Why the ACLU Opposes Kavanaugh (ep. 16)

October 1, 2018
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The nomination of Judge Brett Kavanaugh to the Supreme Court has turned into a full-blown national drama, amid credible sexual misconduct allegations against him. Late last week, Dr. Christine Blasey Ford testified before the Senate Judiciary Committee that Kavanaugh assaulted her when they were both in high school. Kavanaugh denied her claims in a combative and emotional response. The ACLU does not ordinarily oppose or support judicial nominations. However, the day after the Senate hearing, the ACLU’s national board voted to suspend that policy in order to formally oppose Kavanaugh’s nomination. ACLU President and Brooklyn Law School professor Susan Herman joins At Liberty to discuss the decision.

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LEE ROWLAND
[00:03] I'm Lee Rowland. From the ACLU studios in New York City, this is At Liberty: the podcast where we discuss today's most pressing civil rights and civil liberties topics. Today: The ACLU opposes Kavanaugh.

It's hard to overstate the degree to which Brett Kavanaugh's Supreme Court nomination and the sexual misconduct allegations against him have gripped the nation over the past week. In a dramatic hearing on Thursday, Dr. Christine Blasey Ford testified before the Senate Judiciary Committee that Kavanaugh had sexually assaulted her in high school. Kavanaugh denied her claims in a combative and emotional response. Prompted by Arizona Senator Jeff Flake, the FBI opened a limited, one-week investigation into Kavanaugh's conduct. Meanwhile, some groups that hadn't previously opposed Kavanaugh have changed course as a result of the allegations. The American Bar Association, for example, has called for further investigation after previously rating Kavanagh “well-qualified.”

Another such group is the American Civil Liberties Union. The organization does not ordinarily oppose or support judicial nominations. However, over the weekend, the ACLU’s national board voted to suspend that policy in order to formally oppose the nomination of Brett Kavanaugh to the U.S. Supreme Court. Here to discuss it all is the head of that board, ACLU President and Brooklyn Law School professor Susan Herman. Susan, thanks so much for being here today.

SUSAN HERMAN
Thank you, Lee. Good morning.

LEE
Good morning. Well, this is really an extraordinary historical moment for the country. Could you walk us through where the ACLU is and has been on all things Kavanaugh?

SUSAN
[01:58] Well, I think I'd like to start with where the ACLU has been is on all things nonpartisan. Because we define ourselves as a nonpartisan organization, which means that we do not support or oppose candidates for elective office. And for most of our history that has included people for appointed office, including the Supreme Court. For about 20 years starting with 1987 and Robert Bork, we had had a policy that made an exception for Supreme Court justices. But then we actually decided to eliminate that exception and that policy in 2006. So in terms of Judge Kavanaugh, our current policy has been that we do not support or oppose nominees to Supreme Court any more than any other candidates for either elective or appointive office.

So what happened was that at the board meeting on September 22, we had a discussion about what was going on with Kavanaugh, and we knew that there was a hearing set for Dr. Christine Blasey Ford’s testimony, and the board agreed to have a special meeting on Friday evening, as we said, to discuss whether or not there was any ground here for an exception. And what the board did decide to do was to make an exception to our policy of not supporting or opposing Supreme Court candidates — not on the basis of ideology, because that's something that we had just decided long ago not to do, but because of the very credible allegations of sexual misconduct, because of the failure of having a fair and full investigation of the allegations and the subsequent allegations as well. And that, combined with Judge Kavanaugh’s own testimony at the hearing, led us to believe that there were just really serious doubts as to Judge Kavanaugh's fitness to serve on the Supreme Court.

LEE
So you have long ago made a decision as the ACLU not to oppose on reasons of ideology. Can you unpack that for us?

SUSAN
Okay, as I was saying, for most of our history, we have neither supported nor opposed any candidates for any elected or appointed office. With elective office, that's clear that we’re not partisan. We do not either support or oppose Republicans or Democrats. And I think some of that to me is also because the ACLU is a multi-issue organization, and there are a lot of people who are very good on some of our issues and not on others. So, to take one example of an elected official, Barack Obama was with us some quite a number of our issues. But we were very much in disagreement with him on some issues, like for example his massive surveillance policies and the use of drones to do targeted killings. So, in our view we don't try to rate candidates to see if they're perfect, because almost everybody has some civil liberties issues where they agree with us. And I believe that we've sued every president since we were founded in 1920, because there's always someplace where we think they get it wrong.

LEE
Right. It’s hard to please the ACLU across the board.

