I recently listened to Judge Andrew Napolitano's assessment of Brett Kavanaugh as President Trump’s SCOTUS nominee. I LIKE Napolitano. I trust him. I agree with him on almost everything.
ON this particular issue, I disagree with him and his concern over Kavanaugh. Judge Nap says this: "The Kavanaugh nomination is not a question of his qualifications; it is a question of his values. It is dangerous for judges to embrace values that diminish personal freedom rather than expand it.".
So Judge Napolitano says that he questions Kavanaugh's "values" but actually, at least according to his web page, it is only this ONE value that Napolitano questions: the "proper" rendering of the Fourth Amendment.
The whole argument, or position, involves the word "reasonable".
It is quite apparent that of all words in the English language that COULD have dozens of meanings or applications, this word must certainly rank in the top ten. Notions of "reasonableness" are likely to be much more subjective than objective. About the only way (certainly the BEST way) to determine the "legally reasonable" thing to do is to develop a standard based upon a set of behaviors, and try to remain consistent with the application of that standard.
Kavanaugh has a history of decisions that reflect his judicial position with respect to precedent, and the application of constitutional principles. Kavanaugh expressed that view in the course of a 2015 statement concurring in the denial of rehearing en banc in Klayman v. Obama, which was then before the U.S. Court of Appeals for the District of Columbia Circuit. The case centered on the constitutionality of the National Security Agency's controversial information-gathering program, which involved the NSA collecting the telephony metadata of all Americans. "In my view," Kavanaugh wrote, "the Government's metadata collection program is entirely consistent with the Fourth Amendment."
Kavanugh offered two principal explanations for why he considered the program to be constitutional. First, he invoked what's known as the "third-party doctrine," which says that if you voluntarily share private information with a third party, you no longer have a reasonable expectation of privacy in that information. "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," Kavanaugh wrote.
But "even if the bulk collection of telephony metadata constitutes a search," Kavanaugh continued, turning to his second justification, the program may still be approved because the Fourth Amendment "bars only unreasonable searches and seizures. And the Government's metadata collection program," he wrote, "readily counts as reasonable" because it "serves a critically important special need—preventing terrorist attacks on the United States." He added: "In my view, that critical national security need outweighs the impact on privacy occasioned by this program." (Source: https://reason.com/blog/2018/07/10/scotus-nominee-brett-kavanaugh-on-the-fo )
I think Kavanaugh is solid on the first point. On the second he is correct as long as the "reasonablness" is able to be quantified and objectively measured. HOW MUCH reason is required to reach the "justification" threshold will always be a bit subjective because people cannot usually define a "bright line". When it comes to a terror threat, is 50% reasonable? 60%? 72%? 88.653%? If it YOUR spouse and family who is the potential target of a terror event, does that change your numbers?
As to the second point, we must never lose the ability to "check" government actions. There must always remain a balance of power, both within government, and between the government and the people. As long as that is preserved, the reasonableness argument is completely within both the letter, and the spirit of the law. Kavanaugh has this right.
Fourth Amendment law has developed some in the last few years as the court has had to continue to balance the liberties which government is charged to protect, and the public safety which government is also charged to protect. No real discussion can take place on the reasonableness of the Fourth Amendment unless and until BOTH of these sometimes competing duties are fully understood. That Kavanaugh leans a little more towards public safety, and Napolitano leans more towards individual liberties, is not cause for panic. It is cause for dialog, transparency and a continuing re-assessment of the very real threats that our nation confronts. Considering Kavanaugh’s record, it seems likely that he will continue to be a strong force for preserving our constitutional principles. If you truly value the constitutional values upon which our form of government, and our laws fin their foundation, then show your support of Brett Kavanaugh and President Trump.