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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.


Doug Kendall
Executive Director
Community Rights Counsel

William J. Snape III
Vice President and Chief Counsel
Defenders of Wildlife

Vawter Parker
Executive Director

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

Brian Baenig
Legislative Director
Environment and Health Program
Physicians for Social Responsibility

CC: Members, Senate Committee on the Judiciary


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