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ACLU’s David Cole on the Critical Questions Lawmakers Need to Ask Judge Brett Kavanaugh

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If President Trump’s Supreme Court nominee Judge Brett Kavanaugh is confirmed, it could lead to major rollbacks of civil rights, environmental regulations, gun control measures, voting rights and reproductive rights, including possibly overturning Roe v. Wade. Brett Kavanaugh has also argued that sitting presidents should be shielded from criminal or civil investigations. We speak with David Cole, national legal director of the American Civil Liberties Union and professor of law and public policy at Georgetown University Law Center. His most recent book is “Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law.”

This is a rush transcript. Copy may not be in its final form.

JUAN GONZÁLEZ: And, David Cole, from the perspective of the American Civil Liberties Union, what do you see in this nomination?

DAVID COLE: So, the first thing I should say is that the ACLU, by policy, doesn’t endorse or oppose nominees to the Supreme Court. We remain neutral.

You know, I think, to me, the biggest lesson here is elections matter. You know, if Democrats had come out to vote for Hillary Clinton like they came out to vote for Barack Obama in the prior two elections, Hillary Clinton would have been appointing this nominee. She would have appointed Scalia’s replacement. We would have an entirely different world. And that’s the way politics works here. So I think the real response has to be politics.

JUAN GONZÁLEZ: But in terms of some of the—some of the decisions that—the record that we have right now of Kavanaugh, what do you see as some of the most troubling decisions he’s made in the past, from a civil liberties perspective?

DAVID COLE: So, I think, look, he’s conservative. Anyone that President Trump would have named would be conservative. He’s a very smart, very qualified conservative. You know, that’s what we were going to get, very likely. So, you know—but I think, given what President Trump has said, that he wants to overturn Roe v. Wade, I think it’s incumbent upon the Senate to really ask hard questions and demand answers to those questions. So, for example, do you believe in an evolving Constitution? Do you believe in the Constitution that made segregation unconstitutional? Because it wasn’t unconstitutional when the 14th Amendment was adopted. That made sex discrimination a violation of the Equal Protection Clause? Because it wasn’t a violation of the Equal Protection Clause, if you look at—read it as the Founders interpreted it. You know, is he going to say, “I’m an originalist. I don’t believe that Brown v. Board was right. I don’t believe women are protected by the Equal Protection Clause”?

Similarly, you could ask him, “Do you believe that the Constitution protects the freedom of individuals to make personal choices about their bodies and their families? That’s the right, recognized by the court for decades, that guarantees every American the right to choose contraception, guarantees every woman the right to abortion, guarantees gay and lesbian couples the right to marry on equal terms as straight couples. Do you believe that?” And, you know, so I think we can ask those questions of him.

His record is conservative, absolutely. But those seem to me to be the critical questions that you’d want to ask to see whether this is somebody who’s going to really take us back to some kind of Constitution that is unrecognizable or whether he’s not. And I don’t think we know the answer to those questions, actually. I think he’s been conservative, but he’s been pragmatic. He has been criticized by the conservatives for not going hard-right enough on the Affordable Care Act cases, on the Jane Doe case involving the young woman who was detained and denied an abortion. So, I think it remains to be seen. But I think it’s—you know, we can’t gamble on it. We need to have the senators ask very hard questions.

AMY GOODMAN: I want to actually ask you about immigration in a moment, even beyond Kavanaugh, the ACLU involved in the latest issue to reunite children.


AMY GOODMAN: But I wanted to go back for a moment to Cecile Richards, when you talked about the Jane Doe case. If you can talk about this young immigrant woman, who was in immigration detention in Texas, and what happened to her?

CECILE RICHARDS: Yeah. Well, this is, again, a case where—and, obviously, it was ACLU, thank goodness, was on the spot and defended her. But, yes, he felt like it was not an undue burden to deny this young woman the ability to access a safe and legal abortion, that she not only—she had the resources for, she had the right to, she had gone through all the various stages that you have to go through in Texas, which is very hard. The restrictions are so onerous. And he did not feel like it was an undue burden to delay this young woman’s access to abortion. Fortunately, he was overruled.

But that, to me—I mean, there are so many indications that, in fact, he is not sympathetic to abortion rights. He has praised, you know, William Rehnquist in a very lengthy speech just recently, including Rehnquist’s dissent in Roe v. Wade. And as we know, I mean, we just had this case, the Texas case, that went up to the Supreme Court, that declared the Texas law as unconstitutional. If there is one switch in the Supreme Court, those kinds of restrictions would now stand. I mean, this is a very, very serious decision. And I hope every single senator, including the two Republican women who have been very staunch supporters of abortion rights, actually ask specifically: What is his position on the right to abortion, which women have had for more than 40 years?

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Next story from this daily show

LGBT & Healthcare Advocates Warn Kavanaugh Confirmation Could Mean End of Affordable Care Act

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