SUSAN
[04:43] It is very hard to please us, and we pride ourselves in not being political in deciding who to oppose and who not to oppose. Now, with respect to Supreme Court justices, I could say the same thing. Justice Kennedy, who just retired, was a wonderful supporter of some issues that we very much believe in, especially in the Obergefell case, where he was writing the opinion that gave us same-sex marriage. But, on the other hand, in all five of the cases that we had before the Supreme Court last year, Justice Kennedy voted against us. So what we had decided in our initial decision, and what we went back to in 2006, was that we're not about individual people, we're about policies. So what we do when there is a Supreme Court nominee is we, our staff puts together a record that talks about the candidate’s civil liberties decisions, so that people can talk about the issues in connection with a judge or justice's appointment, as opposed to the personality or the general ideology of the person.

So just to give you an example, while the different policy was in effect for about 20 years, the ACLU did oppose Robert Bork and did oppose Samuel Alito and had already opposed William Rehnquist. But that's it. So since the policy was suspended, for example, in the last confirmation that came up, of Justice Neil Gorsuch, we didn't take a position either supporting or opposing his appointment.

LEE
And are those the only three, as far as you're aware, the only three judges — Bork Rehnquist and Alito — that the organization has previously formally opposed, before Kavanaugh?

SUSAN
That's right. There were only three before now and we're now at four. Now that we have decided to oppose the confirmation of Judge Kavanaugh based on the current record.

LEE
Are you able to tell us why the board reverted back to its policy of neither opposing nor supporting candidates, after what I assume is Alito in 2006?

SUSAN
[06:36] I think the reason that we reverted back was that we looked at our record over that 20 years, and we were very inconsistent. I think that part of the concern was about whether we were going to be consistently applying the standards. And I think part of the concern was about whether it would appear to be partisan if we were objecting to Republican nominees and not Democratic nominees. And we like to think that we are neutral and fair. So where we ended up, as I mentioned before, is that we don't predict how we think a Supreme Court justice would vote. And we always hope to be pleasantly surprised. Chief Justice Roberts has voted in unexpected ways in a few cases. There have certainly been examples before when justices have surprised the presidents who nominated them. That was certainly the case with Sandra Day O'Connor and Anthony Kennedy and David Souter when they voted not to overrule Roe v. Wade.

So instead of predicting that we're not going to like the way somebody rules, we just decided to get out of that business. And I have to say I don't regard what we just did Friday night as reverting to the previous policy. I regard this as an exception, because it's something that really we hadn't thought about before: if we are concerned about a candidate not on the basis of how we expect they're going to vote. That wasn't what our discussion about Kavanaugh was about, how we we think he's going to vote. It was based on the fact that there were credible allegations of sexual misconduct, that there was an inadequate investigation, and that Judge Kavanagh's testimony at the hearing really gave many suggestions of partisanship and perhaps dissembling.

LEE
Tell us more about that testimony. What stood out for the board as really calling for this kind of exception?

SUSAN
[08:16] Well I think what calls for the exception — and again, this was on top of the main thing that the board was concerned about — was the credible testimony of sexual misconduct.

LEE
Right.

SUSAN
Board members took very seriously the idea that Dr. Ford’s testimony does not need corroboration, that the testimony of a woman about a sexual assault is sufficient evidence. And so I think we started from the idea that this is not a criminal trial where you want to impose a presumption of innocence and the proof beyond a reasonable doubt standard. You'd have to be very sure that, in fact, Judge Kavanaugh did such things in order to convict him of a crime.

But this is not a criminal trial. This is a job interview. And so the board felt that the burden should be on Judge Kavanaugh to show that he is, in fact, fit, once we heard Dr. Ford’s very credible testimony. So that was where we were starting. We were just extremely concerned that there were at this point really unrebutted allegations of sexual misconduct, and that was concerning in itself. But in addition to that, a number of board members mentioned the fact that they also were very concerned that Judge Kavanaugh's response did not show a judicial temperament. So this was sort of an additional factor. You know one thing that I think we should expect of a judge is that they be unbiased and neutral and it would be certainly hard to imagine that Judge Kavanaugh, after railing at the Democrats that way, would be in fact open-minded if he had litigants before him who were Democrats. So that was something that was really added in to the just basic questions about his fitness — his judicial temperament.

And so I think that it is in no way inconsistent with the idea that we do not try to predict how justices will vote based on their ideology. We don't oppose justices based on their ideology. But we did think that there was something different going on here, that there were basic questions about whether Judge Kavanaugh has the temperament to be on the Supreme Court.

[10:13] And if I could say one more thing in terms of where I think the board came from when they made an exception for Supreme Court nominees for that 20-year period as opposed to anyone else: When you think about it, there is a very active check on almost any other candidate who can be elected or appointed. If we elect somebody who turns out to be unfit for the job, there's another election in which you can vote them out. If somebody is appointed to a position, you can always lobby the person who appointed them to get rid of them. But the Supreme Court justices are in the completely unique position of having life tenure. So the only way you can get rid of a Supreme Court justice who turns out to be biased or unfit is to through the extremely high bar of impeachment. So that's what led the board to go back to some of the idea that the Supreme Court is special.

