Boxer Breaks a Promise: The Expected Filibuster of 9th Circuit Nominee Carolyn Kuhl Perpetuates a Partisan Temper Tantrum

By Congressman Darrell Issa

Earlier this year, during the confirmation process of Federal Appeals Court nominee Miguel Estrada, Sen. Barbara Boxer made a promise. Boxer said that while she supported the filibuster of Miguel Estrada she would not use the filibuster to block the President's nominees if they would simply answer the Senate's questions.

Her words in the Senate record were, "Frankly, from my perspective, if people are off the charts on the right wing, I am not going to vote for them. I will not filibuster them. Once they give us the information I am ready to vote."

I disagreed with Boxer's decision not to support Miguel Estrada, an immigrant to this country who had worked his way up to the height of the legal profession, earning the respect of those who had worked with him and the highest endorsement of the American Bar Association.

Boxer's promise not to filibuster future nominees who provided requested information was, however, a victory for justice and the people of California as future qualified nominees would not be filibustered on account of Sen. Boxer’s left-wing ideological beliefs.

Unfortunately Boxer has reneged on her promise. She filibustered the nomination of President Bush’s judicial nominee Charles Pickering and will likely filibuster the nomination of 9th U.S. Circuit Court of Appeals nominee Carolyn Kuhl, a sitting judge on the Los Angeles County Superior Court, soon.

Senate Democrats on the Judiciary Committee have not raised unanswered questions as an issue of concern about either of these nominees.

The 9th U.S. Circuit Court of Appeals, to which Carolyn Kuhl has been nominated, gained notoriety last year when it ruled the phase "under God" in the Pledge of Allegiance unconstitutional — leaving the U.S. Supreme Court as the only avenue to right this wrongheaded decision.

This court, which handles all federal appeals in California and eight other western states, has its decisions overturned by the U.S. Supreme Court more often than any other circuit in the country. It could use a judge like Carolyn Kuhl who interprets existing laws instead of making up her own.

California’s other senator, Dianne Feinstein, unlike her more liberal colleague, has declined to participate in the filibuster of Judge Kuhl.

The filibuster is a procedural anomaly in the rules of the Senate that, when employed, effectively raises the threshold of passage from a majority to a three-fifths requirement.

When regularly used to thwart federal judicial nominees, it constitutes an outright abuse of the Senate’s constitutional duty of "advice and consent" on judicial nominees.

America has a range of challenges that our judicial system plays a critical role in addressing. Thwarting terrorism, locking up child sex offenders, and the deportation of criminal aliens are all delayed, to the detriment of the public welfare, when Sen. Boxer throws a partisan temper tantrum over judicial nominees who don't share her left-wing ideology.

Representative Darrell Issa (R-CA) represents California's 49th District in the United States Congress. This piece originally appeared in and is reprinted here with permission from the Press-Enterprise.

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