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Most troubling about this attack on Kuhl is the disparity of treatment it represents.

 

The New Glass Ceiling

By John C. Eastman

Stellar credentials and a “well-qualified” rating from the American Bar Association, its highest, following her nomination to the U.S. 9th Circuit Court of Appeals should have made the road to confirmation an easy one for Judge Carolyn Kuhl.

But the path since her nomination on June 22, 2001 — two years ago this Sunday — has been anything but easy.  Indeed, for more than 21 months she was not even given the courtesy of a hearing by the Senate Judiciary Committee, and a month after she finally did receive a hearing on April 1, 2003, her nomination was “reported out” to the Senate floor on only the barest, 10-9 vote, with not a single Democrat siding with what Senator Leahy once called the “gold standard” of the ABA’s well-qualified rating.

Her credentials are impeccable.  Bachelor’s degree in chemistry from Princeton, graduated cum laude.  Law degree from Duke, graduated with distinction, inducted into the prestigious Order of the Coif, served as an editor of the Duke Law Journal.  Law clerk in California on the 9th Circuit with then judge, now Supreme Court justice, Anthony Kennedy.  High-ranking official at the U.S. Department of Justice, serving as deputy solicitor general, deputy assistant attorney general and then special assistant to the attorney general.  Partner in one of Los Angeles’ most prestigious firms, Munger, Tolles & Olson.  Eight years of service as a judge on the Superior Court of California for the County of Los Angeles, in both the criminal and civil divisions.

And she’s a woman, which means she accomplished all this at a time when women were just beginning to break through the glass ceiling that had for far too long limited opportunities for women in the legal profession.

So why all the opposition?  Some self-proclaimed “women’s groups” have apparently decided that this impeccably well-qualified woman is … anti-woman!  She might even, they fear, have conservative leanings, as if the idea that a conservative President might nominate a conservative-leaning judge was somehow a surprise.

There are three key pieces of “evidence” in this frontal assault on Judge Kuhl.  First, while a young, 29-year-old attorney at the Department of Justice with no policy-making authority, Judge Kuhl helped urge the attorney general to reverse an IRS policy denying tax-exempt status to Bob Jones University.

She did so on two grounds, neither of which had anything to do with defending the university’s racial policies.  She believed that Congress, and not an administrative agency like the IRS, ought to be making such determinations, and she was concerned lest the IRS use its power to define “public policy” to deprive tax-exempt status to all-girls schools (such as the high school Kuhl herself had attended) or all-women’s colleges.  Charles Cooper, who was also at the Justice Department at the time working with Judge Kuhl on the case, has stated: “Neither C[arolyn] Kuhl nor anyone else favored such a policy [of affording tax-exempt status to racially-discriminatory educational institutions]; to the contrary, all agreed that racially discriminatory private schools should not be tax-exempt, and draft legislation to that effect was prepared and proposed to Congress.  [Kuhl and others involved in the case] just believed that if the school was going to lose the tax exemption that it was entitled to under 501(c)(3), Congress and not the IRS should make that decision.”

It was a perfectly defensible legal position that drew praise from noted constitutional law scholar Larry Tribe who, in a 1984 letter to then-Attorney General William French Smith, praised the quality of the brief submitted by the Department of Justice in the case, noting that he “thought it was a powerful and, in most respects, entirely compelling legal document.”  And it was the position advanced by Supreme Court Justice Lewis Powell in his concurring opinion in the case.  “[T]he balancing of these substantial interests is for Congress to perform,” he wrote.  “I am unwilling to join any suggestion that the Internal Revenue Service is invested with authority to decide which public policies are sufficiently ‘fundamental’ to require denial of tax exemptions.  Its business is to administer laws designed to produce revenue for the Government, not to promote ‘public policy.’”

Second, while serving on the Los Angeles Superior Court, Kuhl dismissed one of several counts in a case brought by a woman alleging the tort of intrusion after her doctor, while conducting a breast exam, had invited into the examining room a pharmaceutical company representative who was observing the doctor’s work as part of his participation in an oncology mentorship program designed to improve care for breast cancer patients.  Judge Kuhl ruled that the remaining counts could proceed to trial, and the case ultimately settled with the plaintiff receiving an undisclosed sum.

Her ruling dismissing the intrusion count was well-grounded in existing precedent of the California Supreme Court, which had previously held that the tort of intrusion encompassed only unconsented-to physical intrusion.  Although her decision dismissing the intrusion count was reversed on appeal, California Court of Appeals Justice Paul Turner, who wrote the appellate opinion in the case, has acknowledged that “a strong argument can be made that [Judge Kuhl] correctly assessed the competing societal interests the California Supreme Court requires all jurists in this state to weigh in determining whether the tort of intrusion has occurred.”  Indeed, Justice Turner has specifically noted, “With all respect to those who have criticized Judge Kuhl as being insensitive or biased because of my opinion in Sanchez-Scott, they are simply incorrect.”  That opinion is shared by an overwhelming number of Judge Kuhl’s colleagues on the Superior Court, ninety-seven of whom joined in a letter to Senators Orrin Hatch (R-UT), Patrick Leahy (D-VT), Dianne Feinstein (D-CA) and Barbara Boxer (D-CA), stating: “We have worked side by side with Judge Kuhl, have attended her judicial education presentations, talked with her about the law, and received reports from litigants who have appeared before her.  We know she is a professional who administers justice without favor, without bias, and with an even hand.”

