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ON IRAQ, U.S. DIDN’T CONSULT To the editor: In Vanessa Blum’s article ” Crafting Justice in Iraq” [Dec. 22, 2003, Page 25], which discusses the Iraqi Governing Council’s statute setting up a tribunal to try Saddam Hussein, Blum incorrectly states: “the Iraqi Governing Council sought extensive input from international law experts such as [Neil] Kritz as well as human rights organizations, such as Human Rights Watch and the Lawyers Committee for Human Rights.” Human Rights Watch requested both in Baghdad and in New York the opportunity to provide such input, but was never given that opportunity. Broad consultation and a transparent process could have helped cure some of the fair trial and due process problems with the law. Jennifer Trahan International Justice Counsel Human Rights Watch New York IN DEFENSE OF CAROLYN KUHL To the editor: As your recent article [" When Past Legal Work Haunts Nominees," Dec. 8, 2003, Page 6] suggests, young government lawyers who eventually seek federal judgeships may indeed see their chances dimmed because of attacks on their government work in sensitive cases. Ralph Neas’ Dec. 15 letter misrepresenting the record of Judge Carolyn Kuhl serves to reinforce that point [" 9th Circuit Nominee Kuhl's DOJ Tenure 'Disturbing,'" Page 61]. Mr. Neas attacks Judge Kuhl for her service as a Justice Department attorney two decades ago, when she played a minor role in the preparation of a Supreme Court brief containing President Reagan’s opinion that the Court ought to rethink Roe v. Wade.But it was I, the acting solicitor general, not Ms. Kuhl, who was responsible for that brief, and I personally wrote most parts of it; she did suggest that the department be candid in that filing and that it should reflect the views of the chief executive, a general position I have since defended many times. At the time I had been a law professor for almost 25 years and was not likely to take instruction from a very junior staff member of the department’s staff � however much I respected her judgment. This is obvious, and Mr. Neas’ attack on that point is an example of his willingness to dig up almost anything to make what is an unfair political point. Incidentally, as he well knows, the position we took as to the unsoundness of Roe v. Wadewas the same expressed in those days by Archibald Cox, Paul Freund, and John Ely. Mr. Neas implies support for racial discrimination in his reference to her work on the Bob Jones University case, when the department took issue with an Internal Revenue Service denial of tax-exempt status for the school. He brands her an “architect” of the department’s policy, though she was actually a 29-year-old with no decision-making authority, busy taking notes and doing legal research. He also misrepresents the government’s position on sexual harassment in a case where Ms. Kuhl actually argued that the Supreme Court should recognize for the first time that unwelcome sexual advances violate Title VII when they create a hostile work environment. Finally, Mr. Neas also knows that Judge Kuhl has received overwhelming support from her fellow judges with whom she has served for some nine years, as well as members of the bar who have appeared before her. To ignore this relevant experience and to go back to events that took place some 20 years ago is nothing short of indecent. Mr. Neas’ attacks on Judge Kuhl show exactly what young government lawyers must worry about if they aspire to the federal bench, and that there is no telling how capricious those attacks may be. Just as we now see experienced attorneys reluctant to run the confirmation gantlet, we can look forward to younger lawyers growing increasingly reluctant to handle cases that will give the likes of Mr. Neas ammunition for the future. There was a time when Mr. Neas was a serious spokesman for a number of liberal points of view. Unfortunately he has degenerated into a hatchet man for partisan groups who are willing to score political points at no matter what cost to accuracy and fairness. He should be ashamed that one may now ask of him what Joseph Welch once asked of Joseph McCarthy, another man who was willing to destroy reputations for partisan gain: Have you no decency? Judge Kuhl may have made mistakes some 20 years ago � although Mr. Neas gives no evidence of that, but his repellent behavior has an entirely fresh stink about it. Charles Fried Beneficial Professor of Law Harvard Law School Cambridge, Mass. NEED MORE ‘CONSENSUS’ JUDGES To the editor: Jonathan Groner’s survey of decisions by recent judicial appointees [" Bush's Ruling Class," Dec. 22, 2003, Page 31] raises the question of these judges’ impact on other important areas of federal law. In the environmental field alone, George W. Bush’s nominees have already issued dozens of opinions and panel votes that narrow the application of long-standing environmental protections and deny citizens access to federal remedies. Nor is this trend limited to the circuit courts; for example, one district judge, Federalist Society stalwart Paul Cassell, in his first year on the bench authored three adverse opinions rejecting citizens’ NEPA challenges to public lands and national forest management decisions. Each of those detailed rulings demonstrates a marked skepticism of environmentalists’ claims, and an apparent eagerness to resolve disputed factual issues in the administration’s favor. Interestingly, the environmental decisions evince a pattern similar to what Groner’s piece suggests for the cases generally. “Consensus” appointees, such as Circuit Judge Barrington Parker Jr., have proven much more amenable to hearing citizen plaintiffs and fairly considering their claims in the face of increasingly frequent attempts to reinterpret three decades of settled environmental law. The records of Parker and other Bush appointees selected through bipartisan agreement or state-level nominating commissions suggest a way out of the current impasse over a handful of judicial nominations. If the Bush administration truly wants a balanced approach to environmental protection, among other things, it will name more candidates in this mold. Jay Austin Director, Endangered Environmental Laws Program Environmental Law Institute Washington, D.C.

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