President Bush’s nomination of Los Angeles Superior Court Judge Carolyn Kuhl to the United States Court of Appeals for the Ninth Circuit has generated significant controversy, concern, and opposition. As reflected in this report, throughout her legal career and in landmark cases dealing with such issues as reproductive freedom and privacy, sexual harassment, civil rights, and access to justice, Kuhl has followed a legal philosophy harmful to the rights and interests of ordinary Americans.
For example, as an official in the Reagan Administration’s Justice Department, Kuhl aggressively pressed the Department to urge the Supreme Court to overturn Roe v. Wade. Kuhl also pushed the Administration to reverse long-standing IRS policy that denied tax-exempt status to Bob Jones University and other private schools that practice race discrimination. And in an effort to restrict access to the federal courts, Kuhl urged the Supreme Court to overrule settled doctrine allowing associations to file lawsuits on behalf of their members in order to vindicate their legal rights. Each of these extreme positions was firmly rejected by the Supreme Court.
Kuhl’s record after leaving the Reagan Administration has continued to raise similar troubling concerns. In particular, as a state trial court judge, Kuhl has been unanimously reversed by the California Court of Appeal for a number of rulings harmful to the legal rights of individuals, including a ruling that ignored the privacy rights of a woman with breast cancer whose doctor had brought a drug company salesman into the examining room where he witnessed an intimate examination, and a decision that would have nullified an important provision of state law protecting the rights of whistleblowers.
Senator Barbara Boxer of California, as one of Kuhl’s home-state senators, has received significant letters of concern about and opposition to Kuhl’s nomination, as well as letters of support. Senator Boxer has therefore met with Kuhl and reviewed her record, including Kuhl’s answers to written questions, and has concluded that Kuhl should not be confirmed. According to Senator Boxer,
[A]fter careful review of [Kuhl’s] record, I concluded that she was out of the mainstream and not representative of the values shared by most Californians on such matters as women’s rights, civil rights, defense of tobacco companies, privacy rights, [and] whistleblower protection . . . .
Hon. Barbara Boxer, The Recorder (Nov. 11, 2002). Senator Boxer has not returned her “blue slip” regarding the Kuhl nomination, indicating her opposition and her concern that meaningful consultation has not occurred. Despite Senator Boxer’s position, and despite the fact that Senator Orrin Hatch never proceeded on a judicial nominee when he chaired the Judiciary Committee during six years of the Clinton Administration if either home-state senator had not returned the blue slip, Senator Hatch has gone forward with Kuhl’s nomination. (Ashkenazy v. Liu, No. BC 149503).
People For the American Way has accordingly reviewed Carolyn Kuhl’s record, and we share the conclusion that Kuhl should not be confirmed. Our review of Kuhl’s record has been guided by the important criteria for confirmation to the federal bench suggested by more than 200 law professors in a letter to the Senate Judiciary Committee in July 2001. As these professors explained, no federal judicial nominee is presumptively entitled to confirmation. Because federal judicial appointments are for life and significantly affect the rights of all Americans, and because of the Senate’s co-equal role with the President in the confirmation process, nominees must demonstrate that they meet the appropriate criteria. These criteria include a “commitment to protecting the rights of ordinary Americans and [not placing] the interests of the powerful over those of individual citizens,” and a “record of commitment to the progress made on civil rights, women’s rights and individual liberties.” (Ashkenazy v. Liu, No. BC 149503).
Our review of Kuhl’s record includes her years as a Department of Justice official in the Reagan Administration as well as her record in private practice and as a state court judge. Because the decisions of the Los Angeles Superior Court are not officially reported or published, most of Judge Kuhl’s record as a judge is simply not available for scrutiny. Although many of the cases that Judge Kuhl hears as a judge on a state trial level court of general jurisdiction are commercial and other lawsuits, a number of the relatively few rulings by Judge Kuhl that are available are quite troubling, as discussed below. Based on our review of Judge Kuhl’s record, and as more fully detailed in this report, we believe that Judge Kuhl does not satisfy the important criteria for confirmation that should be demanded of a federal appellate court nominee.
Because the Supreme Court hears so few cases, the federal courts of appeal are in reality the courts of last resort for most Americans, and crucial to preserving and protecting the rights, liberties, and interests that Americans hold dear. Our review has concluded that the Kuhl nomination is unfortunately part of the Administration’s goal of packing the federal courts of appeal with right-wing judges whose legal philosophies are out of the mainstream and who will turn back the clock on rights and interests critical to ordinary Americans. During her legal career, Kuhl has already tried to turn back that clock. As explained below, a lifetime appointment to the federal appellate bench would place her in an even more powerful position to jeopardize Americans’ rights for decades to come.
Carolyn Kuhl’s Background
Carolyn Kuhl was appointed to the Los Angeles County Superior Court in 1995 by Governor Pete Wilson. Prior to becoming a judge, Kuhl, a member of the Federalist Society, was in private practice with the Los Angeles law firm of Munger, Tolles & Olson. Kuhl has described her private practice as representing “business entities in commercial or employment disputes or disputes with the government. Typical clients included Northrop Corporation, Litton Industries, Boeing, Rockwell International, Warner Bros., Shell Oil Co. and Unocal.” (Ashkenazy v. Liu, No. BC 149503).
Kuhl interrupted her private practice from 1981-1986 in order to join the Reagan Administration, first as Special Assistant to Attorney General William French Smith, later serving as Deputy Assistant Attorney General in the Civil Division of the Department of Justice, and then as Deputy Solicitor General. Among the five Deputies in the Solicitor General’s Office, Kuhl held the position of “political” Deputy,(Ashkenazy v. Liu, No. BC 149503). a position that had been created earlier in the Reagan Administration so that, if the Solicitor General “had to remove himself from a case . . . he could defer to a manager whom the Administration trusted.”(Ashkenazy v. Liu, No. BC 149503). As discussed in more detail below, in these positions Kuhl was able personally to influence — and did influence — significant and extreme legal decisions and positions taken by the Reagan Administration, including its efforts to try to overturn Roe v. Wade, its decision to reverse long-standing policy that had denied tax exemptions to Bob Jones University and other private schools that practice race discrimination, and its efforts to restrict access to the federal courts.