Statement Of Senator Patrick Leahy
Regarding Cloture On The Nomination Of Carolyn Kuhl To
The U.S. Court Of Appeals For the Ninth Circuit
November 14, 2003
I want to commend the Senators from California
for their leadership in connection with this matter.
Today, the Senate is considering the nomination
of California Judge Carolyn Kuhl to the U.S. Court of Appeals for
the Ninth Circuit. In accordance with Republican practices during
the period 1995-2000, this nominee would have never come to the
Judiciary Committee for a hearing in the first place and would never
have been voted upon by the Judiciary Committee. This consideration
on the Senate floor today underscores the President’s refusal
effectively to consult with the home-state Senators from California,
both of whom oppose this nomination. In fact, this vote is the
culmination of a year in which the President’s disregard for
home-state Senators and the Republican majority’s disregard of past
practices to achieve their partisan political objectives could not
be more calculated.
Judge Kuhl’s
appearance before the Judiciary Committee, despite the clearly
stated opposition of Senator Boxer, was only one in a string of
transparently partisan actions taken by the Senate’s Republican
majority since the beginning of this Congress. In each of these
actions, Republicans have done something they never did while in the
majority from 1995 to 2000. Throughout the course of this year,
they have continued to ratchet up their unprecedented partisanship
and the use of judicial nominees for partisan political purposes.
The Republican
majority took a step on the nomination of Judge Kuhl that was
unprecedented for this Chairman. They scheduled a hearing for a
nominee who did not have approval from both of her home-state
Senators, a nominee for whom both blue slips were not returned
positively. There is not a single example from 1995 through 2000,
when the President was a Democratic President, and when Republican
Senators were objecting, when the Judiciary Committee held a hearing
on a judicial nominee over the objection of a home-state Senator.
Senate Republicans
should remember that when the nomination of Ronnie White of Missouri
was finally voted upon in 1999, all Republicans, in an unprecedented
party-line vote, defeated that nomination. Several Republican
Senators who had voted in favor of Justice White when he was
considered by the Committee changed their positions and voted
against his confirmation. The facts are that, at the time of his
hearing, the senior Senator from Missouri supported the nomination
and endorsed him at his hearing, and the junior Senator did not
object to the hearing. Senator Ashcroft then chose to vote against
the nomination. On the eve of the vote on the nomination, Senator
Bond changed his position and decided to join Senator Ashcroft in
opposing the nomination.
In connection with
that vote, Senator Hatch said that if both home State Senators had
opposed the nomination earlier, it would never have proceeded. He
told the Senate: “[H]ad both home-State Senators been opposed to
Judge White in committee, Judge White would never have come to the
floor under our rules. I have to say, that would be true whether
they are Democrat Senators or Republican Senators. That has just
been the way the Judiciary Committee has been.”
While it is true
that various Chairmen of the Judiciary Committee have used the
blue-slip in different ways, some to maintain unfairness, and others
to attempt to remedy it, it is also true that each of those Chairmen
was consistent in his application of his own policy -- that is,
until the Kuhl hearing. That was the first time that this Chairman
ever convened a hearing for a judicial nominee who did not have two
blue slips acceding to a hearing.
This Republican
President’s choice of Carolyn Kuhl for a vacancy on the Ninth
Circuit is a divisive and political choice. As a lawyer in
the Reagan Administration, a lawyer in private practice, and as a
state court judge, Judge Kuhl has demonstrated an extreme philosophy
that threatens the rights and interests of Americans, particularly
women’s rights, other civil rights, and access to justice. Among
other significant cases, Judge Kuhl spearheaded an effort to reverse
the Reagan Administration’s policy on tax-exempt status for racially
discriminatory private schools, including Bob Jones University. She
has also consistently advocated against women’s rights and
reproductive rights -- from aggressively pushing the Justice
Department to argue for a reversal of
Roe
v. Wade, to arguing for limits on the reach of sexual harassment
laws, to rulings as a judge which raise concerns about her
commitment to privacy rights.
