Time-Traveling to Thwart a Judge

Charles Fried, a professor of law at Harvard Law School, was solicitor general of the United States from 1985 to 1989 and an associate justice of the Supreme Judicial Court of Massachusetts from 1995 to 1999.

"Have you no sense of decency?" lawyer Joseph Welch famously thundered at Joe McCarthy, when the senator, during the Army-McCarthy hearings, tried to smear one of Welch's associates because of a left-wing association in that man's youth. Just such a smear is being orchestrated by far-left groups against Los Angeles Superior Court Judge Carolyn Kuhl, whom President Bush has nominated to the 9th Circuit Court of Appeals.

The left-wing rap against Kuhl is that more than 20 years ago, as a 29-year-old junior member of U.S. Atty. Gen. William French Smith's staff, she expressed the view that, however odious the practices and beliefs of Bob Jones University -- which had a policy against interracial dating -- it was not the job of the IRS to make social policy by deciding which nonprofits would enjoy the tax exemptions mandated by Congress.

Certainly Kuhl, a devout Roman Catholic, could have harbored no personal sympathy for the virulently anti-Catholic university. That Kuhl's legal argument was not unreasonable is demonstrated by the fact that liberal Harvard law professor Laurence Tribe wrote Smith at the time, commending that position as well considered and principled.

By the time Kuhl came to the office of the solicitor general as my deputy in 1985, I knew she had come to believe (as did I) that she had been wrong, if for no other reason than seeming to side with Bob Jones confused the Reagan administration's message that we were strongly committed to civil rights and racial equality while opposed to quotas.

This is well known to those who have investigated her career, and it is what she put down in her answers to Sen. Barbara Boxer's questionnaire. Her answers, too, are part of the public record.

But that episode was a long time ago. Since then, Kuhl has had a distinguished career as deputy solicitor general, as a private practitioner in one of California's leading law firms and now as a Los Angeles Superior Court judge.

In the heated caldron of a busy trial court, she has won the admiration of a large array of lawyers representing the widest spectrum of interests and clients. The American Bar Assn. has accorded her its highest rating of "well qualified" for a 9th Circuit seat.

Prominent Democrat lawyers, business lawyers and members of the plaintiffs' bar, including civil rights attorneys such as Vilma Martinez and Leo James Terrell, have gone on the public record in support of Kuhl. They respect her for her fairness.

So why this campaign against her by interest groups such as the Alliance for Justice and People for the American Way?

Surely it has something to do with keeping a mainstream, common-sense jurist from joining the most liberal -- and most frequently reversed -- court of appeals in the country. Then there is the instinct to take another scalp in the partisan battles between Democrats and Republicans in the Senate.

It has become standard practice to trash a good person by seizing on one item in a long and varied career to distort who the person is and what he or she stands for. It is a game that groups on all sides have been playing for years now, but the Alliance for Justice and People for the American Way are exceptionally vicious and skillful at it.

Even distinguished newspapers like the Los Angeles Times and the New York Times have allowed themselves to become parties to these shabby practices in editorializing against Kuhl.

The public deserves not just strong opinions but a full and fair presentation of the facts.

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