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Carolyn Kuhl: Another exceptional nominee, another target for a filibuster

By John Nowacki
web posted June 9, 2003

Senate liberals are attacking so many of President Bush's judicial nominees these days that it can be difficult to keep track of what they're saying about whom.

Miguel Estrada is supposedly being filibustered because they a) hardly know anything about him and need more information, or b) know everything about him and claim he's an "extremist." Which explanation you get apparently depends on what a particular Senate Democrat ate for breakfast; even so, some occasionally forget themselves and use both excuses in the same day.

Texas Supreme Court Justice Priscilla Owen, also enduring a filibuster, has supposedly struck a blow at the heart of Roe v. Wade by looking to Supreme Court precedent, not when deciding whether a teenage girl could get an abortion, but when ruling whether she could bypass the state requirement that one of her parents be told that she was getting one. Owen has also erred terribly by not keeping a tally sheet and using that to decide whose turn -- plaintiff's or defendant's -- it is to win the next case. Instead, she has taken the deplorable view that the law and facts of the individual case should govern her decision.

Now Los Angeles Superior Court judge Carolyn Kuhl is poised to join their august company as the next nominee to be filibustered. Like Estrada and Owen, Judge Kuhl has waited more than two years for a Senate vote, and the rationale for filibustering her is equally insubstantial.

Kuhl is nominated to the U.S. Court of Appeals for the Ninth Circuit, best known today for its ruling that the Pledge of Allegiance is unconstitutional. She is the Supervising Judge of the Civil Department of her court and a former clerk to a Ninth Circuit judge. She has served as Deputy U.S. Solicitor General, Deputy Assistant U.S. Attorney General (Civil Division), and a Special Assistant to the U.S. Attorney General during the Reagan Administration. She spent nine years in private law practice and has been on the state bench since 1995.

Nearly 100 of her fellow Superior Court judges support her confirmation. So do the officers of the Litigation Section of the Los Angeles County Bar Association. So do more than a dozen Justices of the California Court of Appeal. So do many other attorneys -- Republican and Democrat, conservative and liberal -- who know her and her reputation for integrity and fairness. Even California Senator Dianne Feinstein (D) admits that she has never received more letters from sitting judges in support of a judicial nominee.

Still, none of this has discouraged the Left from distorting Judge Kuhl's record and mischaracterizing her work at the Justice Department two decades ago.

One attack on Judge Kuhl involves a ruling she issued in a case with a truly outrageous set of facts. The plaintiff visited her oncologist for an exam, which took place while a pharmaceutical company representative -- part of a mentorship program -- was in the room. She knew he was there and was told only that he was observing the doctor's work. When she found out the truth, she sued.

Judge Kuhl's job was to decide which claims in the lawsuit could go to trial. The suit against the doctor was straightforward. He didn't tell the plaintiff who the salesman was, he didn't explain why he was there, and he didn't ask for her consent. Most reasonable people would agree he was clearly at fault, and Judge Kuhl let that claim go on to trial.

The suit against the pharmaceutical company and its salesman was more difficult. The facts and legal claim created a case of first impression for the California courts, and after looking at the way other courts in the state recognized this particular legal claim, Kuhl dismissed this part of the lawsuit.

Judge Kuhl's opponents imply that she threw the case out altogether and left the plaintiff with no chance of recovery in court. But on the contrary, she carefully looked to precedent and allowed the suit against the clear wrongdoer to go forward. And while the suit against the company was reinstated on appeal after the court relied on a 19th century Michigan case, one of the appellate judges has written the Senate to say a strong argument can be made that she weighed the facts and law correctly, and that "those who have criticized Judge Kuhl as insensitive or biased" because of her decision in this case "are simply incorrect."

Early in Kuhl's tenure at the Justice Department, when she was a 29-year-old Special Assistant to the Attorney General, the IRS had ruled against Bob Jones University in regard to its tax status and the case was making its way through the courts. Kuhl questioned whether the ruling followed the governing federal law and believed at the time that the agency was asserting it had the right to determine public policy and act on that determination without congressional direction.

Nevertheless, Kuhl changed her mind -- nearly twenty years ago. As she explained at her hearing, the Justice Department's job is to defend agency positions like this one, which can be supported by a reasonable argument. "I should have been defending the position of the IRS, and I was wrong because nondiscrimination should have been put first," she testified.

This was simply an administrative law issue for Kuhl at the time, and she was never sympathetic to the university's discriminatory policies. She readily acknowledges concerns about the impact of the IRS policy on all-girl's schools -- institutions she has supported throughout her career -- but nothing excuses Sen. Charles Schumer's (D-NY) reprehensible insinuation that racism played a role. Unfortunately, that kind of cheap shot is a normal part of the process these days.

When Kuhl was at Justice, the Reagan Administration took the position that Roe v. Wade should be overruled, and that was reflected in the government's brief to the Supreme Court in Thornburgh. Kuhl was one of the government lawyers who worked on the brief, and to many on the left, the fact that she actually represented her client is her greatest crime. Of course, it's a well-known principle that you shouldn't impute the views of a client to his attorney, but that's now become a favorite tactic of liberal activists and their Senate allies -- one applied selectively, however. Other nominees like John Rogers (confirmed to the Sixth Circuit last year) have also articulated that Reagan Administration position and been confirmed easily. The double standard, it seems, kicks in when a woman makes an argument the pro-abortion crowd doesn't like.

All of these attacks are long on spin and short on substance, but her work on the Thornburgh brief is probably at the core of the left's opposition. Kuhl has made it clear she'd be bound to follow precedent and leave her personal views at the courthouse door, but after all, she's a female Catholic who argued on behalf of Reagan's position, and people like that apparently don't deserve a vote in the Senate.

For more than two years, the Left has tried to make a case against Miguel Estrada, Priscilla Owen, and Carolyn Kuhl, and in all three instances it has failed. Like her fellow nominees, Kuhl will be a fair and qualified federal judge committed to following the law instead of a liberal political ideology. In the eyes of her opponents, she couldn't have a worse recommendation.

John Nowacki is Director of Legal Policy at the Free Congress Foundation.

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