“This is not a decision taken lightly,” according to a resolution the organization’s national board of directors passed. “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.”
The organization said this is only the fourth time in the ACLU’s 98-year history that its board of directors voted to oppose a Supreme Court nominee. It did not take such action against Justice Neil M. Gorsuch, President Trump’s first nominee to the high court.
The ACLU opposed the nomination of Justice Samuel A. Alito Jr., in 2006, raising concerns about his “expansive view of executive authority” and decisions he has written on race, religion and reproductive rights. President George W. Bush nominated Alito to replace Justice Sandra Day O’Connor.
In 1987, the ACLU opposed President Ronald Reagan’s nomination of Justice Robert H. Bork, whom the organization saw as “more radical than conservative.” In 1971, it opposed President Richard Nixon’s nomination of Justice William H. Rehnquist, though it did not take a position when Reagan later nominated Rehnquist to be chief justice.
In 1991, the ACLU remained neutral on the nomination of Justice Clarence Thomas, who faced sexual harassment allegations. But its Southern California chapter broke ranks with the national organization and opposed Thomas’s nomination, citing the judge’s positions on affirmative action and school prayer.
The ACLU had for years adhered to a strict policy of not endorsing or opposing nominees to judiciary or executive positions. Later, it changed its bylaws and said it will oppose any Supreme Court nominee “whose record demonstrates a judicial philosophy that would fundamentally jeopardize the Supreme Court’s critical and unique role in protecting civil liberties in the United States.”
In Kavanaugh’s case, however, the ACLU said its opposition is not based on his judicial philosophy, or whether it raises concerns about civil liberties.
“We oppose him in light of the credible allegations of sexual assault against him,” ACLU President Susan Herman said in the statement.
Ford, a 51-year-old research psychologist and professor from California, said Kavanaugh, 53, drunkenly pinned her on a bed, groped her and covered her mouth to stifle her screams as he tried to take off her clothes during a house party in Maryland in the 1980s, when the two were in high school. Kavanaugh has forcefully denied the allegations, as well as others leveled by two named women.
The ACLU has long touted a history of nonpartisanship and has said it works to protect the civil rights of all people regardless of politics. For example, the organization was intensely criticized last year for fighting for the rights of white nationalists to hold a rally in Charlottesville. Forty years ago, ACLU members resigned after the organization defended the free-speech rights of a neo-Nazi group to march in Skokie, Ill., where many Holocaust survivors lived.
But the ACLU has long been considered a bastion of liberalism by some conservative critics.
Breitbart, a right-wing news website, described the ACLU as “an ideologically left-wing organization with strong ties to the Democratic Party.” Kris Kobach, a staunch Trump ally, described the ACLU as a “liberal, George Soros-funded” organization, referring to the billionaire investor who spends $150 million a year on groups such as the ACLU and Planned Parenthood.
A Fox News article cited the ACLU’s position on gun control — that “legislatures can, consistent with the Constitution, impose reasonable limits on firearms sale, ownership, and use, without raising civil liberties concerns.” The same article, though, noted that the ACLU backed the National Rifle Association in a lawsuit against New York Gov. Andrew M. Cuomo (D).
Though the ACLU has shied away from outright endorsements or opposition of political candidates, it has made statements critical of certain people in office or who are running for office.
After Joe Arpaio, a former Arizona sheriff and a Trump ally, announced plans to run for the U.S. Senate, the ACLU said Arpaio’s history of “denying incarcerated women access to abortion” and “racially profiling Latinos” do not qualify him to be a senator.
After Kobach announced his gubernatorial bid in Kansas, the ACLU cited his “platform of cruelty to undocumented immigrants and false claims of voter fraud.” Kobach helped lead a highly criticized commission to investigate alleged voter fraud in the 2016 presidential election. One of the now-disbanded commission’s members said last month that there was no evidence of widespread voter fraud.
The ACLU also has raised concerns about Attorney General Jeff Sessions’s positions on LGBT rights, capital punishment and abortion rights after then-President elect Trump in November 2016 offered Sessions his current job. Similarly, the organization criticized CIA Director Mike Pompeo’s stance on mass surveillance of Americans.
In the era of Trump, the ACLU has placed itself at the forefront of the legal battles over some of the president’s most controversial policies. It has sued the Trump administration over its practice of separating families at the U.S.-Mexico border and detaining asylum seekers, to name a few. It has repeatedly challenged iterations of Trump’s travel ban that keeps people from certain majority-Muslim countries from coming to the United States.
The ACLU, though, has also sued Trump’s predecessor over similar issues of civil liberties. It sued the Obama administration over its detention of asylum seekers. Perhaps most notably, the organization challenged the U.S. government’s surveillance program that collects the telephone records of millions of Americans.