Carolyn Kuhl’s Hearing Strengthened the Case Against Her Confirmation

Endnotes

1 Charles Fried, Order and Law: Arguing the Reagan Revolution – A Firsthand Account, at 33 (1991) (hereafter “Order and Law”).

2 Brief for the United States as Amicus Curiae in Support of Appellants, Thornburgh v. American College of Obstetricians and Gynecologists, at 10 (July 15, 1985) (LEXIS pagination).
3 Committee on the Judiciary, Nomination of Carolyn B. Kuhl of California to be Circuit Judge for the Ninth Circuit, Unofficial Transcript of Proceedings (Apr. 1, 2003) (hereafter “Kuhl Hearing”), at 46; 118.
4 Order and Law, at 33.
5 Brief of the American Academy of Medical Ethics as Amicus Curiae in Support of Respondent, Rust v. Sullivan, at 1 (LEXIS pagination; quoting Thornburgh, 476 U.S. at 814 (O’Connor, J., dissenting)).
6 Meritor Savings Bank v. Vinson, 477 U.S 57, 68 (1986) (emphasis added).
7 Senator Feinstein’s post-hearing questions to Kuhl (ques. 2).
8 See Kuhl’s answers to Senator Feinstein’s post-hearing questions (ans. 2a) (Apr. 9, 2003). See also Kuhl’s answers to Senator Biden’s post-hearing questions (at 5-6) (Apr. 29, 2003).
9 See Brief for the United States and the Equal Employment Opportunity Commission as Amici Curiae, Meritor Savings Bank v. Vinson, at, e.g., 3 (Dec. 11, 1985)(LEXIS pagination).
10 See Brief of Mary Baldwin College, et al., as Amici Curiae in Support of Petitioners, Virginia Military Institute v. United States, No. 92-1213, at 1, 20 (Mar. 24, 1993).
11 See Petition for Writ of Certiorari, Virginia Military Institute v. United States, United States Supreme Court, October Term 1992, at 23.
12 See, e.g., “VMI Case Makes Odd Bedfellows Women’s Colleges Allies,” Roanoke Times & World News (Apr. 11, 1993), 1993 WL 4411514. Others rejected VMI’s efforts. For example, “Jedwiga Sebrechts, executive director for the Women’s College Coalition in Washington, said that 20 women’s colleges contacted her office after being approached by VMI lawyers to join in the briefs. The coalition was approached, too, she said. . . ‘What we found was, of all the attorneys we sought opinions from, not one of them shared the perspective advanced by VMI attorneys that the current opinion of the Fourth Circuit was an opinion that put women’s colleges in jeopardy.’” Id.
13 Kuhl’s Answers to Senator Kennedy’s post-hearing questions (ans. 2a) (Apr. 29, 2003).
14 Letter from Azucena Sanchez-Scott to Senator Orrin Hatch (Mar. 3, 2003). Ms. Sanchez-Scott’s letter goes on to state that she was “shocked and dismayed” by Judge Kuhl’s ruling. Id.
15 Reporter’s Transcript, Azucena Sanchez-Scott v. Alza Pharmaceuticals, No. BC 214585 (LA Superior Court, Oct. 12, 1999) (hereafter “Sanchez-Scott Transcript”), at 3.
16 Sanchez-Scott v. Alza Pharmaceuticals, 86 Cal. App. 4th 365, 375-78 (2001).
17 Id., 86 Cal. App. 4th at 376.
18 For example, Kuhl testified that “[t]he claims against the doctor were tort claims for failure to obtain consent from the woman in the examining room that was the doctor’s examination room. . . . And the claim against the third party who came into the room was an invasion of privacy claim.” Kuhl Hearing, at 123. And Kuhl answered “[t]hat is correct” when Senator Hatch asked her “It is my understanding that the particular motion to dismiss that you had granted had nothing to do with the claims against the doctor and that your ruling would have allowed the claims against the doctor to go forward. Is that right?” Kuhl Hearing, at 122-23 (emphasis added). Similarly, in a post-hearing letter to Senator Arlen Specter dated April 15, 2003, Kuhl described the invasion of privacy claim against the drug company as a “separate claim” from the claim against the doctor. Letter from Carolyn B. Kuhl to Hon. Arlen Specter (Apr. 15, 2003)(hereafter “Kuhl Letter to Sen. Specter”), at 2.
19 Letter from Carolyn B. Kuhl to Hon. Orrin B. Hatch (Apr. 29, 2003), at 1 (hereafter “Kuhl Letter to Sen. Hatch”).
20 In her April 15 letter to Senator Specter, Kuhl stated “It is very important to note that my decision allowed that claim [the “tort action against the doctor”] to proceed.” Kuhl Letter to Sen. Specter, at 2. In her more recent letter to Senator Hatch, Kuhl more accurately stated that her dismissal of the privacy claims “left the tort claim for failure to obtain consent against the doctor remaining for trial.” Kuhl Letter to Sen. Hatch, at 1.
21 See Superior Court Case Summary, available at http://www.lasuperiorcourt.org/
civilCaseSummary/CaseSummary.asp?Referer=index&Case=BC214585.
22 Kuhl dismissed Ms. Sanchez-Scott’s privacy claims on Oct. 12, 1999; the Court of Appeal’s decision reversing that ruling was issued on Jan. 17, 2001.
23 Similarly, in her letter to Senator Specter, Kuhl stated, “I had to determine [Ms. Sanchez-Scott’s] rights under California law. California law clearly gave her a tort action against the doctor whose responsibility it was to obtain her consent before he invited any other person into the examining room. . . Regarding the separate claim against the drug company representative, the law was less clear . . .” Kuhl Letter to Sen. Specter, at 2.
