Why the ACLU Opposes Brett Kavanaugh's Nomination to the Supreme Court

On Friday, Sept. 28, following the Senate Judiciary hearing at which both Dr. Christine Blasey Ford and Judge Brett Kavanaugh testified, the ACLU  decided to depart from its usual policy in order to oppose the nomination of Judge Kavanaugh to the Supreme Court.

It was not a decision we took lightly. As a matter of policy, the ACLU does not endorse or oppose presidential nominations. We have made exceptions, but those exceptions are few and far between. In our 98-year history, we have only opposed four Supreme Court nominees.

How did the ACLU reach the decision to oppose the Kavanaugh nomination?

This decision was made by the ACLU’s board of directors, a body of 69 people representing all of the ACLU’s 54 affiliates. The board held a special meeting following the Sept. 28 testimony, which was attended by 62 board members. After a discussion lasting several hours, the board agreed, by a vote of 55 to 7, on the following resolution:

“The ACLU opposes the confirmation of Judge Brett Kavanaugh to the Supreme Court. There are credible allegations that Judge Kavanaugh has engaged in serious misconduct that have not been adequately investigated by the Senate. Dr. Christine Blasey Ford’s credible testimony, subsequent allegations of sexual misconduct, the inadequate investigation, and Judge Kavanaugh’s testimony at the hearing lead us to doubt Judge Kavanaugh’s fitness to serve as an Associate Justice of the Supreme Court.

“This is not a decision taken lightly. We cannot remain silent under these extraordinary circumstances about a lifetime appointment to the highest court of the land. The standard for such an appointment should be high, and the burden is on the nominee. That burden is not met as long as there are unresolved questions regarding the credible allegations of sexual assault.” 

Is this a partisan decision?

No. The ACLU remains committed to our traditional principles of nonpartisanship. Board members were clear that if the same concerns were raised about a Democratic Supreme Court nominee — inadequately investigated credible allegations of sexual assault supported by credible testimony and met by nominee testimony showing angry partisanship — we would similarly oppose that nominee.

Does this decision change ACLU policy?

No. ACLU policy is not to support or oppose any candidate for elected or appointed office, including Supreme Court justices. This means that we do not support or oppose Supreme Court nominees based on our predictions about how they would vote if confirmed. This has been our policy for most of the 98 years since we were founded. In our entire history, we have previously opposed only the nominations of William Rehnquist, Robert Bork, and Samuel Alito. Most recently, we did not oppose John Roberts or Neil Gorsuch. 

LISTEN TO SUSAN HERMAN EXPLAIN THE BOARD'S VOTE ON AT LIBERTY

In 1987, the ACLU adopted a special exception to our general rule of non-opposition with respect to Supreme Court justices, but we rescinded that policy in 2006 because we wanted to avoid judging future justices and we wanted to avoid either being or appearing partisan. The decision in this instance, not made on the basis of ideology, is an exception to our general practice of not opposing candidates. This decision was based on unique circumstances presented by credible allegations of sexual assault and a display of partisan rancor, leading us to doubt Judge Kavanaugh’s fitness to serve on the Supreme Court, a job that demands the highest integrity because of the finality of the court’s rulings and the fact that justices enjoy life tenure. 

Why doesn’t the ACLU routinely take positions on Supreme Court nominees?

The ACLU works in some 14 areas of civil rights and civil liberties, and judges may be predictably sympathetic on some issues and not others. Justice Anthony Kennedy, for example, made history with his support for same-sex marriage in our Obergefell case, but he voted against the ACLU in all five of our Supreme Court cases last term, including our challenge to the Muslim travel ban. We hope that once confirmed to the Supreme Court, even a judge who had seemed predictably anti-civil liberties might heed our arguments and take the broader perspective of a final arbiter — as Justice Kennedy did, for example, in voting not to overrule Roe v. Wade in 1992, in recognizing marriage equality, and in striking down the death penalty for juvenile offenders.

What about due process for Judge Kavanaugh?

A Supreme Court confirmation hearing is not a trial. We would not support a criminal conviction of Judge Kavanaugh or anyone else without proof beyond a reasonable doubt. But because of the unique nature of a Supreme Court appointment, we think it is fair for Judge Kavanaugh to have to meet the burden of dispelling the serious concerns about his fitness raised by Dr. Blasey Ford’s testimony. His self-serving, evasive, and often demonstrably untruthful testimony at the hearing only reinforced those concerns.

