- The Washington Times - Sunday, May 18, 2003

Republicans are set to break Senate custom by moving forward with the nomination of California Judge Carolyn Kuhl to the U.S. Court of Appeals despite the open opposition of both senators from the judge’s home state.

Senate Majority Leader Bill Frist, Tennessee Republican, has not revealed how he plans to proceed, but the Republicans who control the Judiciary Committee pushed Judge Kuhl through on a straight party-line vote earlier this month. Senate leaders still are negotiating how and whether Judge Kuhl will make it to the floor for a final vote on her nomination to the 9th Circuit U.S. Court of Appeals.

Democrats warn that if a vote is forced, it will be a new low in the politics of judicial nominations, and suggest they might use a filibuster to prevent the judge from a getting a vote.

Sen. Patrick J. Leahy, Vermont Democrat and ranking member of the Judiciary panel, called the committee vote on Judge Kuhl “a corrosive and raw-edged willingness to change, bend and even break the rules.”

The rule Mr. Leahy is referring to is the so-called “blue slip” policy, which is the agreement that the president will consult home-state senators before submitting nominees for the federal bench. The slips of paper these senators sign and return are blue.

In Judge Kuhl’s case, Sen. Dianne Feinstein, California Democrat and member of the Judiciary Committee, returned her blue slip, but ultimately voted against sending Judge Kuhl to the full Senate for a vote. Sen. Barbara Boxer, California Democrat, has not returned her blue slip and has written letters in opposition to the judge, arguing that the Justice Department lawyer from the Reagan administration is too conservative.

Mr. Leahy and other Democrats say Judiciary Chairman Orrin G. Hatch, Utah Republican, has tossed out the blue-slip policy to move President Bush’s nominees along more quickly. It’s a policy, they say, that Mr. Hatch strictly observed during the 1990s to block several of President Clinton’s nominees.

It “is a simple, unsubtle, 180-degree turn in the direction of the policy, now that the person nominating the judges is a Republican,” Mr. Leahy said.

But Mr. Hatch said his policy has been the same all along: Opposition from home-state senators will be “weighed heavily,” but won’t be enough to spike a nominee automatically.

Judiciary Committee Democrats insist otherwise.

“There was no question in my mind what his policy was” during the Clinton years, said Sen. Richard J. Durbin, Illinois Democrat. “If you didn’t have a blue slip back from both home-state senators, that nominee didn’t budge.”

According to letters from 1995 and 1997 provided by Mr. Hatch’s office, his blue-slip policy has been the same and is identical to previous Democrats who have held his position.

“The return of a ‘negative’ blue slip ordinarily does not preclude consideration of a judicial nominee, but is given substantial weight by the committee in its evaluation of the nominee,” Mr. Hatch wrote in an April 16, 1997, letter to President Clinton’s counsel, Charles Ruff.

But, Democrats say, having a policy and acting on it are two different things.

The only other time anyone on either side can recall a nominee getting a vote in the full Senate despite the objection of both home-state senators was Missouri Chief Justice Ronnie White, nominated by President Clinton in 1997 to the federal district court bench.

Both home-state senators returned their blue slips, but at the last minute, they made it known that they opposed Justice White, and his nomination was scuttled in a party-line vote by the full Senate.

But the case of Judge Kuhl is different, Mr. Hatch said.

Justice White was nominated to the lower federal district court where the blue-slip policy is more of a consideration, he said. Judge Kuhl is nominated to the higher appellate court that covers California and eight other Western states, where the policy is less regarded.

“If Judge Kuhl were part qualified and part unqualified, I would have a harder time,” Mr. Hatch said. “There has to be a good reason to oppose her other than politics.”

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