The vote on the board ended up being a supermajority vote. We have 69 board members — 62 of them managed to attend the emergency meeting on Friday night. And the vote of the board was 55 to seven to oppose the nomination of Judge Kavanaugh.

LEE
That is most certainly overwhelming.

SUSAN
So that's why… And there were a lot of people who went in who, as of last Saturday, said no we should never make an exception to our policy. But then as the factors started to mount up — not only was Christine Blasey Ford very persuasive but you know there were all these other concerns that were raised about, well, how partisan does that sound? And is this person really going to be fit to be a Supreme Court justice? And then the inadequacy of the investigation too, it just really added up.

LEE
Yeah. Wow. Do you see any likelihood of the board changing this vote, depending on the outcome of the FBI investigation that we're now likely to see over the next week?

SUSAN
I think that's a great question. I think we've left room for that possibility. The board concluded that Dr. Christine Blasey Ford’s testimony was very credible and that therefore we think there is a, as lawyers say, a prima facie case from what we can see right now. There is a pretty good case that in fact she was sexually assaulted, and that the person who assaulted her was Judge Kavanaugh. However, we still do believe in due process, and if there were evidence that came out to show that the facts are not as we believe them to be right now, I think the board would be open to reconsider. There are some concerns that board members had that would not necessarily be eliminated by a full and fair FBI investigation showing that we should believe his testimony because, you know, of the lack of temperament. I think some board members would have to try to sort out which thing was more important to them. But I think that we leave room for the possibility that if Judge Kavanaugh is vindicated by a full and fair FBI investigation, then we might well talk again and talk about whether or not we think he is a fit justice after all.

LEE
[13:00] Let's turn to the issue of temperament. Certainly what struck me most about the hearings was that Judge Kavanaugh came in in a mode that I would liken to snarling, and began with a very partisan shot across the bow about those hearings being related to a Clintonian conspiracy. The ACLU, as you mentioned, has sued about every American president in history. Did the board discuss the potential negative consequences for a legal organization that practices in front of the court after formally opposing a nominee who may very well end up sitting on that court, and who now has made plain an intention to remember those who have stood against him?

SUSAN
Well, I can say, Lee, that in 2006, when the board decided to drop making an exception for Supreme Court nominees, that's another explanation that was given — that we do very frequently appeared before the Supreme Court and it's very important to us that we're regarded as a neutral or fair litigant. I can say that both Antonin Scalia and Clarence Thomas have commented over time that they read ACLU briefs and cases because they regard us as an honest broker. I think those were Scalia’s words. So I think it's very important to us, and a number of people had said, well we don't really want to prejudge justices and then appear before them after we've said we don't want you on the Supreme Court.

LEE
Right.

SUSAN
That was one of the arguments in 2006. When the board was just discussing whether or not to make an exception to the policy, and that argument was raised — well you know, what if we were to oppose Judge Kavanaugh? Would he then bear a grudge and vote against us just because we had opposed him? And there were a lot of board members who sort of questioned how true that is empirically. I don't think we really have a lot of evidence about whether or not a judge would tend to hold a grudge against a particular organization that had opposed him or her. And I think, you know, in some ways it may be plausible to say that maybe a judge would bend over backwards to not show bias against you. So I think that wasn't an important part of the decision here.

[15:05] But what you're saying about temperament…. I think there are two parts to temperament. One part is just, is somebody explosive. And here I saw recently somebody dug up a quote of what Senator Lindsey Graham said about Sonia Sotomayor at her confirmation hearing. And he said she was so angry, she was so explosive and she didn't have the temperament to be on the Supreme Court.

LEE
That's astounding.

SUSAN
So I thought it was very pretty interesting that Judge Kavanaugh would be judged by a different standard from the standard that at least he applied to Sotomayor.

But I think that the ACLU wouldn't necessarily want to go there. So when I say temperament, I don't necessarily mean just that you know he has a demeanor, that sometimes he might yell more. If somebody yells, you know, that not necessarily something that would disqualify them from being a judge. It's not good. But what, in my mind, what board members were more concerned about was what we're generally calling part of temperament, but it is really more about partisanship. Can that judge be fair?

Chief Justice Roberts famously said at his confirmation hearings that he's just an umpire and he just called balls and strikes. Well, you know, if you had somebody you were thinking of hiring as an umpire before the ballgame and they started screaming about how much they disliked one of the teams, you wouldn't hire them. So, you know, the possibility of partisanship here I think was what was a main concern to some board members. The reason I don't think we're reverting to the business of always deciding whether or not to oppose Supreme Court justices is that this is almost like a perfect storm. You know, we have the credible allegations of sexual misconduct. We have the inadequate investigation where you can't really tell what evidence there is, big picture. We have additional allegations which have not been investigated or presented to the committee. And then we have Judge Kavanaugh's own testimony, which I think shows several different things. It does show an explosive temperament. But what worries me more is that there are suggestions that he would be going into the Supreme Court as a partisan. And we have concern about whether there is a bias there that would disable him from doing the job of being fair to all litigants.

