Thursday, May 8, 2003
Feinstein Declares Opposition to Kuhl on Eve of Committee Vote
From Staff and Wire Service Reports
Sen. Dianne Feinstein said late yesterday she will vote against Los Angeles Superior Court Judge Carolyn Kuhl’s nomination to the Ninth U.S. Circuit Court of Appeals when it comes before the Senate Judiciary Committee today.
Feinstein will not explain the reasons for her vote prior to the meeting, her spokesman said. But sources, speaking on condition of anonymity, said that she was the subject of furious lobbying campaigns by both sides.
Kuhl’s judicial colleagues were making an “unprecedented” effort to save the nomination, one lawyer said, and Feinstein told reporters last month that she had never seen so much support for a nominee from sitting judges. But Feinstein and Sen. Arlen Specter, R-Pa., were under tremendous pressure from an alliance of labor, abortion rights, environmental, and liberal advocacy groups, a member of one those groups told the MetNews.
If Specter and all nine Democrats on the committee vote against it, the nomination will fail. Even if the 10 Republicans all support Kuhl, a solid bloc of “no” votes from Democrats could mean a filibuster on the Senate floor.
Feinstein had signed a “blue slip” requesting a hearing on Kuhl, but has said all along that she was reserving judgment on the nomination itself. Sen. Barbara Boxer, by contrast, would not sign a blue slip and has been adamantly opposed to the nomination.
The decision by Sen. Orrin Hatch, R-Utah, to hold last month’s hearing despite Boxer’s opposition drew complaints from Democrats that longstanding committee tradition was being ignored. But Hatch said that from now on, opposition from home-state senators would be only one factor in deciding whether to hold a hearing on the nominee, and Kuhl was the first beneficiary of that declaration.
Yesterday morning, hours before Feinstein announced her decision, opponents held a press conference at the offices of Smith Kaufman, a Democrat-oriented political law firm, at which a breast cancer survivor who lost a case before Kuhl said the jurist should not be confirmed for the federal bench.
Azucena Sanchez-Scott, 51, sued for invasion of privacy after her doctor allowed a prescription drug salesman to observe her breast examination without telling her who he was. A demurrer by the salesman and his employer was sustained by Kuhl without leave to amend, but this district’s Court of Appeal, Div. Five, reversed in Sanchez-Scott v. Alza Pharmaceuticals (2001), 86 Cal.App.4th 365.
Most of the attacks on Kuhl result from her activities as a lawyer, both in the Reagan-era Justice Department and as an author of amicus briefs in high-profile cases after entering private practice.
Kuhl has been criticized for writing a memo in 1985, when she worked for the U.S. Justice Department, that urged the Supreme Court to overturn Roe v. Wade, the landmark decision legalizing abortion. Other lawyers in the department urged a more restrained position, then-Solicitor General Charles Fried wrote several years later.
Kuhl told the committee last month that she now considers Roe to be established law, and that she would not work to overturn it if appointed to the appeals court.
She also has been criticized for writing a brief arguing that the Internal Revenue Service had no authority to deny tax-exempt status for Bob Jones University when it was racially segregated. She told the Senate committee that she was wrong—the Supreme Court rejected the argument in an 8-1 decision—and regretted that stance.
But it was the Sanchez-Scott decision that Sen. Richard Durbin, D-Ill., described as “the most troubling of [any case] you have been involved in.” Supporters responded with a letter from Div. Five Presiding Justice Paul A. Turner, saying Kuhl had made “a tough call in the context of competing legal interest.”
Kuhl declined to comment on the pending nomination but provided copies of documents she sent to the committee. She wrote that she dismissed the case because the doctor introduced the drug salesman as someone who was there to observe the physician’s work.
“I stated on the record essentially that the complaint did not state a claim because the patient was in a position to make further inquiry about why the third person was present but did not do so and did not object to the third person’s presence,” Kuhl wrote.
Support for the nomination came yesterday from Superior Court Presiding Judge Robert Dukes, who said he had written a personal letter to senators and signed a group letter from many of the court’s judges.
Dukes said Kuhl is “a fine judge” and “among the most intelligent judicial minds that we have.” The presiding judge, who named Kuhl to her present supervising judge position, said he had no doubt she would put aside her personal views, as well as the interests that she defended as a lawyer, and decide cases based on “appropriate anlaysis and interpretation of the law.
Also backing her was Div. Five Justice Richard Mosk, who was not on the court at the time of the Sanchez-Scott decision. He described himself as a friend of the nominee and said he was perturbed that she was being criticized on the basis of positions she took as a lawyer.
Hatch made a similar comment at last month’s hearing.
“I don’t see any reason not to put her through. The things they complain about were when she was quite young. And she has distanced herself from them,” Hatch said.
Copyright 2003, Metropolitan News Company