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Libertarians Should Oppose Brett Kavanaugh

Is he another principled originalist constitutional conservative in the likes of Judge Neil Gorsuch who will protect our 4th amendment rights, or will he sacrifice our constitutional liberties from time-to-time?

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By Kenneth Casey | United States

At 9 P.M. EST on Monday, President Trump made the decision the whole country was anticipating ever since Justice Kennedy retired on June 27th. That was announcing his nominee to replace him.

The list was narrowed down to 4 at the start of the day. Trump ended up choosing Brett Kavanaugh, who currently serves as a Circuit Judge of the United States Court of Appeals for the District of Columbia Circuit.

When President Trump nominated Judge Neil Gorsuch to the Supreme Court to replace the late Antonin Scalia, almost every noteworthy faction of the American Right praised the pick. From libertarians to neocons, to establishment Republicans to tea partiers and social conservatives, the nomination of Gorsuch brought them all together because they all had a favorable opinion of the nomination. The same story does not apply to Kavanaugh’s nomination, as it drew many mixed reactions from the right.

Republican establishment figures such as Mitch McConnell, Paul Ryan, and Orrin Hatch had high praise for the pick. McConnell and Hatch claim they will do whatever is necessary to get him confirmed. Although it seems likely Kavanaugh will have the support of the neoconservative wing of the Senate, Tom Cotton, who is held in high regard by prominent neoconservatives, expressed concern over the potential nomination of Kavanaugh to the Supreme Court about five days ago.

Many conservatives offered a mix reaction, with Ben Shapiro calling the pick a “double, not a home run”, pointing out his decision to avoid jurisdiction in Obamacare and government provided contraceptive coverage as his main critiques. Ted Cruz, who, prior to the nomination becoming official, also expressed discomfort with Kavanaugh, seemed to have a change of heart. He announced on Twitter he “looks forward to confirming his nomination”. Rick Santorum, however, criticized the president for “bowing down to the elite in Washington” by selecting Kavanaugh.

So, how should libertarians feel about Kavanaugh? Is he another principled originalist constitutional conservative in the likes of Judge Neil Gorsuch who will protect our 4th amendment rights? Or is he just another Judge Roberts, a Republican-appointed judge who will sacrifice our constitutional liberties from time-to-time. From the looks of it, it appears to be much closer to the latter. 

Justin Amash, by far the most libertarian member of the House, called the pick disappointing, tweeting the following about Kavanaugh:

I think Amash is 100% correct in his analysis of Kavanaugh. He’s definitely not another Gorsuch, who proved in the Carpenter V. United States case that he might be the most pro-4th amendment justice on the court. He was the only justice who used the 4th amendment for the basis of his opinion. Gorsuch wrote the following:

“The Fourth Amendment protects ‘the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.’ True to those words and their original understanding, the traditional approach asked if a house, paper or effect was yours under law. No more was needed to trigger the Fourth Amendment.”

Kavanaugh, as Justin pointed out, is rather weak on the 4th amendment. He holds the common but flawed position that the security the government will provide through the metadata collection is worth the amount of privacy that would be given up by innocent Americans.

Besides the 4th amendment, another area of concern libertarians should have towards Kavanaugh was his opinion towards upholding Obamacare. He believed, due to the legal theory of judicial constraint, the courts had no position in making a ruling on Obamacare and therefore avoided jurisdiction. He shared a similar opinion to Justice Roberts on this issue, believing that the individual mandate in Obamacare that required Americans to have health insurance, was not a fine, rather a tax, and taxes cannot be adjudicated by the DC Circuit Court of Appeals. His opinion was later adopted by Justice Roberts, who ultimately claimed Obamacare was constitutional and voted to uphold it at the Supreme Court.

Libertarians believe that this opinion is invalid because judicial restraint should not have been used in this case. It would definitely be the court’s role to overturn Obamacare for its unconstitutional individual mandate under the Commerce Clause.

This morning, one of the top libertarian legal minds in the country, Judge Napolitano, gave his opinion on Brett Kavanaugh, stating he was disappointed by Trump’s choice of Brett Kavanaugh for the Supreme Court. The judge called him “the heart and soul of the DC establishment”.

I asked libertarian-leaning Republican Congressman Thomas Massie for his opinion on Kavanaugh’s nomination, and he responded to me with this:

It appears Massie wants to analyze whether Kavanaugh would be an upgrade to Kennedy on the Supreme Court before making the decision whether or not to support his nomination.

Because of his inconsistent positions regarding issues that don’t align with the constitution, it is worthwhile for libertarians to object to his nomination.

How does Rand Paul feel about Kavanaugh’s nomination?

Shortly after Trump announced his nomination of Kavanaugh to the Supreme Court, Rand tweeted out this regarding Kavanaugh:

This reaction was very divergent from other Republican Senators who pledged to support his nomination, as Paul seems to be undecided about how he’ll vote and will wait for the upcoming hearings.

Days prior to Kavanaugh’s nomination being announced, Rand privately urged President Trump not to pick Kavanaugh, citing his concerns with “Kavanaugh’s role during the Bush administration on cases involving executive privilege and the disclosure of documents to Congress.” According to Bloomberg reporter Steven Dennis, Rand spoke to him prior to the nomination, stating he would evaluate Kavanaugh’s record if he were to be the pick, while also saying he wants a justice who agrees with Neil Gorsuch on privacy, but as I covered above, Kavanaugh has almost the complete opposite position as Gorsuch when it comes to government spying and the 4th amendment.

So just how much say will Rand Paul’s vote have in deciding whether Kavanaugh gets confirmed? Rand Paul’s vote will be a critical one. With the Republicans having just a 51-49 majority in the Senate and Senator John McCain currently being inactive in the Senate due to health problems, one Republican Senator dissenting from voting in the affirmative could put the nomination in jeopardy if no Democrats cross over the aisle and vote to confirm Trump’s nominee.

Rand Paul will have a decision to make. He could be a hero to libertarians, privacy and 4th amendment advocates, and true constitutionalists by voting against Kavanaugh’s nomination, causing the President to nominate a more constitutional, liberty and 4th amendment friendly nominee to the court. Time will tell whether he chooses to do so, but ultimately, libertarians should oppose the nomination of Justice Brett Kavanaugh to the Supreme Court.


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