Is Rand Paul a Threat to Brett Kavanaugh’s SCOTUS nomination?

All eyes have been on two pro-choice Republicans as potential roadblocks to the Brett Kavanaugh’s confirmation to the Supreme Court. But after the president announced the D.C. appellate judge as his nominee on Monday, a third, perhaps expected name cropped up: Kentucky senator Rand Paul.

The potential issue is Kavanaugh’s stance on surveillance. Paul’s fellow privacy-minded colleague on the House side, Justin Amash, strongly condemned the judge’s record on the issue Monday night and warned that Kavanaugh “is not another Gorsuch.”

Paul, though, struck a more muted tone. “I look forward to the upcoming hearings, reviewing the record, and meeting personally with Judge Kavanaugh, with an open mind,” he said in a tweet. On Tuesday, Paul, flanked with a staffer on Capitol Hill, held off on talking to the press about the matter. He stayed quiet Wednesday, too. His staff referred THE WEEKLY STANDARD to Paul’s tweet as well as coming Sunday show appearances.

Paul is one of the Senate’s most vocal critics on spying authorities. He threatened to filibuster legislation back in January that allows the government to conduct surveillance on foreign targets overseas. He railed against Section 215 of the USA Patriot Act, under which the NSA conducted bulk collection of Americans’ phone records (though not the content of the calls). This activity was made public in the Edward Snowden leaks.

Judging by a two-page concurring statement written by Kavanaugh in 2015, he and Paul are on opposite sides of the surveillance debate. Kavanaugh issued a strong defense of the NSA’s phone metadata collection program, arguing that it is “entirely consistent with the Fourth Amendment.”

“I imagine Senator Paul and other libertarian-leaning Senators will be troubled by Judge Kavanaugh’s rulings in privacy cases,” said Liza Goitein, co-director of the Brennan Center for Justice’s Liberty and National Security Program. “Unlike Chief Justice Roberts, he has no qualms about applying decades-old case law to the digital age, and he has endorsed the idea of a “counterterrorism exception” to the Fourth Amendment’s warrant requirement.”

In the 2015 statement, Kavanaugh said that the collection of phone records from a third party (like a telecommunications provider) does not constitute a search under the Fourth Amendment, and cited the 1979 decision Smith v. Maryland as precedent.

Amash strongly criticized that point of view in a series of condemnatory tweets Monday. He described the Smith case as one “whose facts bear almost no resemblance to the metadata program.” And he said Gorsuch “recently ripped” the decision in a Fourth Amendment case.

Kavanaugh went on to say that even if this bulk collection did constitute a search, the Fourth Amendment prohibits only “unreasonable” searches and the metadata program “readily qualifies as reasonable.”

Further, he said that the Fourth Amendment allows for searches “without individualized suspicion” when the government demonstrates a “special need” that “outweighs the intrusion on individual liberty.” In the case of the metadata program, that special need is “preventing terrorist attacks on the United States.” Kavanaugh, citing the 9/11 Commission Report, said, “In my view, that critical national security need outweighs the impact on privacy occasioned by this program.”

To contrast: Paul, in a May 2015 editorial related to the NSA’s telephony metadata collection, wrote, “The sacrifice of our personal liberty for security is and will forever be a false choice.”

Kavanaugh did note that the legislative and executive branches have the authority to scale back or check the program—but he concluded that the government’s collection of metadata under the program is in line with the Fourth Amendment.

Still, it does appear likely that Kavanaugh will earn the vote of at least one libertarian-leaning senator. Utah senator Mike Lee, who has joined Paul in efforts to pass reform surveillance legislation, struck a very positive note Monday and said he hoped to vote to confirm the judge in the fall.

Republicans, with a 51-49 majority, can afford to lose only so many votes. Paul has previously given in and voted for a nominee despite ideological opposition. He voted to confirm Mike Pompeo as secretary of state in April after discussing the matter with the president. The Kentucky senator vowed to block him a month earlier.

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