Kavanaugh May Face Stealth Hurdle in Confirmation: Rand Paul

(Bloomberg) -- Supreme Court nominee Brett Kavanaugh’s road to confirmation may have a little-noticed obstacle: Senator Rand Paul’s firm views on privacy.

While abortion has gotten most of the attention in the partisan fight over the nomination, the Kentucky Republican strongly disagrees with Kavanaugh on the meaning of the Constitution’s Fourth Amendment, and he’s shown little reluctance to defy Senate GOP leaders or the White House to make a point on civil liberties and other privacy issues.

In a Senate controlled by the GOP 50-49 with Republican Senator John McCain absent while fighting brain cancer, Paul’s vote can’t be taken for granted.

Paul, who ran for president with a libertarian-minded platform, so far hasn’t tipped his hand, tweeting he’s keeping an "open mind."

"I’m not going to make any comment until we’ve had a chance to look through and really go through a discovery process, meet the nominee," Paul said in an interview when asked about Kavanaugh shortly before President Donald Trump announced his choice Monday night.

But Paul did say he would dig into privacy issues.

Gorsuch’s Dissent

He praised Trump’s first high court nominee, Neil Gorsuch, and lauded the justice’s dissenting opinion in a June 22 ruling that police generally need a warrant to get someone’s mobile-phone tower records. Gorsuch said the defendant should have pursued the appeal as a matter of property rights.

“He’s exactly where I am and I’m just hoping we can find somebody else who’s in that same position, that you don’t give up your privacy by having a cell phone, or having a bank account,” Paul said. “Doesn’t mean the government gets to look at all that stuff without a warrant. We’re going to definitely look at all of that."

Some of Paul’s allies are targeting Kavanaugh because of his past rulings backing the massive buildup in intelligence-gathering on Americans after the Sept. 11 attacks.

Paul himself filed a federal class-action lawsuit in 2014 claiming that the government’s collection of phone records on hundreds of millions of Americans violated the Fourth Amendment’s protection against unreasonable searches and seizures and requiring warrants based on probable cause. A year later, Kavanaugh wrote an opinion with the opposite view in a separate case challenging the program.

‘Entirely Consistent’

"The government’s metadata collection program is entirely consistent with the Fourth Amendment," Kavanaugh wrote. He said he was bound by a 1979 Supreme Court precedent, Smith v. Maryland, on phone records, which Paul’s lawsuit argued should not apply.

Kavanaugh said the collection program didn’t amount to a search under the Fourth Amendment, and that even if it was a search, the impact on privacy was justified to prevent terrorist attacks.

Paul has passionately opposed such sweeping, warrantless data collection programs, filibustering their extensions on the Senate floor and championing the issue during his presidential campaign -- even selling an "NSA spy cam blocker" sticker on his website to cover up the cameras on laptops.

One of the first members of Congress to endorse Paul’s presidential bid, Representative Justin Amash of Michigan, ripped Kavanaugh this week in a series of tweets citing Kavanaugh’s metadata opinion.

"We can’t afford a rubber stamp for the executive branch," wrote Amash, who shares Paul’s libertarian leanings.

Congress has curtailed the practices at issue, ultimately rendering the legal cases moot.

Government Shutdown

If Paul were to oppose Kavanaugh based on objections to his stance on Fourth Amendment issues, it would dramatically narrow the judge’s path to confirmation. Trump would either need to find at least one Democratic vote for his pick, or coax the ailing McCain to travel to Washington and vote, or resign and be replaced by a Republican who would vote for Kavanaugh.

On a separate issue, Republicans are hoping to win the backing of two Republican supporters of abortion rights, Senators Susan Collins and Lisa Murkowski, who want to preserve the landmark Roe v. Wade abortion ruling Trump has said should be overturned.

The independent-minded Paul briefly forced a government shutdown last year because of concerns about spending, and previously forced a lapse in surveillance authorities. Earlier this year he led an unsuccessful effort to block Gina Haspel’s nomination to lead the CIA over concerns about torture. But actually blocking a Trump Supreme Court justice would be an altogether new level of rebellion for Paul, and he would surely face enormous pressure to relent.

Still, he could argue that if Kavanaugh were defeated there’s plenty of time to nominate and confirm a justice more to his liking, especially given what is at stake with a lifetime appointment of a 53-year-old who could serve for decades.

Another senator who has focused on the Fourth Amendment is Senator Mike Lee of Utah, a Judiciary Committee member who was passed over by Trump for the nomination. Conn Carroll, a spokesman for Lee, said the senator hasn’t yet read Kavanaugh’s writings on the subject but will do so before a Judiciary Committee hearing.

‘Big Brother Playbook’

Democratic Senator Ron Wyden of Oregon, who teamed up with Paul, Lee and others to curtail the government’s warrantless data collection, also criticized Kavanaugh.

"His words are basically out of the Big Brother playbook," Wyden said, adding that Kavanaugh appears to be out of step with where the Supreme Court is going given the ruling in June on cell phone location data.

"Individual liberty is not just kind of a sideshow," Wyden said. "I don’t think Kavanaugh understands it. We’re going to make sure people are aware of it."

Wyden said he plans to dig further to find out what Kavanaugh did when he was a lawyer and later staff secretary in the George W. Bush White House, when government surveillance efforts were ramped up in an effort to prevent another terrorist attack. Democrats are making a broad demand for documents on Kavanaugh’s career as they prepare for a confirmation hearing.

"I will be trying to dig into what his role was as secretary," Wyden said. "He handles the paper traffic, and the like, and as you know, there were some interesting things about the ways they made decisions on these issues."

To contact the reporter on this story: Steven T. Dennis in Washington at sdennis17@bloomberg.net

To contact the editors responsible for this story: Joe Sobczyk at jsobczyk@bloomberg.net, Laurie Asséo

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