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March 31, 2003
The Honorable Barbara Boxer
United States Senate
112 Hart Office Building
Washington, D.C. 20510
The Honorable Dianne Feinstein
United States Senate
331 Hart Office Building
Washington, D.C. 20510
The Honorable Orrin Hatch
Chairman, Committee on the Judiciary
United States Senate
104 Hart Office Building
Washington, D.C. 20510
The Honorable Patrick Leahy
Ranking Member, Committee on the Judiciary
United States Senate
224 Dirksen Office Building
Washington, D.C. 20510
Re: Serious Concerns with the Lifetime Ninth Circuit Nomination
of Judge Carolyn Kuhl
Dear Senators:
We are writing to express our very serious concerns with
California state trial Judge Carolyn B. Kuhl's nomination
to a lifetime position on the United States Court of Appeals
for the Ninth Circuit, which decides the fate of federal environmental
and other safeguards in nine Western and Pacific states. Based
upon her record, we are concerned that, if confirmed by the
Senate, she would unjustifiably seek to limit citizen access
to the courts and bring extreme, anti-environmental viewpoints
to this vital court.
In briefing and arguing UAW v. Brock, 477 U.S. 274
(1986), for the Reagan Administration, Ms. Kuhl specifically
urged the Supreme Court to overrule its prior decisions that
established the doctrine of associational or representative
standing. This doctrine is the legal basis that allows environmental
groups to represent the interests of their members who are
injured by illegal pollution, or who wish to help defend basic
safeguards against challenges by big business. Associational
standing allows access to courts by environmental and other
groups. This enables them to help uphold and enforce laws
that protect the health and safety and other rights of all
Americans, including a wide range of environmental safeguards
for clean air, clean water, wetlands, and endangered species.
In Order and Law, a book recounting his tenure as
President Reagan's Solicitor General, Charles Fried attacked
procedural rules that "allow for the role of progressive-minded
lawyers and legal organizations as the moving parties of ...
radical social changes" and recalled, "my Deputy
and Counselor, Carolyn Kuhl, launched a frontal attack on
this trend. . . ." Charles Fried, Order and Law: Arguing
the Reagan Revolution -- A Firsthand Account 17-18 &
n.5. Fortunately, as Fried also notes, Ms. Kuhl's argument
for overruling established Supreme Court precedent that provided
for associational standing was opposed by "a vast array
of organizations," including the Chamber of Commerce,
and "rejected by the Court with no dissent." In
particular, Ms. Kuhl argued that "representative standing
by an association should generally not be recognized,"
and urged the Court to adopt a radical new rule that groups
could only sue under the class-action rules. Brief for Respondent
at § I.B (Feb. 10, 1986). Because it is difficult, expensive,
and time-consuming to comply with class-action requirements,
far fewer public interest lawsuits would be possible if the
Court had accepted Ms. Kuhl's arguments. The apparent intent,
and certainly the result, of her arguments would have been
to chill a wide range of vital public interest litigation.
The Supreme Court soundly rejected Ms. Kuhl's standing arguments
because they fell "far short of meeting the heavy burden
of persuading [the Court] to abandon settled principles of
associational standing." 477 U.S. at 290. No Justice
endorsed her radical and unsupported arguments. Of course,
if Judge Kuhl were confirmed to the Ninth Circuit, she would
be in a position not only to argue for severely limiting public
access to the courts, but to impose extreme limitations.
Ms. Kuhl continued her attack on public access to the courts
as a private sector advocate. In United States ex rel.
Madden v. General Dynamics Corp., 4 F.3d 827 (9th Cir.
1993), Ms. Kuhl challenged the constitutionality of the False
Claims Act's qui tam provisions, which allow private
parties to sue to enforce federal law against corporate wrongdoers.
Brief of Amici Electronic Indus. Ass'n et al. (Oct. 22, 1992).
Kuhl's position in the Madden brief that qui tam
plaintiffs lack Article III standing has been resoundingly
rejected by the courts. In Vermont Agency of Natural Resources
v. United States ex rel. Stevens, 120 S. Ct. 1858 (2000),
Justice Scalia, the Court's most extreme advocate of limiting
standing, detailed the extensive history of qui tam
suits dating back to 13th century England. This long tradition
of qui tam actions, he wrote "leaves no room for
doubt" that a qui tam plaintiff has Article III
standing. Ms. Kuhl's position would have eliminated the ability
of private citizens to bring these important "whistleblower
lawsuits" before the courts.
Ms. Kuhl also specifically promoted extreme anti-environmental
protection arguments in a number of other cases. One example
is Fairchild Semiconductor Corp. v. U.S. EPA, 984 F.2d
283 (9th Cir. 1993), where she challenged the constitutionality
of EPA's imposition of cleanup standards under the Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA).
As a judge, Ms. Kuhl's record reveals other reasons to believe
that she would use her position as a Ninth Circuit judge to
restrict citizen access to the courts, as she has continued
to take extreme positions that are friendly to corporate defendants
and hostile to citizen litigants and whistleblowers. For instance,
a serious obstacle to enforcing environmental laws is the
possibility that a polluter will retaliate against a citizen
by filing a strategic lawsuit against public participation
("SLAPP"). Like standing rules, anti-SLAPP laws
are critical to the enforcement of environmental, civil rights,
and other fundamental constitutional and legal safeguards.
In Moore v. Liu, 69 Cal.App.4th 745 (1999), a California
appeals court unanimously reversed a decision by Judge Kuhl
that would have made it easier for corporations to attack
citizens who attempt to hold them accountable. Industry SLAPP
lawsuits are designed, as the appeals court recognized, to
intimidate individuals who speak out about pollution and other
issues, "chill[ing] the valid exercise of the constitutional
rights of freedom of speech and petition for the redress of
grievances." The appeals court found that Judge Kuhl's
decision "constitute[d] a nullification of an important
part of California's anti-SLAPP legislation;" and ruled
that Judge Kuhl's decision "would prolong both the [SLAPP]
defendant's predicament and the plaintiff's outrageous behavior."
Id. at 750.
Ms. Kuhl's attack on the doctrine of associational standing,
her judicial ruling that would have nullified an important
part of California's anti-SLAPP legislation, and her public
advocacy, are at odds with the vital public interest served
by citizen environmental enforcement. Because she appears
to hold extreme views on critically important issues, we have
very serious concerns with her nomination to the United States
Court of Appeals for the Ninth Circuit. We urge you to scrutinize
her nomination with exceedingly great care.
Thank you considering these important environmental concerns
with Judge Kuhl's record and for taking seriously your Constitutional
advise and consent responsibility.
Sincerely,
Doug Kendall
Executive Director
Community Rights Counsel
William J. Snape III
Vice President and Chief Counsel
Defenders of Wildlife
Vawter Parker
Executive Director
Earthjustice
Brock Evans
Executive Director
Endangered Species Coalition
Sara Zdeb
Legislative Director
Friends of the Earth
Lexi Shultz
Legislative Director
Mineral Policy Center
William Butler
General Counsel
Oceana
Brian Baenig
Legislative Director
Environment and Health Program
Physicians for Social Responsibility
CC: Members, Senate Committee on the Judiciary
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