Senators’ concerns: As Senator Leahy observed (Kuhl Hearing, at 37), Kuhl was identified as one of a “band of young zealots” within the Department of Justice who were the architects of the Reagan Administration’s decision to reverse long-standing IRS policy that denied tax-exempt status to Bob Jones University and other racially discriminatory private schools.25 In particular, Kuhl and another Justice Department colleague wrote a 40-page memorandum to Assistant Attorney General William Bradford Reynolds strenuously arguing that the IRS should “reverse its position” in the case and “accord tax-exempt status” to Bob Jones.26 Reynolds accepted the memorandum and forwarded it to the Attorney General. The Department’s radical reversal of civil rights policy championed by Kuhl ignited a firestorm of criticism and was repudiated by the Supreme Court in an 8-1 ruling in the Bob Jones case. Senator Leahy asked Kuhl to address her role in this matter, specifically noting how much opposition there was in the Department at that time to the reversal of this civil rights policy. Kuhl Hearing, at 37.
Kuhl’s testimony: Kuhl testified that, for two reasons, “I regret having taken the position that I did in support of the government’s change of position. . . .” Kuhl Hearing, at 37. The first was that “I did not at that time understand the traditional role of the Justice Department, which is to defend the positions of the agencies as long as there is a reasonable argument that can be made in defense of those agencies. . . .” Id. at 39. (At this, an incredulous Senator Leahy stated, “But that is almost hornbook law. . . .You didn’t learn that in law school?” Id.) The second, according to Kuhl, was that the decision “did not properly put the nondiscrimination principle that should have been primary in this decision first.” Id.
The facts: As Senator Leahy suggested (id. at 41), this testimony appears to be a confirmation conversion. While Kuhl has previously indicated that she came to believe the government’s reversal of course in Bob Jones was wrong, she has never before, to our knowledge, stated the basis for that belief as one grounded in the importance of enforcing the civil rights laws and putting the principle of nondiscrimination first. To the contrary, both of the two public explanations that have previously been given for Kuhl’s asserted change of mind are grounded in political error, not concern about the primacy of the civil rights laws.
First, in June 2001, on the eve of the announcement of Kuhl’s nomination, she responded to a written question from Senator Boxer about Bob Jones by stating that she believed the government’s decision to reverse position in the Bob Jones case was wrong “in part because it appeared insensitive to minorities, regardless of the nondiscriminatory motives of those involved in the decision.”27 This is similar to an explanation given in January 2003 by former Solicitor General Charles Fried in support of Kuhl’s nomination. According to Fried, by 1985, “I knew she had come to believe (as did I) that she had been wrong, if for no other reason than seeming to side with Bob Jones confused the Reagan administration’s message that we were strongly committed to civil rights and racial equality while opposed to quotas.”28
At Kuhl’s confirmation hearing, Senator Kennedy, like Senator Leahy, also sought to learn whether Kuhl, prior to her nomination, had ever expressed the sort of substantive regret about her position in Bob Jones that she seemed to be stating at her hearing. Senator Kennedy quoted the foregoing statement by Fried and observed that, according to Fried, Kuhl had told him she had come to believe she was wrong on Bob Jones “politically because it sent the wrong message.” Kuhl Hearing, at 86 (emphasis added). Kuhl admitted that she and Fried did discuss the fact that “taking that position had really been a disaster for the Reagan administration, absolute disaster,” and that she did not know whether she had “expressed this to” Fried that they had “the wrong focus” and that “the policies of nondiscrimination should have come forward. . . .” Id.
The second reason given by Kuhl in her testimony on April 1 for her asserted “regret” about Bob Jones is that the government should have defended the IRS policy because a “reasonable argument” could have been made to support it. Kuhl Hearing at 39. Significantly, nowhere in the critical 40-page memorandum that Kuhl and Cooper wrote at the time does the memo even suggest the existence of a “reasonable argument” in defense of the IRS policy, let alone that the Department of Justice should defend it. To the contrary, the memorandum concludes by stating that “[f]rom the foregoing, it is clear that the Service’s interpretation of Section 501(c)(3) of the 1954 Code is at odds with the statute’s language and legislative history . . . .”29 It is also significant to note that under questioning from Senator Leahy, Kuhl stated that she could not think of any other case during her entire tenure in the Justice Department in which she had recommended that the government confess error in the Supreme Court except for Bob Jones. Kuhl Hearing, at 42.
At Kuhl’s hearing, Senator Hatch elicited from Kuhl the testimony that she had no “decision-making authority” at this time in the Justice Department. Id. at 15. This of course is beside the point, as Senator Kennedy noted. Id. at 83. The concern is not that Kuhl herself made the ultimate decision to reverse long-standing policy denying tax exemptions to Bob Jones University and other racially discriminatory private schools, but that she believed this was the right thing to do and played a major role in bringing about that disturbing decision.