Senators’ concerns: As Deputy Solicitor General, Kuhl aggressively sought to restrict access to the federal courts, co-authoring a brief and arguing before the Supreme Court in a case in which she urged the Court to abandon the doctrine of associational standing, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America v. Brock, 477 U.S. 274 (1986). Associational standing is a well-recognized and important doctrine that permits organizations to file lawsuits on behalf of their members, making it easier for them to vindicate their common legal rights and interests. At Kuhl’s hearing, Senator Feinstein specifically questioned Kuhl about the Brock case and asked Kuhl to explain her opposition to the doctrine of associational standing. Kuhl Hearing, at 53-57.
Kuhl’s testimony: In response to Senator Feinstein’s question, Kuhl testified, “[t]he position of the United States in UAW v. Brock I believe was set before I came to the Solicitor General’s Office. I argued that case. I had just recently come to the office and I argued it, but I am not on the brief. If you look at the brief in that case, I am not on the brief. . . I didn’t have any trouble arguing the position. It was a position that – well, the government had won in the court below, so we were defending a winning argument in the court below in that case.” Kuhl Hearing, at 54-55 (emphasis added).
The facts: Kuhl’s testimony that her name was not on the government’s brief in this case was demonstrably incorrect, as Senator Leahy pointed out in post-hearing questions to Kuhl.44 Although Kuhl has since admitted that her testimony was incorrect,45 her erroneous testimony at her hearing left unanswered Senators’ concerns about what Charles Fried himself described as Kuhl’s “frontal attack” on the doctrine of associational standing.
Moreover, Kuhl’s testimony about this case was inconsistent with the facts in another critical respect. Kuhl’s Supreme Court brief marked the first time in the case that the government had taken the position that the doctrine of associational standing should be overturned; this argument was not the basis on which the government had prevailed in the court of appeals,46 and Kuhl’s testimony that she was merely “defending a winning argument in the court below” by urging that associational standing be overturned cannot withstand scrutiny.
The court of appeals had ruled in favor of the government, holding that the UAW lacked standing under the facts of this particular case and the requirements for associational standing.47 Defending that “winning argument” is a far cry from urging the Supreme Court to overturn the doctrine of associational standing altogether. Indeed, the government’s brief to the Supreme Court opposing the UAW’s petition for a writ of certiorari — a brief on which Kuhl’s name does not appear — in fact acknowledged that the doctrine of associational standing was well-settled and did not ask the Court to overrule it.48
The argument for overturning associational standing was made only in the later brief bearing Kuhl’s name. According to Charles Fried, Kuhl’s boss at the time, it was “my Deputy and Counselor, Carolyn Kuhl” who “launched a frontal attack” in Brock, “arguing that groups should not have standing to make claim except as they could show themselves to be representatives of classes of individuals in traditional class actions.” Order and Law, at 207, n.5 (1991).
In fact, Kuhl’s argument was so extreme, procedurally as well as substantively, that it prompted numerous organizations, including the Chamber of Commerce and the AMA, to oppose not only the government’s legal position in the Supreme Court but also to criticize its “litigating tactics” for raising such an important matter for the first time at that juncture in the case.49
As with Thornburgh, Kuhl has sought to minimize the extremism of the position that she advocated by claiming that she was merely a government lawyer doing her job representing the government.50 But so were all of the other government attorneys who had litigated this case before Kuhl got involved, and who had not advocated that the doctrine of associational standing be overturned. Moreover, in her written answers to Senator Leahy, Kuhl went a step further and suggested that this extreme position was not necessarily her own view.51 However, just as it was Kuhl, as Fried recounts, who in Thornburgh wrote “the most aggressive memo” advocating reversal of Roe v Wade, so too it was Kuhl, as Fried also recounts, who in Brock launched the “frontal attack” on the doctrine of associational standing.