ACLU Formally Opposes Kavanaugh Despite Being Nonpartisan

The American Civil Liberties Union has come out against the confirmation of Judge Brett Kavanaugh to the Supreme Court. It is only the fourth time in the organization’s 98-year history that its national board of directors has voted to oppose a Supreme Court nominee. ACLU President Susan Herman said in a statement, “As a nonpartisan organization, the ACLU does not oppose Judge Kavanaugh based on predictions about how he would vote as a Justice. We oppose him in light of the credible allegations of sexual assault against him.” The ACLU has now launched a $1 million ad campaign across four states urging key swing-vote senators to vote against Kavanaugh’s confirmation. We speak with Louise Melling, deputy legal director at the ACLU and director of its Center for Liberty.

AMY GOODMAN: This is Democracy Now! I’m Amy Goodman, with Juan González.

JUAN GONZÁLEZ: Well, the American Civil Liberties Union has come out against the confirmation of Judge Brett Kavanaugh to the Supreme Court. It is only the fourth time in the organization’s 98-year history that its national board of directors has voted to oppose a Supreme Court nominee. ACLU President Susan Herman said in a statement, quote, “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. … As a nonpartisan organization, the ACLU does not oppose Judge Kavanaugh based on predictions about how he would vote as a Justice. We oppose him in light of the credible allegations of sexual assault against him,” unquote.

AMY GOODMAN: On the heels of the announcement, the ACLU launched a million-dollar ad campaign across four states urging key swing-vote senators to vote against Kavanaugh’s confirmation. This ad targets Colorado Republican Senator Cory Gardner.

NARRATOR: We’ve seen this before: denials from powerful men.

PRESIDENT BILL CLINTON: I did not have sexual relations with that woman.

BILL COSBY: I’ve never seen anything like this.

JUDGE BRETT KAVANAUGH: I categorically and unequivocally deny the allegation against me by Dr. Ford.

NARRATOR: America is watching. And as we choose a lifetime seat on our highest court, integrity matters, and we cannot have any doubt. Senator Gardner, oppose the confirmation of Judge Kavanaugh.

AMY GOODMAN: Similar ACLU ads address Nebraska Senator Deb Fischer, West Virginia’s Joe Manchin and Shelley Moore Capito — interestingly, she went to Holton-Arms, as did Dr. Ford — Alaska Senator Lisa Murkowski and Senator Dan Sullivan, urging them to vote “no” on Kavanaugh. The last time the ACLU publicly opposed a Supreme Court nominee was over a decade ago, in 2006, when George W. Bush nominated Justice Samuel Alito. In 1987, the ACLU opposed President Ronald Reagan’s nomination of Justice Robert Bork. And in ’71, it opposed President Richard Nixon’s nomination of Justice William Rehnquist.

Well, for more, we’re joined by Louise Melling, deputy legal director at the ACLU and director of its Center for Liberty, which encompasses the ACLU’s work on reproductive freedom, women’s rights, lesbian, gay, bisexual, transgender rights, freedom of religion and belief, and disability rights.

Welcome to Democracy Now!, Louise.

LOUISE MELLING: Good morning. Thank you.

AMY GOODMAN: So, talk about this change of heart. We just had David Cole on, when the Kavanaugh announcement was made. He said, “We cannot take a stand.”

LOUISE MELLING: Yes. So, I would say, in brief, extraordinary times call for extraordinary measures. As you talked about before, we didn’t oppose Judge Kavanaugh when he was first nominated. We didn’t oppose as the proceedings went forward. We issued a report talking about his record. We raised concerns about his civil liberties record in certain areas, but we adhered to our long-standing policy. But now, in light of the sexual assault allegations, we have come out to oppose Judge Kavanaugh, believing that those raise serious questions that are fundamentally different. They raise serious questions about the integrity of the court, should he be on the court.

AMY GOODMAN: What are those concerns?

