The Case of Carolyn Kuhl
Another major procedural change is
the attempt to limit the veto power of Democratic
senators from the nominee's home state. Previously,
if the opposition party's home-state senators did
not support the nomination, it would die in committee.
Not any more. Senator Barbara Boxer (D-CA) has been
a vocal critic of Carolyn Kuhl, a state court judge
who was nominated for the U.S. Court of Appeals for
the Ninth Circuit. In another era, Kuhl would have
been dead in the water, but she too has been renominated
and is likely to win confirmation.
Boxer has explained her opposition
in detail. "Her record is filled with examples
of her advocating for the powerful against the powerless,"
she stated in a letter to the Recorder a San Francisco
legal newspaper. As a young attorney in the Reagan
justice department, Kuhl wrote memos urging the overturning
of Roe v. Wade. When in private practice,
she wrote a friend-of-the-court brief urging that
counselors in federally funded planning services be
barred from even mentioning abortion.
As a Los Angeles County trial judge,
Kuhl wrote an opinion that surpasses even these in
its disregard for privacy rights, ruling that bringing
a drug company salesman into the room when a cancer
patient was having her breasts examined-- without
letting her know that he wasn't a physician-- was
not intrusive enough to violate her privacy. Kuhl,
who has been rated well qualified by the ABA, was
reversed by the California Court of Appeal, which
tartly observed: "A breast cancer patient who
goes into an oncologist's office to be examined does
not, nor should she, take a risk that ... a drug salesperson
will be a part of the process...."
Boxer stated in her letter that she
wrote the White House "suggesting three mainstream
Republicans who would make excellent circuit court
judges and who would have my full support. Those suggestions
have been ignored, although the Constitution demands
that the Senate have advice and consent role on judges,
a provision that I take very seriously."
Along with Kuhl and Owen, Ohio Supreme
Court Justice Deborah Cook also has been renominated
for the Federal Court of Appeals for the Sixth Circuit.
The prospect of her deciding federal discrimination
cases has galvanized local plaintiffs' lawyers. A
study of her record found she has ruled in favor of
employers 83 percent of the time, says Frederick Gittes,
president of the National Employment Lawyers Association.
"Her hostile and extreme views concerning laws
governing the workplace have no place on the federal
bench," he says.
Looking Beyond Gender
To those who say that feminists ought
to be heartened to have gender representation on the
bench even if they're getting Scalia in a skirt, Isabelle
Katz Pinzler, Special Counsel to the NOW Legal and
Educational Fund, has an answer: "I would rather
have a pro-civil rights, pro-choice man than most
of these women in terms of how they're going to decide
cases," she says. "Diversity is important,
but it's not the only consideration."
Ultimately, if you're offering up
judges that look like America but think like Wall
Street, you're playing fast and loose with democracy.
"If courts are perceived as being governed by
political ideology, they lose public support and are
no longer seen as an independent branch of government,"
says Goldman. "They're just an arm of the regime."
Unfortunately, that seems to
be what the current regime is after.