Is She "Scalia In A Skirt"? And Does the Skirt Need a Blue Slip?

On April 1, 2003, the Senate Judiciary Committee held a hearing on a judicial nominee to the Ninth Circuit Court of Appeals, Carolyn Kuhl. That hearing, in itself, wasn’t particularly extraordinary. What was extraordinary was that for the first time in recent memory, a hearing was held on a nominee upon which a home-state senator’s “blue slip” had not been returned.

What Is a Blue Slip, and Why Does It Matter?

According to the Department of Justice’s Office of Legal Policy, a “blue slip” is

the traditional method of allowing the home state senators of a judicial nominee to express their approval or disapproval. Blue slips are generally given substantial weight by the Judiciary Committee in its consideration of a judicial nominee. The process dates back several decades and is grounded in the tradition of “senatorial courtesy”, which traces its roots back to the presidency of George Washington.

See OLP Judicial Nominations Page.

Notably, the “official” government web site on nominations reports the status of blue slips during the 107th Congress (the 2001-02 Congressional session), but not the 108th Congress (the 2003-04 Congressional session). Perhaps this is because the blue slip no longer seems to matter. When Sen. Orrin Hatch took over as chair of the Judiciary Committee in January, he announced that he would no longer honor the blue slip policy. “I’ll give great weight to negative blue slips, but you can’t have one senator holding up, for instance, circuit nominees. We’re going to follow the Kennedy-Biden-Hatch policy, which basically says that blue slips will be given great weight but they’re not dispositive. That’s the way it should be.” (See Salt Lake Tribune article) The “Kennedy-Biden” reference refers to when Democrats controlled the Senate during the tenures of Republican Presidents Reagan and Bush the elder. Then-chairs Sen. Edward Kennedy and Sen. Joseph Biden allowed judicial nominees to move forward if just one senator from a state submitted a positive blue slip. After Republicans won control of the Senate in 1994, Hatch himself changed the rules, refusing to move a nomination from Democratic President Clinton unless he had positive blue slip approvals from both senators. Former Sen. Jesse Helms, R-N.C., used the tactic to block all of Clinton’s court nominees from his state.

Sen. Barbara Boxer of California has not returned a blue slip on Carolyn Kuhl, but Judge Kuhl’s hearing nonetheless proceeded on April 1. (See Washington Times article.)

Scalia in a Skirt?

Sen. Boxer’s opposition to Kuhl’s nomination is one shared by many groups, including Workplace Fairness. Her record shows that she repeatedly sides with corporate interests and is an opponent of employees’ rights. As a lawyer in private practice, she worked to immunize corporations that defraud the government from claims by whistleblowers and argued that the courts should strictly limit punitive damages for corporate misconduct. And as a judge, she has been reversed repeatedly for rulings that favor corporate defendants and other wrongdoers over injured plaintiffs. One commentator recently noted that Kuhl shares many of the characteristics of other women nominated by the Bush Administration for federal judgeships, in an article posing the question, For a Woman to Get that Federal Court Nomination, Does She Have to be Scalia in a Skirt? The same claim has also been made by Eleanor Smeal, president of the Feminist Majority, who opined the day of Kuhl’s hearing: “Not only is Bush the first president to appoint a smaller percentage of women to the federal bench than his predecessor, but the women he is nominating are Scalia in a skirt—women who never saw a woman’s legal right that they wanted to uphold.” (See Kuhl Retracts Controversial Positions; Refuses To Opine on Abortion Rights.)

Unlike other nominees, who have steadfastly held to the positions they have taken prior to their nominations, Kuhl at least was willing to admin some of her past advocacy was wrongheaded. (See Washington Post article.) Kuhl said in her hearing that she “regrett[ed] taking the position I did,” when asked about her efforts to retain Bob Jones University’s tax-exempt status when it was racially segregated. Many fear that her efforts to distance herself from her past advocacy are merely designed to win her confirmation, however; once she is confirmed as a federal judge, she will not be bound by any of the statements she made in her hearing. And her lifetime appointment will prevent her from ever being recalled, regardless of the hypocrisy of any opinion when compared to her current assertions.

There remain many good reasons to oppose Carolyn Kuhl, even without the abrogation of the blue slip process. However, the combination of her extremist advocacy and the hypocrisy of Sen. Hatch’s current blue slip policy should be enough to prevent her nomination from moving ahead. It hasn’t happened yet, but it should. It will be very interesting to see how quickly the Judiciary Committee moves on Kuhl’s nomination on their return from recess in late April. In the meantime, your Senators need to hear from you how you feel about this development. Please take action now by following the link below:

Demand Fair Judges: Stop Carolyn Kuhl

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Madeline Messa

Madeline Messa is a 3L at Syracuse University College of Law. She graduated from Penn State with a degree in journalism. With her legal research and writing for Workplace Fairness, she strives to equip people with the information they need to be their own best advocate.