Opposing Carolyn Kuhl's Confirmation

Endnotes

1. In 1998, the blue slip policy followed by Senator Hatch was made explicit on the blue slips themselves, which stated that "[n]o further proceedings on this nominee will be scheduled until both blue slips have been returned by the nominee's home state senators." For a more extensive discussion of the Judiciary Committee's "blue slip" policy, its importance in the "advise and consent" process, and recent efforts by Senator Hatch to change it, see "The Senate, the Courts, and the Blue Slip: Right-Wing Efforts to Change the Rules on Judicial Nominations Under the Bush Administration," People For the American Way Foundation (May 2001).

2. A copy of this letter is available from People For the American Way.

3. Ans. 17 to Judiciary Committee Questionnaire. In each of the ten cases that that Kuhl chose to identify in response to the Senate Judiciary Committee's questionnaire asking her to identify the "ten most significant litigated matters" that she has "personally handled," Kuhl represented large corporate interests. Virtually all of these cases involved Kuhl's defense of corporations against charges of wrongful conduct, such as sex discrimination in employment and false claims against the government. In none of the ten cases did Kuhl represent an individual seeking to vindicate his or her legal rights. Id., Ans. 18.

4. See Lincoln Caplan, The Tenth Justice, at 224 (1987).

5. Id. at 62. See also Nancy Blodgett, "Solicitor General: Has Office Been Politicized?", 72 ABA Journal 20 (May 1, 1986) ("there are five deputy S.G.s, including one White House-approved political position, currently held by Carolyn Kuhl").

6. Charles Fried, Order and Law: Arguing the Reagan Revolution - A Firsthand Account, at 16-17 (1991) (hereafter "Order and Law").

7. Kuhl's contributions to the Administration were later praised by Terry Eastland, who served as Director of Public Affairs for the Department of Justice during the Reagan Administration. In a 1988 article, Eastland singled out by name some of the "bright conservatives" within the Department, specifically including Kuhl, stating "No department in the administration had such a large number of able, committed young people, and none was as important in the administration-wide effort to implement the president's social and political philosophy." Terry Eastland, Policy Review, The Heritage Foundation, at 10 (Fall 1988) (emphasis added; LEXIS pagination).

8. See Charles Fried, Order and Law, at 33.

9. Order and Law, at 33 (1991).

10. Id. (emphasis added). The brief that Kuhl co-authored was also considered extraordinary at the time in asking the Court to overturn a constitutional ruling; according to contemporaneous press reports, "[n]ot since the government in 1954 successfully urged the Supreme Court to overrule its 1896 decision upholding 'separate but equal' schools has the Justice Department asked the justices to reverse themselves on a basic constitutional decision, officials said." "U.S. Wants Pro-Abortion Decision Overturned," Los Angeles Times (July 13, 1985).

11. In her answers to Senator Boxer's written questions in 2001, Kuhl tried to brush aside the Thornburgh brief by stating that President Reagan had repeatedly taken the position that Roe should be overruled, that the "Justice Department presented the views of the President" to the Court in that brief, and that she, "[a]s a lawyer for the President," had expressed the view that the Department "had an obligation to be honest with the Supreme Court with respect to the President's view of the law, rather than to seek to weaken Roe v. Wade without being candid with the Supreme Court about the administration's position on that constitutional question." See Letter from Carolyn B. Kuhl to Hon. Barbara Boxer (June 1, 2001) and attached written answers (hereafter "Kuhl's Answers to Sen. Boxer"), Ans. 1(b) at 2. Kuhl's response glosses over the fact that the government was not a party in Thornburgh and need not have filed any brief at all, as well as the fact that the case did not raise the issue of the correctness of Roe. Moreover, all of Kuhl's colleagues in the Department of Justice were the President's lawyers, yet by Charles Fried's own account, it was Kuhl who wrote, along with Richard Willard, the "most aggressive" memo on this subject.

12. Wallace, then Senior Deputy Solicitor General, was Acting Solicitor General on this case because Solicitor General Rex Lee had removed himself from the matter. The Tenth Justice, at 51.