Finally, Kuhl had a limited role in the drafting of the brief filed by then-Acting Solicitor General Charles Fried in Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986), in which Fried, acting on behalf of President Reagan, urged the Supreme Court to overturn Roe v. Wade (as well as to uphold various requirements requiring abortion providers to give their clients information about abortion alternatives and requiring that a minor girl obtain the consent of her parents, or a judge, before obtaining an abortion, provisions that are favored by overwhelming majorities of Americans and that were subsequently upheld by the Supreme Court).  Her name appears third on the brief, though, so pro-abortion groups have attributed the position to her.

Most troubling about this attack on Kuhl is the disparity of treatment it represents. Charles Fried, whose name appears first on the brief, has acknowledged that he wrote the “overrule-Roe part of the brief” himself.  Yet his nomination as solicitor general later that year was unanimously approved by the Senate Judiciary Committee and he was confirmed by the full Senate by a voice vote, without debate, by several of the same Democrats now opposing Kuhl, including Senators Joseph Biden (D-DE), Edward Kennedy (D-MA), and Leahy (D-VT).

Moreover, the initial draft of the brief was written by John Rogers, whose name appears second on the brief, yet Rogers is now sitting as a Circuit Judge on the 6th Circuit.  He was not even questioned about his role in the case during his confirmation hearing, and he was approved by the Judiciary Committee and confirmed by the full Senate on a voice vote.

What are we to make of this opposition to Carolyn Kuhl?  It would appear that, for some reason, the confirmation bar is higher for her than for other, equally qualified male nominees.  Perhaps it is no surprise that a woman jurist who is not lock step in line with the abortion-on-demand policies of the National Abortion Rights Action League would not get NARAL’s support, although Kuhl has vowed that she is “fully committed to following the precedent established by [Roe v. Wade] and would do so fairly and properly.”

But it is somewhat surprising that Senator Dianne Feinstein would go along — the same Senator Feinstein who was first elected in the 1992 “year of the woman” with a campaign message of sending more women to the men’s club of the U.S. Senate.  Or that Senator Barbara Boxer, elected that same year with a similar campaign message, would not at least support a vote on this extremely well-qualified woman nominee, the same Senator Boxer who just nine months before Kuhl was nominated held a press conference decrying the “shameful way that women nominees to the federal judiciary were being treated” by the Senate and who had vigorously contended for years that every judicial nominee should receive an up or down vote.  “Whether the delays are on the Republican side or the Democrat side,” she said in 1998, “let these names come up, let us have debate, let us vote.”

Senator Boxer finds Judge Kuhl to be “outside the mainstream.”  Yet the overwhelming consensus among people who actually know her is just the opposite.  Two years ago, Vilma Martinez, former director of the Mexican American Legal Defense Fund and lifelong Democrat, wrote of Kuhl: “I consider her mainstream…. She’s careful and she’s thoughtful.  She’s been an excellent Superior Court judge, and I think she will be an excellent 9th Circuit judge.”

A year ago, a bipartisan group of 23 women judges who work with Kuhl at the Los Angeles Superior Court wrote in support of her nomination to the Senate Judiciary Committee: “As sitting judges, we more than anyone appreciate the importance of an independent, fair-minded and principled judiciary.  We believe that Carolyn Kuhl represents the best values of such a judiciary.”  NAACP attorney Leo James Terrell, who has litigated before Judge Kuhl, informed Senator Boxer in May, 2001 that he “vigorously” recommended Judge Kuhl’s appointment to the 9th Circuit because he found that “Judge Kuhl was fair, impartial, competent and at all times extremely professional.”

With such impeccable credentials and widespread testament to a demonstrably stellar judicial temperament by litigators of every political persuasion, including leading environmental, trial and civil rights attorneys — traditional Democrat allies all — Judge Kuhl epitomizes the “mainstream” of appropriate judicial conduct.  The real question for Senators Boxer and Feinstein is whether they will listen to such long-time allies and permit a vote on this well-qualified nominee from their home state, or whether they will heed the slanders being propounded by NARAL and erect a new glass ceiling against any woman nominee who does not fully support the most extreme of NARAL’s positions.


Dr. Eastman is a professor of constitutional law at Chapman University School of Law and the Director of the Claremont Institute Center for Constitutional Jurisprudence.  A different version of Dr. Eastman’s article has appeared in the Los Angeles Daily Journal.


[Posted June 19, 2003]

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