This nomination has generated widespread
opposition and requests that the Senate not consent to her
confirmation. Among the many membership organizations that have
written in opposition are:
- Seven members of the California Assembly
Committee on the Judiciary
- California Women Lawyers
- The Japanese American Citizens League
- The Leadership Conference on Civil Rights
- People for the American Way
- Planned Parenthood Federation of America
- Taxpayers Against Fraud,
and many, many more. I ask that the letters of
opposition be entered into the Record.
I suspect we will hear these groups, and the
others who oppose the President’s nomination of Judge Kuhl, vilified
as members of some conspiracy intent on sinking each and every
nominee, no matter what their views. But I would like to remind
those who would raise that argument, as I have before, that these
organizations represent millions of citizens with legitimate
concerns about the direction of the judiciary in this country. I
appreciate their willingness to participate in the process and their
refusal to be intimidated into silence.
The Washington Times has conceded that
“President Bush has seen more of his appeals court nominees
confirmed by the Senate at this point in his term than any other
president since at least the 1970s.” When I was Chairman of the
Judiciary Committee during the 107th Congress, the Senate
confirmed 100 of this President’s nominees. So far this year, the
Senate has confirmed 68 additional judges nominated by President
Bush. The Senate has now confirmed 168 of the Bush judicial
nominees. That is more confirmations than in all of President
Reagan’s first term and more judges in one year than were confirmed
during all of 2000, 1999, 1998, 1997, 1996 or 1995.
Among those 168 confirmations are 29 circuit
judges. That is more circuit judges at this point in his presidency
than were confirmed for President Reagan, President Bush or
President Clinton. So far this year the Senate has confirmed 12
circuit court judges. In the comparable year of 1999, Republicans
allowed only 7 circuit court judges to be confirmed all year.
Four of President Bush’s nominees to the Ninth
Circuit Court of Appeals have already been confirmed. Richard
Clifton was given a hearing and confirmed under Democratic
leadership. Just this year, the Senate has confirmed two additional
Ninth Circuit nominees, one of whom, Jay Bybee, was quite
controversial. Just before the Memorial Day recess, Democratic
Senators expedited and encouraged the Majority Leader to allow a
vote on the nomination of Judge Consuelo Maria Callahan, a consensus
nominee with support from both home-state Senators. And, in
September, Democratic Senators supported the nomination of Judge
Carlos Bea, another nominee with support from both home-state
Senators.
Unlike the divisive nomination of Judge Kuhl,
both home-state Senators supported the nominations of Judge Callahan
and Judge Bea. Rather than disregarding time-honored rules and
Senate practices, my friends on the other side of the aisle should
help us fill more judicial vacancies more quickly by bringing those
nominations that have bipartisan support to the front of the line
for Committee hearings and floor votes.
Republican Senators
have been claiming that there have never been filibusters of
nominees before and arguing that every nominee always gets a Senate
up or down vote. That was certainly not the case for 63 of
President Clinton’s judicial nominees and for hundreds of his
Executive Branch nominees. Such a claim is so contrary to history
it is breathtaking in its boldness. On a single day in 2000, the
Senate had to invoke cloture to stop Republican filibusters of the
nominations of Judge Richard Paez and Marsha Berzon. Republicans
also unsuccessfully filibustered Judge Rosemary Barkett and Judge H.
Lee Sarokin in 1994. They successfully filibustered Executive
Branch nominees such as ambassadorial nominees and the nomination of
a Surgeon General, and the list goes on and on. I have spoken about
them before and have laid out the facts in the Record.
This White House has
been the most aggressive in recent history in its efforts to pack
the federal courts and tilt it sharply toward a narrow ideology.
The most extreme of the Administration’s nominees are not being
approved. We are seeking to maintain the independence of the
federal judiciary and to protect the rights of Americans in so
doing. The Administration and its supporters have taken to using
these nominations as partisan matters and to drive wedges between
Americans. I have urged that the President be a uniter rather than
a divider on this important lifetime nominations, but my voice has
been ignored.