13. Memorandum from Charles J. Cooper, Special Assistant to the Assistant Attorney General, and Carolyn B. Kuhl, Special Assistant to the Attorney General, to Wm. Bradford Reynolds, Assistant Attorney General, Civil Rights Division (Jan. 5, 1981 [sic; date is 1982]), at 2, 40, reprinted in "Administration's Change in Federal Policy Regarding the Tax Status of Racially Discriminatory Private Schools," Hearing before the Committee on Ways and Means, House of Representatives, 97th Cong., 2d Sess. (Feb. 4, 1982) (hereafter "Bob Jones Hearing"), at 549-88.

The Kuhl and Cooper memorandum also took the position that because Bob Jones University's racially discriminatory practices "stem from sincerely held religious beliefs," the denial of tax-exempt status to Bob Jones "raises serious questions under the Establishment and Free Exercise Clauses of the First Amendment." Bob Jones Hearing, at 588.

14. Memorandum from Wm. Bradford Reynolds, Assistant Attorney General, Civil Rights Division, to the Attorney General (Jan. 5, 1982), reprinted in Bob Jones Hearing, at 541-48.

15. Handwritten note from "Carolyn" to "Ken," on letterhead of the Special Assistant to the Attorney General (Dec. 8, 1981), reprinted in Bob Jones Hearing, at 424; see also id. at 419 (identifying Kuhl and Starr as the sender and recipient of the note, respectively). The portion of the 1980 Republican Party platform flagged by Kuhl included the statement that "[w]e will halt the unconstitutional regulatory vendetta launched by Mr. Carter's IRS Commissioner against independent schools." Id. at 425. (It should be noted that the IRS policy denying tax exemptions to racially discriminatory private schools was adopted by the Nixon Administration. See, e.g., Anthony Lewis, "Abroad at Home; The Court Says No," New York Times A27 (May 26, 1983).)

16. Wallace stated, "I can't remember another occasion during my [then] 14 years in office when we've changed position in a case after taking a position with the Supreme Court." The Tenth Justice, at 57. (The government's earlier brief in the Court responding to Bob Jones' request that the Court hear its appeal had defended the IRS policy denying tax exemptions to racially discriminatory private schools. See Brief for the United States on Petitions for Writs of Certiorari, Bob Jones University v. United States (Sept. 9, 1981).) Although Wallace, under pressure, signed the government's Supreme Court brief on the merits contending that the IRS had no authority to deny Bob Jones' tax-exempt status, he included an apparently unprecedented footnote making it clear that he did not personally subscribe to this position. Brief for the United States, Bob Jones University v. United States, n.* (Mar. 3, 1982); see also, The Tenth Justice, at 50, 58-59. In that footnote, Wallace also made it clear that he had prepared a draft brief for filing with the Court in January 1982 arguing that the IRS policy should be upheld. Brief for the United States, Bob Jones University v. United States, n.* (Mar. 3, 1982).

17. See, e.g., Charles R. Babcock, "Attorneys at Justice Sign Protest," The Washington Post, A1 (Feb. 3, 1982); Stuart Taylor, "200 in U.S. Agency Criticize Decision on Tax Exemptions," The New York Times, A1 (Feb. 3, 1982).

18. Id. According to the press, "[t]he staff of the Solicitor General's Office . . . was so opposed that the case was briefed by the Assistant Attorney General for Civil Rights, William Bradford Reynolds." Anthony Lewis, "Abroad at Home; The Court Says No," New York Times A27 (May 26, 1983).

19. And without dissent on this point, the Court also held that the denial of tax-exempt status to Bob Jones did not violate the school's religious liberty rights under the First Amendment, effectively repudiating another argument raised by the Kuhl and Cooper internal Department of Justice memorandum discussed above.

20. See Sen. Boxer's Question 3 to Carolyn Kuhl, quoted in Kuhl's Answers to Sen. Boxer (June 1, 2001).

21. Bob Jones Hearing, at 588.

22. Kuhl's Answers to Sen. Boxer, Ans. 3 at 5.

23. Kuhl's answer also stated that "Professor Laurence Tribe subsequently wrote the Attorney General a letter agreeing with the Justice Department's analysis of the issue of the effect of legislative inaction." Id. Professor Tribe, upon being informed of this invocation by Kuhl of his name in a manner that could suggest he was supportive of her position in Bob Jones and possibly of her confirmation, wrote a letter to Senator Boxer making it clear that neither conclusion is accurate. Letter of Professor Laurence H. Tribe to Hon. Barbara Boxer (Jan. 16, 2003). According to Professor Tribe, "To suggest that I ever shared those views is completely false. To be quite clear about the matter, my position on the substantive legal issue at stake in Bob Jones could hardly be further from Judge Kuhl's. On the contrary, I wrote and submitted an amicus brief with a colleague of mine at Harvard Law School, Professor Bernard Wolfman, in support of the view that the IRS position rested on an entirely lawful reading of the Internal Revenue Code. . . . I strongly disagree with the position [Kuhl] took in the Bob Jones matter when she was at Justice" and "I cannot be regarded as a supporter of her nomination." Id. at 1-2 (emphasis added).

