality of government surveillance of Americans will be huge,” Amash said in a tweet. “We can’t afford a rubber stamp for the executive branch.”
Paul has a relatively close relationship with Trump, and voted for Secretary of State Mike Pompeo’s nomination this year after initially vowing opposition, citing his views on the Iraq War. Few issues animate Paul more, however, than mass surveillance.
In 2015, Paul flouted a chorus of national defense officials and single-handedly forced provisions of the USA Patriot Act to lapse in protest of the call-record dragnet that Kavanaugh defended.
It’s unclear if other Republican senators will openly express doubts about Kavanaugh.
Sen. Mike Lee, R-Utah, a libertarian-leaning Republican who helped author the USA Freedom Act that ended the call-record program, so far has been restrained, despite his strongly held views on the Fourth Amendment.
“Sen. Lee has been a consistent advocate for Fourth Amendment rights. He looks forward to closely analyzing Judge Kavanaugh’s record on the issue during the upcoming confirmation process,” Lee spokeswoman Jillian Wheeler told the Washington Examiner earlier this month. “Sen. Lee is still analyzing Kavanaugh’s records, including on the Fourth Amendment.”
A spokesman for Paul did not immediately respond to a request for comment on Sanders’ remark.
