Opposing Carolyn Kuhl's Confirmation

Kuhl’s record on access to justice

  • Seeking to curtail citizens’ access to the courts

    When she served 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. Associational standing is a well-recognized and important doctrine that permits organizations in certain circumstances to file lawsuits on behalf of their members, making it easier for them to vindicate their common legal rights and interests. Charles Fried, Solicitor General at the time, described this as part of the “Reagan Revolution’s” campaign against federal judicial rules and doctrines that were perceived to assist “left-liberal orthodoxies” in using the judiciary as “an engine for realizing their values.” Order and Law, at 16. Referring specifically to Kuhl’s advocacy in International Union, United Automobile, Aerospace and Agricultural Implement Workers of America v. Brock, 477 U.S. 274 (1986), Fried wrote: “my Deputy and Counselor, Carolyn Kuhl, launched a frontal attack on this trend. . . .” Order and Law, at 207, n.5. An indication of just how extreme Kuhl’s attack was is that, as discussed below, it was opposed by such groups as the Chamber of Commerce, the American Medical Association, and the Chemical Manufacturers Association — hardly bastions of “left-liberal orthodoxies.” 30

    Brock was a lawsuit filed by the UAW on behalf of its members challenging the Secretary of Labor’s interpretation of the eligibility provisions of the Trade Act of 1974, which provided benefits to workers laid off because of competition from imports. The union claimed that the Secretary’s interpretation of the law had resulted in the denial of Trade Act benefits to thousands of the union’s members.

    At issue before the Court was whether the union had standing in this particular case to sue on behalf of its members. In an opinion by Justice Thurgood Marshall, the Court observed that “it has long been settled that ‘[e]ven in the absence of injury to itself, an association may have standing solely as the representative of its members.’” 477 U.S. at 281 (internal citation omitted). Applying the three-part test used to determine whether associational standing is proper in a particular case, the Court, in a 5-4 ruling, held that the UAW had satisfied all prongs of the test.

    Kuhl’s brief had argued that none of the three prongs had been satisfied, even including the requirement that the interests that the union sought protect “are germane to the organization’s purpose.” 477 U.S. at 282. According to Kuhl’s brief, a union “is not an ombudsman for the economic interests of its members in government benefit programs.” Brief for the Respondent, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America v. Brock, at 11 (Feb. 10, 1986) (LEXIS pagination). The Court “pause[d] only briefly” to consider and reject that contention. 477 U.S. at 286. According to Justice Marshall, “there is little question that the interests that the UAW seeks to protect in this suit are ‘germane to the organization’s purpose.’ . . . The UAW’s Constitution announces that one of the Union’s goals is ‘to work for legislation on a national scale, having as its object the establishment of real social and unemployment insurance. . . In pursuit of that goal, the leadership of the UAW . . . lobbied hard for the establishment of the TRA benefit program.” Id.

    Significantly, Kuhl’s brief did not stop at arguing that the requirements for associational standing had not been met in that particular case. As an alternative argument, which the government had not made in the lower courts, the brief urged the Supreme Court to overturn the doctrine of associational standing altogether. According to the brief, “at least absent a showing of particularized need, an organization should not be allowed to bring suit to assert the individual rights of its members.” Rather, the brief claimed, a class action lawsuit should be the sole vehicle for the adjudication of group rights. Brief for the Respondent, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America v. Brock, at 14.

    So extraordinary was the government’s effort to overturn the settled doctrine of associational standing that it prompted opposition from a diverse coalition of major trade, professional and public interest organizations, including the Chamber of Commerce, the American Medical Association, the National Association of Manufacturers of the United States of America, the AFL-CIO, the NAACP, the Alliance for Justice, the Chemical Manufacturers Association, and the Sierra Club. These groups jointly filed an amicus curiae brief with the Court in which they stated that “[o]verturning the association standing doctrine will seriously impair the ability of [each of the groups] to perform its essential role of protecting the rights and interests of its members in federal court litigation.” 31 The brief criticized not only the government’s legal position but also its “litigating tactics” for raising such an important matter for the first time at this juncture in the case. As the groups’ brief stated:

    Without any previous hint of doubt about the petitioner union’s basic right as an association to have standing to represent its members’ interests, the federal government has asked this Court to hold as a matter of “policy” that the petitioner union should be denied standing to assert the rights of its members in federal court. It is particularly inappropriate for the federal government to raise an issue as fundamental and important as the validity of associational standing without submitting the issue to the adversarial process at any time prior to the Court’s grant of certiorari. Because the government’s litigating tactics on an issue of such national importance are not proper, the Court should simply refuse to entertain the Solicitor General’s suggestion, in this case.

    Id. at 5. Indeed, as the groups pointed out, 32 not only had the government not raised this argument in the lower courts or in its Supreme Court brief in opposition to the UAW’s certiorari petition, but also in that brief opposing certiorari — which does not bear Kuhl’s name — the government expressly recognized that the doctrine of associational standing is “well settled.” 33

    Without dissent on this point, the Court rejected the government’s effort to overturn associational standing, noting that the government’s “presentation has fallen far short of meeting the heavy burden of persuading us to abandon settled principles of associational standing.” 477 U.S. at 290. The Court then expressly reaffirmed those principles. Id. 34

  • Testifying against legislation to promote access to justice

    Kuhl also attempted to restrict access to justice in her 1984 congressional testimony as Deputy Assistant Attorney General in connection with the reauthorization of the Equal Access to Justice Act, which authorizes certain individuals and small businesses to recover attorney’s fees and expenses from the United States in certain administrative and judicial proceedings when they are successful in challenging unreasonable actions by the government. 35 Although Kuhl’s testimony supported reauthorization of the Act, she offered a number of amendments intended to cut back on the size of fee awards and otherwise constrict the law. And she specifically urged that the Act not be extended to proceedings before Boards of Contract Appeals and Social Security Administration proceedings, as proposed in a Senate bill. 36

    In congressional testimony given in 1983, Kuhl as Deputy Assistant Attorney General also strongly opposed proposals to create a new right of judicial review of administrative decisions concerning veterans’ benefits. 37 Kuhl stated, “[a]ppeal to the courts is not the only or the simplest way to ensure justice. Rather, a carefully designed administrative system can preserve and protect all the rights provided by law to our veterans.” 38 According to Kuhl, “we must consider whether the proposal to create judicial review of veterans’ benefits determinations will somehow enhance the justice accorded veterans. It is our view that this will not happen. The federal courts are not the enchanted land where all wrongs will be made right.” 39 Nonetheless, in 1988, Congress passed, and President Reagan signed into law, the Veterans’ Judicial Review Act, which provided for judicial review of veterans’ claims in a newly created United States Court of Veterans Appeals (now the U.S. Court of Appeals for Veterans Claims).

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