The provocative
steps taken by the White House and Senate Republicans have broken
new grounds in politicizing the federal judiciary. The Republican
majority has shown a corrosive and raw-edged willingness to change,
bend and even break the very same rules that they took advantage of
when the judicial nominees involved were a Democratic President’s
choices.
Civil Rights
One of Carolyn Kuhl’s most notorious decisions
as a lawyer in the Reagan Justice Department is among her most
troubling. As a political appointee serving directly under the
Attorney General of the United States, she
spearheaded an effort in the Reagan Administration to reverse
position in the Bob Jones University case. This was the case
challenging IRS rules denying tax-exempt status to schools that
racially discriminate.
In 1981, the IRS rules were challenged by Bob
Jones University, which wanted to keep avoiding their tax
responsibilities despite a policy prohibited interracial dating.
When the school took this issue to the Supreme Court in 1981, the
Reagan Justice Department was prepared to defend the rules, as is
its duty. But in January 1982, the government suddenly changed its
position, and argued that the IRS had no legal authority to deny
tax-exempt status and agreed to give Bob Jones, despite its blatant
policies of racial discrimination, the tax exemption.
Then-Congressman Trent Lott, supported by
Senator Strom Thurmond, was pivotal in the lobbying effort to change
the government’s position, and then-Special Assistant to the
Attorney General Carolyn Kuhl concurred. This decision was so
outrageous that more than 200 career lawyers in the Justice
Department's Civil Rights Division objected to the change of
position in a letter to their Assistant Attorney General.
According to records of Congressional hearings
on the topic and a New York Times article written at the
time, Carolyn Kuhl was one of three people characterized as “a band
of young zealots” at work as political appointees at the Department
of Justice, and part of the “Bob Jones team” who opposed the
overwhelming sentiment and “pressed for the legal switch to give Bob
Jones its tax exemption.” Indeed, Carolyn Kuhl and Charles Cooper,
then-Special Assistant to Attorney General William French Smith,
co-authored a 40-page memorandum to Civil Rights Division Head
William Bradford Reynolds strenuously arguing that “the [IRS]
Commissioner’s Ruling denying tax-exempt status to racially
discriminatory private educational institutions is supported by
neither the language nor the legislative history of Section
501(c)(3)” and that the IRS should therefore “reverse its position”
in the case and “accord tax-exempt status” to Bob Jones.
The Supreme Court, in an 8-1 ruling, repudiated
Carolyn Kuhl’s position and denied the school tax-exempt status.
Chief Justice Warren Burger wrote for the majority, “[a]n unbroken
line of cases following
Brown v.
Board of Education establishes beyond
doubt this Court’s view that racial discrimination in education
violates a most fundamental national public policy, as well as
rights of individuals.”
It is interesting to note that the reason we
know so much about Judge Kuhl’s advocacy
on
behalf of
schools like Bob
Jones is because of internal Justice Department documents turned
over to the Senate Finance Committee in February of 1982. At that
time, in the wake of the Reagan Administration’s switch in position,
the Committee held a hearing to consider a legislative fix to the
problem. A number of Justice Department memoranda as well as
communications between high-level officials were turned over to the
Committee in connection with the hearing, just months after the
documents were first written. The House Ways and Means Committee
held a similar hearing on February 4, 1982. Among the documents
turned over to these Congressional committees was a memo written by
Carolyn Kuhl on December 8, 1981 to Ken Starr noting Reagan/Bush
campaign statements on private schools and a memorandum written by
Carolyn Kuhl and Charles Cooper, one of the other members of the
“Bob Jones team,” to Civil Rights Division Head Reynolds regarding
the Bob Jones case.
At her hearing, Judge Kuhl conveniently told us
that she regretted having taken the position she did at the time.
Although it was the first time she had ever said so publicly, at her
hearing, she claimed that in 1982 she had been concerned about the
implications the Bob Jones policy would have on all-girls’ schools.
