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On the eve of a crucial Senate committee vote, Sen. Dianne Feinstein announced Wednesday that she will not support the nomination of Judge Carolyn Kuhl to the Ninth Circuit U.S. Court of Appeals, ending weeks of speculation. The California Democrat was considered one of the swing votes by those opposing Kuhl’s nomination. Her stance not only makes today’s Senate Judiciary Committee vote extremely close, but increases the likelihood that Democrats will block the nomination with a filibuster. Feinstein had been on the fence about Kuhl despite intense lobbying from women’s and abortion rights groups opposed to the nominee. The Feminist Majority Foundation even organized a rally outside Feinstein’s Los Angeles office two weeks ago in an attempt to sway her. A spokesman declined to elaborate on Feinstein’s position, other than to confirm she now opposed the nomination. Meanwhile, a second Ninth Circuit nominee, Third District Court of Appeal Justice Consuelo Callahan, drew broad bipartisan support at her first committee hearing Wednesday. Feinstein even supplied Callahan’s formal introduction at the hearing. Spearheading the effort to sink Kuhl’s nomination is the powerful liberal group People For the American Way, which held a press conference in Los Angeles on Wednesday to denounce the 50-year-old Los Angeles County Superior Court judge. At the center of the conference was breast cancer survivor Azucena Sanchez-Scott, who sued her doctor after he allowed a pharmaceutical sales representative into the examination room during a mammogram. Kuhl tossed the suit and was later reversed on appeal. “I was just shocked that she turned my case down, because it was an invasion of my privacy,” Sanchez-Scott said in a telephone interview, adding that she believes Kuhl is incapable of applying the law fairly. Sanchez-Scott may not be the next Anita Hill, but opponents of Kuhl’s nomination have added her suit to what they see as a long list of sins committed either on the bench, in private practice or when she served in the Justice Department under President Ronald Reagan. According to the chair of PFAW’s committee for judicial independence, Susan Lerner, the case was a no-brainer. “When you look at the state of privacy law in the state . . . it should have been clear to any judge who was fairly interpreting the law that this should have been a violation.” But Kuhl has plenty of supporters among California lawyers and judges, including California Supreme Court Justice Carlos Moreno, a Democrat. “I have never discerned in her any ideological predisposition to decide a legal or factual issue in a predetermined manner,” Moreno wrote in a letter of endorsement. “To the contrary, her reputation and practice is to decide matters with an open mind as to all issues.” It was clear from her hearing in April that the Judiciary Committee is closely divided on Kuhl, who was first nominated in 2001. Senate Democrats sent a series of pointed follow-up questions focused on her positions on abortion, discrimination, affirmative action, sexual harassment, whistle-blower laws and labor issues. Patrick Leahy, the ranking minority member from Vermont, even asked Kuhl whether she has the capacity to temper her intellectual abilities with experience and compassion. “Yes,” Kuhl wrote back, “I do have the capacity to grasp the human elements before me.” Kuhl repeatedly addressed questions about a brief she wrote while with the Department of Justice that called for an outright reversal of Roe v. Wade. Without stating her personal views on abortion, she repeated the mantra that as a member of an inferior court, she would not be entitled to overturn the precedents of the Supreme Court. Further complicating her nomination is the way Kuhl got a hearing in the first place. If approved, she would be the first judge in the country voted out of committee over the objection of one of the her home state’s senators. Under Senate tradition, committee hearings aren’t scheduled for a nominee until both home state senators have returned “blue slips” seeking their input. Though California Democrat Barbara Boxer, a vocal opponent, withheld her slip, Judiciary Chairman Orrin Hatch, R-Utah, scheduled a hearing anyway. Taking the lead against Kuhl within the committee is Sen. Charles Schumer, D-N.Y., who has suggested she could be the next to join Miguel Estrada, a D.C. Court of Appeals nominee, and Priscilla Owen, a Fifth Circuit U.S. Court of Appeals nominee — both of whom are being blocked by Democratic filibusters that the Republican majority has been unable to break. Had Kuhl won Feinstein’s backing, Democrats would be hard pressed to succeed with a filibuster. David Carle, Leahy’s spokesman, said that talk is premature. “There’s speculation about that, but the caucus hasn’t discussed it,” he said. Because Republicans have a 10-9 advantage in the committee, Democrats would need to get one Republican to cross party lines in order to prevent Kuhl’s nomination from reaching the full Senate. And it appears not all Republican members are entirely satisfied with the nominee. Sen. Charles Grassley, R-Iowa, sent Kuhl a list of questions about her position on the qui tam provisions of the False Claims Act, which he strongly supports. One Democratic staffer also said Pennsylvania Republican Arlen Specter is getting pressure from groups in his home state to vote against Kuhl, though he did not think it would happen. Meanwhile, both Boxer and Feinstein returned favorable blue slips on Callahan. Boxer also returned a favorable slip on San Francisco Superior Court Judge Carlos Bea’s nomination to the Ninth Circuit. The two Hispanic nominees appear to have a clear path. Christopher Arriola, a past president of La Raza Lawyers of California and chair of its committee on the judiciary, said his group strongly pushed Bea as a candidate for a federal court seat. When the open federal district court seat here went to Jeffrey White, the group turned its sights on the Ninth Circuit and found the White House amenable. “[White House counsel] Al Gonzalez has been very receptive to our requests for meetings,” Arriola said. “I think he’s gone that extra step.” Though the group did not have Callahan on its list of potential Hispanic judicial nominees (her parents are from Spain, not Latin America), La Raza supports her nomination as well. Arriola says Bush would do well to court Hispanics in California as their numbers and influence continue to grow. “If we were around and we had 2 percent of the vote, I think we’d have much less influence than we have with 15 or 16 percent of the vote,” Arriola said.

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