Carolyn Kuhl’s Hearing Strengthened the Case Against Her Confirmation

Trying to overturn Roe v. Wade

Senators’ concerns: When Kuhl served as Deputy Assistant Attorney General, she specifically urged that the Department of Justice seek to have the Supreme Court overturn Roe v. Wade. According to Charles Fried, Acting Solicitor General at the time, Kuhl was the co-author of “[t]he most aggressive memo” to him from within the Justice Department urging the Department to file an amicus curiae brief in the Supreme Court in the Thornburgh case calling for “outright reversal of Roe.”1 Kuhl then co-authored precisely such a brief, which contended that Roe was “so far flawed that this Court should overrule it and return the law to the condition in which it was before that case was decided.”2 The Supreme Court rejected Kuhl’s attack on Roe.

Kuhl’s testimony: In response to questions about her role in the Thornburgh case, Kuhl attempted to deflect Senators’ concerns about her troubling position by asserting that she was merely representing a client, President Reagan, who believed that Roe should be overruled.3 Kuhl specifically and repeatedly declined to answer Senator Feinstein’s question as to whether she believes that Roe was correctly decided. Kuhl Hearing, at 45-47.

The facts: To the extent Kuhl claimed that as a Justice Department attorney she was representing the President in Thornburgh, the same could be said of every attorney in the Justice Department, including everyone who weighed in with Acting Solicitor General Fried as to whether the government should even file an amicus brief in this case (since it was not a party), let alone what position it should take. The fact remains that, as reported by Fried — who was the recipient of all of those memos — “[t]he most aggressive memo came from my friends Richard Willard and Carolyn Kuhl in Civil, who recommended that we urge outright reversal of Roe.”4 Notwithstanding Kuhl’s refusal now to disclose her views, it is clear that she went far beyond her role as a Justice Department attorney in her “aggressive” efforts to overturn Roe v. Wade.

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