[Congressional Record (Bound Edition), Volume 149 (2003), Part 21]
[Senate]
[Pages 28858-28864]
[From the U.S. Government Publishing Office, www.gpo.gov]




NOMINATION OF CAROLYN B. KUHL TO BE UNITED STATES CIRCUIT JUDGE FOR THE 
                             NINTH CIRCUIT


                             cloture motion

  The PRESIDING OFFICER. Under the previous order, the clerk will 
report the motion to invoke cloture.
  The legislative clerk read as follows:

                             Cloture Motion

       We the undersigned Senators, in accordance with the 
     provisions of Rule XXII of the Standing Rules of the Senate, 
     do hereby move to bring to a close debate on Executive 
     Calendar No. 169, the nomination of Carolyn B. Kuhl, of 
     California, to be United States Circuit Judge for the Ninth 
     Circuit.
         Bill Frist, Orrin G. Hatch, Lindsey Graham, Mike Crapo, 
           Jeff Sessions, Conrad Burns, Larry E. Craig, Saxby 
           Chambliss, Mitch McConnell, Jim Bunning, Judd Gregg, 
           John Cornyn, Jon Kyl, Trent Lott, Mike DeWine, Craig 
           Thomas, Kay Bailey Hutchison.

  Mr. LEAHY. Mr. President, I want to commend the Senators from 
California for their leadership in connection with this matter.
  Today, the Senate is considering the nomination of California Judge 
Carolyn Kuhl to the U.S. Court of Appeals for the Ninth Circuit. In 
accordance with Republican practices during the period 1995-2000, this 
nominee would have never come to the Judiciary Committee for a hearing 
in the first place and would never have been voted upon by the 
Judiciary Committee. This consideration on the Senate floor today 
underscores the President's refusal effectively to consult with the 
home-State Senators from California, both of whom oppose this 
nomination. In fact, this vote is the culmination of a year in which 
the President's disregard for home-State Senators and the Republican 
majority's disregard of past practices to achieve their partisan 
political objectives could not be more calculated.
  Judge Kuhl's appearance before the Judiciary Committee, despite the 
clearly stated opposition of Senator Boxer, was only one in a string of 
transparently partisan actions taken by the Senate's Republican 
majority since the beginning of this Congress. In each of these 
actions, Republicans have done something they never did while in the 
majority from 1995 to 2000. Throughout the course of this year, they 
have continued to ratchet up their unprecedented partisanship and the 
use of judicial nominees for partisan political purposes.
  The Republican majority took a step on the nomination of Judge Kuhl 
that was unprecedented for this Chairman. They scheduled a hearing for 
a nominee who did not have approval from

[[Page 28859]]

