The Senate Judiciary Committee will vote tomorrow on whether to recommend Carolyn Kuhl for a lifetime seat on the US Court of Appeals for the Ninth Circuit, which decides the fate of federal environmental and other safeguards in nine Western and Pacific states. Earthjustice — the nation’s largest non-profit environmental law firm — and 13 other national environmental groups have formally opposed Kuhl’s nomination. This opposition is based upon her record as both an advocate and a judge, which demonstrates hostility to public rights and access to the courts. It is also based on her admittedly inaccurate Judiciary Committee testimony, and her misleading responses to written questions from Senators.
“Protecting our air, water, and natural resources has always depended heavily on citizen action,” said Glenn Sugameli, senior legislative counsel for Earthjustice. “Ms. Kuhl’s record indicates that she would stand in the way of environmental protection by seeking to limit the public’s access to the courts.”
In a letter to the Senate, the groups highlight Reagan Solicitor General Charles Fried’s description of how his deputy, Carolyn Kuhl, “launched” a “frontal attack” on associational standing. This doctrine gives environmental and other public interest groups access to court on behalf of their members to uphold and enforce health, safety, and environmental protection laws. Ms. Kuhl became involved in a key case after the government had told the Supreme Court that this doctrine as “well settled.” She drastically altered the government’s position and filed a brief unsuccessfully urging the Supreme Court to overturn this well-settled precedent in order to virtually eliminate associational standing. Even after Judge Kuhl admitted that her testimony inaccurately denied that her name was on this brief, she proceeded to give misleading answers to Senators’ written questions from Senators about her extreme role in this case.
“The Senate has confirmed well over 100 of the Bush administration’s lifetime nominees to federal courts without opposition from environmental or other groups. We had to oppose Carolyn Kuhl, however, because of her particularly egregious anti-environmental record,” said Sugameli. “Those concerns are aggravated by her attempts to mask how she tried to slam the courthouse doors in the face of the public by launching a frontal assault on well-settled precedent that gives the public access to courts.”
Environmentalists are also concerned by Kuhl’s role as a state judge in seeking to nullify an important part of the California law that protects the public from strategic lawsuits against public participation or SLAPP suits. Anti-SLAPP suit laws protect individuals who speak out about pollution and other issues from the intimidation and costs of being sued by the polluter, by requiring the polluter to pay attorney fees and costs of anyone it improperly sues. According to Earthjustice’s letter, “anti-SLAPP laws are critical to the enforcement of environmental, civil rights, and other fundamental constitutional and legal safeguards.”
The letter from the environmental groups to the Senate Judiciary Committee will be available at:
Judging the Environment