If you want a good sign of the seriousness that surrounds the confirmation fight over Brett Kavanaugh, look at how quickly the usually difficult senator Rand Paul abandoned any pretense of possible opposition to Trump’s second Supreme Court nominee. Long before confirmation hearings, the Kentuckian fell into line. While that has indeed been his pattern during the Trump administration, he didn’t play Hamlet or flip-flop, as he did over, say, the Pompeo nomination for secretary of State.
Paul’s initial concerns over Kavanaugh involved the judge’s record on privacy. He was very clear about that, very recently:
“I am honestly undecided. I am very concerned about his position on privacy and the Fourth Amendment,” Paul told Politico’s Burgess Everett in an interview. “This is not a small deal for me. This is a big deal.”
“Kavanaugh’s position is basically that national security trumps privacy. And he said it very strongly and explicitly. And that worries me …” In a 2015 opinion, Kavanaugh backed the constitutionality of the National Security Agency’s warrantless surveillance program, a ruling that civil libertarians opposed.
You’d think those concerns would dictate waiting for confirmation hearings where Kavanaugh might be questioned on the subject. But instead Paul is relying on a decision the Court made without Kavanaugh, hoping it will constrain him:
Paul released a statement citing the Supreme Court’s June ruling in Carpenter v. United States, which broadly limited law enforcement’s ability to monitor individuals using cell phone data without a warrant, as a “new precedent” leaving him hopeful that “Judge Kavanaugh will be more open to a Fourth Amendment that protects digital records and property.”
Not exactly a courageous stand, eh?
But Paul probably doesn’t want to become the object of insanely intense pressure from both sides of the Kavanaugh battle, and particularly from conservatives who view this nomination as a crucial step in the reversal of liberal judicial precedents on issues ranging from economic regulation to voting rights to the big one: abortion. And speaking of abortion, all the talk of Rand Paul’s libertarianism should not obscure the fact that his position on reproductive rights is exceptionally extreme: He has sponsored fetal “personhood” legislation that could ban not only virtually all abortions but certain forms of contraception.
In any event, the Democratic strategy for stopping Kavanaugh’s confirmation just got more complicated. Now the only Republican senators who might theoretically defy Trump on this big legacy item are the last of the pro-choice congressional Republicans, Susan Collins and Lisa Murkowski. And even those possible defections might not matter if vulnerable Democrats decide that inviting the wrath of the right-to-life movement just prior to the midterms isn’t a good idea.
Meanwhile, Rand Paul can return to his strange career of being the GOP rebel who rarely rebels when it really matters.
