This week Rand Paul, the libertarian-leaning Republican senator from Kentucky, said he was "worried" and "disappointed" by Supreme Court nominee Brett Kavanaugh's views on the Fourth Amendment. It is not hard to see why.
Kavanaugh, who has served on the U.S. Court of Appeals for the D.C. Circuit since 2006, is skeptical of politicians who want to restrict gun rights, regulators who limit freedom of speech or assert powers with a weak statutory basis, and prosecutors who try to convict defendants without proving all the elements of their alleged crimes. But he seems less inclined to scrutinize the claims of cops and spies who collect evidence without a warrant.
To some extent, Kavanaugh is simply following his understanding of the Supreme Court's search and seizure precedents. But he has been known to venture beyond those cases in ways that alarm civil libertarians.
In 2015, for instance, Kavanaugh called the National Security Agency's mass collection of Americans' telephone records "entirely consistent with the Fourth Amendment." According to the logic of a 1979 decision in which the Supreme Court approved warrantless police access to the phone numbers dialed by a robbery suspect, he said, the NSA's snooping did not amount to a search. Even if it did, he added, it "readily qualifies as reasonable" because it "serves a critically important special need?preventing terrorist attacks on the United States."
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Kavanaugh also perceived a "special need" in a 2012 case involving the U.S. Forest Service's random drug testing of people employed at its Job Corps Civilian Conservation Centers. While two members of a three-judge D.C. Circuit panel deemed that requirement unreasonable because the government had presented no evidence of "a serious drug problem among staff," Kavanaugh said the policy was justified as a way of shielding the at-risk youth served by the centers from drugs.