24. Kuhl's Answers to Sen. Boxer, Ans. 3 at 5.

27. Bob Jones Hearing, at 588 (emphasis added).

28. Letter of Professor Laurence H. Tribe to Hon. Barbara Boxer (Jan. 16, 2003), at 2. In Kuhl's response to Sen. Boxer's question regarding the Bob Jones case (Answer 3 at 5), Kuhl volunteered that her commitment to "enforcement of the civil rights laws" is exemplified by the opinion she wrote in Iwekaogwu v. City of Los Angeles, 75 Cal. App. 4th 803 (1999). In that case, Kuhl, sitting by designation on the Court of Appeal, wrote a decision upholding a judgment in favor of an African American employee who had been unlawfully retaliated against by his employer when he complained that he had been subjected to employment discrimination on the basis of race and national origin. (The jury that found for the employee was not able to reach a decision as to whether he had actually been discriminated against. After the trial judge had reduced the jury's $775,000 award to $500,000, the employer appealed the judgment.) As recounted in Kuhl's decision, the facts presented a clear case of retaliation, and the Court of Appeal was unanimous in its ruling. The issues involved in this case were totally different from those presented in Bob Jones, and Kuhl's ruling in this clear-cut case of retaliation does not in any way change the fact that, in the Bob Jones matter, she urged that the IRS policy be reversed and a tax exemption given to a private school that practiced blatant race discrimination.

27. Brief for the Equal Employment Opportunity Commission, Local 28 of the Sheet Metal Workers' International Ass'n v. EEOC, at 6 (Dec. 9, 1985) (LEXIS pagination).

28. Id., at 16.

29. The plurality opinion also noted that the EEOC's challenge to the court-ordered membership goal was presented "from a rather curious position. . . The EEOC challenges the membership goal . . . even though the EEOC has, throughout this litigation, joined the other plaintiffs in asking the courts to order numerical goals, implementing ratios, and timetables." 478 U.S. at 445, n.24

30. A contemporaneous press report stated that the position taken in Kuhl's brief was "in line with the Reagan administration's continuing effort to persuade the Supreme Court to limit access to the federal courts in general." Elder Witt, "Record Number of Advisory Briefs: Reagan Crusade Before Court Unprecedented in Intensity," Congressional Quarterly Weekly Report (Mar. 15, 1986).

31. Brief of the Chamber of Commerce, et al. as Amici Curiae in Support of Petitioners, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America v. Brock, at 4 (March 1986).

32. Id. at 4.

33. See Brief for the Respondent In Opposition to Petition for Writ Of Certiorari, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America v. Brock, at 6 (Aug. 14, 1985) (LEXIS pagination).

34. As Fried put it: "A vast array of organizations, ranging from the Chamber of Commerce through the AMA to the NAACP, opposed our submission. It was rejected by the Court with no dissent." Order and Law, at 207, n.5

35. See Statement of Carolyn B. Kuhl, Deputy Assistant Attorney General, Civil Division, Before the Committee on the Judiciary, Subcommittee on Courts, Civil Liberties and the Administration of Justice, House of Representatives, Concerning the Reauthorization of the Equal Access to Justice Act - H.R. 5059 (Mar. 14, 1984).

36. Id. at 9. Later that year, "to the shock of the bill's congressional supporters," President Reagan vetoed legislation reauthorizing the Act that Congress had passed "without opposition." Fred Strasser, "U.S. Again Liable for Fees Under Equal Justice Act," The National Law Journal (Aug. 26, 1985). The following year, Congress and the Administration reached agreement on a new bill, and it was signed into law. Id.

37. See Statement of Carolyn B. Kuhl, Deputy Assistant Attorney General, Civil Division, Before the Committee on Veterans' Affairs, Subcommittee on Oversight and Investigation, United States House of Representatives, Concerning Judicial Review of Veterans' Claims (July 21, 1983).

