Here's my latest #SCOTUSnominee post, analyzing 5 key issues likely to confront Judge Brett Kavanaugh as he proceeds through the #SCOTUS confirmation process. http://bit.ly/2Jnxm6y - #SCOTUSpick
Interesting; thanks! I suspect some of this is posturing for publicity & that @RandPaul will vote yes in the end - but it’s possible he could vote no or abstain if it’s clear there are enough votes to confirm Kavanaugh to #SCOTUS without him. #SCOTUSnominee
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It's possible he votes in favor, but not preponderantly likely. An opinion in a denial of rehearing en banc is rare. A judge usually writes one to suggest to the Supreme Court how to rule. In Judge Kavanaugh's—joined by no other D.C. Circuit judge—he strayed far beyond precedent.
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Judge Kavanaugh's conclusion that collection of (so-called) metadata under Section 215 is no Fourth Amendment search is well grounded in then-existing high Court precedent. But Judge Kavanaugh went much further, arguing that even if the collection was a search, it was reasonable.
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After purporting to apply high Court precedent in concluding that no Fourth Amendment search occurred, Judge Kavanaugh then extended "special needs" precedent in concluding that the warrantless metadata collection was reasonable. In support, Judge Kavanaugh cited no record below.
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Courts had never considered extending the "special needs" exception, applied in cases such as ones approving of DWI checkpoints, to nationwide mass surveillance. Instead of citing the record developed by the able Judge Leon below, Judge Kavanaugh cited the 9/11 commission report.
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https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2013cv0851-48 … Judge Leon gave the government a chance to seek submission of classified evidence in camera on how effective Section 215 collection actually had been at foiling terrorist attacks. (n.65.) The government refused, leaving Judge Kavanaugh to rank speculation.
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Senator Paul said today that a Justice Kavanaugh might "cancel out" Justice Gorsuch's vote on the Fourth Amendment. A close and contextual reading of Judge Kavanaugh's (unnecessary) opinion in Klayman strongly indicates that in this regard, the Senator's instincts are dead right.
End of conversation
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