On Kavanaugh Nomination, Rand Paul Plays Familiar Role

The Kentucky Republican is again leveraging his vote to draw attention to a key issue. But will he go along with his party in the end?

Sen. Rand Paul
AP Photo/Pablo Martinez Monsivais
July 16, 2018, 8 p.m.

A Republican senator takes on the president, leveraging his power as a deciding vote on the top issue before Congress, in order to make everyone aware of his issue.

It has to be, of course, Rand Paul.

In the week since President Trump nominated Judge Brett Kavanaugh to replace Justice Anthony Kennedy on the Supreme Court, Paul has become the most critical voice on the Right.

Rather than Sens. Lisa Murkowski or Susan Collins, two Republicans who favor abortion rights that may be undermined by Kavanaugh, it is Paul who has so far expressed the most negative view of the nominee, recently unveiling a new attack on the judge’s support of the government’s once-secret program that had indiscriminately swept up domestic calling records before a public uproar led Congress to overhaul it.

In a recent interview on Fox News, the Kentuckian said he was “undecided” on Kavanaugh, saying he was “worried” and “perhaps disappointed” that the judge will “cancel out” Trump’s first Supreme Court nomination, Justice Neil Gorsuch, on Fourth Amendment cases concerning unreasonable searches and seizures.

“I’m concerned about Kavanaugh,” he said.

Paul pointed to one 2015 case in particular—Klayman v. Obama—in which Kavanaugh found that the National Security Agency’s metadata-collection program “readily qualifies as reasonable under the Supreme Court’s case law.”

On Sunday, Paul said he “completely” disagreed with Kavanaugh’s view, which was shared by many Republican senators at the time.

In the post-9/11 hunt to pursue terrorism suspects, the NSA collected vast amounts of communications metadata from Americans’ phone calls. The records showed who called whom, and the time and duration of calls, but not their content. Then in 2013, former government contractor Edward Snowden leaked top-secret documents, revealing the existence of a much more expansive U.S. surveillance state than what was publicly known.

Not long after he announced his presidential campaign in 2015, Paul led a brief, lonely filibuster to block a vote extending the government’s surveillance authorities, leading Sen. John McCain to call his colleague “the worst candidate we could put forward not just on the Patriot Act, but on his views on national security.”

After Paul’s effort ended, Congress passed legislation, the USA Freedom Act, to reauthorize parts of the Patriot Act but dissolve the mass collection of Americans’ telephone records and internet metadata in order to create a new system more narrowly targeted to obtain the records of those with ties to terrorism.

There have been significant problems with the new system created in 2015. The NSA recently deleted “hundreds of millions” of phone and text log records provided by American telecommunications companies that the agency did not have the authority to collect, according to The New York Times.

In 2015, Kavanaugh wrote in the Klayman case that “the government’s program for bulk collection of telephony metadata serves a critically important special need—preventing terrorist attacks on the United States.

“In my view, that critical national security need outweighs the impact on privacy occasioned by this program,” he added.

Paul and other libertarian-minded lawmakers and experts strongly oppose Kavanaugh’s ruling.

“Like entirely too many federal judges—whether appointed by Dems or Republicans—Kavanaugh shows a deference to executive authority on key national security issues that has no basis in the Constitution,” Patrick Eddington, a policy analyst in homeland security and civil liberties at the Cato Institute, wrote in an email.

With the Republicans holding the Senate by a slim 51-49 margin, and McCain at home battling brain cancer, Trump has to either hold every Republican or win some Democrats to confirm Kavanaugh.

Outside of Paul, there are few other Republican senators who will make Fourth Amendment concerns much of an issue for Kavanaugh’s confirmation. A spokesman for Sen. Mike Lee, an author of the USA Freedom Act, said that he is “studying Kavanaugh’s record and has not made any conclusions yet.”

But Paul has had a long history of zigzag crusades. He was one of the few senators to criticize the Republican efforts to repeal and replace the Affordable Care Act from the right, but he ultimately voted for a repeal bill that would have taken out chunks of the law, as well as increase premiums and the number of uninsured Americans by millions. Last year, he voted against a GOP budget that paved the way for the tax-overhaul bill over concerns it raised the deficit by billions, only to then support the $1.5 trillion tax cut. This year, he led a brief government shutdown over the bipartisan budget that raised spending by $300 billion over the next two years, drawing yet again the ire of the GOP leadership.

A day after critiquing Trump’s Supreme Court pick, Paul on Monday tweeted praise for the president’s outreach to Russia, just as other Republicans criticized Trump for questioning Russian interference in the 2016 election during a press conference with Vladimir Putin.

Paul tweeted, “from @realDonaldTrump and I couldn’t agree more: ‘...open new pathways to peace and stability in our world. I would rather take a political risk in pursuit of peace, then to risk peace in pursuit of politics.’”

And Paul has already hinted that he may fall in line behind this Supreme Court pick.

“I try to weigh this in the perspective of this could be a Clinton nominee versus a Trump nominee,” he said Sunday on Fox. “I am somewhat persuaded to have an open mind because this is President Trump, who did such a great job with Justice Gorsuch.”

His colleagues suspect he will vote for Kavanaugh too.

“I expect every Republican to vote for him,” said Republican Sen. Orrin Hatch on Fox Sunday.

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