38. Id. at 1.

39. Id. at 6 (emphasis added).

40. The facts are as recited by the California Court of Appeal in Sanchez-Scott v. Alza Pharmaceuticals, 86 Cal. App. 4th 365 (2001), and as set forth in the transcript of the oral argument before Judge Kuhl on the defendants' motion to dismiss the case. See Reporter's Transcript, Azucena Sanchez-Scott v. Alza Pharmaceuticals, No. BC 214585 (LA Superior Court, Oct. 12, 1999) (hereafter "Sanchez-Scott Transcript").

41. Sanchez-Scott Transcript, at 5.

42. Sanchez-Scott Transcript, at 5.

43. Id.

44. See 86 Cal. App. 4th at 369; Sanchez-Scott Transcript, at 10.

45. Sanchez-Scott Transcript, at 3.

46. In her response to the Senate Judiciary Committee's questionnaire, Judge Kuhl has identified her decision in this case as one of the "ten most significant opinions" she has written. (Ans. to Ques. 15.)

47. According to its brief, the American Academy of Medical Ethics at that time had 20,000 physician members "opposing abortion except to save the life of the mother." Brief of the American Academy of Medical Ethics as Amicus Curiae in Support of Respondent, Rust v. Sullivan (Sept. 7, 1990), 1989 U.S. Briefs 1391, at 1 (LEXIS pagination).

48. Brief of the American Academy of Medical Ethics as Amicus Curiae in Support of Respondent, Rust v. Sullivan, at 1 (LEXIS pagination; quoting Thornburgh, 476 U.S. at 814 (O'Connor, J., dissenting)).

49. United States v. Virginia, 518 U.S. 515, 519 (1996).

50. See Petition for Writ of Certiorari, Virginia Military Institute v. United States, United States Supreme Court, October Term 1992.

51. See Brief of Mary Baldwin College, et al., as Amici Curiae in Support of Petitioners, Virginia Military Institute v. United States, No. 92-1213 (Mar. 24, 1993).

52. Ironically, even though the issue of private schools was not before the courts, Kuhl's brief justified the alleged concern about private schools by reference to the Bob Jones decision -- which she had opposed -- claiming that "[t]he threat of a challenge to a private single-sex college's tax-exempt status is not an idle one." Brief of Mary Baldwin College, et al., as Amici Curiae in Support of Petitioners, Virginia Military Institute v. United States, No. 92-1213, at 18 (footnote omitted).

53. It appears that Kuhl's brief was circulated to various women's colleges for signing on. "Barbara A. Hill, president of Sweet Briar College, said the school was at first asked to sign a 20-page brief prepared by California lawyers Carolyn Kuhl and Andrea Gauthier. The college declined, Hill said. 'We did not like the framing of the issues in that one,' she said. Hill would not say what about the brief didn't sit well with the college." "VMI Case Makes Odd Bedfellows Women's Colleges Allies," Roanoke Times & World News (Apr. 11, 1993), 1993 WL 4411514.

54. See 508 U.S. 946 (1993).

55. Mary Baldwin College had filed an amicus curiae brief in support of VMI at this juncture as well, urging the Court to affirm the lower court rulings allowing VMI to continue to exclude women in light of the creation of VWIL at Mary Baldwin. See Brief of Mary Baldwin College as Amicus Curiae In Support of Respondents, United States v. Virginia (Dec. 15, 1995), 1994 U.S. Briefs 1941. Mary Baldwin's brief, co-signed by Richard K. Willard, was filed in December 1995, shortly after Kuhl was appointed to the bench. Kuhl's name does not appear on this brief, and we do not know whether, prior to becoming a judge, she had any role in its preparation as she did in Mary Baldwin's earlier brief in the case. Particularly given the troubling position on equal protection taken in this 1995 brief, the Judiciary Committee should question Judge Kuhl as to whether she had any role in preparing it and, if so, whether it reflects her own jurisprudential views of the Equal Protection Clause and the appropriate remedy in this case, including whether the Supreme Court should have ruled that VMI could continue to deny admission to women.

56. Carolyn Kuhl, Comment for BNA Special Report, in BNA Special Report on Affirmative Action Today: A Legal and Practical Analysis, 157-59, 158 (1986).

