Joe Conason's Journal

One good reason why the Democrats should filibuster a current Bush judicial nominee.


Salon Staff
May 10, 2003 2:43AM (UTC)

Why Kuhl is uncool Frustrated by strong Democratic opposition to the president's judicial nominees, the Senate majority leader is reportedly considering changes in the rules to smooth their way. Sen. Frist and Senate Judiciary Chairman Hatch, not to mention Bush himself, are so infuriated by the Democrats' persistent filibustering that there is loose talk on Capitol Hill of "going nuclear."

Glancing over the record of Carolyn Kuhl, the California appellate court nominee who slipped past the Judiciary Committee on a party-line vote yesterday, I'm wondering when the public will become angry about the quality of Bush's nominees.

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Kuhl is a standard-issue Federalist Society wing-nut, with predictably reactionary views about Roe vs. Wade, corporate ruin of the environment and so on. Her commitment to racial equality is questionable, too. During a sojourn in the Reagan Justice Department, she supported tax-exempt status for Bob Jones University. Kuhl now describes that position as a mistake - which makes me wonder why we need a judge on the federal bench who would perpetrate such a grave error.

Red-blooded, red-state Americans who believe the Bush administration is defending "family values" should know about an amazing decision Kuhl made while sitting as a judge in Los Angeles Superior Court. In a ruling overturned on appeal, she dismissed a lawsuit brought by a woman whose breast examination was observed - without the patient's informed consent - by a drug company salesman. The humiliatied patient sued both the doctor and the salesman's company, Alza Pharmaceuticals, for invading her privacy. To understand why the White House likes Kuhl so much, it helps to know that the lawyers representing Alza came from the huge GOP law firm of Arter & Hadden. (Among the firm's best-known partners is former Texas Rep. Tom Loeffler, who raised more than $250,000 for Bush-Cheney 2000.)

But let's allow the appellate judges who overturned Kuhl to outline the details of this sickening case. In the following excerpt from their decision, the patient is "plaintiff," the doctor is Polonsky and the Alza salesman is Martinez:

"The complaint makes it clear that plaintiff, a cancer patient, never consented to having an examination of her breasts observed by a male drug salesperson. At no time did Dr. Polonsky explain Mr. Martinez's true identity. Further, Mr. Martinez never explained his true identity. Additionally, plaintiff used a pocket fan to cool herself. When plaintiff began to use the fan in order to cool herself, it was taken from her by Dr. Polonsky and handed to Mr. Martinez. Mr. Martinez was told that this would give him something to do. Mr. Martinez began fanning plaintiff. Mr. Martinez and Dr. Polonsky then began to laugh.

"Plaintiff asked if she could fan herself; but Mr. Martinez refuse to hand the pocket fan back to her. Thereafter, plaintiff was required to disrobe from the abdomen up and was observed by Mr. Martinez during the breast examination. Later, Dr. Polonsky's receptionist indicated that this conduct 'wasn't right.' Further, Dr. Polonsky admitted he had not explained who Mr. Martinez was and twice apologized to plaintiff.

"When the totality of the circumstances of the intrusion are examinedwe conclude that the complaint alleges highly offensive conduct involving a cancer patient whose breasts were observed by a drug salesperson, whose occupation was never disclosed."

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Evidently Kuhl didn't regard these outrages as an invasion of the patient's privacy. Would any reasonable person agree? Actually, it's easy to imagine a distraught woman telling this story of violation to her husband, son or brother - and for the male relative to feel like "going nuclear" on both doctor and drug salesman with something more instantaneous, and much more painful, than a legal document.

What amazes me is that so many such men don't realize the GOP hierarchy is emphatically not on the side of their families and won't defend their rights. No doubt Bill Frist would say that Kuhl exemplifies mainstream conservatism, and he's right. He and his Senate conservatives are strictly on the side of corporate interests and business lobbyists. That's why they want to pack the courts with hacks like Carolyn Kuhl.

The Democrats can commence their filibuster with readings from the original complaint and the above decision. And the first readers might just as well be the two senators from Kuhl's home state who oppose her nomination, Barbara Boxer and Dianne Feinstein.
[3:45 p.m. PST, May 9, 2003]

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