Will he or won’t he? At the moment, Rand Paul might hold the fate of Brett Kavanaugh in his hands — and Paul knows it. He’s keeping his cards close to the vest, although his public statements might be read either way, Politico’s Burgess Everett notes:
Paul is again inviting fellow senators to play the will-he-or-won’t-he guessing game when it comes to his decision — expressing grave concerns about Kavanaugh’s approach to personal privacy while insisting his vote could go either way, depending on what the judge says in the coming weeks and months.
“I am honestly undecided. 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,” Paul said in an interview last week. “Kavanaugh’s position is basically that national security trumps privacy. And he said it very strongly and explicitly. And that worries me.” …
Paul understands this is not a black-and-white call, and that political considerations will come into play. He has pointedly left himself some wiggle room to be convinced that the nominee understands where he’s coming from.
“Wouldn’t you rather have Kavanaugh than Ruth Bader Ginsburg? He’s probably good on economic liberty and overzealous regulation and things like that. So I don’t want to have it sort of in a vacuum,” Paul said. “I’ll have to weigh that versus other aspects that he may be a lot better than a Clinton appointee.”
The issue weighing on Paul’s mind is ostensibly Kavanaugh’s concurrence on Klayman et al v Obama. The suit challenged the metadata collection of telecom data by the government after the 2013 exposure of the program by Edward Snowden. Klayman won a preliminary injunction against the collection in federal district court, with presiding Judge Richard Leon writing of the suit’s likelihood of success:
I cannot imagine a more ‘indiscriminate’ and ‘arbitrary’ invasion than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval … Surely, such a program infringes on ‘that degree of privacy’ that the founders enshrined in the Fourth Amendment.
That injunction got challenged (Leon had stayed it immediately in his order anyway), and on appeal the DC Circuit found that the plaintiffs had not established standing to sue — ie, they could not prove that they personally had been harmed by the collection. In order to establish standing, the ruling stated, the plaintiffs would have had to show that the government specifically caught them up in the process of connecting dots back from contacts with a suspected foreign terrorist.
Kavanaugh was not part of the panel that lifted the injunction on a 2-1 vote, but instead helped rule on a request for an en banc review. In doing so, Kavanaugh tipped his hand on the underlying case, or so Paul seems to feel. However, Kavanaugh notes the appellate courts’ requirement to obey “absolute vertical stare decisis,” and explains that Smith precluded the idea that reviewing third-party records constituted a search in the sense Klayman argued:
I do so because, in my view, the Government’s metadata collection program is entirely consistent with the Fourth Amendment. Therefore, plaintiffs cannot show a likelihood of success on the merits of their claim, and this Court was right to stay the District Court’s injunction against the Government’s program.
The Government’s collection of telephony metadata from a third party such as a telecommunications service provider is not considered a search under the Fourth Amendment, at least under the Supreme Court’s decision in Smith v. Maryland, 442 U.S. 735 (1979). That precedent remains binding on lower courts in our hierarchical system of absolute vertical stare decisis.
Even if the bulk collection of telephony metadata constitutes a search, cf. United States v. Jones, 132 S. Ct. 945, 954-57 (2012) (Sotomayor, J., concurring), the Fourth Amendment does not bar all searches and seizures. It bars only unreasonable searches and seizures. And the Government’s metadata collection program readily qualifies as reasonable under the Supreme Court’s case law. The Fourth Amendment allows governmental searches and seizures without individualized suspicion when the Government demonstrates a sufficient “special need” – that is, a need beyond the normal need for law enforcement – that outweighs the intrusion on individual liberty.
This point becomes important thanks to a surprising decision at the end of this Supreme Court term. In Carpenter, the Supreme Court amended its Smith precedent with telecom locator data. Paul tells Politico that Kavanaugh might cancel out Neil Gorsuch on privacy matters because of his Klayman concurrence, but Gorsuch proposed eliminating Smith and its Katz precedent altogether and allowing the government to apply for access — or be denied — in another way:
There is another way. From the founding until the 1960s, the right to assert a Fourth Amendment claim didn’t depend on your ability to appeal to a judge’s personal sensibilities about the “reasonableness” of your expectations or privacy. It was tied to the law. Jardines, 569 U. S., at 11; United States v. Jones, 565 U. S. 400, 405 (2012). The Fourth Amendment protects “the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.” True to those words and their original understanding, the traditional approach asked if a house, paper or effect was yours under law. No more was needed to trigger the Fourth Amendment. …
Our case offers a cautionary example. It seems to me entirely possible a person’s cell-site data could qualify as his papers or effects under existing law.
Or not, too. The records involved belonged to the phone company, not the customers, a point stressed in Smith as well. If Congress passed a law making those records the property of the customers, then it would require individual search warrants for each search. That would, however, require Congress to pass such a restriction.
Back to Kavanaugh, who seems to be getting a bum rap for following “absolute vertical stare decisis” by Paul while being accused of wanting to end it by Democrats. Would Kavanaugh seek to intrude on the 4th Amendment by reversing precedents in a manner that Paul, and presumably Gorsuch, opposes? The same concurrence makes it clear that Kavanaugh wants that addressed by Congress, not the courts:
In my view, that critical national security need outweighs the impact on privacy occasioned by this program. The Government’s program does not capture the content of communications, but rather the time and duration of calls, and the numbers called. In short, the Government’s program fits comfortably within the Supreme Court precedents applying the special needs doctrine.
To be sure, sincere and passionate concerns have been raised about the Government’s program. Those policy arguments may be addressed by Congress and the Executive. Those institutions possess authority to scale back or put more checks on this program, as they have done to some extent by enacting the USA Freedom Act.
One would think that a libertarian might be cheered by the fact that a jurist proposes to leave legislation in the hands of the legislature. As it happens, Klayman got largely mooted by Congress in that bill. By November 2017 even Judge Leon agreed, throwing out the lawsuit on the basis that the program as described in the suit no longer exists, and that the defendants never showed sufficient standing to sue.
All of this is well known, or should be, to Senator Paul. Perhaps his colleagues will gently remind him of this, or perhaps it will be left to Kavanaugh himself to explain that he was bound by Supreme Court precedent and the laws in place passed by Congress in Klayman. But we can expect Paul to keep his leverage for as long as possible, as he did with Gina Haspel, hoping to win a concession or two along the way.
Addendum: Carrie Severino addresses a similarly suspect concern about Kavanaugh and executive privilege in US v Nixon.