In several areas, Kuhl has tried to downplay the significance of her actions as a Justice Department official in the Reagan administration, asserting that she was merely representing a client, namely President Reagan. In fact, however, in several of these areas Kuhl was an active advocate for pushing the administration to take the most aggressive stance possible.
Although she refused to answer senators’ questions about her view on whether Roe v. Wade was correctly decided, Kuhl was the co-author of the “most aggressive” internal Justice Department memo urging Acting Solicitor General Charles Fried to use the Thornburgh case to call for outright reversal of Roe. Kuhl then co-authored the brief arguing that Roe was “so far flawed that this Court should overrule it....”
With respect to the infamous case involving tax-exempt status for the racially discriminatory Bob Jones University, Kuhl appears to have had a classic “confirmation conversion.” As a Justice Department attorney, Kuhl and a colleague wrote a 40-page memorandum urging that the IRS should “reverse its position” and “accord tax-exempt status” to Bob Jones University. When the Attorney General took Kuhl’s advice, the resulting reversal in civil rights policy ignited a firestorm of criticism and was repudiated by the Supreme Court in an 8–1 ruling.
At her confirmation hearing, Kuhl testified that she now believes she was wrong about Bob Jones for two reasons: that the Justice Department should have supported the IRS as long as its position was legally defensible, and that the decision to reverse policy “did not properly put the nondiscrimination principle that should have been primary in this decision first.” It appears that it was not until Kuhl’s appeals court nomination that she expressed a belief that the nation’s civil rights laws and the principle of nondiscrimination should have applied first in this case. Previous public explanations for Kuhl’s asserted change of mind have been grounded in the bad public relations and political fallout that the decision caused the Reagan administration.
In some areas Kuhl stubbornly avoided answering senators’ questions. For example, in an article Kuhl wrote while in private practice, she said she considered affirmative action to be “a divisive societal manipulation;” Kuhl did not directly answer a question from Sen. Durbin on whether she has changed her position, or a similar written question from Sen. Kennedy.