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California state trial judge Carolyn Kuhl spent several hours last week on Capitol Hill, fending off pointed questions from skeptical Senate Democrats who were reviewing her nomination to a federal appeals court. 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 George W. Bush nominated Kuhl for a seat on the U.S. Court of Appeals for the 9th Circuit. Her nomination languished, with Democrats, in control of the Senate for most of that time, refusing her a committee hearing. Kuhl finally got one April 1 in the Republican Senate. Several times during the hearing, she 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 Sen. Patrick Leahy (D-Vt.). “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.” Kuhl, 50, has served as a Superior Court judge in Los Angeles since 1995. Her nomination has picked up the support of the litigation section of the Los Angeles County Bar Association and of scores of California trial and appeals judges. But a host of liberal advocacy groups have targeted Kuhl, who they claim is a right-wing ideologue and a foe of abortion rights. Sen. Dianne Feinstein (D-Calif.), who declared herself undecided on the Kuhl nomination, said at the hearing that 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.” Feinstein, who can be a swing vote on a committee that sometimes divides 10-9 along party lines on controversial judicial nominees, said she was impressed by support for Kuhl from Vilma Martinez, a liberal icon who served for nine years as president of the Mexican-American Legal Defense Fund. In response to questions from Feinstein and Leahy about her support as a government lawyer in 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 decision in a case 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. Kuhl rejected the woman’s privacy claim against the salesman and his company but was unanimously reversed by an appeals court. “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 that 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. 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 her 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 underway. On April 2, the fourth GOP effort to end debate on Estrada and force a vote failed on the Senate floor by a 55-44 tally. This result was virtually identical to the oucome of the previous cloture resolution two weeks before. Republicans did not peel off any additional Democratic votes for cloture.

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