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News Posted on September 24, 2018

ACLU National Legal Director Cole draws overflow crowd to King Hall

Story by Carla Meyer

Photo by Jose Alfonso Perez

When David Cole agreed to become national legal director of the American Civil Liberties Union in summer 2016, he was dead-certain about the outcome of the November 2016 presidential election.

“Hillary Clinton was going to win the presidency, she would name Justice (Antonin) Scalia’s replacement, and for the first time in four decades, we would have a liberal-majority Supreme Court,” Cole recalled while delivering UC Davis School of Law’s annual Edward L. Barrett Jr. Lecture on constitutional law on Sept. 17.

Just before the election, Cole said, he had asked the ACLU’s legal team leaders to explore “how we could move constitutional law forward with a liberal Supreme Court.” Instead, the ACLU is “in a defensive posture instead of an offensive posture,” under President Donald Trump. The current president “poses a threat to civil liberties and civil rights and constitutional norms and the rule of law unlike any president in any of our lifetimes,” Cole said.

Cole and the ACLU adjusted quickly to Trump’s unexpected victory. Since Trump took office, the ACLU has filed lawsuits tied to Trump’s Muslim-targeted travel ban, the separation of migrant families at the United States-Mexico border, and many other civil liberties issues.

Millions of Americans have stepped up as well, Cole pointed out during his UC Davis talk, provocatively titled “Defending Liberty in the Age of Donald Trump: A View from the Front.” Cole’s lecture proved so popular that the crowd spilled from the Kalmanovitz Appellate Courtroom to two overflow rooms in King Hall.

This strong showing reflects a larger surge in interest in civil liberties protections, Cole said. National ACLU membership has jumped from 400,000 to 1.8 million since Trump took office. Moreover, the Women’s March, early 2017 airport protests against the travel ban, post-Parkland student gun-control efforts and the #MeToo movement all can be traced, to varying degrees, to Trump’s presidency.

“If only one of those movements had occurred in the course of a year and half, we would think it is remarkable,” he said. “To have so many in such a range of issues, and be so strong, is another reflection of the citizenry in defense of what is a threat. … Threats can give rise to opportunity if people engage.”

He gave the example of the Supreme Court’s 2015 decision legalizing same-sex marriage. It marked the culmination of an LGBTQ rights movement fueled at first by a lack of government response to the AIDS crisis, then by hate crimes like the killing of Matthew Shepard, and finally, by the passage of California’s anti-gay marriage Proposition 8.

Cole, a longtime Georgetown University Law Center professor, began his professional career with the Center for Constitutional Rights. He has litigated many cases in the Supreme Court, including Texas v. Johnson and United States v. Eichman, which extended First Amendment protection to flag-burning.

In a post-lecture interview, Cole said that although grass-roots activism is necessary under Trump, he also maintains faith in the independence of the judiciary – and perhaps even in a Supreme Court with two Trump picks.

“There is a sense of a kind of fidelity to this thing called law, and principles and precedent, and it drives even conservative judges to join liberal outcomes on lots of cases, and liberal judges to join conservative outcomes on lots of cases,” Cole said. He pointed to the most recent Supreme Court term, during which about-to-retire Justice Anthony Kennedy, widely known as a crucial swing vote, voted down the line with the conservative majority in 5-4 decisions.

“And yet, in this term, in every case involving a criminal defendant asserting a right, the criminal defendant won,” Cole said. “It is not always as predictable as people think.”

With the ACLU’s beefed-up membership, the organization has increased its budget considerably, enabling it to hire “a couple hundred new people” across the country. They include many recent law school graduates inspired to work at the ACLU in response to Trump’s presidency, Cole said.

Cole directs a program that includes around 1,400 state and federal lawsuits on a broad range of civil-liberties issues. He took a four-year leave from Georgetown to take the ACLU job. He has every intention of returning to academia when that time is up, he said.

“Hopefully, that’s the Trump leave,” he said with a laugh.

A version of this story ran in the Davis Enterprise.

Watch the lecture