This concern was not reflected in her memos at the time, and has not
been heard in any other context. But, if one were to take her at
her word that this was truly a concern, the explanation she gave at
her hearing is still very interesting. She said, and I’ll quote
her, “I had attended an all-girls’ school and I did not want to see
a precedent created that would have meant that tax exemptions could
be taken away from all-girls’ schools because they discriminated
against men.” In other words, she advocated helping a school that
was racially discriminatory because of her personal affinity for her
alma mater. Either way, whether or not you believe her newly
articulated explanation, her responses on this issue raise as many
questions as they answer.
Judge Kuhl also contended at her hearing that
her advocacy
on behalf of
Bob
Jones University should be excused
because of her relative youth and inexperience. This too seems a
convenient explanation. She describes herself as someone two and a
half, maybe three years out of law school with no decision making
authority, painting the picture of a naïve young attorney with no
influence over such important decisions. But this was 1982, five
years after her graduation from law school, and she had proven
herself enough to have landed one of the most prized jobs for a
political appointee with a law degree: Special Assistant to the
Attorney General of the United States. She doubtless had daily
personal contact with the nation’s highest law enforcement officer,
and as his protégé she represented his position to the very
influential people serving under him, including Solicitor General
Charles Fried and Head of the Civil Rights Division William Bradford
Reynolds. While I accept the contention that she was not the final
decision maker on the Bob Jones matter, the facts lead me to believe
that her arguments were taken seriously and held more than a little
weight. I think Judge Kuhl underestimated the esteem in which her
legal abilities were held. Indeed, only a few years later, she
became the Deputy Assistant Attorney General in the Civil Rights
Division, with managerial responsibilities for hundreds of
attorneys.
It seems clear that Judge Kuhl’s participation
in this case exceeded an attorney’s obligation to be a zealous
advocate. Rather, her aggressive involvement surely helped build
momentum behind the drastic change in position the Justice
Department would take. But the substantive weakness of her argument
in the face of legal precedent only underscores how political and
results-oriented it was. So thin was her case that it caused the
New York Times to wonder “How could any President be given such
incompetent legal advice? How could lawyers for the U.S. Government
stray so far from the mainstream of the Country’s understanding on
the racial issue? How could a president at this stage in our
history play with the issue for political reasons?” Judge Kuhl
cannot so easily explain this away.
Access to the Courts
When
she was Deputy Solicitor General in the Reagan Justice Department,
Carolyn Kuhl tried to persuade the U.S. Supreme Court to eliminate
its “associational standing” doctrine in
United Automobile
Workers Union v.
Brock, 477 U.S. 274 (1986). In this
case, the International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America (UAW) challenged the
Secretary of Labor’s interpretation of provisions of the Trade Act
which would have deprived the union members of certain benefits –
benefits available to assist workers laid off because of competition
from imports. The issue on appeal to the U.S. Supreme Court was
whether the UAW had standing to sue in federal court on behalf of
its affected members.
Although Judge Kuhl stated at her hearing that she was not on the
brief in this case, she later revised her testimony in written
answers, saying that she had confused this case with another.
Although she was still not completely forthcoming in her responses,
I discovered that she was in fact one of five high level officials
on the brief and that she argued the case before the U.S. Supreme
Court in March 1986.
In her
arguments, she urged the Supreme Court to eliminate the
doctrine of representative standing in favor of requiring
organizations to meet the requirements for class certification under
Rule 23 of the Federal Rules of Civil Procedure. But she then also
admitted that the government would oppose a request for class
certification in this case. She stated in her brief that the
Supreme Court should “reconsider the doctrine in light of the
practical and analytical difficulties it presents”, and that the
doctrine was not of that “longstanding effect.” A significant
portion of her brief was devoted to the more far-reaching arguments
of why the doctrine of representative standing should “not be
recognized” and why the class action provisions should be applied
instead.
The
majority of the Supreme Court rejected her arguments and concluded
that the government’s presentation “has fallen far short of meeting
the heavy burden of persuading us to abandon settled principles of
associational standing.” Id. at 290.
The
doctrine of representative standing allows unions, environmental
organizations, business groups, and others to protect the interests
of their members in court. Elimination of the doctrine would
greatly impede the ability of organizations to represent their
members. For this reason, a diverse group of organizations,
including the U.S. Chamber of Commerce and the AFL-CIO filed an
amicus brief opposing Kuhl=s
position in the case.