both of her home-State Senators, a nominee for whom both blue slips 
were not returned positively. There is not a single example from 1995 
through 2000, when the President was a Democratic President, and when 
Republican Senators were objecting, when the Judiciary Committee held a 
hearing on a judicial nominee over the objection of a home-state 
Senator.
  Senate Republicans should remember that when the nomination of Ronnie 
White of Missouri was finally voted upon in 1999, all Republicans, in 
an unprecedented party-line vote, defeated that nomination. Several 
Republican Senators who had voted in favor of Justice White when he was 
considered by the Committee changed their positions and voted against 
his confirmation. The facts are that, at the time of his hearing, the 
senior Senator from Missouri supported the nomination and endorsed him 
at his hearing, and the junior Senator did not object to the hearing. 
Senator Ashcroft then chose to vote against the nomination. On the eve 
of the vote on the nomination, Senator Bond changed his position and 
decided to join Senator Ashcroft in opposing the nomination.
  In connection with that vote, Senator Hatch said that if both home-
State Senators had opposed the nomination earlier, it would never have 
proceeded. He told the Senate: ``[H]ad both home-State Senators been 
opposed to Judge White in committee, Judge White would never have come 
to the floor under our rules. I have to say, that would be true whether 
they are Democrat Senators or Republican Senators. That has just been 
the way the Judiciary Committee has been.''
  The Ronnie White nomination is not an example of a previous time that 
the Committee and the Senate proceeded over the objections of home-
state Senators. To the contrary, it is precisely the opposition, a 
clear precedent the other way.
  While it is true that various Chairmen of the Judiciary Committee 
have used the blue-slip in different ways, some to maintain unfairness, 
and others to attempt to remedy it, it is also true that each of those 
Chairmen was consistent in his application of his own policy--that is, 
until the Kuhl hearing. That was the first time that this Chairman ever 
convened a hearing for a judicial nominee who did not have two blue 
slips acceding to a hearing.
  This Republican President's choice of Carolyn Kuhl for a vacancy on 
the Ninth Circuit is a divisive and political choice. As a lawyer in 
the Reagan Administration, a lawyer in private practice, and as a state 
court judge, Judge Kuhl has demonstrated an extreme philosophy that 
threatens the rights and interests of Americans, particularly women's 
rights, other civil rights, and access to justice. Among other 
significant cases, Judge Kuhl spearheaded an effort to reverse the 
Reagan Administration's policy on tax-exempt status for racially 
discriminatory private schools, including Bob Jones University. She has 
also consistently advocated against women's rights and reproductive 
rights--from aggressively pushing the Justice Department to argue for a 
reversal of Roe v. Wade, to arguing for limits on the reach of sexual 
harassment laws, to rulings as a judge which raise concerns about her 
commitment to privacy rights.
  This nomination has generated widespread opposition and requests that 
the Senate not consent to her confirmation. Among the many membership 
organizations that have written in opposition are: Seven members of the 
California Assembly Committee on the Judiciary, California Women 
Lawyers, the Japanese American Citizens League, the Leadership 
Conference on Civil Rights, People for the American Way, Planned 
Parenthood Federation of America, Taxpayers Against Fraud and many, 
many more.
  I suspect we will hear these groups, and the others who oppose the 
President's nomination of Judge Kuhl, vilified as members of some left-
wing conspiracy, intent on sinking each and every nominee, no matter 
what their views. But I would like to remind those who would raise that 
argument, as I have before, that these organizations represent millions 
of citizens with legitimate concerns about the direction of the 
judiciary in this country. I appreciate their willingness to 
participate in the process and their refusal to be intimidated into 
silence. The Washington Times has conceded that ``President Bush has 
seen more of his appeals court nominees confirmed by the Senate at this 
point in his term than any other president since at least the 1970s.'' 
When I was Chairman of the Judiciary Committee during the 107th 
Congress, the Senate confirmed 100 of this President's nominees. So far 
this year, the Senate has confirmed 68 additional judges nominated by 
President Bush. The Senate has now confirmed 168 of the Bush judicial 
nominees. That is more confirmations than in all of President Reagan's 
first term and more judges in one year than were confirmed during all 
of 2000, 1999, 1998, 1997, 1996 or 1995.
  Among those 168 confirmations are 29 circuit judges. That is more 
circuit judges at this point in his presidency than were confirmed for 
President Reagan, President Bush or President Clinton. So far this year 
the Senate has confirmed 12 circuit court judges. In the comparable 
year of 1999, Republicans allowed only 7 circuit court judges to be 
confirmed all year.
  Four of President Bush's nominees to the Ninth Circuit Court of 
Appeals have already been confirmed. Richard Clifton was given a 
hearing and confirmed under Democratic leadership. Just this year, the 
Senate has confirmed two additional Ninth Circuit nominees, one of 
whom, Jay Bybee, was quite controversial. Just before the Memorial Day 
recess, Democratic Senators expedited and encouraged the Majority 
Leader to allow a vote on the nomination of Judge Consuelo Maria 
Callahan, a consensus nominee with support from both home-State 
Senators. And, in September, Democratic Senators supported the 
nomination of Judge Carlos Bea, another nominee with support from both 
home-State Senators.
  Unlike the divisive nomination of Judge Kuhl, both home-state 
Senators supported the nominations of Judge Callahan and Judge Bea. 
Rather than disregarding time-honored rules and Senate practices, my 
friends on the other side of the aisle should help us fill more 
judicial vacancies more quickly by bringing those nominations that have 
bipartisan support to the front of the line for Committee hearings and 
floor votes.
  Republican Senators have been claiming that there have never been 
filibusters of nominees before and arguing that every nominee always 
gets a Senate up or down vote. That was certainly not the case for 63 
of President Clinton's judicial nominees and for hundreds of his 
Executive Branch nominees. Such a claim is so contrary to history it is 
breathtaking in its boldness. On a single day in 2000, the Senate had 
to invoke cloture to stop Republican filibusters of the nominations of 
Judge Richard Paez and Marsha Berzon. Republicans also unsuccessfully 
filibustered Judge Rosemary Barkett and Judge H. Lee Sarokin in 1994. 
They successfully filibustered Executive Branch nominees such as 
ambassadorial nominees and the nomination of a Surgeon General, and the 
list goes on and on. I have spoken about them before.
  This White House has been the most aggressive in recent history in 
its efforts to pack the federal courts and tilt it sharply toward a 
narrow ideology. The most extreme of the Administration's nominees are 
not being approved. We are seeking to maintain the independence of the 
Federal judiciary and to protect the rights of Americans in so doing. 
The Administration and its supporters have taken to using these 
nominations as partisan matters and to drive wedges between Americans. 
I have urged that the President be a uniter rather than a divider on 
this important lifetime nominations, but my voice has been ignored.
  The provocative steps taken by the White House and Senate Republicans 
have broken new grounds in politicizing the Federal judiciary. The 
Republican majority has shown a corrosive and raw-edged willingness to 
change, bend and even break the very same rules that they took 
advantage of

[[Page 28860]]

