Carolyn Kuhl’s Hearing Strengthened the Case Against Her Confirmation

Introduction

Even before the April 1, 2003 hearing on Carolyn Kuhl’s nomination by President Bush to the United States Court of Appeals for the Ninth Circuit, significant opposition to Kuhl’s confirmation had arisen because of her troubling record as a lawyer and judge. Throughout her career — as a lawyer in the Reagan Administration Justice Department, in private practice, and as a state judge — Kuhl has followed a legal philosophy harmful to the rights and interests of ordinary Americans. This is particularly true in three areas: women’s rights and reproductive freedom, other civil rights, and access to justice.

Kuhl’s hearing on April 1 not only failed to dispel the serious concerns that had been raised about her record, but in fact reinforced them. At her hearing, Kuhl refused to answer certain questions (such as those relating to her jurisprudential views of Roe v. Wade), she changed the subject and avoided answering other questions, and, whether intentional or not, her responses to a number of questions asked by Senators regarding troublesome aspects of her record were untrue and misleading in critical respects.

For example, in a landmark sexual harassment case decided by the Supreme Court, Kuhl as a Reagan Justice Department official had urged the Court to rule in favor of the employer, under a definitional standard that would have made it very difficult for women to prove sexual harassment in the workplace. The Court did not adopt Kuhl’s standard and ruled unanimously for the female employee. Nonetheless, when questioned about this case at her hearing, Kuhl called her disagreement with the Court “technical” and sought to portray the ruling as a victory for her position.

In another Supreme Court case, Kuhl had filed a brief urging the Court to overturn the important and well-settled doctrine of associational standing, which allows organizations to file suit on behalf of their members and thus facilitates access to justice by ordinary Americans. When asked about this case at her hearing, Kuhl stated that her name was not on the brief, thereby deflecting questions about her extreme views. Kuhl’s response was flatly incorrect. Although Kuhl has since acknowledged the error in her testimony, she has never answered Senators’ fundamental concerns about the “frontal attack” that her own former supervisor says she launched in this case against the doctrine of associational standing.

These and other disturbing aspects of Kuhl’s hearing testimony are further discussed below with respect to each of the three fundamental areas of concern about Kuhl’s record: women’s rights and reproductive freedom; other civil rights issues; and access to justice. Combined with the concerns already raised by Kuhl’s record, it is clear that her confirmation should be rejected.

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