Speculation about who would replace Justice Anthony Kennedy on the Supreme Court came to a close on Monday night, when President Donald Trump announced his nomination of Judge Brett Kavanaugh.
It is no surprise that those who value liberty would have an issue with a potential justice chosen by Trump, a man not exactly known for espousing libertarian values. Besides the rumor of Andrew Napolitano being considered that made its way around the internet when Kennedy first announced his retirement, the best a libertarian could realistically hope for was a justice who billed himself as a constitutional conservative: one who would resist government overreach not just from policies generally favored by those on the left, but also from those on the right. But sadly, Brett Kavanaugh is not this person.
Knowing little else about him at the time, I was excited when I heard that Kavanaugh’s dissenting opinion in Federal Trade Commission v. Whole Foods Market, Inc. (in which he wrote that the FTC’s attempt to block a Whole Foods/Wild Oats merger was a clear case of government overreach) was featured on Mises.org. I was likewise encouraged to hear that Kavanaugh had played a part in the pivotal gun rights case District of Columbia v. Heller, during which he argued, in a dissenting circuit court opinion, that ownership of semi-automatic weapons is protected by the Second Amendment.
While these are certainly areas in which most libertarians would find agreement, an anti-gun control stance and skepticism of government’s meddling in business mergers are to be expected in a nominee put forth by a Republican President, especially when the current Republican majority in the Senate is taken into account. Holding the general party line on these issues is not necessarily indicative of someone who will be a voice for liberty, and Kavanaugh proves this with his stance on civil liberties.
When Kavanaugh was on the DC Circuit Court in 2015, the Court declined to hear the case of Klayman v. Obama. Klayman centered on the NSA bulk data collection programs made public by whistleblower Edward Snowden; it was argued by the plaintiffs that such programs are unconstitutional.
In declining to hear the case, Kavanaugh wrote: “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… The Government’s program for the 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 application of the special needs doctrine (problematic in itself, in that it serves as the constitutional rationale for various civil liberties abuses) to government spying effectively serves as a rubber stamp for Orwellianism, in that it allows blatant Fourth Amendment violations in the name of security against a nameless enemy. Such rhetoric must be vigorously opposed by lovers of liberty, as rights lost, even “temporarily” in the name of security, are extremely difficult to regain.
Given that Supreme Court justices are appointed for life, we must be especially careful about who is selected to become one. A single justice can be the difference between a much-needed check on government power and a license for the state to run rampant. Because of this, I urge Senator Rand Paul, as well as other senators who claim to be champions of the Fourth Amendment, to strongly oppose Kavanaugh’s confirmation. We can do better than a judge who seemingly has no interest in protecting one of our most vital rights.
Author: John Hudak