Many have responded to my recent article on Kavanaugh with various points, most of them positive, and many of them linking to certain articles elsewhere that carry similarly-themed reviews of Kavanaugh. I would like to draw your attention to one of the better ones, written by Miss Brittany Hunter, Associate Editor at FEE. While more needs to be added, her main points are very important, crucial in fact, and her presentation is well-written. I will summarize them briefly here and leave you to read the full article on your own.
The most pressing, over-arching point is the one covered briefly in my previous article: for all the furor made over the lack of due process, my fellow conservatives (as well as liberals) have given virtually zero attention to Kavanaugh’s own track record on due process.
That record is not good in general. It is far from anything a lover of freedom and the Constitution will accept. It is, in fact, downright frightful. I will go so far as to say that as far as the Fourth and Fifth Amendments go, Kavanaugh is a tyrant. His views resemble those that comprise the very reason we had a war of Independence and Fourth and Fifth Amendments to begin with.
Miss Hunter outlines four main headings of critique: the PATRIOT Act, torture, the “enemy combatants” designation, and mass surveillance. She relates how Kavanaugh falls on the wrong side of every one of these novel erosions of Constitutional liberty.
On the PATRIOT Act, Hunter states, “One of the most egregious acts perpetrated against the American people at this time was the PATRIOT Act. And one of its greatest supporters was Brett Kavanaugh.” In the aftermath of 9/11, Americans were in panic, “something must be done”-mode, and regulators rammed through a massive package of surveillance and other intrusive measures that they had not been able to get through during the previous crisis, the Murrah building bombing in Oklahoma City. The new crisis opened the door with increased public fear, and the powers-that-be flooded with an Act to grant themselves even greater powers.
During this time, Kavanaugh worked on President Bush’s staff. He is on record as calling the PATRIOT Act “careful,” “measured,” and even “constitutional.” Hunter relates how he almost glibly described it as a law to “update laws authorizing government surveillance.” Hunter rightly recoils:
If he is the constitutionalist he has claimed to be on several occasions, then he would know that the Constitution already prohibits the government from broad, warrantless searches of this nature. This is not a protection that can simply be “updated.” And yet, his nonchalance over abolishing certain constitutional protections without a discussion of adopting an actual amendment is disconcerting.
The PATRIOT Act is, again, a wide open door to the rest of what follows.
Second, on torture, Kavanaugh worked on Bush’s legal team which worked to justify water boarding and sleep deprivation, among other things. Kavanaugh has denied ever even seeing any of the memos or having anything to do with the issue. The denials are highly suspect, however, because Kavanaugh’s “position at the time dictated that memos and other written correspondence would have passed by his desk at some point before reaching their end recipient.”
Third, those same efforts involved an attempt to allow the Executive to designate anyone it chose, including American citizens, as an “enemy combatant” to be detained indefinitely, at its own discretion. According to reports, Kavanaugh at least attended a meeting on the issue because he had clerked under Justice Kennedy and his understanding would be key to getting any such policy past Kennedy’s swing vote in case the Court ever reviewed it. Kavanaugh again denies any engagement on that issue.
There is no denial on the fourth point, however, for it is a matter of judiciary record. When the Edward Snowden leaks revealed the U.S. government’s mass surveillance of citizens, the government had to justify its actions. Hunter is great exposing Kavanaugh’s role here:
In many ways, the Snowden situation drew a line in the political sand. Those who stood for freedom believed in the people’s inherent right to privacy and in upholding the Fourth and Fifth Amendments. But those who supported and sustained the government’s mass surveillance of its own people made their views on individual liberty very clear. And Judge Kavanaugh was not on the right side of history.
At the heart of the Snowden situation was the question of whether or not metadata counted as government surveillance. The government, frantically scrambling to justify its actions, insisted that it was not actually data collection, since metadata did not technically provide any raw data. But metadata still gives very specific information about the type of data collected and therefore is still a violation of constitutional protections.
However, in a ruling in the U.S. Court of Appeals for the D.C. Circuit, Kavanaugh ruled that “the Government’s metadata collection program is entirely consistent with the Fourth Amendment.” He also later stated that “that critical national security need outweighs the impact on privacy occasioned by this program.” Again, a rather odd conclusion for a staunch “constitutionalist” to support.
There are further reasons for alarm in Kavanaugh’s judicial record. He has supported the expanse government intrusion on more than one issue, including stop-and-frisk laws and random drug testing of certain employees.
Further, and perhaps most concerning in my view, Kavanaugh himself considers Nixon-appointee William Rehnquist a “judicial hero.” Rehnquist led a judicial counter-revolution in favor of expanded police powers and government searches. Among the views for which Kavanaugh praised Rehnquist was his opposition to the “exclusionary rule”—a precedent which says that evidence obtained by police through illegal, unconstitutional means is not admissible in court. One legal reviewer relates and quotes Kavanaugh’s expressions on the matter:
Although Rehnquist did not succeed in having the exclusionary rule overturned, he “dramatically changed the law of the exclusionary rule” over time through the good-faith exception and other doctrines.
In other words, Rehnquist thought it was constitutional for a cop to bust down your door first, then find some evidence (of whatever, doesn’t matter), and then charge you with a crime. Whatever he found could be used as evidence against you despite the fact he searched and seized without a warrant.
While the exclusionary rule still exists, Rehnquist’s “good faith” exception means that a cop could conceivably break down your door because he thought, in “good faith” (wink, wink) that he was acting according to the law (for whatever reason). This in large part nullifies the doctrine, because a bad cop need only lie to justify whatever invasive actions he can get away with. There are a hundred applications of this, and there are other similar exceptions as well.
And Kavanaugh sees this guy as a “judicial hero.”
In all discussions of this topic, I can’t help but think over and over again that this was the very issue which led to the American Revolution to begin with. It alarms me that today a vast majority of people are simply unaware of it or don’t seem to care.
Miss Hunter’s conclusion is as right as it is basic:
Due process is a staple of our American legal system. And while the allegations made by victims of sexual assault should be listened to and investigated, there is more to due process than allowing Judge Kavanaugh to have his day in court. If the government would like to gain access to the private communications of American citizens, it must do so by going to a judge and obtaining a warrant.
In short, if we say we believe in due process, we must uphold that rule across the board. Whatever may or may not have happened with Kavanaugh’s past personal life, his judicial views suggest that if we take due process as seriously as his supporters demand for him (and we should), then by the same standard we should look elsewhere for a new Supreme Court Justice, too.