Carolyn Kuhl’s career, during the Reagan Administration and afterwards, has been marked by efforts to push the law far to the right on key issues such as reproductive choice and privacy, civil rights, and access to justice, efforts that the Supreme Court has rejected in a number of cases. In addition, particularly as reflected in Kuhl’s advocacy in both Brock and Thornburgh in which she urged the Supreme Court to overturn settled law, Kuhl has exhibited a troubling attitude about stare decisis and a disturbing willingness to overrule precedent.
Based on the performance of previous nominees, it is likely that at Kuhl’s confirmation hearing, despite her record, Kuhl will promise to follow Supreme Court precedent, even when it conflicts with her own interpretation of the Constitution and her jurisprudential views. Despite her advocacy in Thornburgh, for example, it is likely that Kuhl will promise to follow Roe v. Wade as binding precedent. But this rote pledge to follow precedent made by all judicial nominees is insufficient, particularly in the case of a nominee who has the type of record that Kuhl has when it comes to precedent. Kuhl has demonstrated a willingness to push the law, and a legal philosophy that does not respect precedent. And as to Roe v. Wade specifically, whatever Kuhl may pledge now, she has previously made it clear that this is not a precedent to be followed.
Moreover, in most cases, judges have substantial room in which to maneuver around precedent, particularly when they already have a jurisprudential view that does not respect it. Most cases are not factual or legal clones of prior precedent; if they were, the process of judging would be simple and predictable. In fact, that process is complex and often requires subtle and nuanced interpretations of precedent, statutes, and the Constitution. For example, if confirmed to the Ninth Circuit, Judge Kuhl might well hear a case involving a law that attempts to chip away incrementally at the right to reproductive freedom by placing particular burdens on the exercise of that right, a case in which Roe v. Wade provides guidance but not the final answer. In such a case, no one can seriously doubt that Kuhl’s view of Roe as “so far flawed” that it should be overruled would influence her ruling.
The federal Courts of Appeal play a critical role in our judicial system, second in importance only to the Supreme Court. Because the Supreme Court hears so few cases, the Courts of Appeal really are the courts of last resort for most Americans, giving a federal appellate judge considerable power to impose his or her own jurisprudential views in a particular case. And particularly because the Supreme Court hears so few cases, the protection of civil and constitutional rights by the judiciary depends in large measure on the appellate courts. Carolyn Kuhl’s record as documented in this report does not support elevating her to a lifetime position on the Ninth Circuit. Far from meeting the burden of demonstrating a record of commitment to “protecting the rights of ordinary Americans” and to “the progress made on civil rights, women’s rights and individual liberties,” Kuhl has tried to turn back the clock on these significant matters. The Senate Judiciary Committee should reject Carolyn Kuhl’s confirmation.