when the judicial nominees involved were a Democratic President's 
choices.
  One of Carolyn Kuhl's most notorious decisions as a lawyer in the 
Reagan Justice Department is among her most troubling. As a political 
appointee serving directly under the Attorney General of the United 
States, she spearheaded an effort in the Reagan Administration to 
reverse position in the Bob Jones University case. This was the case 
challenging IRS rules denying tax-exempt status to schools that 
racially discriminate.
  In 1981, the IRS rules were challenged by Bob Jones University, which 
wanted to keep avoiding their tax responsibilities despite a policy 
prohibited interracial dating. When the school took this issue to the 
Supreme Court in 1981, the Reagan Justice Department was prepared to 
defend the rules, as is its duty. But in January 1982, the government 
suddenly changed its position, and argued that the IRS had no legal 
authority to deny tax-exempt status and agreed to give Bob Jones, 
despite its blatant policies of racial discrimination, the tax 
exemption.
  Then-Congressman Trent Lott, supported by Senator Strom Thurmond, was 
pivotal in the lobbying effort to change the government's position, and 
then-Special Assistant to the Attorney General Carolyn Kuhl concurred. 
This decision was so outrageous that more than 200 career lawyers in 
the Justice Department's Civil Rights Division objected to the change 
of position in a letter to their Assistant Attorney General.
  According to records of Congressional hearings on the topic and a New 
York Times article written at the time, Carolyn Kuhl was one of three 
people characterized as ``a band of young zealots'' at work as 
political appointees at the Department of Justice, and part of the 
``Bob Jones team'' who opposed the overwhelming sentiment and ``pressed 
for the legal switch to give Bob Jones its tax exemption.'' Indeed, 
Carolyn Kuhl and Charles Cooper, then-Special Assistant to Attorney 
General William French Smith, co-authored a 40-page memorandum to Civil 
Rights Division Head William Bradford Reynolds strenuously arguing that 
``the [IRS] Commissioner's Ruling denying tax-exempt status to racially 
discriminatory private educational institutions is supported by neither 
the language nor the legislative history of Section 501(c)(3)'' and 
that the IRS should therefore ``reverse its position'' in the case and 
``accord tax-exempt status'' to Bob Jones.
  The Supreme Court, in an 8-1 ruling, repudiated Carolyn Kuhl's 
position and denied the school tax-exempt status. Chief Justice Warren 
Burger wrote for the majority, ``[a]n unbroken line of cases following 
Brown v. Board of Education establishes beyond doubt this Court's view 
that racial discrimination in education violates a most fundamental 
national public policy, as well as rights of individuals.''
  It is interesting to note that the reason we know so much about Judge 
Kuhl's advocacy on behalf of schools like Bob Jones is because of 
internal Justice Department documents turned over to the Senate Finance 
Committee in February of 1982. At that time, in the wake of the Reagan 
Administration's switch in position, the Committee held a hearing to 
consider a legislative fix to the problem. A number of Justice 
Department memoranda as well as communications between high-level 
officials were turned over to the Committee in connection with the 
hearing, just months after the documents were first written. The House 
Ways and Means Committee held a similar hearing on February 4, 1982. 
Among the documents turned over to these Congressional committees was a 
memo written by Carolyn Kuhl on December 8, 1981 to Ken Starr noting 
Reagan/Bush campaign statements on private schools and a memorandum 
written by Carolyn Kuhl and Charles Cooper, one of the other members of 
the ``Bob Jones team,'' to Civil Rights Division Head Reynolds 
regarding the Bob Jones case.
  At her hearing, Judge Kuhl conveniently told us that she regretted 
having taken the position she did at the time. Although it was the 
first time she had ever said so publicly, at her hearing, she claimed 
that in 1982 she had been concerned about the implications the Bob 
Jones policy would have on all-girls' schools. This concern was not 
reflected in her memos at the time, and has not been heard in any other 
context. But, taking her at her word that this was truly a concern, the 
explanation she gave at her hearing is still very interesting. She 
said, and I'll quote her, ``I had attended an all-girls' school and I 
did not want to see a precedent created that would have meant that tax 
exemptions could be taken away from all-girls' schools because they 
discriminated against men.'' In other words, she advocated helping a 
school that was racially discriminatory because of her personal 
affinity for her alma mater. Either way, whether or not you believe her 
newly articulated explanation, her responses on this issue raise as 
many questions as they answer.
  Judge Kuhl also contended at her hearing that her advocacy on behalf 
of Bob Jones University should be excused because of her relative youth 
and inexperience. This too seems a convenient explanation. She 
describes herself as someone two and a half, maybe three years out of 
law school with no decision making authority, painting the picture of a 
naive young attorney with no influence over such important decisions. 
But this was 1982, five years after her graduation from law school, and 
she had proven herself enough to have landed one of the most prized 
jobs for a political appointee with a law degree: Special Assistant to 
the Attorney General of the United States. She doubtless had daily 
personal contact with the nation's highest law enforcement officer, and 
as his protege represented his position to the very influential people 
serving under him, including Solicitor General Charles Fried and Head 
of the Civil Rights Division William Bradford Reynolds. While I accept 
the contention that she was not the final decision maker on the Bob 
Jones matter, the facts lead me to believe that her arguments were 
taken seriously and held more than a little weight. I think Judge Kuhl 
underestimated the esteem in which her legal abilities were held. 
Indeed, only a few years later, she became the Deputy Assistant 
Attorney General in the Civil Rights Division, with managerial 
responsibilities for hundreds of attorneys.
  I would argue that Judge Kuhl's participation in this case exceeded 
an attorney's obligation to be a zealous advocate. Rather, her 
aggressive involvement surely helped build momentum behind the drastic 
change in position the Justice Department would take. But the 
substantive weakness of her argument in the face of legal precedent 
only underscores how political and results-oriented it was. So thin was 
her case that it caused the New York Times to wonder ``How could any 
president be given such incompetent legal advice? How could lawyers for 
the U.S. Government stray so far from the mainstream of the Country's 
understanding on the racial issue? How could a president at this stage 
in our history play with the issue for political reasons?'' Judge Kuhl 
cannot so easily explain this away.
  When she was Deputy Solicitor General in the Reagan Justice 
Department, Carolyn Kuhl tried to persuade the U.S. Supreme Court to 
eliminate its ``associational standing'' doctrine in United Automobile 
Workers Union v. Brock, 477 U.S. 274 (1986). In this case, the 
International Union, United Automobile, Aerospace and Agricultural 
Implement Workers of America (UAW) challenged the Secretary of Labor's 
interpretation of provisions of the Trade Act which would have deprived 
the union members of certain benefits--benefits available to assist 
workers laid off because of competition from imports. The issue on 
appeal to the U.S. Supreme Court was whether the UAW had standing to 
sue in federal court on behalf of its affected members.
  Although Judge Kuhl stated at her hearing that she was not on the 
brief in this case, she later revised her testimony in written answers, 
saying that she had confused this case with another. Although she was 
still not completely forthcoming in her responses, I