24 Letter from Justice Paul Turner to Senator Patrick J. Leahy (Mar. 17, 2003) (hereafter “Turner Letter”), at 1.
25 Anthony Lewis, “Abroad at Home; The Court Says No,” New York Times A27 (May 26, 1983).
26 Memorandum from Charles J. Cooper, Special Assistant to the Assistant Attorney General, and Carolyn B. Kuhl, Special Assistant to the Attorney General, to Wm. Bradford Reynolds, Assistant Attorney General, Civil Rights Division (Jan. 5, 1981 [sic; date is 1982]), at 40, reprinted in “Administration’s Change in Federal Policy Regarding the Tax Status of Racially Discriminatory Private Schools,” Hearing before the Committee on Ways and Means, House of Representatives, 97th Cong., 2d Sess. (Feb. 4, 1982) (hereafter “Bob Jones Hearing”), at 549-88.
27 Kuhl’s answers to Senator Boxer’s question 3 (June 1, 2001).
28 Charles Fried, “Time-Traveling to Thwart a Judge,” Los Angeles Times (Jan. 17, 2003).
29 Bob Jones Hearing, at 588 (emphasis added).
30 Kuhl’s answers to Senator Kennedy’s post-hearing questions (ans. 1C) (Apr. 29, 2003).
31 See Brief for the Equal Employment Opportunity Commission, Local 28 of the Sheet Metal Workers’ International Ass’n v. EEOC, (Dec. 9, 1985).
32 See Kuhl’s answers to Senator Kennedy’s post-hearing questions (ans. 1A) (Apr. 29, 2003).
33 See Carolyn Kuhl, Comment for BNA Special Report, in BNA Special Report on Affirmative Action Today: A Legal and Practical Analysis, 157-59 (1986).
34 Carolyn Kuhl, “Employment at the Will of the Courts,” in Law, Economics, & Civil Justice (1994), 185-89.
35 Post-hearing questions of Senator Edwards (ques. 1A).
36 Id.
37 Kuhl’s answers to Senator Edwards’ post-hearing questions (ans. 1A) (Apr. 29, 2003).
38 Carolyn Kuhl, “Employment at the Will of the Courts,” in Law, Economics, & Civil Justice (1994), 185-89.
39 Id. at 188.
40 Id. at 187.
41 Senator Leahy’s post-hearing questions to Kuhl (ques. 4; emphasis added).
42 See, e.g., Kuhl Letter to Sen. Specter (Apr. 15, 2003).
43 Disturbing information about Kuhl’s pro bono record also emerged at her hearing. Under questioning from Senator Feinstein, Kuhl admitted that in her entire career in private practice, spanning a total of some 12 years, including 9 as a partner in a prestigious law firm, she had handled only two pro bono cases. Kuhl Hearing, at 60-61. Although Kuhl sought to excuse this on the ground that she was raising children while at the same time trying to be a partner in a law firm (Kuhl Hearing, at 61), it is worth noting that during this same period Kuhl managed, among other things, to find the time to draft the amicus brief in the Supreme Court supporting VMI’s efforts to continue to exclude women as well as the amicus brief in support of an anti-choice group in Rust v. Sullivan. Across this country, many law firm associates and partners are also parents, and yet they make the time to fulfill their ethical obligations to perform pro bono work.
44 See Senator Leahy’s post-hearing questions to Kuhl (ques. 3), answered by Kuhl on April 29, 2003.
45 On the date she submitted her written answers to Senator Leahy, Kuhl admitted in a cover letter to Senator Hatch that she her name was in fact on this brief “and I now recall that I did participate in drafting that brief.” Kuhl Letter to Sen. Hatch (Apr. 29, 2003) at 1.
46 See International Union, United Automobile, Aerospace and Agricultural Implement Workers of America v. Donovan, 746 F.2d 839 (D.C. Cir. 1984).
47 Id.
48 Brief for the Respondent In Opposition to Petition for Writ Of Certiorari, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America v. Brock, at 6 (Aug. 14, 1985) (LEXIS pagination).
49 Brief of the Chamber of Commerce, et al. as Amici Curiae in Support of Petitioners, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America v. Brock, at 5 (March 1986).
50 See, e.g., Kuhl’s answers to Senator Leahy’s post-hearing questions (ans. 3) (Apr. 29, 2003).
51 Kuhl’s answers to Senator Leahy’s post-hearing questions (ans. 3d) (Apr. 29, 2003).
52 According to a letter from Ms. Moore’s attorney to Senator Feinstein’s office, it was Judge Kuhl, and not the plaintiff who had filed the frivolous suit, who had raised the jurisdictional question in the first place; the plaintiff had “never argued that the Court lacked jurisdiction to rule on [Ms. Moore’s] motion” for legal costs. Letter from Mark Allen Kleiman to David Hartman and Tom Oscherwitz (Apr. 2, 2003), at 2.
53 See post-hearing questions of Senator Grassley and of Senator Schumer (second set).
54 Post-hearing questions of Senator Schumer (second set, ques. b).
55 Kuhl’s answers to post-hearing questions of Senator Schumer (second set, ans. b) (Apr. 29, 2003).
56 Post-hearing questions of Senator Schumer (second set, at 1).
57 Id. at 1-2.

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