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After President George W. Bush signed the Partial-Birth Abortion Ban Act of 2003 in November, it took little more than 24 hours for three different federal judges to block it from taking effect. But the law could leave a far more lasting impression on the careers of the government lawyers assigned to defend it. The filibusters faced by some of Bush’s judicial nominees highlight the dangers of serving as a foot soldier on legal issues, like abortion rights, that tear the nation along partisan lines. Judicial nominees have long come under scrutiny for work performed on lower courts or in official capacities. Senate Democrats opposed to U.S. Court of Appeals for the 5th Circuit nominee Charles Pickering Sr. and D.C. Circuit nominee Janice Rogers Brown have gone after their rulings, while 11th Circuit nominee William Pryor Jr. has run into questions about his work as Alabama’s attorney general. But federal court nominees Carolyn Kuhl and Miguel Estrada were both filibustered in part because of positions they advanced — or are suspected of having advanced — as young government lawyers. Kuhl, whose nomination to the 9th Circuit was officially filibustered last month, wrote a memo during the Reagan administration urging the government to push to have Roe v. Wade overturned. Estrada, meanwhile, withdrew his name from consideration for the D.C. Circuit this summer after refusing to turn over memos he wrote when he was in the solicitor general’s office. Which raises the question: Should young, career-oriented lawyers avoid partisan controversies if they have hopes of someday winning a political appointment? If you’re a federal prosecutor, you’re obligated to take the case you’re given, says Tucker Ellis & West San Francisco partner Lawrence Callaghan, who worked in the Justice Department during a turbulent time in the 1970s. “If you had that option, you might advise someone to stay away from a case,” he says. “But I don’t know if you have that option.” It may depend on your boss. Most agree that those who have ideological objections to the death penalty do not have to work on capital cases. The Justice Department didn’t return inquiries about its official policy, but that may be because there isn’t one. When it comes to distancing yourself from certain cases, there do not appear to be any hard and fast rules. Under former Attorney General Janet Reno, 9th Circuit Judge Raymond Fisher was the Justice Department’s associate attorney general, the No. 3 position. He says he can’t recall hearing of a case where a lawyer stepped away from it for ideological reasons. “There may be people who manage their careers that way. That takes a lot of foresight,” Fisher says. “But who knows what’s going to be in vogue” — or controversial — “in five or 10 years?” Fisher says, though, that nominees are finding that new swaths of their past lives are now put in play. Not just previous rulings and old law review articles, but speeches and positions taken as junior lawyers are now seen as fair game. Fisher says that if lawyers in the Justice Department made it known that they were uncomfortable with a case, he imagined they could be excused — just like at many law firms. University of Southern California law professor Erwin Chemerinsky says that as a first-year Justice Department lawyer, he refused to work on a case that sought to remove a gay person from the military. “They said, ‘Are you asking us or are you telling us?’ ” Chemerinsky recalls. “ I said, ‘I don’t care what you call it, I’m not doing it.’” In Kuhl’s case, Chemerinsky says, it was “completely her right” to advocate that Roe be overturned. “But I don’t think she can now say she was just doing her job,” Chemerinsky says. “I think that as a young associate or a young lawyer, you’re responsible for your actions.” Charles Fried, the solicitor general in the Reagan years, agrees that lawyers could step away from cases — but not too often. “If you do it a lot, you’re obviously in the wrong place,” Fried says. More than anything, what has gotten Kuhl into trouble is a memo she wrote as a 28-year-old Justice Department employee urging Fried to ask the Supreme Court to overturn Roe v. Wade, the case establishing a woman’s right to choose. Fried has characterized Kuhl’s memo as the most “aggressive” in the department. In an interview, he blasts Democratic criticism of Kuhl, saying she was just doing her job. “I think this is about Barbara Boxer, pushed by groups like People for the American Way [and others]. She’s just digging in her heels. This is about politics,” says Fried, now a professor at Harvard Law School. The very positions keeping Kuhl from getting to the 9th Circuit may have helped her get the nod in the first place. One way to advance your career to the point of even being considered for a political appointment is to take on controversial cases and advance political causes. “If they’re tending to make a name for themselves, they take controversial cases because they get recognized,” says Callaghan, the former Justice Department lawyer. And on issues as divisive as abortion, Callaghan says, a boss might want to make sure that only lawyers who support the government’s position are assigned. “If you’re a supervisor, you want someone who is comfortable with the case,” Callaghan says. “Because you are going to be attacked.” Another former Justice Department employee, David Bancroft of San Francisco’s Sideman & Bancroft, draws a distinction between attacking people for their one-time affiliation with a case and, say, a private lawyer’s longtime alliances with clients. “If somebody was general counsel for the Ku Klux Klan, that counts,” Bancroft says. “If that’s where you’ve planted your pot, that does say something.” Estrada’s and Kuhl’s situations aren’t the first instances of a nominee’s clients and causes being used against them. Judges Richard Paez and Marsha Berzon of the 9th Circuit were both criticized for past work — Paez, for his work with farm workers, and Berzon, for her association with labor unions. After years of delay, Paez and Berzon were eventually confirmed. Whether Kuhl can overcome the filibuster remains to be seen. But Bancroft says he hopes it doesn’t get to the point that dalliances with controversial stances prove fatal to a political appointment. He concedes, though, that it may be approaching that point. “Too early to tell. But as they say, stay tuned for late-breaking developments.” Jason Hoppin is a reporter for The Recorder, an American Lawyer Media daily newspaper published in San Francisco, where this article first appeared.

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