[[Page 28861]]

discovered that she was in fact one of five high level officials on the 
brief and that she argued the case before the U.S. Supreme Court in 
March 1986.
  In her arguments, she urged the Supreme Court to eliminate the 
doctrine of representative standing in favor of requiring organizations 
to meet the requirements for class certification under Rule 23 of the 
Federal Rules of Civil Procedure. But, she then also admitted that the 
government would oppose a request for class certification in this case. 
She stated in her brief that the Supreme Court should ``reconsider the 
doctrine in light of the practical and analytical difficulties it 
presents'', and that the doctrine was not of that ``longstanding 
effect.'' A significant portion of her brief was devoted to the more 
far-reaching arguments of why the doctrine of representative standing 
should ``not be recognized'' and why the class action provisions should 
be applied instead.
  The majority of the Supreme Court rejected her arguments and 
concluded that the government's presentation ``has fallen far short of 
meeting the heavy burden of persuading us to abandon settled principles 
of associational standing.'' Id. at 290.
  The doctrine of representative standing allows unions, environmental 
organizations, business groups, and others to protect the interests of 
their members in court. Elimination of the doctrine would greatly 
impede the ability of organizations to represent their members. For 
this reason, a diverse group of organizations, including the U.S. 
Chamber of Commerce and the AFL-CIO filed an amicus brief opposing 
Kuhl's position in the case.
  Judge Kuhl's arguments in this case raise concerns about whether she 
would protect the rights of working men and women or curtail access to 
the courts for such individuals. In addition to this case, as a judge 
on the state court, she has issued troubling decisions with regard to 
the rights of working Americans and access to justice, such as a case 
in which she found that a woman target of a SLAPP (Strategic Lawsuit 
Against Public Participation) suit was not entitled to recover 
attorneys' fees for successfully defending against the suit--a decision 
which was unanimously reversed by the appellate court.
  Other cases in which Judge Kuhl was involved with while at Justice 
demonstrate that on issues related to privacy and women's rights she 
clearly has an ideological agenda. As Deputy Solicitor General, Kuhl 
co-authored the Reagan Administration's amicus brief in Thornburgh v. 
American College of Obstetricians and Gynecologists, urging the Supreme 
Court to uphold Pennsylvania's severe restrictions on abortion, 
including prosecution of doctors. Her view on the matter is documented 
not only in the brief, but also by her boss at the time, Charles Fried, 
then-Solicitor General, who recounts in his memoirs that, ``[t]he most 
aggressive memo [about Roe v. Wade] came from my friends Richard 
Willard and Carolyn Kuhl, who recommended that we urge outright 
reversal of Roe.''
  In that brief, Kuhl argued that the courts below placed too much 
emphasis on the woman's right to privacy. Moreover, the brief discusses 
issues beyond the merits of the particular case and urged the Supreme 
Court to abandon its principles of stare decisis and overturn settled 
law. In a 6-3 decision, the Supreme Court also rejected that call.
  As Deputy Solicitor General, Carolyn Kuhl argued for an extremely 
narrow legal definition of sexual harassment in the landmark case of 
Meritor Savings Bank v. Vinson. A female employee, Mechelle Vinson, 
filed suit against her supervisor and the bank that employed her, 
alleging that the supervisor had sexually harassed her and that she had 
been terminated when she refused him, violating her rights under Title 
VII of the Civil Rights Act. Kuhl's brief for the Reagan Administration 
argued that Ms. Vinson's claim should be dismissed because her conduct 
had been found by the trial court to be voluntary. The Supreme Court 
found the opposite, and held that the claim could go forward no matter 
the characterization of Ms. Vinson's conduct, as long as the sexual 
attention she was getting, described by the court as ``appalling'' and 
``especially egregious,'' was unwelcome.
  It would have been bad enough that Judge Kuhl had taken this position 
as a political lawyer at the Justice Department, trying to narrow the 
rights of victims of sexual harassment as part of the Reagan agenda, 
but even worse and more puzzling, was her explanation of the case at 
her hearing.
  Just as she articulated a never-before heard explanation for her 
position in the Bob Jones case, Judge Kuhl told us at her hearing that 
she was ``very happy'' with the decision, and that the Supreme Court's 
reasoning ``tracked'' the brief she wrote. She dismissed Senator 
Feinstein's concerns that the Justice Department had declined to accept 
the unwelcomeness standard adopted by the Supreme Court, brushing her 
off with a vague mention of the question of the voluntary nature of Ms. 
Vinson's behavior. This explanation is mystifying, and sounds to me 
like an attempt to put a positive spin on an issue she knew Democratic 
Senators would view with suspicion. She knew that those of us concerned 
with allowing victims of discrimination an opportunity for redress 
would have problems with her brief in Meritor Savings, and she fudged 
an answer to try to look like she agreed with us. Such obfuscation 
should not be allowed to succeed. I would have preferred it if she had 
been up front with us about her brief and its relationship to the 
Court's decision.
  Judge Kuhl's record on the state bench offers another example of her 
troubling views on privacy. In the recent case of Sanchez-Scott v. Alza 
Pharmaceuticals, et al., Judge Kuhl's decision to dismiss a claim for 
invasion of privacy brought by a cancer patient against her doctor and 
a pharmaceutical company was reversed by the appellate court. The 
plaintiff, a patient undergoing chemotherapy for breast cancer, was 
examined by her oncologist, Dr. Monty Polonsky, in the presence of an 
unidentified man who turned out to be a representative of a 
pharmaceutical company.
  The complaint stated that the doctor introduced the man, a Mr. 
Martinez, as, ``a person . . . who was looking at Dr. Polonsky's 
work,'' but no further details about his identity were provided. During 
the course of the physical, Ms. Sanchez-Scott felt warm and began to 
use a pocket fan to cool herself. The doctor took the fan from the 
plaintiff and gave it to Mr. Martinez so he could fan the plaintiff 
because, as he told her, ``[i]t would give him something to do.'' Then, 
the doctor and Mr. Martinez began to laugh at the plaintiff, who became 
very uncomfortable and asked for the fan back, saying she could fan 
herself. Mr. Martinez refused and continued to fan her. Dr. Polonsky 
examined Ms. Sanchez-Scott while she was undressed from the waist up, 
while Mr. Martinez sat beside the examining table and watched. Only 
when she went to the reception desk after her exam was over did Ms. 
Sanchez-Scott learn that Mr. Martinez was a drug salesman, and not a 
trained medical professional. Ms. Sanchez-Scott explained that she felt 
uncomfortable and embarrassed and cried from shame and anger once she 
left the doctor's office.
  Judge Kuhl found that the plaintiff could not sustain an action for 
an invasion of privacy against the doctor because what happened to her 
did not meet the test of being ``highly offensive to a reasonable 
person.'' She reasoned that Ms. Sanchez-Scott had been introduced to 
Mr. Martinez, knew he was there and could have made further inquiry 
about who he was or object to his presence. She also found relevant 
that there was no touching, and that nobody else found out about the 
presence of the drug salesman in the exam room. She also explained that 
because the patient would not have a reasonable expectation that a 
medical procedure would only be observed by a doctor, there could be no 
expectation of privacy. The appellate court ridiculed her reasoning and 
allowed the plaintiff to continue with her invasion of privacy claims 
against her doctor.
  Again, at her hearing, Judge Kuhl's answers were misleading. When 
questioned about this case by Senator Durbin, Judge Kuhl tried to make 
herself

