Statement by Senator Feinstein

- Voting Against the Nomination of Judge Carolyn Kuhl to the
Ninth Circuit Court of Appeals -
May 8, 2003

Washington, DC - Senator Dianne Feinstein today voted against the nomination of Los Angeles Superior Court Judge Carolyn Kuhl to the Ninth Circuit Court of Appeals. The following is a copy of the prepared text of the statement Senator Feinstein's delivered in committee:

"Mr. Chairman, I am going to oppose the nomination of Carolyn Kuhl to the Ninth Circuit. I base this on my strong concerns about granting lifetime tenure to a candidate with such a decidedly mixed record.

On the one hand, Judge Kuhl has an extensive record, both as an attorney in the Reagan Administration and later in private practice, arguing for extreme positions and extreme changes in the law on the most divisive of social issues confronting this country.

This record is troubling, and presents a lot of questions for those of us who take very seriously the rights she advocated against.

On the other hand, counterposed to this record of activism, she has by most accounts had a very respectable tenure as a private judge, and enjoys the support of many of her colleagues on the bench.

Still, Judge Kuhl's record as a Superior Court judge only provides limited guidance as to how she would perform on the Appellate Court. Cases that come before the Los Angeles Superior Court - the trial court of original jurisdiction in our state court system - are typically more limited in scope than the cases that come before the appellate court.

Superior Court judges do not often handle the complex and vitally important constitutional cases regarding equal protection, employment discrimination, environmental rights, or civil rights that can come before the Ninth Circuit Court of Appeals. It is these socially divisive cases where a nominee's impartiality is most put to the test. And, here Judge Kuhl's record is decidedly sparse.

So I am faced with this question - should a Judge with a history of taking extreme, activist positions on issues as a government and private lawyer - with almost no record on comparable issues as a judge - be given the ultimate pass and granted lifetime tenure on the Ninth Circuit Court of Appeals.

After reviewing her record, I simply cannot make the leap of faith that Judge Kuhl will suddenly reverse course and evaluate cases on these key issues impartially and without regard to her strongly held personal beliefs.

As Senators, we get one opportunity to evaluate a nominee. Once a nominee is on the court, we do not get a second vote. Our constitutional framework - for very good reasons I believe - grants Federal court judges lifetime tenure.

Given this context, it is incredibly important that we make the right decision on these nominees, and it is why I have spent so much time reviewing the record of this nominee - reading past cases, old briefs, recent transcripts, meeting with her personally, reading letters from those who know her well...let me just review Judge Kuhl's record.

Activist Government Lawyer:

As a government lawyer for the Reagan administration, Judge Kuhl did more than legal advocacy. She took a central role in developing controversial government policies of dubious legal merit. In other words, she was a hard-charging champion of the most conservative viewpoints, and was often more aggressive on those issues even than others within the conservative Administration she served.

I would like to submit into the record a letter from 100 law professors that I found very informative, and I'd like to read just one excerpt from the letter. Describing Kuhl's role as a government lawyer, the law professors write:

"Far beyond simply representing the Reagan Justice Department in critical cases that would have deprived women and minorities of basic rights, Kuhl played a key role in setting policy and determining the government's position in those cases."

First, according to the New York Times, Kuhl was one of several attorneys who pressed Attorney General William French Smith in the early 1980s to restore tax exempt status to Bob Jones University and other racially discriminatory schools.

She personally authored a 40 page memo critical of the existing IRS policy. Over 200 attorneys in the Justice Department opposed her position, and in fact Kuhl's position was ultimately rejected by the Supreme Court by an 8 to 1 vote.

Second, Solicitor General Charles Fried recounts in his memoirs that Kuhl wrote one of the strongest memos in favor not only of the United States intervening in the case of Thornburgh v. American College of Obstetricians/Gynecologists, but that the government should argue for the reversal of Roe v. Wade.

After Fried decided to intervene, Kuhl then co-authored the government's brief. Notably, her brief argued that Roe was a flawed decision that ought to be discarded. Specially, she argued that "[s]tare decisis is a principle of stability. A decision as flawed as we believe Roe v. Wade to be becomes a focus of instability, and thus is less aptly sheltered by that doctrine from criticism and abandonment."

The Supreme Court again - thankfully - rejected Kuhl's argument.

