Summary of Supreme Court Nominee’s Rulings and Writings Sent to Senate

August 15, 2018

NEW YORK — The American Civil Liberties Union has sent its analysis of the civil liberties and civil rights rulings and writings of Judge Brett Kavanaugh, nominee to the United States Supreme Court, to the Senate.

The ACLU prepares reports on nominees’ civil liberties records to help educate the American people and the Senate, but as a matter of organizational policy, the ACLU does not support or oppose nominees to political or judicial office.

“Judge Kavanaugh’s judicial writings show him to be a consistently conservative jurist: favoring executive power, allowing sweeping surveillance of Americans’ phone records, and allowing random drug testing of federal employees,” said David Cole, ACLU national legal director. “Our hope is that this analysis contributes to the understanding of the Senate — and the American people — of where Judge Kavanaugh stands on these issues and how he might serve on the Supreme Court.”

Judge Kavanaugh’s only decision involving abortion is one of the most concerning. In his ruling in Garza v. Hargan, he would have allowed government officials to obstruct, at least temporarily, a woman’s right to abortion when the government had no justification for doing so. In his dissent in the case, he said the court had “badly erred in this case,” by relying on “a constitutional principle as novel as it is wrong.” But the court had merely recognized that where the government lacks a compelling interest, it may not obstruct or hinder a woman’s right to an abortion. Judge Kavanaugh’s decision would have forced Jane Doe, an immigrant minor, to remain pregnant, potentially beyond the point at which an abortion would be legally available to her. Given this decision, there is cause for concern that Kavanaugh would provide the fifth vote to eliminate any right to abortion, or weaken it to permit unjustified abortion restrictions.

Other key findings of the ACLU report include:

  • Kavanaugh has shown extreme deference to presidential war power and national security claims, and a tendency to find obstacles to holding government officials accountable for constitutional and human rights abuses in national security cases.
  • Kavanaugh may undermine protections against establishment of religion, and has called the metaphor of a wall between church and state “wrong as a matter of law and history.”
  • Kavanaugh wrote an amicus brief that implies that he might not recognize the interest in a diverse student body as a justification for affirmative action.
  • Kavanaugh voted to uphold the National Security Agency’s suspicionless bulk collection of American’s call records as constitutional.
  • He dissented from a panel’s ruling declaring the U.S. Forest Service’s policy of random drug testing a violation of the Fourth Amendment, and voted to expand police power to search suspects during “stop-and-frisks.”

The report can be found at: https://www.aclu.org/report/aclu-report-judge-brett-m-kavanaugh

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