[[Page 28862]]

seem sympathetic to Ms. Sanchez-Scott's plight. She told Senator Durbin 
that she could understand why the plaintiff was upset, that she had 
good reason to be upset. But Judge Kuhl misstated crucial facts about 
the case that would have shed a clearer light on her legal ruling. She 
told Senator Durbin that the plaintiff's claim for invasion of privacy 
against the doctor was permitted to go forward, an assertion that is 
simply not true. Later, in a letter to Senator Hatch, she did correct 
herself, but the impression she tried to leave at the hearing was 
contrary to the facts. If her ruling in the Sanchez-Scott case had been 
allowed to stand, the case against the doctor for an invasion of 
privacy would not have been able to go forward. I know this sounds like 
nitpicking about a minor procedural issue, but it is more than that. It 
is about her sensitivity to privacy issues, her ability to follow the 
law, and her pattern of trying to spin her negative positions to her 
benefit at her hearing.
  Ms. Sanchez-Scott does not see it as nitpicking either. In a letter 
she wrote to the Committee about her experience in Judge Kuhl's court, 
she expresses her opposition to rewarding the judge with a promotion to 
the federal court. She tells us that, ``[a]s a cancer survivor, I 
trusted that my doctor would make decisions in my best interest . . . I 
was . . . shocked and dismayed that Judge Kuhl determined that I, not 
the doctor, had the obligation to protect my privacy in his exam 
room.''
  This President talked about being a uniter, not a divider, yet he has 
failed to work with all home-State Senators to identify qualified 
candidates who can be supported by both sides. A recent opinion piece 
in the Washington Post had it right when it said that rather than 
promoting ``bipartisanship,'' which this President said he wanted, he 
has instead promoted ``hyper-partisanship.'' I hope--for the sake of 
our country and the independence of the judiciary--that the White House 
and the Senate majority decide to work with Democratic Senators to 
identify qualified, mainstream nominees who can be supported by all 
sides and to abandon their quest to pack the circuit courts with 
activists and ideologues.
  I ask unanimous consent that several letters in opposition be printed 
in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                       California Legislature,

                                Sacramento, CA, February 11, 2003.
     Re Oppose the nomination of Carolyn Kuhl to the Ninth Circuit 
         Court of Appeals.

     Hon. Dianne Feinstein,
     U.S. Senate, Hart Office Building, Washington, DC.
       Dear Senator Feinstein: We are writing as members of the 
     Judiciary Committee of the California Assembly to urge you to 
     oppose the nomination of Judge Carolyn Kuhl to serve on the 
     Ninth Circuit Court of Appeals. We believe that Judge Kuhl's 
     record indicates that her opinions would potentially threaten 
     laws protecting California's environment and civil rights, 
     and the rights of our citizens to privacy and reproductive 
     choice. As part of President Bush's effort to nominate 
     numerous ultra conservative judges to lifetime positions on 
     the federal bench, this nomination represents an unacceptable 
     risk to our state and the nation.
       Judge Kuhl's nomination is opposed by more than 40 
     organizations representing civil rights, religious, 
     environmental, reproductive rights and labor organizations, 
     including the Sierra Club, National Organization for Women, 
     California Abortion Rights Action League, National Women's 
     Law Center, People for the American Way, and the Alliance for 
     Justice among others. Their concerns run the gamut from Judge 
     Kuhl attempting to close off access to the courts by 
     overturning the doctrine of associational standing (the right 
     of organizations to file suit on behalf of their members), to 
     convincing the Reagan administration during her tenure with 
     the Justice Department of attempt overturning Roe v. Wade. As 
     a private attorney she argued in support of regulations 
     prohibiting doctors and health care professionals at 
     federally-funded clinics from counseling women about 
     abortion, or even informing them that abortion was a legal 
     medical option.
       Still other of Judge Kuhl's positions show just how far she 
     is from the mainstream of legal thought on issues of concern 
     to most Californians. For example, Judge Kuhl was one of two 
     Justice Department officials who convinced the Attorney 
     General to reinstate the tax exempt status for the 
     segregationist Bob Jones University. This position was 
     opposed--in writing by more than 200 lawyers in the Justice 
     Department's civil rights division, and was even opposed by 
     President Reagan's Solicitor General, Ted Olson.
       As a California state trial court judge, Judge Kuhl has not 
     generally written published decisions. However, several 
     published cases cause us concern about her willingness to 
     protect the basic rights of individuals. For example, in one 
     case Judge Kuhl dismissed a breast cancer patient's claim of 
     invasion of privacy after her doctor brought drug company 
     representative into the room during a breast exam. This 
     ruling was reversed on appeal. In still another controversial 
     decision, Judge Kuhl dismissed a case brought under 
     California law enacted to prevent suits against 
     whistleblowers and others acting in the public interest. The 
     California appellate court again reversed Judge Kuhl's 
     decision calling it ``a nullification of an important part of 
     California's anti (abusive lawsuit) legislation.''
       Finally, in her career Judge Kuhl has been aligned with 
     some of the most ideologically intransigent and far-right 
     elements of the Republican Party. She is a member of the 
     Federalist Society, which seeks to establish an ultra-
     conservative federal bench. We believe that placing Judge 
     Kuhl on the Ninth Circuit Court of Appeals would be a grave 
     error that would threaten California law and place a 
     relatively young and ultra-conservative jurist in a lifetime 
     position on one of the most important courts (after the 
     Supreme Court) for our state. We urge you to oppose her 
     nomination as forcefully as possible.
       I thank you for considering our views.
           Sincerely yours,