Third, Kuhl represented the United States in the case of UAW v. Brock, where she took the extreme position of arguing that the Supreme Court should reverse a decades-old doctrine of associational standing, which allows associations to represent its constituent members in court. According to Solicitor General Fried, Kuhl did not merely advocate in the case, but led a "frontal attack" on the doctrine of associational standing.

Again, the Supreme Court rejected Kuhl's position.

As demonstrated by these cases, Kuhl did not stand on the sidelines. She was an activist who in a multitude of cases actively tried to overturn long-standing legal doctrine.

Private Practice:

Judge Kuhl's supporters have argued that her strident activism was limited to a long time ago during her tenure with the Reagan Administration.

But on reviewing her record, it is clear that this activism continued until far more recently, long after she entered private practice.

In 1989, as a private lawyer, Kuhl wrote a brief in the case of Rust v. Sullivan for the American Academy of Medical Ethics, a group of 20,000 physicians that opposed abortion. Her brief supported regulations that prohibited family planning clinics from counseling women about abortion.

What's striking to me about this case is how she starts the brief with a gratuitous slap at the Roe decision.

Under the section labeled introduction and summary of argument, she writes:

"This Court's abortion decisions have already worked a major distortion in the Court's constitutional jurisprudence . . . . [N]o legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving.....abortion."

Four years after advocating the overturning of Roe in Thornburgh for the Reagan Justice Department, Kuhl was still calling that decision into question.

Moreover, while in private practice, she wrote a brief, in support of the Virginia Military Institute's efforts to get the Supreme Court to re-hear a lower court decision, which found VMI's all-male admissions policies violated the Equal Protection Clause. Kuhl argues that she was merely trying to protect women's colleges - but, her brief, by being silent on VMI's admission's policies, gave implicit support for VMI's legal position.

Record on the Superior Court:

I would now like to talk about Judge Kuhl's Superior Court record. Her record on the Superior Court is not fully available to the Committee because the decisions of the Los Angeles County Superior Court are not published.

However, based on letters I have received from many of Judge Kuhl's colleagues on the bench, she appears to have a respectable record and enjoys a great deal of support from many of these colleagues.

But, even here, some cases raise serious concerns.

First, in the case of Liu v. Moore, Judge Kuhl issued a ruling that prevented a whistleblower, Deborah Moore, from getting monetary relief under California's anti-SLAPP (Strategic Lawsuits Against Public Participation law) laws.

Ms. Moore was a medical office worker who reported billing irregularities by her employer to the government. She then was sued by her employer's business partner. Ms. Moore spent $40,000 defending herself against this harassing legal action. She sought to get the suit dismissed and recover her attorneys fees under the Anti-SLAPP law.

Just days before a crucial hearing, the employer dropped its suit. Judge Kuhl refused to award attorney's fees. The California court of appeals, in its opinion, called Kuhl's decision "a nullification of an important part of California's anti-SLAPP legislation." The appellate court agreed and unanimously overturned it.

This case struck me as important not only because I disagree with the outcome, but because some have accused Judge Kuhl of not according much value to whistleblowers. If true, this case raises real questions about whether Judge Kuhl's personal beliefs influenced the outcome of her decision.

A second case also caused me great concern. It is the case of Sanchez-Scott v. Alza Pharmaceuticals. I draw attention to this case for two reasons. First, Judge Kuhl's legal decision was very startling. Second, I found Judge Kuhl's answers to the Judiciary Committee about the case, both before and after the hearing, to be less than fully candid.

When I began to review Judge Kuhl's record, I looked at this case very closely because I am a strong advocate of personal privacy. In addition, the plaintiff in the case, Azucena Sanchez-Scott wrote to me.

The facts of this case are startling. Scott sued her doctor for invasion of privacy after he conducted a breast exam on her in front of a drug company sales representative. During the exam, the doctor asked Ms. Scott to disrobe from the waist up. Only at the end of the office visit, did the patient learn from the receptionist that the other person in the room was a salesman.

Kuhl threw out Sanchez-Scott's privacy claim before it even went to a jury, concluding that there were no set of facts on which Sanchez could prevail. According to Kuhl, since Sanchez-Scott had failed to complain about the man's presence, she had no expectations of privacy.

This does not make much sense - it is clear to me that a patient should not have to ask about each individual in the room during her breast examination. It is the doctor who controls that environment, it is the doctor in who patients must put their trust, and it is the doctor who violated that trust in this case.