Judge
Kuhl’s arguments in this case raise concerns about whether she would
protect the rights of working men and women or curtail access to the
courts for such individuals. In addition to this case, as a judge
on the state court, she has issued troubling decisions with regard
to the rights of working Americans and access to justice, such as a
case in which she found that a woman target of a SLAPP (Strategic
Lawsuit Against Public Participation) suit was not entitled to
recover attorneys’ fees for successfully defending against the suit
-- a decision which was unanimously reversed by the appellate court.
Privacy/ Women’s Rights
Other cases in which Judge Kuhl was involved
with while at Justice demonstrate that on issues related to privacy
and women’s rights she clearly has an ideological agenda. As Deputy
Solicitor General, Kuhl co-authored the Reagan Administration’s
amicus brief in
Thornburgh
v. American College
of Obstetricians and Gynecologists,
urging the Supreme Court to uphold
Pennsylvania’s severe restrictions on abortion,
including prosecution of doctors. Her view on the matter is
documented not only in the brief, but also by her boss at the time,
Charles Fried, then-Solicitor General, who recounts in his memoirs
that, “[t]he most aggressive memo [about
Roe
v. Wade]
came from my friends Richard Willard and Carolyn Kuhl, who
recommended that we urge outright reversal of Roe.”
In that brief, Kuhl argued that the courts
below placed too much emphasis on the woman’s right to privacy.
Moreover, the brief discusses issues beyond the merits of the
particular case and urged the Supreme Court to abandon its
principles of stare decisis and overturn settled law. In a 6-3
decision, the Supreme Court also rejected that call.
As Deputy Solicitor General, Carolyn Kuhl
argued for an extremely narrow legal definition of sexual harassment
in the landmark case of
Meritor Savings Bank
v. Vinson.
A female employee, Mechelle Vinson, filed suit against her
supervisor and the bank that employed her, alleging that the
supervisor had sexually harassed her and that she had been
terminated when she refused him, violating her rights under Title
VII of the Civil Rights Act. Kuhl’s brief for the Reagan
Administration argued that Ms. Vinson’s claim should be dismissed
because her conduct had been found by the trial court to be
voluntary. The Supreme Court found the opposite, and held that the
claim could go forward no matter the characterization of Ms.
Vinson’s conduct, as long as the sexual attention she was getting,
described by the court as “appalling” and “especially egregious,”
was unwelcome.
It would have been bad enough that Judge Kuhl
had taken this position as a political lawyer at the Justice
Department, trying to narrow the rights of victims of sexual
harassment as part of the Reagan agenda, but even worse and more
puzzling, was her explanation of the case at her hearing.
Just as she articulated a never-before heard
explanation for her position in the Bob Jones case, Judge Kuhl told
us at her hearing that she was “very happy” with the decision, and
that the Supreme Court’s reasoning “tracked” the brief she wrote.
She dismissed Senator Feinstein’s concerns that the Justice
Department had declined to accept the unwelcomeness standard adopted
by the Supreme Court, brushing her off with a vague mention of the
question of the voluntary nature of Ms. Vinson’s behavior. This
explanation is mystifying, and sounds to me like an attempt to put a
positive spin on an issue she knew Democratic Senators would view
with suspicion. She knew that those of us concerned with allowing
victims of discrimination an opportunity for redress would have
problems with her brief in Meritor Savings, and she fudged an
answer to try to look like she agreed with us. Such obfuscation
should not be allowed to succeed. I would have preferred it if she
had been up front with us about her brief and its relationship to
the Court’s decision.
Judge Kuhl’s record on the state bench offers
another example of her troubling views on privacy. In the recent
case of
Sanchez-Scott
v.
Alza Pharmaceuticals,
et al., Judge Kuhl’s decision to dismiss a claim for
invasion of privacy brought by a cancer patient against her doctor
and a pharmaceutical company was reversed by the appellate court.
