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Why is Matt Rosendale So Eager to Put a Justice Who Will Gut the Fourth Amendment on the Supreme Court?

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At last night’s Senate debate, Matt Rosedale continued his all-in support for Judge Brett Kavanaugh to be named to the Supreme Court, despite serious concerns about his behavior in college and high school, clear instances where he lied under oath during his confirmation hearing, and a pending FBI investigation into his behavior.

While I believe the first two are clearly disqualifying—as were his inability to maintain judicial temperament and the appearance of non-partisanship during his hearing, last night Senator Tester hit on another crucial reason to reject Kavanaugh: his unwavering, enthusiastic support for the unconstitutional and unpopular Patriot Act and his record of opposing the rights afforded all Americans under the Fourth Amendment.

Noting that Kavanaugh will likely shift the balance of the court on these matters, the Lawfare Blog did an exhaustive review of Kavanaugh’s judicial record and found that he has repeatedly upheld some of the most odious elements of the Patriot Act, including  the Section 215 searches that allowed the massive data collection of American citizens’ phone records. Additionally, Kavanaugh:

  • defended the government’s use of GPS tracking without a warrant.
  • defended the idea that “a U.S. citizen lawfully detained by the U.S. military overseas and pending transfer to the custody of a foreign government did not have a constitutional or statutory right to judicial review of the conditions in which that foreign government would likely hold him, including the likelihood of torture.”
  • refused a legal remedy to the US citizen widow of a Guatemalan husband who was detained, tortured, and killed by CIA agents.
  • blocked Iraqi nationals who were beaten, raped, and electrocuted by US military contractors.

The ACLU highlights an especially egregious example of Kavanaugh’s jurisprudence on the Fourth Amendment when a US citizen was “unlawfully detained in 2007 by FBI agents in three African countries for four months. The agents threatened [him] with torture, disappearance, and death unless he admitted terrorism connections — which he consistently denied. He was finally brought home to the United States and never charged with a crime.”

Kavanaugh’s enthusiasm for government abuse of citizens and non-citizens alike didn’t just begin while he was sitting on the federal bench. Records show that he drafted a speech for President Bush defending the Patriot Act and communicated with John Yoo, who developed it, about implementing the program.

I doubt many Montanans—let alone someone who shot down a drone in a campaign commercial—would agree with Kavanaugh’s assertion that the Patriot Act is a “measured, careful, responsible, and constitutional approach.”

And you don’t have to listen to me, the ACLU or even Kavanaugh himself to understand that he’s a threat to the Fourth Amendment. Fox News’s favorite judge, Andrew Napolitano, made the case that Kavanaugh should not be confirmed in early September:

In a discussion on natural law, Napolitano noted that Judge Kavanaugh had established a record of supporting government surveillance on Americans, even when there was not probable cause to believe a crime was being committed.

Kavanaugh’s support for abuse of government power in this case, has been buttressed by the Patriot Act, one of the most anti-Fourth-Amendment pieces of legislation passed in recent decades.

Napolitano goes on to outline the many ways the Patriot Act violates the natural rights behind the Fourth Amendment, concluding:

“What young lawyer was the scrivener when they were putting together the Patriot Act?”

It was, of course, Brett Kavanaugh.

It’s time for Matt Rosendale to explain his unqualified support for a potential justice who threatens our Fourth Amendment and endorses a host of views that are anathema to the Bill of Rights. Rosendale like to portray himself as a small-government conservative, but no true believer in small government could so enthusiastically support a Supreme Court justice who could have forty years on the nation’s highest court to continue his assault on our right to be free of government coercion, searches, and seizures.

If you appreciate an independent voice holding Montana politicians accountable and informing voters, and you can throw a few dollars a month our way, we\'d certainly appreciate it.

About the author

Don Pogreba

Don Pogreba is an eighteen-year teacher of English, former debate coach, and loyal, if often sad, fan of the San Diego Padres and Portland Timbers. He spends far too many hours of his life working at school and on his small business, Big Sky Debate.
His work has appeared in Politico and Rewire.
In the past few years, travel has become a priority, whether it's a road trip to some little town in Montana or a museum of culture in Ísafjörður, Iceland.

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