Supreme Court spectacle

Wavering Rand sets off Supreme Court spectacle

The Kentucky Republican says he's genuinely undecided on whether to back Brett Kavanaugh. His vote could be decisive.

By BURGESS EVERETT

Rand Paul is one of a handful of senators who'll determine whether Brett Kavanaugh lands on the Supreme Court — and the Kentucky Republican has every intention of maximizing his leverage.

Paul is again inviting fellow senators to play the will-he-or-won’t-he guessing game when it comes to his decision — expressing grave concerns about Kavanaugh’s approach to personal privacy while insisting his vote could go either way, depending on what the judge says in the coming weeks and months.

“I am honestly undecided. I am very concerned about his position on privacy and the Fourth Amendment. This is not a small deal for me. This is a big deal,” Paul said in an interview last week. “Kavanaugh’s position is basically that national security trumps privacy. And he said it very strongly and explicitly. And that worries me.”

The calculation, of course, isn’t that straightforward. GOP senators and strategists are skeptical that Paul would be willing to buck President Donald Trump, with whom he’s close, on such a monumental vote. For senators, it doesn’t get much bigger than a vote to confirm or reject a Supreme Court justice in waiting.

With Sen. John McCain (R-Ariz.) absent from the Senate, Paul could tank Kavanaugh if he joins with all Democrats in opposing him. And Paul has been more publicly critical of Kavanaugh than moderate Sens. Susan Collins of Maine and Lisa Murkowski of Alaska, two other pivotal GOP votes.

Paul must also reckon with the possibility that if Kavanaugh’s nomination fails, Republicans could lose the Senate this fall and with it the ability to confirm Trump’s nominees unilaterally.

Yet the civil libertarian community is bashing Kavanaugh. And Paul is still the de facto leader of that wing of his party given his views on privacy, torture and non-interventionism.

The GOP senator has not come out as strongly against Kavanaugh as he did against Secretary of State Mike Pompeo, for whom he eventually voted, and CIA Director Gina Haspel, who he followed through in opposing. Other like-minded Republicans have been more adamant.

“There are many potential nominees with a conservative record on abortion, guns, and regulations,” Rep. Justin Amash (R-Mich.), the most outspoken of them, wrote on Twitter. “The only question is will the Senate confirm one who is really bad on the #4thAmendment, when so much is at stake in upcoming digital privacy battles.”

Paul understands this is not a black-and-white call, and that political considerations will come into play. He has pointedly left himself some wiggle room to be convinced that the nominee understands where he’s coming from.

“Wouldn’t you rather have Kavanaugh than Ruth Bader Ginsburg? He’s probably good on economic liberty and overzealous regulation and things like that. So I don’t want to have it sort of in a vacuum,” Paul said. “I’ll have to weigh that versus other aspects that he may be a lot better than a Clinton appointee.”

A handful of red-state Democrats might end up backing Kavanaugh and take pressure off of Paul as potentially the deciding vote. But those Democrats are expected to withhold their opinions until all Republican senators have stated their intentions.

That means Paul could be headed for a familiar routine during his tenure: fellow Republicans pleading with him to be a team player and resist his impulses to go his own way. Many GOP senators have already come out in support of Kavanaugh before he’s even had his hearing, and some are beginning to gently prod Paul.

“There’s no doubt that Rand’s concerns about privacy and the Fourth Amendment are longstanding and genuine and existed long before this nomination. And I share many of those concerns,” said Sen. Ted Cruz (R-Texas). But not when it comes to Kavanaugh, Cruz said: “I think the body of Judge Kavanaugh's work merit confirmation.”

“To me the best guide of what the likely outcome will be will be what happened with [Justice Neil] Gorsuch,” whom Paul supported, said Senate Majority Whip John Cornyn of Texas. “They’re different human beings for sure, but they have similar experience and judicial philosophy.”

But Paul contends that Gorsuch and Kavanaugh differ markedly on privacy rights. He is most concerned with Kavanaugh's views on government metadata collection. “In my view, critical national security need outweighs the impact on privacy occasioned by this program,” Kavanaugh, a judge on the U.S. Court of Appeals for the District of Columbia Circuit, wrote in a 2015 opinion.

The senator said he’s worried that Kavanaugh “cancels out Gorsuch’s vote.”

“Gorsuch is probably the best on the Supreme Court right now on the Fourth Amendment and privacy. Better than anybody,” Paul said. “He believes that when you bank or have a phone that you do not give up your privacy interest.”

If Paul’s concerns about a high-profile Senate issue sound familiar, they should. He has a long record of becoming the center of attention in the Senate as the GOP's contrarian: He shut down the government briefly once this year, threatened another shutdown, fought Senate Majority Leader Mitch McConnell on the PATRIOT Act in 2015 and famously filibustered former CIA Director John Brennan for 13 almost hours in 2013.

Paul and Trump are friendly despite Paul's votes against some of his nominees. They spoke by phone last week after Paul came to Trump's defense over his much-criticized meeting with Vladimir Putin. Privately, some Republicans believe Paul will ultimately fall in line, since opposing Kavanaugh could wreck the senator’s relationship with the president.

But allies of Paul aren’t so sure. Brian Darling, a former Paul aide who still speaks with the senator, said that Paul will push hard to see where Kavanaugh draws the line on privacy and legitimately could go either way.

“He very well could vote no if the senator doesn’t get some assurances that Kavanaugh has some respect for the Fourth Amendment,” Darling said.

“He has said he’s undecided. I haven’t seen very many Senate Republicans who have said they’re undecided,” said Sen. Ron Wyden (D-Ore.), who has routinely teamed with Paul to fight what he views as intrusive surveillance programs. “This nominee’s record as it relates to metadata, as it relates to location tracking, is right out of the Big Brother program.”

In the interview, Paul said he’s worried that advancing technology makes out-of-control government monitoring of Americans a real possibility, one that could easily come before the Supreme Court — and Kavanaugh if he is confirmed. But he said it could be awhile before he reaches a conclusion after examining Kavanaugh’s record and speaking personally with the nominee.

Until then, Republican leaders are laying off Paul for the most part, figuring a heavy hand won't work.

“I hope he’s gettable. I hope in the end he’ll be there,” said Sen. John Thune of South Dakota, the No. 3 GOP leader. “He’s somebody who’s obviously going to come to his conclusions on his own.”