Judges and Judiciary
Apr. 18, 2003
Look Closely
Forum Column - By Erwin Chemerinsky - The pending nomination of Carolyn Kuhl to the 9th U.S. Circuit Court of Appeals raises important issues concerning what the Senate should consider in evaluating a judicial nominee. Should the briefs that a lawyer has written and signed be seen as indicative of the nominee's views? Or should these be seen as advocacy on behalf of a client and thus not reflective of the person's ideology and likely behavior as a judge?
Erwin Chemerinsky
Dean and Jesse H. Choper Distinguished Professor of Law, UC Berkeley School of Law
Erwin's most recent book is "Worse Than Nothing: The Dangerous Fallacy of Originalism." He is also the author of "Closing the Courthouse," (Yale University Press 2017).
By Erwin Chemerinsky
The pending nomination of Carolyn Kuhl to the 9th U.S. Circuit Court of Appeals raises important issues concerning what the Senate should consider in evaluating a judicial nominee. Should the briefs that a lawyer has written and signed be seen as indicative of the nominee's views? Or should these be seen as advocacy on behalf of a client and thus not reflective of the person's ideology and likely behavior as a judge?
Throughout American history, and especially in recent years, the president and the Senate have considered a nominee's ideology in deciding whom to nominate and confirm to the federal bench. This is appropriate, because ideology matters; a judge's views obviously affect how he or she will rule in a wide array of cases.
The Kuhl nomination raises the question of what should be considered in determining a person's ideology. Many civil rights groups, along with newspapers such as the Los Angeles Times and the New York Times, have argued that Kuhl should be denied confirmation because of anti-civil-rights positions that she expressed as an attorney in the U.S. Department of Justice.
She co-wrote a brief urging that Bob Jones University should be able to retain its tax exemption despite its racial discrimination and a federal statute clearly denying it this benefit. She also co-wrote a brief arguing that the Supreme Court should overrule Roe v. Wade 410 U.S. 113 (1972).
At her confirmation hearing April 1, Kuhl defended herself by saying that she was just a lawyer writing a brief supporting the positions that her client, the U.S. government, decided to take. Others have made this same argument on Kuhl's behalf. Former Solicitor General Charles Fried made exactly this claim in urging Kuhl's confirmation in an opinion piece in the Los Angeles Times.
This defense, however, misconceives the role of the lawyer. Kuhl made the choice to co-write briefs to protect a racist university and to overrule Roe. Now it is appropriate to hold her accountable for that choice. Nothing forced her to co-write those briefs and put her name on them. It is entirely appropriate to assume that they reflected her views.
My first job out of law school was as a trial attorney at the U.S. Department of Justice. I had been there only a few months when I was asked to work on a case in which the government was trying to discharge a gay soldier from the military.
I told my supervisor that I would not work on the case. He asked me, "Are you asking us or telling us?" I said that it didn't matter what label was used because I would not work on the case. They found another lawyer, and I felt no adverse consequences for that choice.
Certainly it was possible that I could have lost my job, but I, like Kuhl when she was at the Justice Department, had a choice to make. I teach my law students that every client has a right to a lawyer, but that doesn't mean that anyone has a right to their time and efforts. They need to decide what causes and clients they want to help.
Of course, it is different if it is an unpopular client and no other lawyer is available. Then, an attorney does have a duty to provide representation and should be applauded for taking on the matter. But that was not the situation when Kuhl was at the Justice Department. There undoubtedly were many lawyers who were willing to espouse the government's position on Bob Jones University and Roe.
Kuhl's was not the situation of a courageous lawyer representing a criminal defendant or an unpopular cause in the face of strong social pressure. Kuhl was in a prominent position at the Justice Department and chose to use her efforts to try to undermine basic civil rights.
The Senate should deny confirmation to nominees who have shown hostility to civil rights and to basic civil liberties. The Senate needs to consider all evidence of a nominee's views and every aspect of a nominee's career to discern the person's likely conduct as a federal judge.
Certainly, the briefs a lawyer wrote - especially where the lawyer had a choice of whether to participate - are important evidence of the individual's positions. Kuhl opposed abortion rights and argued that the government should subsidize racism. Certainly, a nominee should be able to demonstrate that his or her overall record shows a commitment to civil rights and that a particular brief is unrepresentative. But in Kuhl's case, nothing in her record shows that these briefs were not indicative of her being very conservative on issues of civil rights.
After leaving the Justice Department, Kuhl apparently did no pro bono work for civil rights groups or in favor of women's rights to reproductive freedom. At her confirmation hearing April 1, Kuhl said that she regrets writing the Bob Jones University brief. Tellingly, she did not say that she regrets writing the brief calling for the overruling of Roe.
This is further indication that the positions she took while at the Justice Department reflect her views and how she is likely to rule as a judge. As a Superior Court judge, her rulings likewise have been very conservative. In one case, she held that it was not an invasion of privacy for a doctor to perform a breast examination on a woman in front of a salesperson. The Court of Appeal, thankfully, unanimously reversed Kuhl.
Five years ago, I was contacted by the Clinton administration and told that I was on the "short list" for consideration for the 9th Circuit. For weeks, I received calls from the White House counsel's office asking me to provide copies of my writings.
Ultimately, I was told that they decided not to nominate me because they felt that my opposition to Proposition 209, which eliminated affirmative action in California, would make me unconfirmable with the Republican-controlled Senate. I was not surprised because I knew that the Senate Judiciary Committee, chaired by Sen. Orrin Hatch, was blocking nominees whom it perceived as liberal. I understood that this was a part of the process.
Now it is equally appropriate for Democrats to block nominees, like Kuhl, whom they regard as too conservative. Sen. Barbara Boxer, D-Calif., has voiced her opposition to Kuhl and has refused to return her "blue slip" for Kuhl's nomination. Under long-established procedures, this should be enough to end her consideration. But Hatch has said that he no longer will follow the blue-slip procedure that has been used for decades.
Now it is up to Senate Democrats, by a filibuster if necessary, to prevent Kuhl's confirmation. President George W. Bush could have selected consensus nominees for the federal bench and looked for moderates who quickly would have been confirmed. But instead, Bush chose to renominate conservatives like Kuhl, Miguel Estrada, Charles Pickering and Priscilla Owen.
Bush thus has ensured the continued battles over judicial nominees. Now it is incumbent on the Senate to make clear that nominees with records like Kuhl's are not acceptable for lifetime positions on the federal bench.
Erwin Chemerinsky is Sydney M. Irmas professor of public interest law, legal ethics and political science at the University of Southern California Law School.
Submit your own column for publication to Diana Bosetti
For reprint rights or to order a copy of your photo:
Email
jeremy@reprintpros.com
for prices.
Direct dial: 949-702-5390
Send a letter to the editor:
Email: letters@dailyjournal.com