The ACLU Must Decide Whether to Oppose an Amy Coney Barrett Supreme Court Nomination

The American Civil Liberties Union, which has opposed only four Supreme Court nominees in its 100-year history, may feel obliged to come out against its first non-white male nominee should U.S. Circuit Court Judge Amy Coney Barrett remain the top choice of President Donald Trump.

The ACLU has historically denied having any partisan influence in its rejection of four past SCOTUS nominees, all of whom were white men nominated by Republican presidents. Barrett's opposition to women's reproductive rights, past rulings on campus sexual assaults and religious ties to Catholicism have drawn criticism from many lawmakers who say she may be unable to preside fairly over the rights of every American. The ACLU told Newsweek Tuesday it has "no comment at this time" on Barrett's potential nomination but is watching the unfolding events closely.

Senate Majority Leader Mitch McConnell said last Friday that Senate Republicans are poised to approve the president's nominee as soon as possible should Trump follow through on his 2018 claim, "I'm saving [Barrett] to [replace Ruth Bader] Ginsburg" nearly two years before the justice's death.

The decision on whether to oppose Barrett comes after the death last Friday of Ginsburg, who was the co-founder of the Women's Rights Project at the ACLU and an icon of U.S. equality movements. Barrett, 48, co-signed a 2015 letter to Catholic bishops that confirmed her belief in the "value of human life from conception to natural death."

Barrett, a University of Notre Dame graduate, gained notoriety on the national level after her 2017 federal bench confirmation hearing in which she defended the role her Catholic faith plays in her judgments, amid questions from Democratic senators, including California's Dianne Feinstein.

In its history, the ACLU has only opposed four judges: William Rehnquist in June 1986 and Robert Bork in July 1987, both nominees by President Ronald Reagan; Samuel Alito in November 2005, an appointee of President George W. Bush; and most recently in October 2018, Brett Kavanaugh, a Trump appointee.

The ACLU's potential dilemma involving Barrett's nomination can be seen through precedent, particularly given the group's rare opposition to Supreme Court nominees and its traditional focus on candidates with poor record pertaining to equal rights.

ACLU Executive Director Anthony Romero explained in 2005 that Alito had "written a series of troubling decisions on race, religion and reproductive rights while sitting on the federal appeals court…his record shows a willingness to support government actions that abridge individual a time when our president [George W. Bush] has claimed unprecedented authority to spy on Americans and jail terrorism suspects indefinitely."

The ACLU explained how its 2018 opposition to Kavanaugh's nomination was not political by noting Justice Anthony Kennedy, a Reagan appointee, "made history" in 2015 for supporting same-sex marriage in the Obergefell vs. Hodges ruling before going on to rule against the ACLU in all five of its cases held during the court's last term.

Barrett has drawn wide criticism for recent rulings in which she appeared to move in the opposite direction of Ginsburg's pro-women's rights stances.

While on a three-woman panel of judges between 2018 and 2019, Barrett ruled that a male Purdue University student accused of sexual assault may have been discriminated against because of his gender. The student, identified only as John Doe, had been suspended from the school for a year and lost his position in the Navy ROTC program as a result of the allegation from the victim, identified as Jane Doe.

Ginsburg was former counsel for the ACLU and argued her first case against sex discrimination in 1973 in front of a Supreme Court filled exclusively with male judges. She won that and four additional cases before going on to be confirmed to the Supreme Court with a 96-3 Senate vote in August 1993.

In 2018, the ACLU opposed Kavanaugh's nomination with the following argument: "The ACLU opposes the confirmation of Judge Brett Kavanaugh to the Supreme Court. 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."

amy coney barrett supreme court
The American Civil Liberties Union, which has opposed only four Supreme Court nominees in its 100-year history, may be obliged to come out against its first non-white male nominee should U.S. Circuit Court Judge Amy Coney Barrett remain at the top of President Donald Trump's list of potential nominees. Screenshot: YouTube