LEE
[17:15] I want to change the subject a little bit, as we're winding up. So many commentators have noted the echoes to the Anita Hill hearing during the confirmation, obviously, of Justice Thomas. And I think those echoes are very jarring, particularly in revisiting how Anita Hill herself was treated at the time. Whatever happens with Kavanaugh, do you think we've made progress as a nation in providing women the space and incentive to come forward? And do you think the ACLU’s commitment to women's rights among other issues at all affected how the board received the credibility of Dr. Ford’s testimony and in voting to take this step?

SUSAN
Yeah, I think that's certainly true. And I think that in terms of whether we as a country have made progress on listening to women, the #MeToo movement I think is really so important. And our Women's Rights Project has been trying to design its current docket — its current activities — to try to capture the moment that we're in, where all of a sudden it does seem possible that a woman will be listened to even if she doesn't have, you know, corroboration, even if there's not a lot of evidence, of objective evidence other than her testimony. So I think the fact that Dr. Ford’s testimony was so credible — I think that many members of the board wanted to stand with her and to say this was a very brave and patriotic thing that she did, to tell intimate details of things that are really clearly traumatic for her and to tell them to the Senate committee just because she thought that it was her civic duty to give information that might be helpful to the Senate.

[18:53] So, you know, I think we did want to make that statement and to disagree with those who say, “Well you shouldn't pay any attention to her because you don't have objective corroboration. You don't have her calendar saying where this happened, what the address was, and what time and what date and how she got home.” So I think this is our statement that we do believe that women should be believed, that women should be able to tell their stories. Back to the idea of partisanship: One thing that I said to the board at the beginning was that I thought that whether or not board members believed Dr. Ford’s testimony was an important question that everyone was thinking about for themselves, but that that would not in itself be enough for the ACLU to decide to oppose Judge Kavanaugh, that we had to think about our role as fiduciaries and our role as a nonpartisan organization. And so what I asked board members to think about was what if Judge Kavanaugh had been a Democratic nominee and somebody who we predicted would be very favorable on civil liberties. Would we have reached the same conclusion and opposed his nomination on the basis of these same factors — on the basis of the credible allegations of sexual misconduct, the show of partisanship even if it had been in the other direction, etcetera?

And quite a number of board members were very struck by that and they said that they were quite certain and committed to the idea that this standard should apply in a nonpartisan fashion, and that if there were a Democratic nominee who raised the same doubts as to fitness to serve on the Supreme Court, we’d like to think you know that if there were all the same circumstances that we’d take the same position. That this is not about politics, but this is about an individual who the board concluded has not made the case that he is a fit person to serve on the Supreme Court.

LEE
[20:34] Susan my last question for you is prompted in part by comments we've gotten from some of the listeners to our podcast, who say they would love to know more about how the folks we talk to got in to the gigs we're talking to them about. So could you just give us a, just a quick summary of how exactly one becomes president of the ACLU?

SUSAN
When I was elected president, people would ask, well, how did you become a civil libertarian? And the story that I love to tell is when I was in third grade and I first discovered that my public school library had, I knew they had a girls’ section and boys’ section in the library. But when I went one day to take out a book — Johnny Tremain, we were doing the play version of it in third grade — and I wanted to read this book and I was told by the librarian that I couldn't take it out because it was in the boys’ section. And that had never actually occurred to me — I knew that they were recommending books for girls and boys but I didn't know I wasn't allowed to read certain things. So I told my mother about this and she just blew up. And she called the school librarian and insisted that I should be able to read whatever I wanted. And so the librarian, you know, let me read whatever I wanted. And in a few months they changed the policy. And so I think our values are formed very early. So I like to say to people that the first civil libertarian I knew was my mother.

[21:49] And this whole idea that you could kind of stand up to authority and to people telling you what you can and can't do, what's good for you, I think really stuck. So then my first involvement with the ACLU was when I was in law school and as a law student I was working for someone who was general counsel to the New York Civil Liberties Union — Larry Sager — I worked with him on some research and some litigation, and gradually got to see more of what the ACLU did. So after law school I did not go to work for the ACLU, but I did become first a member of a committee that was working with the board, and then I got elected as a board member. I did that for a number of years, then was elected general counsel, which I'm very proud of — that was one of the jobs that Ruth Bader Ginsburg had before me. And then I was elected just about 10 years ago to be president.

LEE
Susan thank you so much for joining us to talk about the Kavanaugh nomination this morning.

SUSAN
Thank you Lee.

LEE
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