On July 9, President Donald Trump nominated D.C. Circuit Court Judge Brett Kavanaugh to fill retiring Justice Anthony Kennedy’s seat on the U.S. Supreme Court. Kavanaugh once served as a law clerk for Justice Kennedy, who reportedly recommended him to Trump as a suitable replacement. Libertarians would appreciate aspects of his judicial record, which leans toward constitutional originalism on most issues, but Kavanaugh also has a significant dark side. He’s willing to sacrifice our most fundamental liberties in the name of fighting terrorism.
“Unfortunately, Brett Kavanaugh has a troubling track record of giving a pass to excesses in the war on terrorism,” said Libertarian National Committee Chair Nicholas Sarwark. “It’s good that he’s a Second Amendment supporter, but it’s unacceptable that he’s also willing to suspend the Fourth and Fifth Amendments when he deems it necessary.”
When Amir Mohamed Meshal, a natural-born citizen of the United States, fled from Somalia’s civil war into Kenya in 2007, he was captured by the U.S. Combined Joint Task Force. The American Civil Liberties Union complaint filed on his behalf claimed that Meshal was “interrogated more than thirty times by U.S. officials who failed to adhere to the most elementary requirements of the Fourth and Fifth Amendments and the Torture Victim Protection Act of 1991,” and that “U.S. officials repeatedly threatened Mr. Meshal with torture, forced disappearance, and other serious harm.”
Kavanaugh wrote a concurring opinion in Meshal v. Higginbotham, which said that although Meshal’s allegations were “quite troubling,” he had no standing to pursue claims that his constitutional rights were violated because he was overseas when it happened, and part of a terrorism investigation.
“Matters touching on national security and foreign policy fall within an area of executive action where courts hesitate to intrude absent congressional authorization,” wrote Judge Janice Rogers Brown in her decision, with which Kavanaugh concurred.
“If the Torture Victim Protection Act of 1991 does not constitute ‘congressional authorization,’ I don’t know what would,” Sarwark said.
So, although conservatives may appreciate Kavanaugh’s vetting by the Federalist Society and the Heritage Foundation, and feel a sense of nostalgia that Reagan Attorney General Ed Meese was in the room during his nomination announcement, they shouldn’t overlook Kavanaugh’s disturbing evisceration of the Bill of Rights.
“We like Kavanaugh’s skepticism about the administrative state,” Sarwark said. “It’s long past time to do away with the Chevron doctrine of deference to bureaucracies. We’re concerned, though, that a judge who claims to believe in interpreting the Constitution as written has apparently not read the Fourth and Fifth Amendments. Before confirming Kavanaugh, senators should question him closely on the provisions of the Bill of Rights that were ignored in Meshal v. Higginbotham.”
Libertarians are running a record number of candidates for local, state, and federal office in 2018, and Libertarian elected officials can be counted on to appoint judges who will be faithful to all the provisions of the Bill of Rights, all the time.