The New York Times And The Politics Of Judicial Appointments

We have all become so accustomed — jaded might be a better word — to the politically charged nature of the debates over judicial appointments that we now accept as normal comments that not so long ago would have appeared shocking.

A case in point is the New York Times editorial several days ago opposing the appointment of Los Angeles Superior Court Judge Carolyn Kuhl to the Ninth Circuit Court of Appeals. It was not until I read a quote from that edit in the forceful reply from Charles Fried, Harvard law professor and former Solicitor General, in today’s NYT that I realized how disturbing that paper’s position has become.

“Judge Kuhl started out as a hard-charging conservative lawyer in the Reagan administration,” the Rainesmen write. (Apparently there are no soft-charging conservatives.)

When the I.R.S. denied tax-exempt status to Bob Jones University, which discriminated against blacks, she played a key role in persuading the Justice Department to take Bob Jones’s side. In a landmark 1983 decision the Supreme Court rejected her position, 8 to 1. Judge Kuhl also argued forcefully for Roe v. Wade to be overturned. And she was co-author of a brief backing the defendant in a landmark sexual harassment case….

I have written of the Bob Jones case several times, and will not repeat my points here. (See here, here, and here.) But note well: the good, formerly (but no longer) gray Times now regards signing on to the brief of a defendant in a sexual harassment case as grounds for disqualifying a lawyer to serve on the federal bench. Never mind that Fried says the edit got the facts wrong.

I may be wrong, but I don’t think the Times would similarly disqualify lawyers who defend accused murderers, rapists, terrorists, communists, fascists, etc. Is sexual harassment a more heinous offense?

I suspect that, in the eyes of the Times, Carolyn Kuhl’s real offense is not that she defends bad people but that she defends people liberals don’t like, i.e., that she’s a conservative, which is what is truly heinous.

The Times‘s position, in short, is of a piece with the McCarthyites who would have barred from judgeships any lawyers defending accused communists and Southern racists who would bar lawyers who defended civil rights.

Say What? (4)

  1. John Rosenberg April 27, 2003 at 1:25 pm | | Reply

    Not only should you see the post referred to above, but you should visit the blog on which it appears, Lawrence Solum’s Legal Theory Blog, regularly. Solum has written often, and well, on the confirmation mess, and other matters.

  2. DF April 28, 2003 at 12:06 pm | | Reply

    “the good, formerly (but no longer) gray Times now regards signing on to the brief of a defendant in a sexual harassment case as grounds for disqualifying a lawyer to serve on the federal bench.”

    Indeed, that is astounding. But look on the bright side: presumably any lawyer who worked on President Clinton’s defense team will be similarly disqualified, in the mind if the Times.

  3. Gus M April 28, 2003 at 5:06 pm | | Reply

    There is another editorial in the Times today:

    http://www.nytimes.com/2003/04/28/opinion/28MON2.html

    This one is about Jeffrey Sutton, nominee to the 6th Circuit. His faux paux? He argued against the Americans with Disability Act applying against state employers and against the Violence Against Women Act.

    Since he won both cases, it’s hard to say his positions wasn’t mainstream. Indeed, since his position was adopted as the law of the land, isn’t that, by definition, mainstream?

    Other points: When a lawyer defends a rapist, he isn’t for rape. When a lawyer defends a manufacturer of a defective product, he ins’t for defective products? Lawyers often take positions they may not necessarily agree with if they were a judge.

    Second, regarding the Violence Against Women Act, violence against women (and men) is already against the law in all 50 states. There is no point in making a Federal Crime out of it. I interned at a federal court once, and the judicial clerks hated laws like these. Why? Because they enjoy abusing women? No. Because it increases the workload of each judge. And Congress doesn’t respond to such a new law by adding new judgeships.

Say What?