Why not wait until after the FBI investigation has concluded?

On the basis of Dr. Ford’s credible and powerful testimony, and Judge Kavanaugh’s unpersuasive response, we believe that there was sufficient evidence to oppose as of the completion of the hearing. To say that we should not oppose Judge Kavanaugh unless and until a full investigation finds additional corroborating evidence suggests that Dr. Ford’s testimony is not sufficient even to raise serious doubts in the context of a confirmation hearing. 

The laws of many states used to require corroboration of a woman’s testimony of sexual assault in criminal cases. States changed those laws to drop corroboration requirements, even in criminal cases, in order to ensure that the testimony of women would not be routinely discounted. The old laws were justified by the notion that a high burden was necessary to protect (male) defendants against women who fabricate allegations; the reform of those laws was justified by the reality that women who had suffered sexual assaults were not being taken seriously and therefore were frequently unwilling to come forward with their complaints. And that was in criminal trials, where the burden of proof on the prosecution is appropriately high.

If a full and fair investigation were to refute Dr. Ford’s credible allegations, our board members could reconsider their position. But absent persuasive evidence undermining Dr. Ford’s account, our conclusion was that there are sufficient doubts to warrant opposing Brett Kavanaugh’s confirmation for life to the highest court in the land.


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Anonymous

Who cares what the ACLU wants??? Haven't respected their opinion in many years. Liberal losers.

Anonymous

Ditto. The political directors defense of comparing Kavanaugh with Cosby is ridiculous. One has to wonder if an American institution has been overtaken by foreigners ...or Martians.

Teri

Dr. Ford was not credible and has no one who she can call on to say this happened to her. Judge Kavanaugh is being made guilty without due process. I will never donate or believe the ACLU again. Guilty until proven innocent???? Really???

Anonymous

You are sad, very sad that you come here just to insult the good people they are and whom they help, you disgust me...

Jeff

Ford presents zero evidence. None. Cannot remember very much.
ACLU is now a garbage organization. Guilty until proven innocent. Disgusting

Anonymous

And Trump destroyed her at his Mississippi rally! She will be ashamed to ever show her face again. You have to admire Trump for humiliating people he targets, like Pocahontas. Serves them right, don't they hide behind their politically correct warm and fuzzy talk, hunkered down in their safe places.

Anonymous

The ACLU has ALWAYS been a garbage organization. This is merely icing on the cake.

David Oetting

Ford was used by Feinstein to attack Kavanaugh. Ford was hung out to dry with a pitiful story contradicted by each person she claimed as a corroborating witness. Now two weeks later (or several months, however you count it).Fords lawyers say there are numerous witnesses the FBI refuses to interview—but wont name them. As advocates, the “lawyers” should protect Ford. These lawyers are shams—shills for the fraud committed by DiFi and Schumer. Step up people—whoever you are. Uncover the mystery. It’s almost Halloween! They are all con artists.

Erin

I agree with Jeff! I don't care if this is a criminal trial or an appointment to the highest court in our nation. Not one person after the FBI investigation who was Mrs. Fords witness knew anything about what she claimed happened.
This is a repressed memory from a counseling session, She may believe it, but this has happened MANY TIMES before from counselor manipulations. Innocent ppl have went to jail, had their lives ruined, & cannot gain employment afterward due to public opinion right or wrong.
As a victim of a violent sexual assault myself in 2008 I take offense to many of these false claims of rape within the Me Too Movement & from Hollywood, if you make a choice to have sexual relations with a man or woman to further a career, it's NOT RAPE. Rape is when your forced, You cannot get away... Not choices you made to move up the ladder & years later are unhappy with the results bc you career isn't where you'd thought it be., if you are able to say NO & walk out of a room then it's a choice. It's a moral choice, I've had that offer in the workplace before, I said no, then went elsewhere to work or changed depts. See the difference, CHOICE!?

Anonymous

If the "ACLU is called on to defend all the freedoms guaranteed in the Constitution and the Bill of Rights," then they should support every individual's innocence until proven guilty. There is a large and distinct difference between credible allegations and actual guilt. This is why All Americans are innocent until proven guilty. The burden is on the accuser to prove guilt, not the accused being guilty and forced to prove innocence. So I accuse the ACLU of doing this purely as a strategic political move. Based on a lack of convincing reasons listed above, prove to the American public that a heavily left leaning ACLU is not doing this for political reasons alone.

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