                                                Ellen Corbett,

                                         Chair, Assembly Committee
     on Judiciary.
                                  ____



                                     California Women Lawyers,

                                   Sacramento, CA, March 26, 2003.
     Re opposition--Carolyn Kuhl appointment.

     Senator Dianne Feinstein,
     U.S. Senate, Hart Senate Office Building, Washington, DC.
       Dear Senator Feinstein: I am writing on behalf of 
     California Women Lawyers (CWL) to inform you of CWL's 
     opposition to the confirmation of the nomination of Los 
     Angeles Superior Court Judge Carolyn Kuhl to the Ninth 
     Circuit Court of Appeals. As you may know, CWL is a statewide 
     organization of women attorneys dedicated to advancing the 
     interests of women, both in the legal profession, and in 
     society, through education, legislation and advocacy. CWL 
     supports a fair and balanced judicial nominating process and 
     process and opposes an extreme right-wing federal bench 
     engaged in ultra-conservative judicial activism.
       CWL supports the appointment of federal judges who are 
     open-minded, view the constitution as a living document and 
     who are committed to the role of federal courts in protecting 
     civil rights and individual liberties, and in guaranteeing 
     due process, equal protection of the law, the right of 
     privacy and access to justice. We believe that Judge Kuhl's 
     record indicates she is unsuited for a position on the Ninth 
     Circuit bench.
       Judge Kuhl is a longtime member of The Federalist Society 
     and adheres to the ultraconservative philosophy espoused by 
     that group. While working at the Department of Justice, Ms. 
     Kuhl vigorously supported tax-exempt status for Bob Jones 
     University, despite its history of racial discrimination. Ms. 
     Kuhl has also argued in favor of overturning Roe v. Wade, as 
     well as onerous regulations burdening abortion rights. While 
     on the Superior Court bench, her decisions have been reversed 
     by the California Courts of Appeal for restricting the rights 
     of individuals to sue to protect their privacy and to protect 
     themselves from harassment suits under California law 
     decisions which she based on her narrow interpretation of 
     statutes which clearly favor such individual rights.
       Ms. Kuhl's record reveals that she is wedded to an 
     extremist philosophy that is far removed from the beliefs of 
     most Americans. Our nation deserves a federal court pledged 
     to upholding constitutional rights secured through Supreme 
     Court precedents and embodied in civil rights statutes. CWL 
     therefore urges you to not support Ms. Kuhl's nomination.
           Sincerely,
                                                   Andrea Carlise,
     CWL President.
                                  ____

                                             Leadership Conference


                                              on Civil Rights,

                                      Washington, DC, May 7, 2003.
     Re Oppose the confirmation of Carolyn Kuhl.

     Hon. Orrin G. Hatch,
     Chair, Senate Judiciary Committee, Hart Senate Office 
         Building, Washington, DC.
       Dear Senator Hatch: On behalf of the Leadership Conference 
     on Civil Rights (LCCR), the nation's oldest, largest, and 
     most diverse civil and human rights coalition, we write to 
     express our opposition to the confirmation of Carolyn Kuhl to 
     the United States Court of Appeals for the Ninth Circuit. Our 
     review of Judge Kuhl's record indicates that her positions, 
     opinions, and legal activities in the areas of civil rights 
     and equal opportunity, and the rights of women, workers, and 
     consumers, are troublesome and raise serious questions about 
     her commitment to equal justice and civil rights for all 
     Americans.

[[Page 28863]]

