Breaking with many Republican colleagues, the Kentucky senator Rand Paul has revealed his concern over Donald Trump’s nomination of Brett Kavanaugh to replace Anthony Kennedy on the supreme court.
Paul told Fox and Friends on Sunday he was worried Kavanaugh, a judge on the DC circuit court of appeals, could cancel out supreme court justice Neil Gorsuch’s vote on fourth-amendment cases and allow the federal government to collect the phone records of millions of Americans.
Kavanaugh’s confirmation rests on a knife edge. Republicans hold a 51-49 advantage in the Senate. They need a simple majority or a tie broken by Vice-President Mike Pence to confirm Kavanaugh as Trump’s second supreme court pick, after Gorsuch.
With John McCain absent through illness and Democrats promising all-out opposition to a pick that could tilt the court to the conservatives for a generation, public attention has focused on three Democrats facing re-election in Republican states and two moderate GOP senators. Susan Collins of Maine and Lisa Murkowski of Alaska are considered possible opponents of Kavanaugh, based on his position on abortion rights.
Democrats may not put too much faith in Paul as an ally. In March, the Kentucky senator said he would do “whatever it takes” to block the approval of Mike Pompeo as secretary of state, over the former congressman’s views on the Iraq war and interventionist foreign policy. In April, Paul flipped and approved the nomination.
Furthermore, in 2016 Paul called Trump “a delusional narcissist and an orange-faced windbag” and said “a speck of dirt is way more qualified to be president”. Since Trump won the White House, Paul has become a presidential golf partner.
Immediately after Trump nominated Kavanaugh, Paul, who often positions himself as a civil liberties champion, released a statement in which he pledged to review the judge’s record and keep an “open mind”.
On Sunday, he drew attention to a 2015 opinion regarding NSA actions in which Kavanaugh wrote that “sometimes the special needs of law enforcement outweighs the intrusion on individual liberty”.
“I’m undecided but I’m trying weigh this from the perspective of a Clinton nominee vs a Trump nominee,” Paul said. “I am worried though, and perhaps disappointed, that Kavanaugh will cancel out Gorsuch’s vote on the fourth amendment.”
Paul warned of the consequences of damaging “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures”, in modern terms including the collection of phone records.
He said: “Basically Kavanaugh ruled he was just fine with it and basically national security required it. I disagree completely – if we give up our liberty for security then we could end up with neither, neither liberty nor security.”
Asked if he could support Kavanaugh, Paul said: “Basically there are 10 amendments listed in the bill of rights, so we’re down one. So let’s see how he does on the other nine.”
The senator said he would continue to review Kavanaugh’s record and would be willing to meet him and have “a frank discussion”.
He said: “I don’t think anyone in America believes that when you use a cellphone company, or you use Visa or use a bank, that you’ve given up your right to privacy. But hopefully we’re going to get an open, long and far-ranging conversation about this.”
Neither Collins nor Murkowski have signalled their opposition to Trump’s pick. Utah senator Orrin Hatch, a senior member of the judiciary committee, has predicted both will support it.
“I can’t speak for them, but I’m just pretty sure they’ll be there,” Hatch told the Hill. “[Kavanaugh’s] a good guy. There’s nothing controversial about him other than he’s a Republican and a conservative.”
Collins and Murkowski are facing pressure from pro-choice groups, such as Naral Pro-Choice America and Protect Our Care. On Thursday, Collins said that pressure would not have any effect on her vote.
“I’m going to make my own decision, as I always have,” she told reporters. “If the Democrats think the pressure campaign that they unleashed in Maine, including $3m for the television, radio and online ads is going to have an impact on me, they’re sorely mistaken. It would be better if they put that money to better use.”
She described Kavanaugh’s credentials as “impressive”.
Authored by Glen McStanly