Nominee Motivates Foes, Allies

As a 29-year-old lawyer in the Reagan administration, Carolyn B. Kuhl was one of the young conservatives determined to shift the law to the right.

She called for the Justice Department to lead an attack on the U.S. Supreme Court’s Roe vs. Wade ruling that legalized abortion. She also helped persuade President Reagan’s attorney general to change sides and support a restored tax exemption for Bob Jones University and other racially discriminatory private schools.

Now, a wide array of civil rights, environmental, feminist and labor organizations is deeply opposed to Kuhl’s nomination to the U.S. 9th Circuit Court of Appeals, which reviews cases from nine Western states, including California.

Since returning to Los Angeles in 1986, she has won many admirers as a lawyer and, more recently, as a Superior Court judge. She has been endorsed by more than 100 local judges -- Democrats as well as Republicans -- and by the former president of the Mexican American Legal Defense and Education Fund for a seat on the 9th Circuit, based in San Francisco.

Listening to Kuhl’s supporters and detractors, the chasm is so great it is hard to imagine they are talking about the same person.

In the latest battle in the partisan war over judges, a deeply split Senate Judiciary Committee is scheduled to vote today on whether Kuhl, 50, merits a lifetime seat on the 9th Circuit.

She is likely to narrowly win approval, because the panel has 10 Republicans and nine Democrats.

Until recently, Sen. Dianne Feinstein (D-Calif.) had been officially undecided. But on Wednesday, her spokesman said she would oppose the nomination -- a decision that heartened liberal activists who say Kuhl may still be blocked on the Senate floor.

Both sides in the warring over President Bush’s judicial nominees said this week that they see an escalation in the battle.

Never before, Republicans say, has a minority used the Senate’s rules to filibuster a lower-court judge.

But Kuhl’s critics emphasized that it would be highly unusual for the Senate to even hold a vote on -- much less confirm -- a nominee who is opposed by both of her home-state senators.

The Democrats have blocked a final Senate vote on two prospective Circuit Court judges, Washington attorney Miguel Estrada and Texas state Supreme Court Justice Priscilla Owen.

Filibustering judges is not entirely new; since Republicans used the filibuster in the summer of 1968 to prevent a vote on Justice Abe Fortas, President Lyndon B. Johnson’s choice to become chief justice of the Supreme Court.

Nonetheless, angry Republican senators said this week the confirmation process is “broken.”

Some were reportedly considering using a parliamentary maneuver to change the Senate rules and clear the way for a majority vote on Estrada and Owen.

Nominees’ Progress

Both nominees have the support of more than 50 senators, but not the 60 votes that are required under the Senate rules to end debate.

For their part, Democrats are angered that Kuhl’s nomination is moving forward.

Under the Judiciary Committee’s rules, the president’s proposed judges needed a signed “blue slip” signaling the approval of both home-state senators.

In the late 1990s, Republican former Sens. Jesse Helms of North Carolina and Phil Gramm of Texas refused to sign off on President Clinton’s nominees to the appeals court in their region. Their refusal killed the nominations.

Two years ago, when Bush nominated Kuhl for the 9th Circuit, Sen. Barbara Boxer (D-Calif.) refused to give her approval. She called Kuhl “anti-choice” and “anti-civil rights.”

But when the Republicans retook control of the Senate and the Judiciary Committee this year, Sen. Orrin G. Hatch (R-Utah) said he would no longer allow one home-state senator to block action on a Bush nominee.

The Democrats also complained this week about “GOP whining” over judges. They noted that despite the well-publicized filibusters, 121 of Bush’s judges have won confirmation in the first two years and three months of his administration.

By that standard, his predecessors did not fare as well. President Clinton and the elder President Bush won approval of about 45 judges a year.

The Democrats also say the number of vacancies on the bench is the lowest in 13 years.

The 9th Circuit, with an allotment of 28 judges, has three vacancies.

Liberal activists remain determined to stop Kuhl from winning one, and they are urging Democrats to block a final vote on her nomination.

Kuhl has “repeatedly demonstrated a deep-seated hostility to the rights of women and minorities,” says Nan Aron, executive director of the liberal Alliance for Justice.

The fact that Feinstein has joined Boxer in opposing the nomination means that there “absolutely is the possibility of a filibuster,” Aron said Wednesday night.

Academic Record

Kuhl, who was raised in St. Louis, was a top student at Princeton and then at Duke Law School, earning a clerkship with then-9th Circuit Judge Anthony M. Kennedy, who is now a U.S. Supreme Court justice.

Kuhl does not have many controversial public writings, and critics have focused on the internal memos she wrote during the Reagan administration. At her hearing last month before the Judiciary Committee, she said her role in those controversies had been exaggerated but that she regretted her stand in the Bob Jones case. The Supreme Court later rebuffed the administration’s position to restore the school’s tax-exempt status by a vote of 8 to 1.

