Alan Dershowitz Slams ACLU for Kavanaugh Stance and Partisanship, But Misses Bigger Picture

P. Gardner Goldsmith | October 11, 2018
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On October 8, well-known attorney and law professor Alan Dershowitz did something that will likely increase the invective directed at him by collectivists who dislike him appearing on FoxNews in opposition to the ever-expanding, often groundless, Mueller “Russia” probe. This time, he wrote an opinion piece for The Washington Examiner, a piece in which he correctly excoriates the American Civil Liberties Union (ACLU) for its partisan approach to Brett Kavanaugh’s Supreme Court nomination.

With typical tact and insight, Mr. Dershowitz draws a clear distinction between the ACLU he used to know, and for which he served on the National Board, and the ACLU of 2018.

The ACLU used to be cash poor but principle-rich. Now, ironically, after Trump taking office, the ACLU has never become so cash-rich, yet principle-poor. 

He notes:

Before Donald Trump was elected president, the ACLU had an annual operating budget of $60 million dollars…. Today it is flush with cash, with net assets of more than $450 million dollars. As the ACLU itself admitted in its annual report ending 2017, it received "unprecedented donations" after President Trump's election. "Unprecedented" it truly has been: the ACLU received $120 million dollars from online donations alone (up from $3-5 million during the Obama years).

And Mr. Dershowitz sees the increase in the ACLU coffers as a result of actions bereft of standards regarding law and jurisprudential honesty, and more in line with appealing to donors and political agendas.

To its everlasting disgrace, the ACLU is abandoning its mission in order to follow the money. It now spends millions of dollars on TV ads that are indistinguishable from left-wing organizations, such as MoveOn, the Democratic National Committee, and other partisan groups.

And while some might argue that MoveOn, the DNC, and other leftist partisan groups (one can easily assume they are leftist) might support some number of historically recognized civil liberties, the record (including a Democrat President who routinely engaged in drone attacks without a Declaration of War, overthrew foreign nations without a Declaration of War, engaged in unconstitutional surveillance of Americans, engaged in massive unconstitutional spending programs, insurance mandates on private businesses, etc.) is not good. In fact, at its heart, collectivism axiomatically stands in opposition to natural rights.

So the ACLU’s partisan activities have set off alarm bells for Alan Dershowitz:

The old ACLU would never have been silent when Michael Cohen's office was raided by the FBI and his clients' files seized; it would have yelled foul when students accused of sexual misconduct were tried by kangaroo courts; and it surely would have argued against a presumption of guilt regarding sexual allegations directed against a judicial nominee.

Mr. Dershowitz is justifiably frustrated by the abysmal way in which the ACLU did not uphold the standard of the presumption of innocence for Brett Kavanaugh, a presumption that would have been offered in a court of law and seen Christine Blasey-Ford’s contradictory, uncorroborated statements thrown out.

Of course, many supporters of Blasey-Ford – often exposed as partisan opportunists who simply don’t want Kavanaugh in, not supporters of her story or of the idea of consistently defending women against sexual predation – argue that Kavanaugh’s confirmation hearing was not a court of law, it was a “job interview.”

But in it a woman brought up allegations of decades-old criminal activity. The process paralleled a court proceeding. A man was tried in the court of public opinion, and partisans on one side succeeded in delaying the vote, likely as a way to push it past the midterm elections in the admitted hope that a newly composed Senate would force Trump to offer a more leftist nominee. Why not presume someone innocent and see if the evidence is believable, not the other way around?

And if it was a “job interview”, why did the Senate so reflexively move to use the FBI in a way it was not designed? Simply put, unless the Senate were considering perjury charges against Blasey-Ford or Kavanaugh, the allegations against Kavanaugh were not within FBI purview. Even if one were to believe the allegations, the statute of limitations on any such assault had expired, and the alleged crime had nothing to do with any cross-state activity, so the FBI had no jurisdiction to investigate. Lesson: the politicians in DC are far too ready to use the FBI as their plaything, even when the Bureau does not have any Constitutional jurisdiction. But, hey, did the ACLU protest that?


Mr. Dershowitz is right. The ACLU is not deserving of respect. But he is late to the party. Many liberty-minded people have recognized the inconsistent standards of the ACLU. While the organization might defend a pornographer’s right to free speech or an odious racist’s right to peaceably assemble, they rarely, if ever, help defend business owners against government impositions. In fact, in the case of Masterpiece Cakeshop, in Colorado, the ACLU avowedly took the side of state transgression of the owners’ civil rights. This kind of abysmal record on the wider spectrum of civil rights has inspired people to turn to other rights organizations, such as the Institute for Justice and the American Center for Law and Justice.

If taken out of the “she-said-he-said” partisan pigpen, liberty-minded people have many reasons to question Brett Kavanugh’s positions on things like the Fourth Amendment, expansion of Executive power, and the Patriot Act, as well as his lack of transparency about huge issues like US torture of “detainees” during the Bush Administration. But that deeper thinking has not been the focus of the ACLU. Instead, they played politics… And Alan Dershowitz is right to call them out for their lack of standards.

Thing is, he could have done so years ago.