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Sen. Barbara Boxer, D-Calif., has not consented to a hearing on 9th U.S. Circuit Court of Appeals nominee Carolyn Kuhl, and with each passing day it appears more likely that the California Democrat may block Kuhl’s nomination. Boxer still has not returned a “blue slip” on Kuhl, the paperwork circulated to home-state senators for comment on a nominee. Democratic Sen. Dianne Feinstein returned her blue slip a month ago, but under Senate rules both blue slips must be returned before a nominee gets a hearing. “All I can tell you is that she has not issued a new statement,” said Boxer’s chief of staff, Sam Chapman, when asked whether the senator has decided what to do about the nomination. He was referring to Boxer’s criticism of Kuhl’s record following her nomination by President Bush in June. Conservatives have been quick to draw conclusions about Boxer’s plans. “She wants to keep her off the bench,” said Tom Jipping, director of the Center for Law and Democracy. “It’s not rocket science.” The delay could set the stage for Boxer to be the first Democrat to draw a line in the sand on any of Bush’s appellate court nominees. Kuhl declined to comment. Boxer, who was instrumental in forcing U.S. Rep. Christopher Cox, R-Calif., to withdraw his name from consideration for the 9th Circuit, first received Kuhl’s blue slip in July, but has not publicly stated her intentions. Several abortion rights groups have organized opposition to Kuhl. “That’s certainly a key issue,” Chapman said. For the 9th Circuit, whose nominees have often been the subject of political gamesmanship, it’s deja vu all over again. A second pending nominee, Hawaii lawyer Richard Clifton, is also waiting for a hearing. Both Hawaii senators and Feinstein have consented to hearings for the nominees from their respective states, although the Democrat-controlled Senate Judiciary Committee has been slow to schedule hearings. But all three senators reserved judgment — the only senators to have done so. All other blue slips returned were marked “approved.” Many of those nominees are also waiting for hearings, and Republicans and Democrats blame each other for the delays. Of President Bush’s 60 judicial nominees, 12 have been approved. There are 106 vacancies nationwide. “From the Republican standpoint, we want to move these judges as soon as possible,” said Margarita Tapia, a spokeswoman for Sen. Orrin Hatch, R-Utah, the ranking minority member on the Judiciary Committee. An American Bar Association committee voted unanimously to give Clifton a qualified rating. Kuhl was given a well-qualified rating by a substantial majority of the committee, with the remainder giving her a qualified rating. The controversy over Kuhl, a Los Angeles Superior Court judge who earned praise for her work on the bench there, stems largely from her work as a Justice Department lawyer under President Ronald Reagan. Kuhl argued in support of parental notification rules for the distribution of birth control to teen-agers, tax-exempt status for Bob Jones University (which was then racially segregated), and most significantly, in a 1986 amicus curiae brief to the U.S. Supreme Court, that Roe v. Wade should be overturned. “We have no confidence that she’s changed her position,” said Belle Taylor-McGhee, executive director of the California Abortion & Reproductive Rights Action League. CARAL is among several abortion-rights groups actively opposing Kuhl’s nomination. Taylor-McGhee said CARAL has expressed its concerns to both California senators. “Check with her office. I think that Barbara Boxer is considering withholding the blue slip,” Taylor-McGhee said. Jipping, the conservative court-watcher, said that Boxer has argued that judicial candidates should not be judged by their work for clients, which he likens to Kuhl’s work for an administration that was against abortion. “The hypocrisy is mind-boggling,” he said. The Justice Department reiterated its support for Kuhl’s nomination. “Judge Kuhl is a balanced and well-reasoned judge who enjoys widespread bipartisan support,” said spokeswoman Lori Rabjohns. “So we call on the committee to give Judge Kuhl a hearing.” Boxer signaled that she took issue with Kuhl’s record when Bush announced her nomination. “I have received numerous statements of opposition to the nomination of Judge Kuhl,” Boxer said in a June statement. “These letters and calls raise a number of issues important to Californians, including the right to choose, civil rights, representation of tobacco companies, privacy rights and whistle-blower protection.” “I have met with Judge Kuhl and the White House counsel, informed them of these issues, and I am continuing to evaluate this nomination.” Clifton’s nomination has also been the subject of political dealings, although he appears more likely to get a hearing in the near future. Both Hawaii senators signed off on a hearing before the August congressional recess. In July, Clifton received the Hawaii State Bar Association’s highest recommendation. But Sen. Daniel Inouye, D-Hawaii, wrote a letter to the Judiciary Committee questioning why President Clinton’s 9th Circuit nominee from Hawaii, James Duffy, was never approved despite waiting years for a vote. “Based on the information that was made available to me when former President Clinton nominated Mr. Duffy, I gather that his character is without blemish, and that he received the highest assessments by both the American Bar Association and the Hawaii State Bar Association,” Inouye wrote. “Thus, if he has been removed for consideration in spite of his qualifications, I would appreciate an explanation.” The 9th Circuit does not have an active judge sitting in Hawaii, despite rules that at least one judge must sit in each of the nine states within its confines. Several news reports have indicated that Inouye may be seeking a district court nomination for Duffy. His office did not comment. “At this time all I can say is that the senator is prepared to allow [Clifton's] nomination to go forward,” said Inouye spokeswoman Sandi Skousen, adding that Inouye wants to review Clifton’s FBI report before making any decisions. Under President Clinton, several nominees were subjected to long delays — notably, Marsha Berzon and Richard Paez. They waited two years and four years, respectively, before being confirmed over objections that they were too liberal. Both were approved by a divided Senate after Sen. Trent Lott, R-Miss., kept a promise to give them a vote. Berzon’s nomination proceeded only after Boxer held up one of Lott’s appointments to the Tennessee Valley Authority. A memo obtained by the Chicago Tribune indicates that this week Senate Republicans will blame the dilatory pace of judicial confirmations on Democrats and accuse them of impeding the nation’s efforts to fight terrorism. “Our message would be: You can’t get wiretaps, search warrants, etc., without judges; confirm the president’s slate so that efforts to capture terrorists won’t be delayed,” the memo was quoted as saying. Only one other blue slip has not been returned. Sen. John Edwards, D-N.C., has withheld a hearing on 4th Circuit nominee Terrence Boyle. An Edwards spokesman said the senator wants to insure that a subsequent 4th Circuit nominee will “balance” out Boyle, whom Edwards regards as too conservative.

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