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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Anon

I pray each and every member of the ACLU are one day found guilty in the court of public opinon.
"Due Process" has MEANING and is VALUABLE to those facing prosecution within the US justice system.... the ACLU no longer has ANY value or meaning when it comes to the US justice system.

Anonymous

And God bless the honorable Hillary Rodham Clinton, who through her excellence at the top of America's political leaders, looking upon the legacy of her leadership we can believe in justice for our nation's future.

Erin

Hey, anonymous is that before or as you crawl up & over her personal body count?? So many dead bodies & destroyed lives surround Mrs. Clinton & her husband it would be like climbing Mount Everest just to kiss her ring

Anonymous

I used to believe in the objectives of the ACLU, but now you are just another offshoot of the Democratic Party. What happened to "innocent until proven guilty?" You have failed to come to the aid of those who truly are fighting for their liberty. When you alienate Dershowitz, your organization has no more credibility.

Anonymous

Dershowitz is a dork who thinks he has something to say. He doesn't.

Anonymous

It's great that the ACLU has waited for all the information to be brought forward. Hopefully, the elites in charge at this organization don't have to explain their actions to their sons.

Anonymous

There was very little of the accusation that could be considered credible.

Anonymous

And what boy at that age didn't do something like that to show his masculine needs. I think he's become the victim here, since his needs should be considered too.

Anonymous

What a joke. The ACLU has become a partisan puppet. I’m assuming your demand for Keith Ellison and Cory Booker (both Democrats who have been accused of violence and sexual misconduct against women) step down immediately even though no evidence of potential misconduct has been offered.

Strange times we live in when the ACLU advocates for the destruction of someone’s life and livelyhood without evidence.

Anonymous

Cory Booker wasn't just accused. He wrote an article admitting to taking advantage of a drunk girl while they were both still in highschool. The article is titled "So Much for Stealing Second" and it was published by the Stanford Daily on 19 February 1992. You can get it, for free, from that papers digital archives.

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