Recipient: Sen. Orrin Hatch
Dear Senator Hatch:
On behalf of the Leadership Conference on Civil Rights (LCCR), the nation’s oldest, largest, and most diverse civil and human rights coalition, we write to express our opposition to the confirmation of Carolyn Kuhl to the United States Court of Appeals for the Ninth Circuit. Our review of Judge Kuhl’s record indicates that her positions, opinions, and legal activities in the areas of civil rights and equal opportunity, and the rights of women, workers, and consumers, are troublesome and raise serious questions about her commitment to equal justice and civil rights for all Americans.
First, we are very concerned about Judge Kuhl’s record on civil rights and equal opportunity, particularly on the issue of whether the federal government should subsidize institutions that practice racial discrimination. Judge Kuhl was one of three Reagan Justice Department officials who persuaded the Attorney General to reverse prior policy and support the granting of tax-exempt status to Bob Jones University, despite its racially discriminatory policies, in its brief in Bob Jones University v. United States, 461 U.S. 574 (1983). More than 200 Justice Department lawyers, the solicitor general, and the Treasury Department general counsel objected to the change of position that Kuhl advocated. According to the New York Times (May 1983), Kuhl was one of three characterized as a “band of young zealots” who urged the change in policy. By an 8-1 vote, the Supreme Court rejected Kuhl’s position and upheld the IRS denial of tax exempt status to Bob Jones University.
In addition, we are troubled by Judge Kuhl’s work urging the Supreme Court to overrule its precedent on “associational standing.” In International Union, United Automobile, Aerospace and Agricultural Implement Workers of America v. Brock, 477 U.S. 274 (1986), Kuhl not only argued that the requirement for associational standing had not been met in the particular case, but went on to urge the Supreme Court to overturn the doctrine of associational standing altogether, except in the most extraordinary circumstances. This view, if adopted, would have had a catastrophic effect on the ability of civil rights and other groups to file lawsuits on behalf of their members in order to vindicate their legal rights.
While at the Justice Department, Kuhl was also involved in a troubling effort to limit the reach of sexual harassment doctrine. As Deputy Solicitor General, she co-authored an amicus curiae brief in the landmark sexual harassment case of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), asserting a position on sexual harassment which, had it been adopted, would have made it more difficult for women to prove sexual harassment in the workplace. In a unanimous opinion authored by then-Justice William Rehnquist, the Court rejected as incorrect the focus in Kuhl’s brief on the “voluntariness” of the alleged sexual conduct, instead making clear that the test is whether the sexual conduct was “unwelcome.” Kuhl was also part of the Reagan Administration’s effort to restrict the remedies that courts can order in the case of employment-related discrimination in violation of Title VII. In Local 28 of the Sheet Metal Workers’ International Ass’n v. EEOC, 478 U.S. 421 (1986), Kuhl co-authored a brief on behalf of the EEOC advocating the extreme theory that relief in Title VII cases can be granted only to identifiable victims of discrimination. This theory, rejected by the Supreme Court, would have significantly limited the ability of the courts to provide effective remedies for past and persistent discrimination.
Kuhl’s record also reveals a troubling tendency to favor corporate interests, at the expense of workers and consumers. As a lawyer in private practice, Kuhl argued on behalf of two major defense contractors that the qui tam provision of the False Claims Act, which allows private individuals to sue corporations that committed fraud against federal government programs, was unconstitutional. See United States ex rel. Rohan v. Litton Industries, Inc., No. 92-55546 (9th Cir.). As a judge, she dismissed a case brought under a California law enacted to prevent suits against whistleblowers and others acting in the public interest. The California appellate court reversed Kuhl’s decision in unusually strong terms, calling it “a nullification of an important part of California’s anti-[abusive lawsuit] legislation.” Liu v. Moore, 69 Cal. App. 4th 745, 748 (1999). Kuhl also dismissed a claim brought by a breast cancer patient whose privacy was invaded when a drug salesman who misrepresented his identity participated in her doctor’s examination of her breasts. On appeal, the Court of Appeals unanimously found in favor of the plaintiff, reversing Kuhl’s decision. See Sanchez-Scott v. Alza Pharmaceuticals, 86 Cal. App. 4th 365 (2001).
In sum, Judge Carolyn Kuhl’s views on important civil rights issues, particularly with regard to equal opportunity and the rights of workers and consumers, are outside the mainstream. Her work as a Justice Department official, in private practice, and as a California judge reflects a lack of commitment to core constitutional values and to upholding equal rights for all Americans. Therefore, we urge the Judiciary Committee to reject the confirmation of Carolyn Kuhl to the Ninth Circuit Court of Appeals. If you have any questions or need further information, please contact Nancy Zirkin, LCCR Deputy Director/Director of Public Policy at (202) 263-2880, or Julie Fernandes, LCCR Senior Policy Analyst, at (202) 263-2856.
Dr. Dorothy I. Height
cc: Members of the Senate Judiciary Committee