       First, we are very concerned about Judge Kuhl's record on 
     civil rights and equal opportunity, particularly on the issue 
     of whether the federal government should subsidize 
     institutions that practice racial discrimination. Judge Kuhl 
     was one of three Reagan Justice Department officials who 
     persuaded the Attorney General to reverse prior policy and 
     support the granting of tax-exempt status to Bob Jones 
     University, despite its racially discriminatory policies, in 
     its brief in Bob Jones University v. United States, 461 U.S. 
     574 (1983). More than 200 Justice Department lawyers, the 
     solicitor general, and the Treasury Department general 
     counsel objected to the change of position that Kuhl 
     advocated. According to the New York Times (May 1983), Kuhl 
     was one of three characterized as a ``band of young zealots'' 
     who urged the change in policy. By an 8-1 vote, the Supreme 
     Court rejected Kuhl's position and upheld the IRS denial of 
     tax exempt status to Bob Jones University.
       In addition, we are troubled by Judge Kuhl's work urging 
     the Supreme Court to overrule its precedent on 
     ``associational standing.'' In International Union, United 
     Automobile, Aerospace and Agricultural Implement Workers of 
     America v. Brock, 477 U.S. 274 (1986), Kuhl not only argued 
     that the requirement for associational standing had not been 
     met in the particular case, but went on to urge the Supreme 
     Court to overturn the doctrine of associational standing 
     altogether, except in the most extraordinary circumstances. 
     This view, if adopted, would have had a catastrophic affect 
     on the ability of civil rights and other groups to file 
     lawsuits on behalf of their members in order to vindicate 
     their legal rights.
       While at the Justice Department, Kuhl was also involved in 
     a troubling effort to limit the reach of sexual harassment 
     doctrine. As Deputy Solicitor General, she co-authored an 
     amicus curiae brief in the landmark sexual harassment case of 
     Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), asserting 
     a position on sexual harassment which, had it been adopted, 
     would have made it more difficult for women to prove sexual 
     harassment in the workplace. In a unanimous opinion authored 
     by then-Justice William Rehnquist, the Court rejected as 
     incorrect the focus in Kuhl's brief of the ``voluntariness'' 
     of the alleged sexual conduct, instead making clear that the 
     test is whether the sexual conduct was ``unwelcome.'' Kuhl 
     was also part of the Reagan Administration's effort to 
     restrict the remedies that courts can order in the case of 
     employment-related discrimination in violation of Title VII. 
     In Local 28 of the Sheet Metal Workers' International Ass'n 
     v. EEOC, 478 U.S. 421 (1986), Kuhl co-authored a brief on 
     behalf of the EEOC advocating the extreme theory that relief 
     in Title VII cases can be granted only to identifiable 
     victims of discrimination. This theory, rejected by the 
     Supreme Court, would have significantly limited the ability 
     of the courts to provide effective remedies for past and 
     persistent discrimination.
       Kuhl's record also reveals a troubling tendency to favor 
     corporate interests, at the expense of workers and consumers. 
     As a lawyer in private practice, Kuhl argued on behalf of two 
     major defense contractors that the qui tam provision of the 
     False Claims Act, which allows private individuals to sue 
     corporations that committed fraud against federal government 
     programs, was unconstitutional. See United States ex rel. 
     Rohan v. Litton Industries, Inc., No. 92-55546 (9th Cir.). As 
     a judge, she dismissed a case brought under a California law 
     enacted to prevent suits against whistleblowers and others 
     acting in the public interest. The California appellate court 
     reversed Kuhl's decision in unusually strong terms, calling 
     it ``a nullification of an important part of California's 
     anti-[abusive lawsuit] legislation.'' Liu v. Moore, 69 Cal. 
     App. 4th 745, 748 (1999). Kuhl also dismissed a claim brought 
     by a breast cancer patient whose privacy was invaded when a 
     drug salesman who misrepresented his identity participated in 
     her doctor's examination of her breasts. On appeal, the Court 
     of Appeals unanimously found in favor of the plaintiff, 
     reversing Kuhl's decision. See Sanchez-Scott v. Alza 
     Pharmaceuticals, 86 Cal. App. 4th 365 (2001).
       In sum, Judge Carolyn Kuhl's views on important civil 
     rights issues, particularly with regard to equal opportunity 
     and the rights of workers and consumers, are outside the 
     mainstream. Her work as a Justice Department official, in 
     private practice, and as a California judge reflects a lack 
     of commitment to core constitutional values and to upholding 
     equal rights for all Americans. Therefore, we urge the 
     Judiciary Committee to reject the confirmation of Carolyn 
     Kuhl to the Ninth Circuit Court of Appeals. If you have any 
     questions or need further information, please contact Nancy 
     Zirkin, LCCR Deputy Director/Director of Public Policy at 
     (202) 263-2880, or Julie Fernandes, LCCR Senior Policy 
     Analyst, at (202) 263-2856.
           Sincerely,
     Wade Henderson.
     Dr. Dorothy L. Height.
                                  ____


   Planned Parenthood Federation of America--Statement Regarding the 
    Nomination of Carolyn Kuhl to the Ninth Circuit Court of Appeals

       The Planned Parenthood Federation of America (PPFA), the 
     world's largest and most trusted voluntary family planning 
     organization, has a long-standing history of working to 
     ensure the protection of reproductive rights as well as 
     working to advance the social, economic, and political rights 
     of women. Because lower federal courts exercise enormous 
     power in deciding cases involving women's rights, the right 
     to privacy, reproductive freedoms, and other basic civil 
     rights, PPFA believes that judges appointed to these courts 
     must demonstrate a commitment to safeguarding these 
     fundamental rights. PPFA will oppose confirmation of nominees 
     who fail to do so.
       We believe that California Superior Court Judge Carolyn 
     Kuhl's record demonstrates that she is not committed to 
     protecting these rights. Therefore, PPFA opposes her 
     nomination to the United States Court of Appeals for the 
     Ninth Circuit.
       Judge Kuhl held various positions in the U.S. Department of 
     Justice during the Reagan administration. From 1982 to 1985, 
     Kuhl held the appointment of Deputy Assistant Attorney 
     General for the Civil Division. During her tenure in that 
     position, the Supreme Court agreed to hear Thornburgh v. 
     American College of Obstetricians and Gynecologists, 476 U.S. 
     747 (1986), a challenge to several Pennsylvania abortion 
     restrictions. The Reagan administration filed a brief in 
     Thornburgh that not only supported the Pennsylvania 
     restrictions, but also called for an outright reversal of Roe 
     v. Wade: ``Indeed, the textual, doctrinal and historical 
     basis for Roe v. Wade is so far flawed, and . . . is a source 
     of such instability in the law that this Court should 
     reconsider that decision and on reconsideration abandon it.''
       The Acting Solicitor General at the time the Thornburgh 
     brief was filed, Charles Fried, wrote, in his book, Order and 
     Law, that when he was considering what position to take in 
     the case, ``[t]he most aggressive memo came from my friends 
     Richard Willard and Carolyn Kuhl in Civil, who recommended 
     that we urge outright reversal of Roe.''
       In addition, when in private practice, Kuhl chose to serve 
     as counsel for the American Academy of Medical Ethics in Rust 
     v. Sullivan, 500 U.S. 173 (1991), the case challenging the 
     ``gag rule''--federal regulations promulgated by the Bush I 
     administration that prohibited health care professionals at 
     family planning clinics that receive funding from the Title X 
     program from counseling women about abortion--or even 
     providing non-directive counseling that informed them of 
     abortion as an option. Kuhl's brief argued that this 
     prohibition did not violate the rights of the health care 
     providers and their patients.
       Given Kuhl's record demonstrating animosity towards 
     reproductive rights, PPFA joins other organizations concerned 
     with women's rights and civil rights in opposing her 
     nomination to the Ninth Circuit Court of Appeals.
                                  ____

