ACLU Board of Directors Urge Senate to Defer Nomination of Supreme Court Justice

September 26, 2020 8:45 am

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NEW YORK — The American Civil Liberties Union’s board of directors passed a resolution to urge the Senate to defer the confirmation process for the successor of Supreme Court Justice Ruth Bader Ginsburg until after the presidential inauguration.

As a matter of organizational policy, the ACLU does not support or oppose nominees to political or judicial office. In this statement, the ACLU is not taking a position on any particular nominee, but only on the process used by the Senate to assess a nominee for confirmation.

“We are still mourning the passing of the ACLU’s most illustrious alumna, Supreme Court Justice Ruth Bader Ginsburg. We felt that under the extraordinary circumstances of a pandemic in this election year, it was necessary to express a principled opposition to a rushed process,” stated ACLU Board President Susan Herman. “We urge the Senate to defer the confirmation process for her successor until after inauguration. Any other course threatens the legitimacy of the court and risks abdication of the Senate’s constitutional obligation to provide ‘advice and consent’ for Supreme Court nominations.”

In a special meeting Friday evening, ACLU’s national board of directors adopted a resolution stating:

The ACLU is a nonpartisan organization, and our policy is not to endorse or oppose candidates for appointed office. Here, we are not taking a position on any particular nominee, but only on the process used by the Senate to assess a nominee for confirmation. The reasons for this position are:

1. Double Standards. Four years ago, when Justice Ginsburg’s close friend, Justice Antonin Scalia, died, the Senate, led by Majority Leader Mitch McConnell, maintained that because there was less than a year to go before the presidential election, it would not vote on any nominee before the election, but would instead “let the people decide.” That argument, which carried the day then, meant that President Trump, and not President Obama, made the nomination to fill Justice Scalia’s seat. We did not take a position on that practice at the time. It is not a rule founded in, much less required by, the Constitution. But if this Senate majority and its Majority Leader, who has not changed since 2016, are to act in a principled, consistent manner, rather than on the basis of pure partisan politics, they must follow the same practice this time. They told the people then that they were acting on a principle that would apply to any candidate put forward in the last year of a president’s term; they should be held to their promise. The Supreme Court, if it is to be perceived as legitimate, must be insulated from naked, partisan politics. The Senate majority’s deployment of a hypocritical double standard for partisan purposes risks tainting the Court’s legitimacy for decades to come.

2. Meaningful Advice and Consent Takes Time. In addition, the Senate should not rush to judgment, because to do so under the unprecedented circumstances we now face would be an abdication of its “advice and consent” responsibility under the Constitution. Confirmation of a Supreme Court justice is one of the Senate’s most solemn obligations. Justices serve for life and decide controversies affecting every American, and this is the people’s only opportunity to have a say in their fitness for such a potent office. Failure to meaningfully exercise the advice and consent role risks the legitimacy and integrity of both the Senate and the Court. There is no set time limit for advice and consent, but there is no way that meaningful consideration can take place under current conditions — six weeks from an Election Day with key Senators and the President actively campaigning for their jobs; in the midst of an uncontrolled pandemic that affects every aspect of life, including Senate proceedings and the ability of constituents to communicate with their senators; in the midst of widespread protests about police violence against Black people in hundreds of cities and towns, often plagued by use of military and federal and state law enforcement against protesters; and with the need for the Senate to complete must-pass appropriations to avert a government shutdown. It is all the more important that time for meaningful consideration by the people and the Senate be provided because given how closely divided the Court is, this nominee, whoever it is, will very likely determine the scope of civil liberties and civil rights for a generation to come.1 In fact, some Senators have stated that they will vote to confirm before the name of the nominee has even been announced. At this moment, with these stakes, the Senate, and through them, the people themselves, cannot provide meaningful advice and consent on a nominee in the remaining weeks of this Congress.

For 100 years, the ACLU has worked in courts, legislatures, and communities to protect the constitutional rights of all people. With a nationwide network of offices and millions of members and supporters, we take up the toughest civil liberties fights. Beyond one person, party, or side — we the people dare to create a more perfect union.

1 Many of the most important decisions protecting constitutional rights of the past decade have been decided by 5-4 margins, often with Justice Ginsburg providing a fifth vote. These include upholding the right to abortion (Whole Woman’s Health v. Texas, June Medical v. Louisiana), recognizing marriage equality (Obergefell v. Hodges, Windsor v. United States), limiting the death penalty and life-without-parole sentences for children (Roper v. Simmons, Graham v. Florida, Miller v. Alabama), protection for Dreamers (DHS v. Regents of Univ. of California), preserving affirmative action (Fisher v. University of Texas, Grutter v. Bollinger), and preserving the Affordable Care Act (NFIB v. Sebelius).

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