Senators’ concerns: According to then-Solicitor General Charles Fried, Kuhl and a Justice Department colleague had given him “the most aggressive memo” from within the Department urging that the government file an amicus curiae brief in the Thornburgh case calling for “outright reversal of Roe.” The brief that Kuhl then co-authored contended that Roe was “so far flawed that this Court should overrule it and return the law to the condition in which it was before that case was decided.” The Court rejected Kuhl’s arguments and re-affirmed Roe.
Kuhl’s testimony: Kuhl refused to answer questions as to whether she believes that Roe was wrongly decided. She testified that she was merely a lawyer representing a client in this case, President Reagan.
The facts: All of the other Justice Department attorneys who worked on the issue were also representing the same client, but it was Kuhl who was “the most aggressive” in pressing to have Roe overturned, clearly going beyond the obligations of a government attorney.
Senators’ concerns: In private practice, Kuhl filed an amicus curiae brief in Rust v. Sullivan on behalf of an anti-choice group in support of the federal “gag rule” that prohibited family clinics getting federal aid from discussion abortion with patients. Although Kuhl’s brief primarily addressed First Amendment issues, she began the brief with a free standing quotation that attacked the Court’s decisions upholding a women’s right to choose abortion as causing a “major distortion in the Court’s constitutional jurisprudence.” Referring to this brief, Senator Feinstein asked Kuhl whether it was fair to say that at the time Kuhl wrote it she was “still a critic of the Supreme Court’s jurisprudence on abortion?”
Kuhl’s testimony: Kuhl again deflected efforts to learn her jurisprudential views of the Court’s abortion decisions, stating that her brief in Rust v. Sullivan was written “on behalf of a client” and also that it “primarily addresses the First Amendment issue there. . .”
The facts: Kuhl was correct in her overall description of her brief, which makes the free standing quote with which she began the brief all the more indicative of her disagreement with the Court’s decisions protecting a woman’s reproductive freedom. Indeed, Kuhl never actually answered Senator Feinstein’s question or explained why she began a brief about a First Amendment issue with a free standing quote attacking the Court’s abortion decisions.
Senators’ concerns: As Deputy Solicitor General, Kuhl co-authored an amicus curiae brief for the United States and the EEOC in the Supreme Court supporting the employer in this landmark sexual harassment case. In an opinion by then-Justice Rehnquist, the Court ruled unanimously for the employee. The position that Kuhl took, had it been adopted by the Court, would have made it more difficult for women to prove sexual harassment in the workplace.
Kuhl’s testimony: Kuhl testified that the Court’s position “closely tracked” her brief and described the discrepancy between the Court’s ruling for Ms. Vinson and her brief urging a decision in favor of the employer as based on a “technical issue” on which Kuhl and the Court disagreed.
The facts: Kuhl’s testimony was utterly disingenuous. Not only had the Court rejected her argument that it should rule for the employer, but it flatly rejected as too narrow the definitional standard of proof of sexual harassment that she had urged, a standard under which a woman would virtually have had to have been raped in order to prove that workplace sexual conduct was unwelcome.
Senators’ concerns: While in private practice, Kuhl filed an amicus curiae brief in the Supreme Court on behalf of three private women’s colleges in support of VMI’s cert. petition, in which VMI sought reversal of the appellate ruling that its exclusion of women violated the Equal Protection Clause.
Kuhl’s testimony: Kuhl testified that her brief did not support the constitutionality of VMI but was narrowly focused on the importance of women’s colleges.
The facts: Kuhl’s brief was filed as part of VMI’s campaign to enlist women’s colleges in its efforts to remain a public institution yet continue to exclude women; Kuhl admitted that the colleges that signed her brief had been referred to her through VMI’s counsel. If Kuhl had been concerned that her brief “in support of” VMI’s cert. petition not imply support for VMI, Kuhl could easily have stated in her brief that the women’s colleges took no position on the constitutionality of VMI’s exclusion of women, but she failed to do so.
Senators’ concerns: Kuhl dismissed invasion of privacy claims asserted by Azucena Sanchez-Scott, a breast cancer survivor, whose doctor had brought a male drug company salesman into the exam room without disclosing who he was. The man then witnessed an intimate examination of Ms. Sanchez-Scott during which she was half naked. Kuhl held that there was no invasion of privacy as a matter of law because Ms. Sanchez-Scott had not objected to the man’s presence. The Court of Appeal unanimously reversed Kuhl.
Although Kuhl denied this at her hearing, Kuhl has now admitted that she did in fact dismiss invasion of privacy claims against the doctor: Kuhl testified that Ms. Sanchez-Scott had not asserted invasion of privacy claims against the doctor and that she had not dismissed any such claims against him. This testimony was flatly incorrect, as Kuhl admitted a month after her hearing in a letter to Senator Hatch. Had Kuhl’s ruling not been reversed, all of the wrongdoers, including the doctor, would have escaped liability for the invasion of privacy.
Kuhl created the misimpression that she had affirmatively “allowed” a claim against the doctor to go forward: Kuhl testified that she had “allowed” a separate claim against the doctor for professional negligence to go forward, when in fact that claim was not the subject of the motion to dismiss and Kuhl had no choice as to whether it proceeded. It was therefore misleading for Kuhl to testify that she had “allowed” that claim to proceed in the sense that Kuhl had some choice or that she had affirmatively ruled in favor of Ms. Sanchez-Scott. Moreover, Kuhl neglected to mention that the other claim was stayed pending the appeal of her dismissal of the privacy claims.
Kuhl’s testimony as to why she did not follow relevant precedent conflicts with her ruling: Kuhl testified that California law was unclear and that what was cited to her by Ms. Sanchez-Scott was a Michigan Supreme Court case. This testimony conflicted with her ruling, in which Kuhl acknowledged that the Michigan case had already been recognized by the California Supreme Court. Kuhl’s ruling made clear that her “problem” at the time with the Michigan case was not that it was from Michigan, but that she considered it distinguishable. The Court of Appeal did not, and cited it in its unanimous decision reversing Kuhl.
Kuhl’s misplaced reliance on a letter from Justice Paul Turner: At Kuhl’s hearing and in a letter to Senator Specter, Kuhl cited a letter favorable to her sent to the Judiciary Committee by Justice Paul Turner, the author of the Court of Appeal’s decision that unanimously reversed her dismissal of Ms. Sanchez-Scott’s invasion of privacy claim. Turner’s letter states that Kuhl had “concluded” that the drug company’s “mentorship program,” which put its salesman in the exam room, “was a sufficient justification” for allowing him to be present during the exam, and that a “strong argument can be made” that Kuhl had “correctly assessed the competing societal interests” required to be weighed in order to determine whether there had been an invasion of privacy. This statement has no basis whatsoever in Kuhl’s ruling or that of Justice Turner for the Court of Appeal, neither of which identified let alone “assessed” any interest competing with Ms. Sanchez-Scott’s privacy claim. Kuhl’s ruling was based entirely on Ms. Sanchez-Scott’s failure to ask why the man was there or object to his presence; as far as Kuhl was concerned, he could have been a janitor in a white lab coat. Although Justice Turner understandably now wants to assist a judicial colleague in her quest for a lifetime federal judgeship, his opinion reversing Kuhl’s ruling in Sanchez-Scott remains the best evidence of his and the Court of Appeal’s view of the law and of Kuhl’s unjustifiable dismissal of Ms. Sanchez-Scott’s privacy claim.