Senators' concerns: Kuhl was identified as one of a "band of young zealots" within the Justice Department 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. Kuhl and a colleague co-authored a 40-page memorandum strenuously arguing that the IRS should "reverse its position" in the case and "accord tax-exempt status" to Bob Jones. In an 8-1 ruling, the Supreme Court repudiated Kuhl's position.
Kuhl's testimony: Kuhl testified that she regretted the position she took in the Bob Jones case because she did not understand that the Justice Department's role was to defend agency positions than can reasonably be defended (which Senator Leahy thought she should have learned in law school), and also because her position did not put the principle of nondiscrimination first.
The facts: Kuhl's testimony appears to be a confirmation conversion. Although Kuhl has previously stated she came to believe she was wrong on Bob Jones, the reason she previously gave was that it was a political disaster for the Reagan Administration. As for her assertion now that the IRS policy was "reasonable" and therefore should have been defended, nowhere does the critical 40-page memo she wrote at the time even suggest the existence of a reasonable argument in defense of the IRS policy.
Senators' concerns: While in private practice, Kuhl wrote an article expressing her opposition to affirmative action, which she called "a divisive societal manipulation." She was asked whether she had changed her position on this.
Kuhl's testimony: Kuhl did not answer this question. Instead, she sought to dispel concerns about her opposition to affirmative action by stating that the Supreme Court had settled the matter in the Adarand case.
The facts: Kuhl's article was written after (and indeed appears to criticize) the Court's decision in the Local 28 case, in which the Court had rejected Kuhl's argument that relief under Title VII could be granted only to identifiable victims of discrimination, even in cases of long-standing, intentional discrimination. There was thus established law concerning affirmative action when Kuhl wrote her article, and she was critical of it.
Senators' concerns: Kuhl was also questioned about her article "Employment at the Will of the Courts," and asked why she had chosen to focus on "the costs to employers and society of the laws against unfair treatment of workers."
Kuhl's testimony and the facts: Although Kuhl tried to portray her article in a light more favorable to the protection of workers, the fact remains that her article appeared to disapprove of the trend way from the doctrine of "employment at will" and toward protecting workers from adverse employment decisions not based on "good faith and fair dealing." Kuhl wrote, "[t]he practical effect of this jurisprudence . . . is to inhibit employer action and to decrease labor mobility."
Senators' concerns: Senator Leahy asked Kuhl to give an example of a situation in which "you displayed, as a lawyer, understanding of the human situation, such as the sting felt by women or minorities victimized by discrimination."
Kuhl's testimony and the facts: In her response, Kuhl did not cite a single instance pertaining to her career "as a lawyer." Instead, she focused on two rulings she has issued as a judge, the same two rulings she has cited repeatedly in her testimony, including in a letter to Senator Specter, in an effort to dispel the serious concerns about her civil rights record. Apart from the fact that Kuhl has only been able to cite two rulings in more than seven years as a state judge that she believes speaks favorably to her record on civil rights, neither of these cases negates the serious concerns that her record on civil rights has raised, including her efforts to give a tax-exemption to Bob Jones University. One presented a clear case of retaliation against an African American employee who had complained about employment discrimination, and Kuhl, writing for a unanimous appellate panel, upheld a jury verdict in his favor. In the other, Kuhl overturned disciplinary action against an openly gay police officer on due process grounds because he had not been given proper notice of the charges against him. Kuhl's ruling did not turn on the officer's sexual orientation or in any way affirmatively protect him from discrimination on the basis of sexual orientation.
At Kuhl's hearing, she admitted that during her nearly 12 years in private practice, she had handled only two pro bono cases. While Kuhl sought to excuse this on the ground that she was raising two children while trying to be a law firm partner, during the same period she found time to draft the Supreme Court amicus brief supporting VMI's efforts to continue to exclude women, as well as an amicus brief in support of an anti-choice group in Rust v. Sullivan. Across this country, many law firm associates and partners are also parents, yet they make the time to fulfill their ethical obligations to perform pro bono work.