The plaintiff, a patient undergoing chemotherapy for breast cancer,
was examined by her oncologist, Dr. Monty Polonsky, in the presence
of an unidentified man who turned out to be a representative of a
pharmaceutical company.
The complaint stated that the doctor introduced
the man, a Mr. Martinez, as, “a person … who was looking at Dr.
Polonsky’s work,” but no further details about his identity were
provided. During the course of the physical, Ms. Sanchez-Scott felt
warm and began to use a pocket fan to cool herself. The doctor took
the fan from the plaintiff and gave it to Mr. Martinez so he could
fan the plaintiff because, as he told her, “[i]t would give him
something to do.” Then, the doctor and Mr. Martinez began to laugh
at the plaintiff, who became very uncomfortable and asked for the
fan back, saying she could fan herself. Mr. Martinez refused and
continued to fan her. Dr. Polonsky examined Ms. Sanchez-Scott while
she was undressed from the waist up, while Mr. Martinez sat beside
the examining table and watched. Only when she went to the
reception desk after her exam was over did Ms. Sanchez-Scott learn
that Mr. Martinez was a drug salesman, and not a trained medical
professional. Ms. Sanchez-Scott explained that she felt
uncomfortable and embarrassed and cried from shame and anger once
she left the doctor’s office.
Judge Kuhl found that the plaintiff could not
sustain an action for an invasion of privacy against the doctor
because what happened to her did not meet the test of being “highly
offensive to a reasonable person.” She reasoned that Ms.
Sanchez-Scott had been introduced to Mr. Martinez, knew he was there
and could have made further inquiry about who he was or object to
his presence. She also found relevant that there was no touching,
and that nobody else found out about the presence of the drug
salesman in the exam room. She also explained that because the
patient would not have a reasonable expectation that a medical
procedure would only be observed by a doctor, there could be no
expectation of privacy. The appellate court ridiculed her reasoning
and allowed the plaintiff to continue with her invasion of privacy
claims against her doctor.
Again, at her hearing, Judge Kuhl’s answers
were misleading. When questioned about this case by Senator Durbin,
Judge Kuhl tried to make herself seem sympathetic to Ms.
Sanchez-Scott’s plight. She told Senator Durbin that she could
understand why the plaintiff was upset, that she had good reason to
be upset. But Judge Kuhl misstated crucial facts about the case
that would have shed a clearer light on her legal ruling. She told
Senator Durbin that the plaintiff’s claim for invasion of privacy
against the doctor was permitted to go forward, an assertion that is
simply not true. Later, in a letter to Senator Hatch, she did
correct herself, but the impression she tried to leave at the
hearing was contrary to the facts. If her ruling in the
Sanchez-Scott case had been allowed to stand, the case against
the doctor for an invasion of privacy would not have been able to go
forward. I know this sounds like nitpicking about a minor
procedural issue, but it is more than that. It is about her
sensitivity to privacy issues, her ability to follow the law, and
her pattern of trying to spin her negative positions to her benefit
at her hearing.
Ms. Sanchez-Scott does not see it as nitpicking
either. In a letter she wrote to the Committee about her experience
in Judge Kuhl’s court, she expresses her opposition to rewarding the
judge with a promotion to the federal court. She tells us that,
“[a]s a cancer survivor, I trusted that my doctor would make
decisions in my best interest. . . I was . . . shocked and dismayed
that Judge Kuhl determined that I, not the doctor, had the
obligation to protect my privacy in his exam room.”
This President talked about being a uniter, not
a divider, yet he has failed to work with all home-State Senators to
identify qualified candidates who can be supported by both sides.
A recent opinion piece in the Washington
Post had it right when it said that rather than promoting
“bipartisanship,” which this President said he wanted, he has
instead promoted “hyper-partisanship.” I hope – for the sake of our
country and the independence of the judiciary – that the White House
and the Senate majority decide to work with Democratic Senators to
identify qualified, mainstream nominees who can be supported by all
sides and to abandon their quest to pack the circuit courts with
activists and ideologues.
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