Haunted by Her Record

Carolyn Kuhl is a smart, capable judge on the Los Angeles Superior Court and that’s where she should stay.

Her record as a lawyer and a judge does not yield such deplorable nuggets as Charles Pickering’s defense of Mississippi’s ban on interracial marriage or Patricia Owen’s tortured opinions opposing abortion. Yet senators who continue to oppose those two nominees to the federal appellate bench should also stand against Kuhl, whom the president has nominated to the U.S. 9th Circuit Court of Appeals.

Kuhl’s Superior Court colleagues, Democrats and Republicans, admire and respect her. But as a lawyer in the Reagan Justice Department, Kuhl aggressively pushed positions contrary to this nation’s principles and traditions. She tried mightily to persuade the Supreme Court -- unsuccessfully -- to grant tax-exempt status to Bob Jones University and other racially discriminatory schools, a move that would have reversed long-standing Internal Revenue Service policy. She vigorously pressed the high court to overrule Roe vs. Wade and later, as a private lawyer, she wrote a brief backing the “gag rule” imposed on doctors in federally funded clinics from discussing abortion with patients. As a judge, Kuhl tried to undercut a California law protecting whistle-blowers, a ruling that a state appeals court slammed in unusually strong language.

Kuhl’s supporters argue that senators should not see these positions as reflecting her personal views or predicting how she would rule on the federal bench. As a lawyer, they argue, Kuhl was merely acting as a good advocate, enthusiastically pushing her clients’ viewpoints. Her backers also note that Kuhl has distanced herself somewhat from these stands. At her confirmation hearing last month, she said “I regret taking the position I did” in the Bob Jones case and demurred when asked about abortion, insisting, “I am not comfortable with giving my opinion.” Perhaps her views have moderated over the years. Perhaps, like others who’ve sat in the Senate Judiciary Committee’s hot seat, she was reluctant to tell the senators things some didn’t want to hear.

Explaining her role in cases involving sexual harassment, privacy claims and labor relations, Kuhl tried to minimize her involvement or recast her position to tamp down controversy. Yet in nearly every instance, when senators pointed out the discrepancy between her testimony last month and the written record, she recanted. Senators should not reward such disingenuousness with a lifetime federal appointment.

President Bush complains that Democrats are blocking his nominees. In fact, the Senate has confirmed 121 Bush judges, slashing vacancies on federal courts to the lowest level in 13 years. When Bush screens judges first for their ideology, however, senators are obligated to do some screening of their own.