Fair and Just Courts

Opposing Carolyn Kuhl's Confirmation

President Bush’s nomination of Los Angeles Superior Court Judge Carolyn Kuhl to the United States Court of Appeals for the Ninth Circuit has generated significant controversy, concern, and opposition. As reflected in this report, throughout her legal career and in landmark cases dealing with such issues as reproductive freedom and privacy, sexual harassment, civil rights, and access to justice, Kuhl has followed a legal philosophy harmful to the rights and interests of ordinary Americans.

Carolyn Kuhl: Blocking the Path to Justice

The record of Los Angeles Superior Court Judge Carolyn Kuhl, nominated to the U.S. Court of Appeals for the Ninth Circuit by President Bush, demonstrates that her confirmation would pose a grave threat to the rights and interests of ordinary Americans. Kuhl’s record throughout her career as a lawyer and a judge, reflects hostility to women’s rights and reproductive freedom, other civil rights and access to justice.

Opposing Carolyn Kuhl's Confirmation

As noted above, from 1981-1986, Kuhl served the Reagan Administration in the Department of Justice, first as Special Assistant to the Attorney General, then as Deputy Assistant Attorney General in the Civil Division, and then as Deputy Solicitor General. As Kuhl’s record and the nature of her positions in the Department of Justice reflect, Kuhl was more than a “hired gun” for a client. To the contrary, she had left private practice to enlist in what her former boss, then-Solicitor General Charles Fried, called the “Reagan Revolution,” one front of which, according to Fried, was a “battle .

Opposing Carolyn Kuhl's Confirmation

Although she has not been as directly involved in other civil rights issues as she was during the Reagan Administration, two articles concerning employment discrimination that Kuhl authored when she was in private practice raise serious concerns about her philosophy toward protecting employees from non-merit based employment decisions as well as remedying discrimination. In one, Kuhl made clear that she is opposed to affirmative action, which she called “a divisive societal manipulation.” (Ashkenazy v. Liu, No. BC 149503).

2nd Hearing Confirms Case Against Priscilla Owen

In an effort to rehabilitate Owen’s failed nomination, Senate Judiciary Chairman Orrin Hatch held another hearing for Justice Owen on March 13, 2003, even though he acknowledged that she had received a full and fair hearing last July. At the March 13 hearing, Senator Hatch, several other Republican senators, and Justice Owen tried to explain away three serious concerns that helped lead to the rejection of her nomination: the criticism by White House Counsel Alberto Gonzales and other Bush appointees to the Texas Supreme Court of a number of Owen’s frequent dissents and attempts at judicial activism; Owen’s judicial activism in attempting to impose additional barriers on the exercise of the right to reproductive choice; and Owen’s frequent dissents and efforts at judicial activism in favor of corporate and other interests in cases in which the majority had protected the rights of consumers and other citizens. As with her first hearing last year, however, the March 13 hearing failed to resolve, and instead reinforced, these serious concerns.

2nd Hearing Confirms Case Against Priscilla Owen

Much of Owen’s second hearing centered around an attempt by Senator Hatch and several of his Republican colleagues to dispel the conclusion evident from Justice Owen’s record that she is a right-wing judicial activist, a conclusion that played a significant role in the Judiciary Committee’s rejection of Owen’s confirmation.

2nd Hearing Confirms Case Against Priscilla Owen

In her tenure on the Texas Supreme Court, Owen has written or joined a number of dissents that would have effectively rewritten or disregarded the law, usually to the detriment of ordinary citizens, including in cases dealing with discrimination and employee rights, environmental issues and public information rights, and consumer and citizen rights. Owen was questioned about her disturbing record on these issues at her first hearing, but her testimony did not dispel the concerns that her record had raised.

Owen's Second Hearing Confirms Clear and Compelling Case Against Confirmation

The Senate is debating the nomination of Priscilla Owen to a federal appeals court seat and Senate Republicans may try to force a vote this week. The Senate Judiciary Committee rejected her last year, and her re-nomination by President Bush is unprecedented. Read PFAW’s report about why the committee was right to reject this judicial activist then, and why the Senate should do so again.

Senator Hatch’s Double Standards and Abuse of Power

Senate Judiciary Committee Chairman Orrin Hatch, frustrated that Democratic senators are resisting his effort to push President Bush’s appeals court nominees onto the bench with minimal scrutiny, is increasingly abusing the power of his chairmanship to flagrantly violate or unilaterally change longstanding committee rules and bipartisan agreements that govern the Judiciary Committee’s deliberative process

The Blue Slip Policy

In the past, Hatch has been a fervent supporter of the Senate’s “blue slip” policy, which has allowed home-state senators who object to a judicial nominee to delay action in the Judiciary Committee by not returning a nominee’s “blue slip” to the committee. As American Prospect has noted, “it was Hatch, in 1995, who hardened the blue-slip policy to allow a single senator to block a nomination indefinitely.” Indeed, Sen. Hatch made his blue slip policy explicit in 1998 by stating on the blue slips themselves that “[n]o further proceedings on this nominee will be scheduled until both blue slips have been returned by the nominee’s home state senators.” Now, however, Hatch has apparently declared a new policy saying that even though a senator’s decision not to return a blue slip would be given great weight, it would not be allowed to prevent Hatch from moving nominees he wants to move. “In other words,” says Hatch, “we can go ahead with certain nominees where you might have a withheld blue slip.” Sen. Barbara Boxer in particular has objected to proceeding on controversial nominee Carolyn Kuhl, regarding whom Boxer has not returned her blue slip, but indications from Hatch are that he will proceed on the nomination, in blatant contradiction of his own policy.

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