Senators' concerns: As Deputy Solicitor General, Kuhl asked the Supreme Court to overturn the well-settled doctrine of associational standing, an argument the government had not made previously in the case. According to her own supervisor at the time, former Solicitor General Charles Fried, it was Kuhl who launched this "frontal attack." The move prompted such organizations as the Chamber of Commerce and the AMA to oppose Kuhl's extremist position, criticizing not only the government's legal argument but also its "litigating tactics" for raising such an important matter for the first time at this juncture. The Court rejected Kuhl's argument without dissent.
Kuhl's testimony: At her hearing on April 1, although Kuhl acknowledged that she had argued the case in the Supreme Court, she denied that her name was on the government's brief, asserted that the government's legal position had been set without her involvement, and that she was merely defending "a winning argument in the court below."
The facts: Kuhl's testimony that her name was not on the brief was flatly incorrect, as she later acknowledged when Senator Leahy pointed this out to her in written questions; Kuhl admitted that she had co-authored the brief. Her testimony was also incorrect as to the decision of the court below, which held that the UAW did not have standing in this particular case, not that the doctrine of associational standing should be overturned. Prior to Kuhl's involvement in the case, the government had in fact filed a brief in the Supreme Court describing the doctrine of associational standing as "well settled." Kuhl failed to justify her extreme position.
Senators' concerns: In a unanimous ruling strongly critical of Judge Kuhl in Liu v. Moore, the California Court of Appeal reversed Kuhl's ruling that prevented a whistleblower from getting monetary relief under California's anti-SLAPP law, explaining that Kuhl's decision was an improper "nullification of an important part of California's anti-SLAPP legislation."
Kuhl's testimony: Kuhl claimed that the issue before her was one of first impression and that she had "struggled a good bit" with whether she had jurisdiction to consider Ms. Moore's claim for compensation.
The facts: In its sharply worded, unanimous decision reversing Kuhl's ruling, the Court of Appeal "struggled" not at all with the issue of jurisdiction, disposing of it in a footnote.
Senators' concerns: In private practice, Kuhl had urged the federal courts to strike down the qui tam provisions of federal law that allow private citizens to file suit to combat fraud against the federal government. The courts rejected these arguments and upheld the law. After Kuhl's hearing, additional information about Kuhl's efforts in this regard emerged from questions posed by Senators Grassley and Schumer. Kuhl had attached to a brief she filed in 1993 with the Ninth Circuit arguing the unconstitutionality of the qui tam provisions a copy of a memo written four years earlier by the Justice Department's Office of Legal Counsel, stating that OLC believed the qui tam provisions to be unconstitutional. Kuhl told the court that the memo had recently been "released for publication" by the Justice Department, but did not affirmatively tell the court that it did not represent an official position of the Department. In light of this, Senator Schumer asked Kuhl whether she had fulfilled her ethical obligation "to be candid with the court."
Kuhl's testimony and the facts: Kuhl replied that she did not believe that "reference to the position of the Office of Legal Counsel was misleading to the court." Apparently, the Justice Department disagreed, for it wrote a letter to the court stating that it had learned that the OLC memo had been submitted to the court and was writing "to make clear to the Court" that the OLC memo "was never adopted by the Attorney General, and does not represent the position of the United States."