Appropriately, the State Appellate Court overturned Kuhl's decision.

Now, I am bothered both by the decision itself, and by what I see as misleading answers to questions about the case when Members of the Committee raised it with her.

In answering questions about this case both during her hearing and later in my office, Judge Kuhl implied that she had allowed the privacy claim against the physician to go forward. In fact, this is not the case at all. One claim against the doctor did go forward, but that claim was an informed consent claim.

Kuhl never acknowledged that she struck down, as a matter of law, the privacy claim that the patient had against BOTH the doctor and the drug representative.

Disturbingly, this is not the only instance where Judge Kuhl was not completely forthcoming with facts to the committee. In answering a question I posed about UAW v. Brock, she claimed she did not co-author the brief. This was flatly untrue, and Judge Kuhl has now acknowledged this misstatement in subsequent written correspondence to the Committee.

Also, in response to another question that I posed, Judge Kuhl claimed that her government brief in the landmark sexual harassment case of Meritor Savings v. Vinson, only disagreed with the supreme court on a "technical issue" and that the Supreme Court decision closely tracked the Government's brief.

However, Kuhl's answers do not correspond to a fair reading of the case. Kuhl, representing the government, argued that the sexual harassment claim against the employer should be dismissed. The Supreme Court ruled in favor of the defendant.

Moreover, Kuhl's brief argued that sexual harassment claims could not exist where there are "voluntary" relationships." Specifically, in her summary of argument, her brief argues ".. while unwelcome sexual advances may create a hostile work environment, consensual sexual relationships do not provide a basis for Title VII liability."

Justice William Rehnquist, writing for the majority of the Supreme Court rejected this very narrow construction of sexual harassment law.

Specifically, Rehnquist, explicitly stated that "the fact that sex-related conduct was 'voluntary' in the sense that the complainant was not forced to participate against her will, is not a defense to a sexual harassment suit brought under title VII."

Just yesterday, I received a letter from Shirley Hufstadler, a former Ninth Circuit judge and our nation's first Secretary of Education. Judge Hufstadler, wrote to me about how troubled she was with Judge Kuhl's "lack of candor before her Senate hearing."

In regard to the Meritor case, Hufstadler writes "I cannot see how [Kuhl's] explanation can be squared with what the Supreme Court actually did because it outright rejected the argument in the government's brief that a "voluntary" relationship [a relationship not based on force] precluded a claim for sexual harassment. Her statement that the government won because of a hostile environment claim is disingenuous."

In considering whether or not to grant life time tenure to this nominee, I found it profoundly disturbing that she was not fully forthright with the Committee.

Divisiveness of the nominee:

I would like to conclude by discussing the divisiveness of this nominee. My office has received a torrent of calls against Judge Kuhl.

The numbers are, in fact, quite astounding. Between January 1, 2003 and today, I received 29 calls in favor of Judge Kuhl and 13,400 calls against her nomination.

In total, I have received 21,367 individual faxes, calls, letters, and postcards opposed to Kuhl. In contrast, I have received only about 114 letters and phone calls in support of the nomination.

In contrast, just yesterday, the Judiciary Committee held a hearing on another Ninth Circuit nominee, Appellate Court judge Consuela Callahan. I have not received a single letter in opposition to Judge Callahan.

The credibility of our justice system depends on appointing judges who will instill public confidence in the Judicial branch. The Administration needs to get the message that we will continue to have a crisis as long as they nominate candidates from the extreme end of the political spectrum.

In conclusion, I would like to read another paragraph from Shirley Hufstedler because it encapsulates the overarching problems with the nominee.

Hufstadler writes:

"The Ninth Circuit constantly hears cases that involve the sensitive issues affecting women, people of color and people of widely diverging personal, political, and religious views ... I have grave doubts about [Judge Kuhl's] judicial temperament and about her ability during a lifetime appointment to decide cases with the requisite objectivity and concern to protect the basic rights of human beings in our country from being trampled by the government or others with whom they may collide."

There are simply too many unknowns regarding Judge Kuhl's nomination. Given the importance of a Circuit judge seat, I am simply not prepared to cast my vote in the hope that she will reverse such a strong record of activism on so many of these issues. Thus, I will cast a NO vote on this nominee.

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