The U.S. Senate confirmed a controversial appeals court nominee on April Fool’s Day. No fooling.
No, it was not Miguel Estrada. After 669 days, though, the Senate voted 58-41 to confirm the nomination of Timothy Tymkovich to the U.S. Court of Appeals for the Tenth Circuit. He presented leftists with a politically incorrect trifecta. As solicitor general of Colorado, he defended a state constitutional provision prohibiting special legal rights for homosexuals, defended a constitutional provision prohibiting taxpayer funding of abortion, and argued that the state, not individual cities, had authority to regulate firearms.
That looks like filibuster-bait, but even Senate Democrats have to pick their battles. Judiciary Committee Chairman Sen. Orrin Hatch, R-Utah, has kept his promise to continue moving nominees who had been held up the longest. Last week the committee approved appeals court nominee Priscilla Owen, the sixth “controversial” appeals court nominee on the full Senate’s plate. So even though the Democrats let Mr. Tymkovich slide, the 41 votes against him were again enough to sustain a filibuster and the seventh highest negative tally in American history against a confirmed judicial nominee.
The other April Fool’s Day confirmation activity was over in the Senate Judiciary Committee, which finally held a hearing on the nomination of Carolyn Kuhl to the Ninth Circuit. She had been waiting 649 days since President Bush nominated her back in June 2001.
The Ninth Circuit desperately needs some balance. Seventeen of its 25 full-time judges are Democrat appointees, 14 of them by President Clinton alone. So far in its 2002-03 term, 12 of the Supreme Court’s 37 decided cases have been from the Ninth Circuit, three times as many as the next highest bidder. The Supreme Court has reversed the Ninth Circuit eight of those 12 times, five of them without a single dissenting vote.
It wouldn’t take much to improve the Ninth Circuit, but Carolyn Kuhl brings a great deal to the table. After graduating with honors from Duke University Law School, she served as a law clerk on the Ninth Circuit to then-Judge (now Supreme Court Justice) Anthony Kennedy. After years in private practice and service in the U.S. Department of Justice, in 1995 she was appointed to the Superior Court of California in Los Angeles. More than 90 percent of her appealed decisions have been upheld.
In a letter dated Feb. 22, 2003, nearly two dozen other women Superior Court judges praised Judge Kuhl as a “fair, careful and thoughtful jurist who applies the law without bias.” Five days later, a letter signed by 97 Superior Court judges “enthusiastically” endorsed Judge Kuhl’s appointment to the Ninth Circuit, saying it would “bring credit to all of us and to the Senate that confirms her.” Leaders of the Los Angeles County Bar Association’s litigation section wrote that Judge Kuhl is not only “intelligent, hard working and thoughtful,” but a “warm, witty and deeply caring person.”
At Judge Kuhl’s hearing, Sen. Dianne Feinstein, D-Calif., admitted she had never seen so much support for a judicial nominee from sitting judges. Perhaps that prevented her from attempting to block even a hearing, a step her colleague Sen. Barbara Boxer, D-Calif., still tried to take. She tried to use her “blue slip,” a courtesy inviting the views of home-state senators, unilaterally to veto the nomination.
Sen. Hatch would not permit such a radical departure from past Senate practice. In his first round as chairman, Sen. Hatch wrote then-White House Counsel Charles Ruff in April 1997 that a negative blue has “substantial weight” but does not alone “preclude consideration” of a nominee. He was simply following the existing policy. In a June 6, 1989, letter to the first President Bush, then-Chairman Joseph Biden, D-Del., similarly explained that a negative blue slip would have “substantial weight” but “would not preclude consideration of the nomination.” He, in turn, was following the policy established in the 1970s by then-Chairman Kennedy.
The blue slip policy is intended to ensure White House consultation with home-state senators. White House Counsel Alberto Gonzalez and his staff contacted, spoke with, shared information with, and otherwise accommodated Sen. Boxer on no less than seven different occasions. President Bush even delayed a planned nomination of Judge Kuhl to ensure that Sen. Boxer had been fully consulted. So Sen. Hatch was right to ignore such a blatantly partisan, obstructionist stunt.
The same leftist groups that in the past have demanded greater diversity and appointment of more women to the bench oppose Judge Kuhl. While they oppose Miguel Estrada’s nomination in part because he has no judicial experience, they oppose Judge Kuhl’s nomination in spite of her judicial experience.
In combination, reports opposing Judge Kuhl from the National Organization for Women, National Women’s Law Center, Alliance for Justice, NARAL Pro-Choice America, and People for the American Way take issue with just six decisions from Judge Kuhl’s nearly eight-year record on the state court bench. And, true to form, they look only at which side won or lost. They prefer the politically correct to the judicially correct.
Appeals court nominees just don’t come better qualified, by credentials and temperament, than Judge Kuhl. That’s why the obstruction will continue.