The real problems with newly anointed Supreme Court Justice Brett Kavanaugh got completely lost in the political theater surrounding his confirmation.
The Constitution delegates the power to appoint justices to the Supreme Court to the president with the advice and consent of the Senate. Justices hold their position for life (during good behavior). The intent was to elevate the process, transcending the political influence inherent in the other branches of government, rendering those serving on the High Court immune to petty politics.
We saw how well that played out with President Trump’s nomination of Brett Kavanaugh to the SCOTUS. Partisan politics and grandstanding turned the confirmation process into a circus. Rather than discussing issues such as the proper role of the judiciary, federalism. and maybe even the concept of limited government, the Judiciary Committee zeroed in on unsubstantiated claims of sexual misconduct from the 1980s, flatulence and beer drinking.
The progressive left became wholly consumed with all of the above while so-called conservatives reveled in left-wing outrage, disregarding fundamental principles of liberty, particularly those concerning our right to be left alone. Specifically, the Senate completely ignored Kavanaugh’s long history of supporting warrantless surveillance; namely, his rubber stamp on NSA programs that vacuum up reams of Americans’ personal data.
With regard to the bulk collection of metadata by the NSA, Jude Kavanaugh declared it “entirely consistent” with the Fourth Amendment.
“The Government’s collection of telephony metadata from a third party such as a telecommunications service provider is not considered a search under the Fourth Amendment, at least under the Supreme Court’s decision in Smith v. Maryland, 442 U.S. 735 (1979). That precedent remains binding on lower courts in our hierarchical system of absolute vertical stare decisis.”
Kavanaugh based his opinion on the so-called third-party doctrine. In simple terms, this legal precedent assumes that when you give information to a third party, such as a bank or an internet service provider, you forfeit any right to privacy.
He went on to say he believed seizing metadata would still be legal even absent the third-party doctrine
“The Fourth Amendment allows governmental searches and seizures without individualized suspicion when the Government demonstrates a sufficient ‘special need’—that is, a need beyond the normal need for law enforcement—that outweighs the intrusion on individual liberty,” he wrote. “Examples include drug testing of students, roadblocks to detect drunk drivers, border checkpoints, and security screening at airports … The Government’s program for bulk collection of telephony metadata serves a critically important special need – preventing terrorist attacks on the United States. See THE 9/11 COMMISSION REPORT (2004). In my view, that critical national security need outweighs the impact on privacy occasioned by this program. The Government’s program does not capture the content of communications, but rather the time and duration of calls, and the numbers called. In short, the Government’s program fits comfortably within the Supreme Court precedents applying the special needs doctrine.&