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CAROLYN KUHL’S DOJ RECORD IS FAIR GAME To the editor: Former Solicitor General Charles Fried’s Jan. 5 letter [" In Defense of Carolyn Kuhl," Page 38] distorted the issues surrounding the appellate court nomination of Carolyn Kuhl. In particular, Fried’s letter implies that Kuhl’s tenure at the Justice Department was that of a young researcher and junior staffer, and that it is somehow unfair or inappropriate to consider her record there in connection with her pending nomination. In fact, Kuhl served as a political appointee in the Justice Department from 1981 to 1986 in positions of increasing authority, first as special assistant to the attorney general, then as deputy assistant attorney general in the Civil Division, and then as deputy solicitor general. The dismissive and intellectually dishonest characterization of Kuhl’s DOJ tenure contained in Fried’s letter contradicts his own portrayal of Kuhl’s role in his 1991 book Order and Law: Arguing the Reagan Revolution � A Firsthand Account. In Fried’s letter, for example, he downplays Kuhl’s “minor role” as “a very junior staff member” in the preparation of a brief urging the Supreme Court to overturn Roe v. Wade.In his book, however, Fried wrote that among the memoranda he received from within the Justice Department about whether the government should even file a brief in that abortion rights case, to which the federal government was not a party, “[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.” (p. 33) Kuhl was deputy assistant attorney general for the Civil Division at the time, certainly not a “ very junior staff” position. Moreover, in Order and Law,Fried describes the “Reagan Revolution” campaign against federal judicial rules and doctrines that were perceived to assist “left-liberal orthodoxies” using the judiciary as “the engine for realizing their values.” Fried writes, “my Deputy and Counselor, Carolyn Kuhl, launched a frontal attack on this trend” with her effort to overturn the important and well-established legal doctrine of associational standing. Kuhl argued to the Supreme Court that an organization should not generally be allowed to bring suit to assert the individual rights of its members. As Fried’s book acknowledges, this attack was opposed by an ideologically diverse array of business, civil rights and other public interest organizations, and the Supreme Court rejected it without dissent. (pp. 16-17, 207) At the time, Kuhl was deputy solicitor general. Fried’s letter also clouds the record on two important cases. He claims that I misrepresented the government’s position on sexual harassment in a case in which “Ms. Kuhl actually argued that the Supreme Court should recognize for the first time that unwelcome sexual advances violate Title VII when they create a hostile work environment.” Readers unfamiliar with the case Fried mentions, Meritor Savings Bank v. Vinson,might be surprised to know that Kuhl urged that the Court rule against the victim and for her employer. Although Kuhl did agree that proof of a sexually hostile work environment would demonstrate a violation of Title VII, her brief essentially took the position that if a woman eventually gives in to unwelcome sexual advances from a supervisor, such a “consensual sexual relationship” would make it extremely difficult for the woman to bring a successful claim for sexual harassment. Kuhl’s brief did not address the disparity in power between a male supervisor and a female employee, a disparity that can bear significantly on the “consensual” or “voluntary” nature of a sexual relationship between the two. In an opinion by then-Justice William Rehnquist, the Supreme Court unanimously rejected Kuhl’s unreasonable standard and ruled in favor of the employee. Fried’s letter challenges our reference to Kuhl as “an architect” of the Justice Department’s decision to reverse course and oppose Internal Revenue Service policy that denied tax exemptions to racially discriminatory schools in the Bob Jones University case. Fried says Kuhl was “a 29-year-old with no decision-making authority, busy taking notes and doing legal research.” Kuhl’s age did not mean that she could not and did not play a significant role in developing the department’s position. To the contrary, she was among a group of Justice Department staff described in a 1983 New York Timesop-ed article by Anthony Lewis as a “band of young zealots” who “pressed for the legal switch to give Bob Jones its tax exemption.” According to The Tenth Justice,Lincoln Caplan’s 1987 book about the solicitor general’s office, Kuhl was part of a group that became known as the “Bob Jones team” that successfully “rallied to reverse” the government’s long-standing position. She and a colleague co-authored a 40-page memorandum to Assistant Attorney General William Bradford Reynolds strenuously arguing that there was no legal basis for the IRS policy denying tax exemptions to racially discriminatory private schools and that the government should therefore “reverse its position” in the Bob Jones case. In an 8-1 ruling, the Supreme Court repudiated the position she had advocated. It is eminently fair and reasonable for senators evaluating Kuhl’s qualifications for a lifetime appointment to the federal appeals court to consider her Justice Department record as an aggressive advocate for a particular legal philosophy. Indeed, it would be irresponsible not to do so. It is, however, unfair and inaccurate to portray our opposition to Kuhl’s confirmation as based solely on her work at the Justice Department. In fact, her subsequent actions, particularly as a state court judge, have also generated widespread opposition to her confirmation because they provide substantial evidence of her continuing activism on behalf of a legal ideology that is harmful to the rights of individuals seeking justice in the courts. Kuhl’s record as a judge includes cases in which she ruled against the interests of whistleblowers and injured workers and a particularly egregious case in which she dismissed the claim that a breast cancer patient’s right to privacy was violated by her doctor when he allowed a drug company salesman to witness her breast and abdominal exam. All three of these rulings were overturned unanimously on appeal. The significant opposition to Kuhl’s confirmation in the U.S. Senate and among a broad coalition of public interest organizations is grounded firmly in a long public record demonstrating that from the bench, from the bar and at the Department of Justice, Kuhl has been an obstacle for individuals seeking justice. Fried’s claim that we have ignored her relevant experience as a judge is utterly inaccurate, and his descent into ugly personal attacks does nothing to further public understanding or debate. Ralph G. Neas President, People for the American Way Washington, D.C.

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