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WASHINGTON — Los Angeles Superior Court Judge Carolyn Kuhl spent several hours Tuesday on Capitol Hill, fending off pointed questions from skeptical Senate Democrats who were reviewing her nomination to the Ninth Circuit U.S. Court of Appeals. Kuhl drew constant fire for the positions she advocated as a young lawyer in the Reagan Justice Department and for a decision she wrote in a privacy-related case in 1999. It’s been nearly two years since President Bush nominated Kuhl for a seat on the Ninth Circuit. Her nomination languished, with Democrats, in control of the Senate for most of that time, refusing to give her a committee hearing. Kuhl finally got one Tuesday in the Republican Senate, though it came over the heated objection of one of California’s two Democratic senators. Sen. Barbara Boxer still hasn’t returned the “blue slip” that, under Senate tradition, allows home-state senators to block a nominee’s hearing. Boxer and a host of liberal advocacy groups paint Kuhl as a right-wing ideologue and a foe of abortion rights. In a letter to Judiciary Chairman Orrin Hatch, D-Utah, Boxer blasted his decision to go ahead with the hearing. “I am extremely disappointed that you would disregard my prerogatives as one of the home-state senators — and overturn your own policy — by moving forward on this nominee. Your blue slip policy is apparently guided more by who is in the White House rather than by the powers given to us as U.S. senators by one of the greatest documents in the world — the U.S. Constitution,” Boxer wrote. “This decision to move forward without both home-state senators’ approval will have ramifications for years to come.” Sen. Patrick Leahy, of Vermont, the ranking Democrat on the committee, said Tuesday marked “the first time that this chairman will ever have convened a hearing for a judicial nominee who did not have two positive blue slips returned to the committee. The first time, ever.” Several times during the hearing Kuhl told senators she regretted her support in the early 1980s for a Reagan administration effort to overturn the Internal Revenue Service’s denial of tax exemption to Bob Jones University, which prohibited interracial dating and interracial marriage on pain of expulsion. “I did not at the time fully understand the traditional role of the Department of Justice of defending federal agencies whenever they take an arguably reasonable position,” Kuhl said in response to a question by Leahy. “And I now see that focusing on a narrow legal issue was not the right thing to do. The civil rights principle should have held sway.” Sen. Dianne Feinstein, D-Calif., who sits on the committee, declared herself undecided on the Kuhl nomination, saying it poses “the classic dilemma.” “I have never had so many letters from judges in support of a [judicial] candidate. These letters are clearly not pro forma,” Feinstein said. “She is obviously an extraordinarily bright woman. On the other hand, there is a wide array of letters in opposition that point out concerns that go back to the time before she was a judge. So we have a complete polarization.” In response to questions from Feinstein and Leahy about her support as a government lawyer for an unsuccessful effort to have Roe v. Wade overruled by the Supreme Court in 1985, Kuhl said she was merely doing the bidding of her client, the Reagan administration, which wanted the case overruled. Now, Kuhl said, “I am fully committed to following the law and enforcing a woman’s right to reproductive freedom. . . . Certainly after the [1992] Casey decision, stare decisis is paramount. Roe and Casey are among the most fully established precedents I can think of.” Several senators challenged Kuhl’s 1999 rejection of a privacy claim in which a physician permitted a pharmaceutical salesman, without the patient’s consent, to be present while the physician was examining a woman’s breasts. “How can you explain this?” asked Sen. Richard Durbin, D-Ill. Kuhl replied that the patient had indeed been subjected to “outrageous” treatment and that she had no doubt the woman had a valid claim against the physician. But, Kuhl added, California law was unclear on whether there was an “intrusion” claim against the salesman. “I’m glad the law is now clarified” by the 2001 appeals court decision reversing her, Kuhl said. Kuhl, 50, has served as a judge in Los Angeles since 1995. Her nomination has picked up the support of the litigation section of the L.A. County Bar Association and of scores of California trial and appeal judges. The committee did not indicate when it would vote on the nomination, but in recent months, votes have followed hearings by a few weeks, at most. Even if Kuhl’s nomination is approved by the Judiciary Committee, it’s unclear how she’ll fare before the full Senate. Votes on judicial nominations are still mostly in lockdown, with the slow-burning filibuster of D.C. federal court nominee Miguel Estrada still under way. Jonathan Groner is editor at large at Legal Times, a Recorder affiliate based in Washington, D.C.

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