Court pick’s record worries Paul

Senator points to Kavanaugh’s opinion on data collection

WASHINGTON — Republican Sen. Rand Paul said Sunday that he’s “worried” about Supreme Court nominee Brett Kavanaugh’s record on constitutional privacy rights, signaling that he’s far from certain to vote for President Donald Trump’s pick in the closely divided Senate.

“I’m concerned about Kavanaugh,” the Kentucky Republican said on Fox and Friends on Sunday.

Paul said he’s worried and disappointed that Kavanaugh appears to support government surveillance programs that curtail privacy rights in the name of national security. He cited an opinion by the D.C. Circuit Court of Appeals judge in 2015 that “the Government’s metadata collection program is entirely consistent with the Fourth Amendment,” which deals with unreasonable searches and seizures.

In the 2015 opinion Klayman v. Obama, Kavanaugh sided with the government in a case challenging its mass collection of phone records. 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. The U.S. Court of Appeals for the District of Columbia Circuit vacated a lower court’s move to halt the surveillance program, and the lawsuit was eventually dismissed for lack of standing.

Kavanaugh said at the time that he was bound by a 1979 Supreme Court precedent, Smith v. Maryland, on phone records.

“I disagree completely,” Paul said Sunday about Kavanaugh’s defense of the surveillance program. “I think if we give up our liberty for security, we may end up with what [Benjamin] Franklin said, and that’s neither — neither liberty nor security.”

“I don’t think anybody in America believes that when you use a cell phone company, or when you use visa, or when you use a bank, that somehow you’ve given up your privacy,” Paul said. He called that view “horribly wrong.”

Paul has opposed sweeping data-collection programs without warrants, 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.

Paul said he’s willing to meet with Kavanaugh and bring an “open mind” to the confirmation process. His vote could be pivotal in a chamber that Republicans control by a 51-49 margin, with Arizona’s John McCain absent as he fights brain cancer. There are centrists in both parties who’ve said they’re undecided about how they’ll vote on the nominee to replace retiring Justice Anthony Kennedy.

First elected to the Senate in 2010, Paul ran for president in 2016 on a libertarian-minded platform and has raised hackles as an opponent of government data-collection programs without warrants. He challenged the government’s widespread collection of Americans’ phone records in 2014 and has mounted filibusters on the Senate floor against the extension of U.S. surveillance authority.

Rep. Justin Amash, R-Mich., who supported Paul’s 2016 presidential bid, criticized Kavanaugh last week in a series of tweets citing the metadata opinion.

“We can’t afford a rubber stamp for the executive branch,” Amash wrote.

Paul said he believes Justice Neil Gorsuch, Trump’s first appointment to the Supreme Court, is a strong voice in support of the Fourth Amendment, and that Kavanaugh could cancel out Gorsuch’s vote. However, both Kavanaugh and Gorsuch subscribe to an originalist interpretation of the Constitution associated with the late Justice Antonin Scalia and Justice Clarence Thomas, and legal experts have questioned whether the two would differ on many issues.

Paul noted that Gorsuch dissented 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.” Information for this article was contributed by Sahil Kapur, Jennifer A. Dlouhy and Steven T. Dennis of Bloomberg News; and by Robert Barnes and Ann E. Marimow of The Washington Post.