The New Glass Ceiling

John C. Eastman

June 1, 2003

Stellar credentials and a "well-qualified" rating from the American Bar Association, its highest, following her nomination to the U.S. 9th Circuit Court of Appeals should have made the road to confirmation an easy one for Judge Carolyn Kuhl.

But the path since her nomination on June 22, 2001 — nearly two years ago — has been anything but easy. Indeed, for more than 21 months she was not even given the courtesy of a hearing by the Senate Judiciary Committee, and a month after she finally did receive a hearing on April 1, 2003, her nomination was "reported out" to the Senate floor on only the barest, 10-9 vote, with not a single Democrat siding with what Senator Leahy once called the "gold standard" of the ABA’s well-qualified rating.

Her credentials are impeccable. Bachelors degree in chemistry from Princeton, graduated cum laude. Law degree from Duke, graduated with distinction, inducted into the prestigious Order of the Coif, served as an editor of the Duke Law Journal. Law clerk in California on the 9th Circuit with then judge, now Supreme Court justice, Anthony Kennedy. High-ranking official at the U.S. Department of Justice, serving as deputy solicitor general, deputy assistant attorney general and then special assistant to the attorney general. Partner in one of Los Angeles’ most prestigious firms, Munger, Tolles & Olson. Eight years of service as a judge on the Superior Court of California for the County of Los Angeles, in both the criminal and civil divisions.

And she’s a woman, which means she accomplished all this at a time when women were just beginning to break through the glass ceiling that had for far too long limited opportunities for women in the legal profession.

So why all the opposition? Some self-proclaimed "women’s groups" have apparently decided that this impeccably well-qualified woman is… anti-woman! She might even, they fear, have conservative leanings. There are three key pieces of "evidence" in this frontal assault on Kuhl. First, while a young, 29-year-old attorney at the Department of Justice with no policy-making authority, Kuhl helped urge the attorney general to reverse an IRS policy denying tax-exempt status to Bob Jones University.

She did so on two grounds, neither of which had anything to do with defending the university’s racial policies. She believed that Congress, and not an administrative agency like the IRS, ought to be making such determinations, and she was concerned lest the IRS use its power to define "public policy" to deprive tax-exempt status to all-girls schools (such as the high school Kuhl herself had attended) or all-women’s colleges.

Harvard Law Professor Larry Tribe, in a 1984 letter to then-Attorney General William French Smith, praised the quality of the brief submitted by the Department of Justice in the case, noting that he "thought it was a powerful and, in most respects, entirely compelling legal document."

Second, while serving on the Los Angeles Superior Court, Kuhl dismissed one of several counts in a case brought by a woman alleging the tort of intrusion after her doctor, while conducting a breast exam, had invited into the examining room a pharmaceutical company representative who was observing the doctor’s work as part of his participation in an oncology mentorship program designed to improve care for breast cancer patients. Judge Kuhl ruled that the remaining counts could proceed to trial, and the case ultimately settled with the plaintiff receiving an undisclosed sum.

Her ruling dismissing the intrusion count was well-grounded in existing precedent of the California Supreme Court, which had previously held that the tort of intrusion encompassed only unconsented-to physical intrusion. Although her decision dismissing the intrusion count was reversed on appeal, California Court of Appeals Justice Paul Turner, who wrote the appellate opinion in the case, has acknowledged that "a strong argument can be made that [Judge Kuhl] correctly assessed the competing societal interests the California Supreme Court requires all jurists in this state to weigh in determining whether the tort of intrusion has occurred."

Finally, Kuhl had a limited role in the drafting of the brief filed by then-Acting Solicitor General Charles Fried in Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986), in which Fried, acting on behalf of President Reagan, urged the Supreme Court to overturn Roe v. Wade. Her name appears third on the brief, though, so pro-abortion groups have attributed the position to her.

Most troubling about this attack on Kuhl is the disparity of treatment it represents. Charles Fried, whose name appears first on the brief, has acknowledged that he wrote the "overrule-Roe part of the brief" himself. Yet his nomination as solicitor general later that year was unanimously approved by the Senate Judiciary Committee and he was confirmed by the full Senate by a voice vote, without debate, by several of the same Democrats now opposing Kuhl, including Senators Joseph Biden, D-Del., Edward Kennedy, D-Mass. and Patrick Leahy D-Vermont.

Moreover, the initial draft of the brief was written by John Rogers, whose name appears second on the brief, yet Rogers is now sitting as a Circuit Judge on the 6th Circuit. He was not even questioned about his role in the case during his confirmation hearing, and he was approved by the Judiciary Committee and confirmed by the full Senate on a voice vote.

What are we to make of this opposition to Carolyn Kuhl? It would appear that, for some reason, the confirmation bar is higher for her than for other, equally qualified male nominees. Perhaps it is no surprise that a woman jurist who is not lock step in line with the abortion-on-demand policies of the National Abortion Rights Action League would not get NARAL’s support, although Kuhl has vowed that she is "fully committed to following the precedent established by [Roe v. Wade] and would do so fairly and properly."

But it is somewhat surprising that Senator Diane Feinstein, D.-Calif., would go along — the same Senator Feinstein who was first elected in the 1992 "year of the woman" with a campaign message of sending more women to the men’s club of the U.S. Senate. Or that Senator Barbara Boxer, D.-Calif., elected that same year with a similar campaign message, would not at least support a vote on this extremely well-qualified woman nominee. Is this the same Boxer who just nine months before Kuhl was nominated held a press conference decrying the "shameful way that women nominees to the federal judiciary were being treated" by the Senate and who had vigorously contended for years that every judicial nominee should receive an up or down vote? "Whether the delays are on the Republican side or the Democrat side," she said in 1998, "let these names come up, let us have debate, let us vote."

Boxer finds Kuhl to be "outside the mainstream." Yet the overwhelming consensus among people who actually know her is just the opposite. Two years ago, Vilma Martinez, former director of the Mexican American Legal Defense Fund and lifelong Democrat, wrote of Kuhl: "I consider her mainstream… She’s careful and she’s thoughtful. She’s been an excellent Superior Court judge, and I think she will be an excellent 9th Circuit judge."

A year ago, a bipartisan group of 23 women judges who work with Kuhl at the Los Angeles Superior Court, in a letter to the Senate Judiciary Committee, wrote in support of her nomination: "As sitting judges, we more than anyone appreciate the importance of an independent, fair-minded and principled judiciary. We believe that Carolyn Kuhl represents the best values of such a judiciary." NAACP attorney Leo James Terrell, who has litigated before Kuhl, informed Boxer in May, 2001 that he "vigorously" recommended Kuhl’s appointment to the 9th Circuit because he found that "Judge Kuhl was fair, impartial, competent and at all times extremely professional."

With such impeccable credentials and widespread testament to a demonstrably stellar judicial temperament by litigators of every political persuasion, including leading environmental, trial and civil rights attorneys — traditional Democrat allies all — Kuhl epitomizes the "mainstream" of appropriate judicial conduct. The real question for Boxer and Feinstein is whether they will listen to such long-time allies and permit a vote on this well-qualified nominee from their home state, or whether they will heed the slanders being propounded by NARAL and erect a new glass ceiling against any woman nominee who does not fully support the most extreme of NARAL’s positions.

John C. Eastman is a professor of constitutional law at Chapman University School of Law and director of the Claremont Institute Center for Constitutional Jurisprudence in California.

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