On “Fox and Friends,” Sen. Rand Paul, R-Ky., expressed his concern over Trump’s Supreme Court nominee, Brett Kavanaugh. What concerned the libertarian-leaning lawmaker from Kentucky is the judge’s record on the Fourth Amendment which protects Americans from unreasonable searches and seizures.
Paul is right to be skeptical, and his skepticism might be a deciding factor in Kavanaugh’s confirmation.
Republicans only have a slight majority, 51-49, in the Senate. If every Democrat votes against Kavanaugh’s confirmation, the GOP can only lose one vote. They might not even have that wiggle room, however, as Sen. John McCain, R-Ariz., may be unable to attend the vote given his ongoing treatment for brain cancer. This would mean that Paul’s vote could be the deciding factor, putting his concerns over the judge’s record on privacy front and center.
So, what exactly is Paul worried about?
In short, his concern is the government having greater access, without a warrant or probable cause, to the details of your life such as where you drive, who you call and for how long, and what’s under your jacket. Kavanaugh’s previous rulings as a judge have made clear that on each of these issues, he would prioritize claims to “security” over the rights guaranteed to Americans by the Fourth Amendment.
In 2015, for example, Kavanuagh emphasized this position writing, “In my view, the government’s metadata collection program is entirely consistent with the Fourth Amendment” in a separately issued concurrence on the legality of the National Security Agency’s warrantless collection of citizens’ telephone metadata.
In an era where technology opens up new possibilities of government surveillance such as thermal imaging, facial recognition, and the collection and storage of massive amounts of personal data, the vigilant defense of privacy is more important than ever and is an issue that is likely to end up before the Supreme Court.
Paul, a staunch defender of individual liberty, recognizes this. He has criticized the government’s collection of American phone records, the same collection that Kavanaugh has defended, filibustered legislation allowing for various forms of government surveillance, and has made clear his opposition to government overreach and intrusion into the private lives of citizens in the name of security.
Although the big-ticket debates over Kavanaugh’s confirmation have so far been focused on abortion and the Affordable Care Act, Paul’s skepticism may rightly push Fourth Amendment issues into the national conversation. Not only would this add much-needed scrutiny on Kavanaugh’s Fourth Amendment judicial record, but it would also, hopefully, convince Americans in general to take seriously how the government can eat away at the privacy that we often take for granted.
