The strongest criticism of Judge Kavanaugh centers around his ruling in the case Klayman v. Obama, which dealt with NSA warrantless bulk data collection under the Obama administration. Here is the text of that decision. On the surface, the opening statement is strong evidence of his possible weakness regarding one of our most important protections provided in the Bill of Rights.
I vote to deny plaintiffs’ emergency petition for rehearing en banc. I do so because, in my view, the Government’s metadata collection program is entirely consistent with the Fourth Amendment.
In order to make an informed decision we must dig deeper into the decision and examine the basis for this ruling. Here is how Judge Kavanaugh justifies this ruling:
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.
As you can see from this quote, Judge Kavanaugh is basing this decision on precedent from a Supreme Court decision. As a member of a lower court he claims he is bound by vertical stare decisis. Here is the definition of this concept from Cornell Law School Legal Information Institute
Stare decisis is Latin for “to stand by things decided.” In short, it is the doctrine of precedent. Courts cite to stare decisis when an issue has been previously brought to the court and a ruling already issued… A court engages in vertical stare decisis when it applies precedent from a higher court.
This concept dates back to English Common Law and even back to Ancient Rome. Because of this concept it is difficult to reach an informed conclusion on how he will rule once he is on the Supreme where they can set new precedent on any case.
In the Klayman v. Obama, Judge Kavanaugh goes on to say:
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
This statement bothers me a great deal. The framers of the Constitution believed that freedom and preservation of our rights were more important than safety. It was a common theme. Judge Kavanaugh goes on to say:
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.
From the text of the 4th Amendment you can see that there are no exceptions for national security.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
From this chapter of Framers Intent by Thomas K Clancy, you can see that the notion of national security and safety exceptions to the 4th Amendment are very new. The original intent of John Adams, who wrote the article of the Massachusetts Bill of Rights which became the model for the 4th Amendment. was to make the protections as broad as possible. Could Judge Kavanaugh have based a negative ruling in this case on different precedent and still uphold stare decisis. Yes, he could have, because there is so much conflicting precedent on the 4th Amendment and any constitutional concept. That is one of the main reasons why precedent is such a flawed concept, which actually violates the Supremacy Clause of the Constitution. Relying on the actual text and plain meaning as understood during the drafting and ratification of the Constitution are far superior.
I believe that Judge Kavanaugh is weak on the 4th Amendment. Based on his rulings on every other issue I’ve read so far, he is strong on all other issue. Even with his weakness on the 4th Amendment, I still believe he is worth supporting for the Supreme Court. Rand Paul also agrees. Here is what he tweeted on the day I was writing this article:
My conversation with Judge Kavanaugh reinforces my belief that he will evaluate cases before the Supreme Court from a textual and originalist point of view. I believe he will carefully adhere to the Constitution and will take his job to protect individual liberty seriously.
— Senator Rand Paul (@RandPaul) July 30, 2018
In reviewing his record on other privacy cases like Jones, and through my conversation with him, I have hope that in light of the new precedent in Carpenter v. United States, Judge Kavanaugh will be more open to a Fourth Amendment that protects digital records and property.
— Senator Rand Paul (@RandPaul) July 30, 2018