Why has the supposedly non-partisan ACLU proudly launched an inflammatory million-dollar ad campaign opposing Brett Kavanaugh? “People have funded us and I think they expect a return,” the organization’s national political director and former Democratic party operative Faiz Shakir told the Washington Post. “It was incumbent upon us to show how we can flex our muscles in trying to persuade our people in the Kavanaugh vote.”
But I doubt that Shakir and others at the ACLU expect its ad to persuade any wavering Senators to vote against confirmation. It is a shoddy, partisan political attack, likely to arouse more sympathy than antipathy for Kavanaugh among the few Senators who don’t already oppose him. It sensationally and unfairly equates him with Bill Cosby, along with Harvey Weinstein, Charlie Rose, Matt Lauer, and Bill Clinton (probably included to provide a veneer of non-partisanship). Comparing Kavanaugh to convicted sex offender Cosby, the ACLU effectively presumes him guilty of a sex crime, mostly on the basis of one credible but unproveable allegation of teenage misconduct.
This is not an ad that a non-partisan civil liberties organization sensitive to the rights of the accused would sponsor, much less boast about. “When we said we're going to use the full force of the ACLU to stop Brett Kavanaugh, we meant it,” the ACLU declares. It’s an ad you’d expect from a progressive political group, aligned with the #MeToo movement and its anti-libertarian mandate to “believe the (self-identified) victim,” categorically. In the world of #MeToo, every accuser is a survivor. As Democratic Senator Patty Murray has perversely explained, women leveling accusations of abuse should enjoy a “presumption of innocence.” The ACLU should forthrightly refute declarations like this, but it has implicitly endorsed them, labeling Kavanaugh a rapist: “Imagine an America in which a man who has sexually assaulted women sits on the highest court …” an ACLU email blast warns.
Of course, Judge Kavanaugh is not facing criminal charges. He’s facing evaluation of his fitness for the Supreme Court. Whether or not a credible, 35 year old accusation of sexual misconduct should disqualify him is a judgment call. But it’s not one the ACLU should make. In fact, the ACLU usually doesn't oppose judicial nominees. Its usual, preferable practice is to issue a report on a prospective justice’s record on rights and liberties. But if it felt compelled to oppose Kavanaugh, it should have done so on the basis of his record and his likely role in shaping a solid, possibly decades long, right wing majority on the Court with views antithetical to the ACLU’s mission.
Why did the ACLU base its opposition to Kavanaugh on questionable assault allegations? Its lurid ad and emails opposing Kavanaugh seem directed mainly at its progressive constituency -- the “people (who) have funded us,” as its political director suggests. The organization is apparently “flexing its muscle” not to protect civil liberty or derail Brett Kavanaugh, but in the interests of public relations, to assure progressive members and donors that they’re getting a “return” on their investments.
Some traditional civil libertarians will condemn the Kavanaugh ad, but progressives are becoming the organization’s primary or dominant constituency. Many of them have tenuous commitments to civil liberty, evident in their support for restricting allegedly hateful speech and intolerance for due process rights in sexual assault cases. The ACLU is gradually morphing into a progressive political organization, a leader of the resistance, with a new focus on electoral politics and social justice. As the Kavanaugh ad and the ACLU’s retreat from the unmitigated defense of speech make clear, its civil liberties agenda is now qualified by partisan progressivism.
This is a lamentable devolution or a welcome evolution, depending on your point of view. But impassioned progressive protests of the Kavanaugh nomination may have dire consequences for both the ACLU’s old liberal guard and its new social justice warriors. As I’ve feared it might, the battle over this nomination has awakened the Republican base. The “return” on investment for ACLU supporters may be a diminished blue wave in November, a newly invigorated right wing Republican Congress in 2019, and the political vindication of an unaccountable Donald Trump. The ACLU’s membership numbers and financial support may not suffer, but liberty and equality surely will.
Wendy Kaminer, a lawyer and author of eight books, is a former member of the boards of the American Civil Liberties Union of Massachusetts and the national American Civil Liberties Union.