It’s the rainy season in Thailand, which means commuters like me are primed to get wet on our way to and from work. To me, the worst thing about this is constantly having rain-soaked shoes. There are few worse ways to start your day than feeling yesterday’s rain water seep through a fresh pair of socks as you place your feet in shoes that have not had time to dry.
As bad as monsoon shoes are, I’d take them over Kentucky Senator Rand Paul’s shoes any day of the week.
President Trump has recently nominated Brett Kavanaugh from the United States Court of Appeals in Washington D.C. to replace Justice Anthony Kennedy on the Supreme Court. Unlike Justice Neil Gorsuch, Kavanaugh’s brand of constitutional originalism does not show much respect for the 4th Amendment. For those who do not know, the 4th Amendment intends to protect Americans against unwarranted searches and seizures. Without this amendment, police and other law enforcement officials may not be legally barred from rummaging through or confiscating our property, private documents, or even our bodies without just cause.
If you want to know more about Kavanaugh’s unfortunate history with the 4th Amendment, you can listen to Judge Andrew Napolitano, maybe the most pro-liberty judge in American history, discuss it with Tom Woods here.
Rand Paul, a 4A diehard and the 50th of the GOP’s 50-49 senator majority (John McCain, who is currently unable to vote for health reasons, would make 51) finds himself in an extremely tough situation as his vote may ultimately determine whether or not Kavanaugh is confirmed. The following are what I consider to be the most probable potential outcomes depending on the choice Rand makes.
The Sellout Scenario
If Rand votes in favor of Kavanaugh, he will almost certainly become a SCOTUS justice, which could put all of our 4th Amendment rights on the line for decades to come. In the process, Rand would lose plenty of pro-Constitution credibility. The Liberty movement would pile on with accusations that Rand Paul lacks the gumption his father Ron Paul possessed, and is just a slightly better version of the swamp creatures lurking throughout Washington.
From a political standpoint, Rand would likely secure his position in the senate if he decides to run for reelection in 2022. I imagine that the typical Republican voter is far more concerned with making sure a Liberal justice does not take the place of Anthony Kennedy than he is with the technicalities of what the 4th Amendment entails, which means Rand’s seat in the senate, unlike his credibility, would likely be safe.
In the long run, keeping Rand’s vote in the senate for years to come could serve as more valuable than having a perfectly originalist justice on the bench as Gorsuch and the four liberal justices (a majority) seem to be on Rand’s side when it comes to 4A. In other words, Kavanaugh’s impact on the 4th Amendment may be minimal anyway.
The Swamp Scenario
If Rand votes against Kavanaugh, he may still be confirmed via red state Democrats. At least three or four senators up for reelection in November are Democrats in Trump country. These senators are often forced to part ways with their party in order to maintain their positions in congress. Due to their sticky situation, Rand’s decision may not ultimately matter in the confirmation process.
Voting against Kavanaugh would preserve Rand’s pro-Constitution credibility, and would likely have little effect on his reelection prospects as his choice to stand is ground would cost Trump and establishment Republicans nothing.
The Hero Scenario
If Rand votes against Kavanaugh, he may not be confirmed. However, this could work out beautifully for Rand in the end.
By blocking Kavanaugh’s nomination, Rand would help preserve the 4th Amendment (at least temporarily) and bolster his Libertarian credentials. And although he would defy Trump and rain on Republicans’ parade in the short run, sunnier skies could be on the horizon.
If the GOP retains control of the senate after this year’s midterms (and they are expected to do so), Trump will be be given another chance to nominate a more pro-4A justice. If Trump’s next choice winds up being more Gorsuchian, Rand will have taken a massive political risk and won big for the country as well as himself.
The Scapegoat Scenario
If Rand votes against Kavanaugh, he is not confirmed, and the GOP loses the senate, Trump may not get another chance to nominate a SCOTUS justice as president. If a Democrat beats Trump in 2020, and Democrats retain control of the senate, you can bet that a “living document” justice will be placed on the SCOTUS bench, probably resulting in a liberal majority for years to come.
Under these conditions, Rand may succeed in preserving the 4th Amendment. Conversely, the 1st, 2nd, 5th, 9th, 10th, and many other rights guaranteed by the Constitution could fall by the wayside.
Rand would have committed political suicide in the process, and a future reelection bid could result in comical defeat.
Let’s hope for the best.