Among those supporting Kuhl are the chairwoman and chairman-elect of the Los Angeles County Bar’s litigation section, Gretchen M. Nelson and Stephen R. English, who sent Hatch a letter April 28 voicing their support.

They emphasized that they are “life-long Democrats. We have first-hand, repeated knowledge of Judge Kuhl’s integrity ... and commitment to improving the administration of justice.”

Endorsement Push

Elizabeth A. Grimes, who was appointed to the Los Angeles County Superior Court by Gov. Pete Wilson in 1997, spearheaded the effort to get judges on that bench to endorse Kuhl. Grimes said she thought it was “important for the senators to know what high regard Carolyn is held in by her colleagues on the Superior Court, regardless of their political party affiliation.”

In addition to the Superior Court judges, Kuhl has garnered letters of support from at least a dozen state appeals court judges, including Democrats Joan Dempsey Klein, Paul Boland and Dennis Perluss.

In a letter to Feinstein, Perluss emphasized that Kuhl was not a conservative ideologue who would “inject personal, social and political agendas into the judicial process.”

Kuhl’s backers -- including Vilma Martinez, former director of the Mexican American Legal Defense and Education Fund who later worked with Kuhl at Munger, Tolles & Olson, one of Los Angeles’ most prestigious law firms -- also have cited Kuhl’s support for Richard Paez, who waited nearly four years to be confirmed by the Senate to the 9th Circuit because of opposition from ultraconservatives.

But Kuhl’s critics have hardly been pacified.

In late April, 200 law professors from around the country, including many from California, sent a letter to Hatch and Sen. Patrick J. Leahy (D-Vt.) expressing “strong opposition to the nomination.”

“Judge Kuhl has spent her entire professional life -- in the government, in private practice, and on the state bench -- aggressively promoting an extremist agenda that is hostile to women, minorities, injured workers and the environment.”

In support of this position, Kuhl’s critics cite in particular an October 1999 ruling. Kuhl dismissed an invasion-of-privacy claim filed by Azucena Sanchez-Scott, a breast cancer patient whose doctor allowed a drug company representative to watch his physical examination of her while she was disrobed from the waist up without telling her who the man was.

Ruling from the bench, Kuhl said that since Sanchez-Scott did not specifically object to the presence of the man, “I think it cannot be said that there was a reasonable expectation of privacy.” Sanchez-Scott said she only learned who the man was when she asked the doctor’s receptionist after she was examined.

A state appellate court unanimously reversed Kuhl’s ruling, citing an old precedent in Michigan and more recent ones in California.

Every patient has a “legally well-established expectation of privacy,” the appeals court said, emphasizing that the defendants had failed to cite “any authority which permits a male drug salesperson to be present in an examination room during the examination of a partially disrobed woman.” Writing for the court, Justice Paul Turner said no precedent supported Kuhl’s ruling.

Kuhl was questioned about the ruling at her Judiciary Committee hearing in April. In response to a question from Sen. Richard Durbin (D-Ill.) about whether her views on privacy had changed, Kuhl did not offer a direct response. Rather, she said she did not object to the ruling rendered by the appeals court and emphasized that Turner is now supporting her.

After questioning Kuhl, Sen. Charles E. Schumer (D-N.Y.) said, “I think most Americans would be horrified to hear that your view of privacy rights, particularly in that situation, depended on someone who was scared and upset having to ask questions.”

Eventually the case was settled. On Wednesday at a news conference in L.A., Sanchez-Scott criticized Kuhl.

“I am asking my senator, Dianne Feinstein, to reject [Kuhl’s] nomination when it comes up for a vote tomorrow,” she said.

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(BEGIN TEXT OF INFOBOX)

Judge’s background

Carolyn B. Kuhl

Born: July 24, 1952, St. Louis, Mo.

Legal Residence: California

Education: Princeton University, bachelor’s degree, cum laude, 1974

Duke University School of Law, 1977

Experience

1977-78: Law clerk to Judge Anthony M. Kennedy on the U.S. 9th Circuit Court of Appeals; Kennedy is now a U.S. Supreme Court justice.

19078-81: Associate -- Munger, Tolles & Rickershauser law firm (now Munger, Tolles & Olson) in Los Angeles.

1981-1986: Justice Department -- special assistant to Atty. Gen. William French Smith; deputy assistant attorney general in the Civil Division; deputy solicitor general.

1986-1995: Partner -- Munger, Tolles & Olson.

1995: Appointed to the Los Angeles Superior Court by then-Gov. Pete Wilson.

Source: Justice Department Office of Legal Policy