David Cole is national legal director of the ACLU and legal-affairs correspondent for The Nation. His most recent book is Engines of Liberty: How Citizen Movements Succeed.
Jon Wiener: Let’s clarify at the outset: What is the ACLU policy on endorsement of Supreme Court nominees?
David Cole: We are a nonpartisan organization, and we have a policy of not endorsing or opposing nominees or candidates for government office, and that includes the Supreme Court. So we’re neutral on the appointment of Brett Kavanaugh.
JW: You think there are questions that Brett Kavanaugh should be required to answer. Before we get into the specifics of those questions, what is your rationale here? How do you distinguish between a question that ought to be answered, and questions that are not appropriate?
DC: I don’t think it’s appropriate to ask how a judge is going to rule in a particular case. But you can ask them questions that go to their understandings of basic constitutional principles and rights without asking them to decide how they would rule in a specific case. For example, I don’t think it’s appropriate to say, “Will you affirm or overturn Roe v. Wade?” But I think you can ask, “Do you agree that the Constitution protects a fundamental right of liberty of all persons to make personal decisions about their bodies and their families?” That includes things like the right to choose how your child is educated, the right to choose whether to use contraception or not, the right to marry on equal terms if you’re straight or not, and the right to abortion.
JW: Roe v. Wade right now has massive public support. A poll from NBC News found that 71 percent of American voters believe that the decision which established a woman’s legal right to an abortion should not be overturned. Just 23 per cent say the ruling should be reversed. That’s the highest level of support for Roe v. Wade, and the lowest share of voters who want it overturned, in the history of polling. For the Democrats this is a key issue around which they are mobilizing opposition to his nomination.
DC: On Roe v. Wade, Kavanaugh hasn’t decided many cases, but he did decide one—a case that the ACLU brought on behalf of an undocumented minor who was in federal custody in Texas. She learned that she was pregnant, sought to obtain an abortion, went through all the steps you need to go through as a minor in Texas to get an abortion. And then the head of the Office of Refugee Resettlement, which oversees the federal custody of immigrant minors, and is adamantly pro-life, vetoed her decision. In essence, he said,”I’m not going to open the door of the facility in which you are being held in custody to allow you to go out for medical treatment that is your constitutional right.”