A legitimate (and provable) reason to not support Kavanaugh for SCOTUS

Judge Brett Kavanaugh may or may not end up being the next judge on the U.S. Supreme Court.

The primary reason for most Kavanaugh opponents is based on the allegations from several women claiming to have been sexually assaulted by the judge during his late teens and early 20s. Kavanaugh supporters point out the timing is rather suspect (after all, why didn’t U.S. Senator Dianne Feinstein bring these allegations up back in July) and also raise concerns about the veracity of the statements. It’s doubtful anyone’s mind was really changed following the hearing involving Kavanaugh before the Senate Judiciary on Thursday. Friday’s confirmation vote in the committee is only going to heat up the rhetoric as the full Senate prepares for a vote.


I’ve stayed away from the Kavanaugh debate because it’s akin to taking a dip in a swimming pool filled with radioactive waste. One is most likely to end up poisoned by all the toxicity, although there is a minute chance someone ends up with superpowers. The risk doesn’t outweigh the potential reward.

The problem is there actually is a legitimate and provable reason to not support Kavanaugh’s appointment to the Supreme Court. It’s also one which should give everyone who claims to despise government intervention pause before voicing their support for the nominee.

Kavanaugh’s stance on warrantless spying is extremely troubling – although there may be some signs his opinion has changed.

His original viewpoint on warrantless wiretapping claimed it was consistent with the Fourth Amendment. Kavanaugh expressed this outlook in a concurrence in the 2015 Klayman vs. Obama decision before the DC Circuit (emphasis mine).

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. Examples include drug testing of students, roadblocks to detect drunk drivers, border checkpoints, and security screening at airports. The Government’s program for bulk collection of telephony metadata serves a critically important special need – preventing terrorist attacks on the United States. See THE 9/11 COMMISSION REPORT (2004).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.


This is obviously troublesome because you’re talking about secret courts which hardly give people the avenue to dispute why their data is being seized. It should also be pointed out we’re talking about a government which is considering a law forcing nonprofits to share information with police and regulators “regarding individuals, entities, organizations, and countries suspected of possible human trafficking or related money laundering activities.” This bill would allow the government to get information on people without a warrant or probable cause. Financial entities or nonprofits who go along with this awful law are exempt from any possible civil action from those who somehow find out their information is exposed.

How does this relate to Kavanaugh, if he ends up being confirmed to the Supreme Court? He’ll obviously be involved in ruling whether this bill is constitutional should it make it through the House and Senate and get a presidential signature.

There is a bit of a silver lining because Kavanaugh’s opinion on privacy appears to have changed. He told the Senate Judiciary Committee earlier this month things had changed since his 2015 concurrence. Kavanaugh specifically cited the Carpenter v. United States ruling where the Supreme Court ruled the government had to get a warrant if it wanted to track someone’s location using their cellphone.

The existing Supreme Court precedent was that your privacy interest was essentially zero. The opinion for SCOTUS by Chief Justice Roberts this past spring in the Carpenter case is a game changer. I’ve talked repeatedly in this hearing about how technology will be one of the huge issues with the Fourth Amendment going forward, and you see Chief Justice Roberts’ majority opinion in Carpenter, that alters, and really is a game changer, from the precedent on which I was writing at that time.


Reason’s Damon Root suggested the statement shows Kavanaugh may have changed his opinion on warrantless searches based on Carpenter. He may have a point, but I’m a little hesitant in accepting Kavanaugh’s almost grand conversion over the 4th Amendment.

The big problem for me is the fact Carpenter was an extremely narrow decision – something Justice Neil Gorsuch pointed out in his dissent where he appeared to say the majority didn’t go far enough. One has to wonder if Kavanaugh’s belief is similar to Roberts’ in issuing extremely narrow rulings which don’t really set a precedent for other cases or if he’ll take a stance similar to Gorsuch.

I’m a skeptical agnostic when it comes to Kavanaugh’s nomination. His 1st Amendment record isn’t as strong as it could be due to his concurrence in the 2014 American Meat Institute v. Department of Agriculture decision. There are still libertarianish legal scholars who champion Kavanaugh’s 1st Amendment record – mostly Popehat’s Ken White and Volokh Conspiracy’s Jonathan H. Adler. Those arguments make sense, and perhaps he deserves a pass on American Meat Institute v. Department of Agriculture.

It’s possible the best way to conclude Kavanaugh’s stance on 4th Amendment – absent any recent decisions on warrantless spying – would be a thorough, recorded interview involving someone like South Carolina Senator Lindsey Graham and Kentucky Senator Rand Paul or Oregon Senator Ron Wyden. That way Kavanaugh would face people on both sides of the issue, who would hopefully pepper him with questions regarding the issue to see if there’s any inconsistencies.


Beyond that, we’re supposed to trust Kavanaugh at his word. Words which are sorely lacking in action.

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