Carolyn Kuhl’s Hearing Strengthened the Case Against Her Confirmation

Opposing affirmative action, trying to restrict discrimination remedies, and criticizing protection of workers

Referring specifically to Kuhl’s statement in an article that she had written while in private practice that she considered affirmative action to be “a divisive societal manipulation,” Senator Durbin asked Kuhl “have you changed your position on that?” Kuhl Hearing, at 71. Kuhl did not answer Senator Durbin’s question nor a similar written question from Senator Kennedy.30 Instead, she testified that “the primary thrust of that article was to state the importance of individual remedies and of putting persons who have been discriminated against back in the place where they should have been, absent that discrimination, and that was the thrust of that article.” Kuhl Hearing, at 71-72. The problem, of course, as Kuhl well knows, is that in many instances of discrimination, such as when people are intentionally kept out of unions and apprenticeship programs on the basis of race for years on end, the actual victims may not be identifiable. Only by requiring some form of affirmative action can the situation be remedied, as was the case in Local 28 of the Sheet Metal Workers’ International Ass’n v. EEOC, 478 U.S. 421 (1986). Nonetheless, Kuhl filed a brief in that case taking the position that relief under Title VII could be granted only to identifiable victims of discrimination,31 a position that the Supreme Court rejected.

In Kuhl’s post-hearing answers, she tried to dispel concerns about her opposition to affirmative action by stating that the article about which Senators had questioned her — the article in which she had called affirmative action “a divisive societal manipulation” — was written “before the Supreme Court settled” the issue of affirmative action in its 1995 decision in the Adarand case.32 However, Kuhl’s article was written after the Court’s decision upholding affirmative action in the Local 28 case (indeed, she refers to that decision in her article33), which means that there was already established law in this area and that she was critical of it.

Kuhl was also questioned about another article she had written, “Employment at the Will of the Courts,”34 which, as Senator Edwards described it, focused on “the costs to employers and society of the laws against unfair treatment of workers. . .”35 In response to Senator Edwards’ question as to why she had chosen to focus on such matters rather than on the “costs to workers and society of discrimination on the basis of race, sex, or other arbitrary factors or other forms of unfair treatment of workers,”36 Kuhl stated that she “disagree[d] with the question’s characterization of the article,” and attempted to portray her article in a light more favorable to the legal protection of workers.37 The fact remains, however, that Kuhl’s article appeared to disapprove of the trend in the law away from the doctrine of “employment at will” and toward protecting employees from adverse employment decisions that are not based on “good faith and fair dealing.”38 According to Kuhl, “[t]he practical effect of this jurisprudence and of the destruction of the doctrine of employment at will is to inhibit employer action and to decrease labor mobility.”39 The article also appears to question some of the positive effects of anti-discrimination laws:

[I]f a member of a protected class is fired, and if the employer has no credible explanation for his treatment of the employee . . . a finder of fact may well conclude that the unexplained motivation is in reality an unlawful one (race, sex, age, etc.). . . Employers must act toward employees in the protected classes in such a way that they can explain the fairness of their actions toward the employee. If an employer cannot do so, he risks the expense of a lawsuit and statutory penalties.40

Most Americans would likely conclude that this is a good thing; Kuhl did not say that it is.

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