LOUISE MELLING: Well, I’ll point to the code of judicial conduct. The code of judicial conduct talks about the importance of a judge behaving in a way that inspires public confidence in the integrity and the impartiality of the court. And when we look at Judge Kavanaugh’s record in these proceedings or what’s come out, he is not behaving in a manner that will advance the public confidence in the integrity. I would point to — we have credible allegations of sexual assault. We have a judge who has resisted calling for a full investigation, what we would think of as central to any fair proceedings. And we have a judge who now, in the hearings last Thursday, talked about the allegations as a political hit, and as a political hit in response to payback, I believe was his word, for Trump and for Clinton. That bespeaks more of a partisan than a judicial temperament.

JUAN GONZÁLEZ: I wanted to ask about that, because the hearing was really stunning in terms of the damage, it seemed, that Judge Kavanaugh did to himself in his testimony, in terms of the belligerence that he showed to the members of the Senate and also the lack of, what you might say, judicial restraint in the way he approached the questions that were tossed at him. I’m wondering to what degree those hearings really galvanized the board to make this decision of the ACLU?

LOUISE MELLING: Well, the board was considering seriously the allegations of sexual assault and attempted rape. The board met after the hearings, so that the board could have a chance to hear the witnesses, such as we had it. We, like others, have shared concerns about what kinds of investigation there is, how robust the hearing is and whether there’s a fair chance for both of them to tell their stories robustly. And in light of the allegations — as Susan Herman’s statement says, in light of the allegations, in light of the hearings, we came out to oppose.

JUAN GONZÁLEZ: And the decision to launch an ad campaign at the same time?

LOUISE MELLING: Well, the decision to launch the ad campaign, of course, followed the board’s position, the board’s vote that we would oppose. But now that we are opposing, it’s incredibly important that we stand up. It’s incredibly important that we stand up because of the message that any confirmation of Judge Kavanaugh would send to sexual assault survivors. It’s important that we stand up, given what this would say about the integrity of the court. I can’t reiterate enough how important it is that we believe in our systems. And to believe in the court requires us to believe that people, albeit human, are working as hard as they can to be impartial and fair.

AMY GOODMAN: So let’s go to Judge Brett Kavanaugh giving his opening statement Thursday.

JUDGE BRETT KAVANAUGH: This whole 2-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election, fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons, and millions of dollars in money from outside left-wing opposition groups. This is a circus.

AMY GOODMAN: He talked about the Clinton conspiracy, etc., the millions spent by left-wing groups. He talked about left-wing conspiracies. His rage was almost uncontained. Now, does this mean that progressive groups that go before the Supreme Court should ask him to recuse himself? I mean, the fact of the matter is, right-wing groups have also spent millions of dollars. He is not raising this.

LOUISE MELLING: I would leave to another day questions of recusal. But I will say that we’ve had a lot of conversation about — we, the public, in discourse around nominations — about how they’ve become so partisan. What we saw here was the nominee himself engaging in partisan conduct. And I think your question, of course, raises for us a serious question about: How will the public perceive a decision that comes out against a group like Planned Parenthood or the NAACP, for example, groups that have been opposing Kavanaugh? How will we assess the fairness and stand by the fairness of a decision that affects, quote, “Democratic opponents,” close-quote, that might run to political gerrymandering or campaign finance or the census? Again, this is about how important it is for judges to really conduct themselves in a way that gives us confidence that they’re doing everything they can to be impartial as they hear cases before them.

JUAN GONZÁLEZ: I wanted to ask you — NBC News is reporting that there are some text messages that suggest that Brett Kavanaugh reached out to acquaintances to try to refute Deborah Ramirez’s sexual assault claim before it became public. Are there any — if that’s true, are there any concerns there about his conduct leading up to the hearings?

LOUISE MELLING: I certainly think that it’s incredibly important that we have had a — that we have a hearing and that we have a full investigation. And a full investigation seems important both for the integrity of the opportunity for Judge Kavanaugh to clear his name, should that be the case, for Dr. Blasey Ford’s allegations to be robustly heard and tested, and for the public to have confidence, confidence in a candidate. As our ad said, this is too important. We can have no doubt. So, it’s important for an investigation, an investigation to look for the facts and to test the veracity of the statements that have been made.