                                          Taxpayers Against Fraud,


                            The False Claims Act Legal Center,

                                    Washington, DC, April 3, 2003.
     Re Judge Carolyn Kuhl.

     Chairman Orrin G. Hatch,
     Committee on the Judiciary, U.S. Senate, Dirksen Senate 
         Office Building, Washington, DC
     Senator Patrick J. Leahy,
     Committee on the Judiciary, U.S. Senate, Dirksen Senate 
         Office Building, Washington, DC
       Dear Chairman Hatch and Senator Leahy: Taxpayers Against 
     Fraud, the False Claims Act Legal Center (``TAF''), opposes 
     the appointment of Judge Carolyn Kuhl to a position on the 
     United States Court of Appeals for the Ninth Circuit. TAF's 
     opposition is based on Judge Kuhl's apparent effort to 
     deceive the Ninth Circuit in U.S. ex rel. Rohan v. Newbert 
     (No. 92-55546). Judge Kuhl is effect represented to the Court 
     that the Justice Department had questioned the 
     constitutionality of the whistleblower (``qui tam'') 
     provisions of the False Claims Act (``FCA''), when in fact 
     this was untrue.
       In 1989, a memorandum was prepared in the Office of Legal 
     Counsel of the Department of Justice questioning the 
     constitutionality of the FCA. However, the views are set 
     forth in that memorandum (``OLC Memo'') were not adopted by 
     the Department or advanced by the Department in FCA cases.
       Despite the fact that the OLC Memo did not represent the 
     views of the Justice Department, Kuhl, in her capacity as 
     counsel for Litton Systems, Inc., submitted it to the Ninth 
     Circuit, citing it in support of her arguments that the qui 
     tam provisions of the FCA are unconstitutional and implied 
     that the OLC Memo set forth the views of the Justice 
     Department. The Department was not a party in the case, but 
     learned of the misrepresentation of its views and submitted a 
     letter to the Clerk of the Ninth Circuit setting the record 
     straight.
       We at TAF are deeply disturbed that Judge Kuhl would 
     attempt to mislead the Ninth Circuit, the court to which she 
     now aspires, about the views of the Department of Justice, 
     regarding the constitutionality of an act of Congress. TAF 
     believes her stunning lack of candor disqualifies her from 
     service on that court.
                                                 James W. Moorman,
                                                        President.

  Mr. FRIST. Mr. President, I ask unanimous consent that the next two 
votes be 10-minute votes.

[[Page 28864]]

  The PRESIDING OFFICER. Without objection, it is so ordered.
  By unanimous consent, the mandatory quorum call has been waived.
  The question is, Is it the sense of the Senate that debate on 
Executive Calendar No. 169, the nomination of Carolyn B. Kuhl, of 
California, to be United States Circuit Judge for the Ninth Circuit, 
shall be brought to a close.
  The yeas and nays are required under the rule.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. REID. I announce that the Senator from North Carolina (Mr. 
Edwards), the Senator from Hawaii (Mr. Inouye), the Senator from 
Massachusetts (Mr. Kerry), and the Senator from Florida (Mr. Nelson) 
are necessarily absent.
  I further announce that, if present and voting, the Senator from 
Massachusetts (Mr. Kerry) would vote ``nay.''
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The yeas and nays resulted--yeas 53, nays 43, as follows:

                      [Rollcall Vote No. 451 Ex.]

                                YEAS--53

     Alexander
     Allard
     Allen
     Bennett
     Bond
     Brownback
     Bunning
     Burns
     Campbell
     Chafee
     Chambliss
     Cochran
     Coleman
     Collins
     Cornyn
     Craig
     Crapo
     DeWine
     Dole
     Domenici
     Ensign
     Enzi
     Fitzgerald
     Frist
     Graham (SC)
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchison
     Inhofe
     Kyl
     Lott
     Lugar
     McCain
     McConnell
     Miller
     Murkowski
     Nelson (NE)
     Nickles
     Roberts
     Santorum
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stevens
     Sununu
     Talent
     Thomas
     Voinovich
     Warner

                                NAYS--43

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Breaux
     Byrd
     Cantwell
     Carper
     Clinton
     Conrad
     Corzine
     Daschle
     Dayton
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Graham (FL)
     Harkin
     Hollings
     Jeffords
     Johnson
     Kennedy
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Mikulski
     Murray
     Pryor
     Reed
     Reid
     Rockefeller
     Sarbanes
     Schumer
     Stabenow
     Wyden

                             NOT VOTING--4

     Edwards
     Inouye
     Kerry
     Nelson (FL)
  The PRESIDING OFFICER. On this vote, the yeas are 53, the nays are 
43. Three-fifths of the Senators duly chosen and sworn not having voted 
in the affirmative, the motion is rejected.

                          ____________________