Although each possible nominee has pros and cons, it would be bizarre for Judge Kethledge's lower court opinion in Carpenter to be a "minus" to his candidacy. A few thoughts on why.... /1 usatoday.com/story/news/pol… 
Lots of circuit courts and lots of state supreme courts addressed the issue in Carpenter. Every single one agreed that collection of historical cell-site records was not a search. There was no split. SCOTUS took the issue and changed the law, but hard to fault lower courts. /2
And this isn't an ideological point. Liberal circuit judges agreed with Kethledge's view. Judge Stranch joined most of his opinion. Judge Motz wrote for the 4th Circuit with the same view, saying, "Supreme Court precedent mandates this conclusion." /3
Conservative circuit judges had the same view, too. See Judge Bill Pryor for the 11th circuit, who wrote that it was the correct result under existing precedent. "As judges of an inferior court, we have no business in anticipating future decisions of the Supreme Court." /4
Also, at the Supreme Court, Judge Gorsuch agreed that precedent required that view: "I cannot fault the Sixth Circuit for holding that Smith and Miller extinguish any Katz-based 4A interest in third party cell-site data. That is the plain
effect of their categorical holdings." /5
effect of their categorical holdings." /5
Finally, even putting precedent aside, it's worth noting that three Justices (Kennedy, Thomas, & Alito) saw it as the normatively correct view. In any event, it would be strange if happening to have authored an opinion on a splitless issue as precedent required was a "minus." /6