57. Id.

58. Carolyn Kuhl, "Employment at the Will of the Courts," in Law, Economics, & Civil Justice (1994), 185-89.

59. Id. at 188.

60. Id. at 187.

61. CA Code of Civil Procedure, § 425.16(a).

62. Id. §§425.16(b), (c).

63. Reporter's Transcript of Proceedings, Ashkenazy v. Liu, No. BC 149503 (LA Superior Court, Sept. 15, 1997).

64. Reporter's Transcript of Proceedings, Ashkenazy v. Liu, No. BC 149503 (LA Superior Court, Sept. 15, 1997), at 3.

65. Among other things, the Court of Appeal noted that the anti-SLAPP law requires fees to be awarded to a SLAPP-defendant whose motion to strike is granted, whereas the more general provision on sanctions merely gives the court discretion "as to what, if any, sanction it will impose on a litigant." 69 Cal. App. 4th at 751 (emphasis added).

66. Prior to becoming a judge, Kuhl had written favorably about "punitive damages reform" to restrict what she considered to be arbitrary and excessive punitive damages awards. See Carolyn Kuhl, "Punitive Damages Reform," in "The Future of Civil Punishment," 16 Whittier L. Rev. 971, 975-980 (1995). She also filed an amicus curiae brief on behalf of the Washington Legal Foundation in TXO Production Corp. v. Alliance Resources Corp., 509 U.S. 443 (1993), urging the Court to reverse a decision of the West Virginia Supreme Court upholding a jury's award of punitive damages in the amount of $10 million against TXO in a case involving slander of title committed by TXO in a bad faith effort to reduce its royalty payments on an oil and gas lease. Brief of the Washington Legal Foundation As Amicus Curiae in Support of Petitioner, TXO Production Corp. v. Alliance Resources Corp. (Jan. 22, 1993), 1992 U.S. Briefs 479. Kuhl's brief asserted that the punitive damages award "left 'too much to be decided' by the jury and reviewing court, and thus was more a product of whim than of objective and clear rules." Id. at 3 (LEXIS pagination; citation omitted.) In upholding the award, the West Virginia Supreme Court had noted the "reprehensibility" of TXO's conduct and stated that "[t]he type of fraudulent action intentionally taken by TXO in this case could potentially cause millions of dollars in damages to other victims." 509 U.S. at 453 (emphasis omitted). The U.S Supreme Court affirmed the award.

67. The facts are as recited in the Court of Appeal's decision and as set forth in the transcript of the oral argument before Judge Kuhl on the motion to dismiss the case. See Reporter's Transcript, Laird v. Spelling, No. BC 167193 (LA Superior Court, July 1, 1997).

68. Laird v. Spelling, No. B115918 (Cal. Ct. App., June 28, 1999), slip op. at 3.

69. Laird v. Spelling, No. B115918 (Cal. Ct. App., June 28, 1999), slip op. at 6.

70. Id. at 5 (citations omitted).

71. Id. at 6.

72. Id. at 7.

73. Id. at 8.

74. The facts are as recited in the Court of Appeal's decision and as set forth in the transcript of the oral argument before Judge Kuhl on the railroad's motion for a protective order and sanctions. See Reporter's Transcript, Truitt v. Atchison, Topeka & Santa Fe Railway Company, No. BC 165593 (LA Superior Court, July 10, 1997) (hereafter "Truitt Transcript").

75. Truitt Transcript, at 3.

76. Under the FCA, a person who brings a successful qui tam lawsuit is entitled to receive a certain specified percentage of the amount recovered for the government. See Kelly, 9 F.3d at 747.

77. The facts of this case are set forth in Judge Kuhl's responses to the Judiciary Committee's questionnaire (Ans. to Question 18) and in contemporaneous press reports.

78. Henry Weinstein, "Bid to Dismiss Whistle-Blower Case Against Litton Rejected," Los Angeles Times (Oct. 3, 1989).

79. Id.

80. In the Madden case, Kuhl filed an amicus curiae brief on behalf of Rockwell International Corp. and other government contractors. See 4 F.3d at 828-29.

81. As Judge Kuhl explained in her answers to the Judiciary Committee questionnaire (ans. 18), the Litton Industries case itself became moot after oral argument because the plaintiff had died.

82. It is worth noting that Judge Kuhl has listed the Litton Industries case as one of the "ten most significant litigated matters" that she personally handled. Answer to Question 18, Senate Judiciary Committee questionnaire.

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