Bush's Tenth Justice

While Democrats in the Senate failed to block the appointment of John Ashcroft as attorney general, they did send a message--albeit a weak one--with their opposition. Their 42 votes against Ashcroft were enough to demonstrate that they might have filibustered the appointment and that they could block any future judicial appointment they found similarly unpalatable. Yet the Democrats appear to have missed their own message, because they subsequently have given a virtually free ride to what ought to have been an equally controversial appointment: Ted Olson as solicitor general. Under serendipitous cover of a foreign policy imbroglio with China, Olson sailed quietly through an abbreviated hearing in the Senate and appears at this writing to be headed for imminent confirmation.

The solicitor general of the United States may be the most important job you've never heard of; its holder plays a greater role in shaping constitutional and legal policy in this country than anyone in the executive branch--save, perhaps, the attorney general and the president himself. As chief advocate of the U.S.
government before the Supreme Court, the solicitor general determines which cases the government should appeal and whether the government will file amicus curiae, or "friend of the court" briefs, in cases in which the U.S. government itself is not a principal. But the S.G., the only governmental position with a statutory responsibility to be "learned in the law," also has a unique role, which Justice Lewis Powell once described as "dual responsibility" to the judicial and executive branches.

This description embodies the historic balance implicit in the office: Though appointed by the
president, the solicitor general is supposed to keep politics and the law separate. The S.G. is not merely the lackey of the attorney general and the president but--as befitting the name it has historically been given, "the Tenth Justice"--is also an informal adviser to the Court who responds to requests for advice on which cases it should hear and helps it to interpret pre-vious statutes or the Constitution, even as it defends laws passed by Congress. For these reasons and others, the solicitor general is supposed to be above politics.

But neither is the Supreme Court supposed to decide elections, as it did in Bush v. Gore (spurred in part by the arguments of George W. Bush's lead lawyer, Ted Olson). And indeed the meaning of the solicitor general's "dual responsibility" has long been a source of contentious debate in the legal community, especially since Ronald Reagan's administration. In an important and thorough book entitled The Tenth Justice, first published in 1987, Yale law professor and former legal journalist Lincoln Caplan charged that the Reagan administration—specifically, Attorney General Edwin Meese, Assistant Attorney General William Bradford Reynolds, and Reagan's second solicitor general, Charles Fried--had damaged the stature of the S.G.'s office by politicizing it. The solicitor general is not
supposed to challenge fundamental principles of the rule of law simply to advance the political ends of a current presidential administration, but this happened routinely during the Reagan years. In the area of abortion, for instance, Charles Fried was roundly criticized for his gratuitous efforts to challenge established constitutional policy in the 1986 decision Thornburgh v. American College of Obstetricians and Gynecologists.

No one questions Olson's competence or legal acumen; but he is at least as well known for his political activism in conservative (sometimes rabidly conservative) circles. There may well be two Ted Olsons. The first Olson would indeed fit nicely into the Office of the Solicitor General: a good Supreme Court
litigator, a man who appears solidly in the conservative mainstream, and a much-admired (and well-liked) lawyer with a healthy respect for the Supreme Court. The second Olson has called Janet Reno the most corrupt attorney general in history; has published an article titled "Criminal Laws Implicated by Bill Clinton, Hillary Rodham Clinton and Various Clinton Associates"; has defended key Whitewater witness David Hale; and embodies the connection between the conservative cabal that tried for eight years to harass the Clintons out of the White House and the legal team that propelled George W. Bush into it.

Which Ted Olson can we expect under Bush/Ashcroft? There's reason to worry.

From Mainstream Conservative to Ideolog

Though Olson's most public triumph as a litigator came just last year in Bush v. Gore, his reputation as a leading appellate and Supreme Court lawyer has been building for years. His career began right after his 1965 graduation from Boalt Law School at the University of California, Berkeley, when he went directly to the Los Angeles–based firm of Gibson, Dunn, and Crutcher, to work on civil litigation, with a strong focus on the First Amendment.

Olson's initial foray into government came in 1981 when Reagan's first attorney general, William French Smith, a partner in Olson's firm, asked Olson to come to Washington as an assistant attorney general and head the Office of Legal Counsel at the Department of Justice. The office is, as more than one person has described it, the conscience of the Justice Department: Its role is to examine in an apolitical fashion the ethical and legal implications of an administration's policies.

By all accounts, Olson distinguished himself at the Office of Legal Counsel for his fairness; he didn't use the position as an ideological bully pulpit. When Beth Nolan, a colleague of Olson's during his tenure as assistant attorney general, was nominated to head the office during the Clinton administration, she (in her congressional hearing) called Olson "a wonderful teacher and mentor" who "insisted on scrupulous research and absolute integrity in the provision of legal advice." While Olson clearly shared much of Reagan's conservative philosophy, "he didn't try to change interpretations and policies based on the Reagan administration's view," notes Tom
Sargentich, a former attorney from the Office of Legal Counsel and now a professor at American University's Washington College of Law.

But it was also during his stint as assistant attorney
general that Olson became involved in a case that ultimately placed him as the subject of an independent-counsel investigation—an event that some observers believe had a significant impact in pushing Olson from mainstream conservatism to ideological activism.

In 1983 Olson became involved in a politically charged congressional investigation of the Superfund hazardous-waste cleanups. Congress wanted the Environmental Protection Agency (EPA) to turn over a series of documents related to the Superfund. The office advised the EPA to release some of the documents but not those that could have a bearing on the executive branch's ability to enforce the law in the future--a claim of executive privilege. The House Judiciary Committee disagreed and in 1985 produced a report that accused Olson and other officials of having made false and misleading statements to Congress. The committee also
recommended the appointment of Alexia Morrison, an
independent counsel. Morrison spent two and a half years looking into whether Olson had lied to Congress, ultimately deciding in 1988 not to indict him. As part of his defense, Olson unsuccessfully challenged the constitutional power of the independent counsel, a legal action that resulted in a
landmark Supreme Court decision bearing his name,
Morrison v. Olson.

But by the time the independent counsel's investigation had concluded, Olson was long gone from the Department of Justice anyway, having returned to the Washington, D.C., office of Gibson, Dunn, and Crutcher in 1984. (He later said the decision to return to private practice had nothing to do with the investigation.) At Gibson, he quickly built up his appellate practice, which included an increasing focus on Supreme Court litigation. One of his early clients was his
former boss, Ronald Reagan, whom he successfully represented, as outside counsel in the Iran-contra investigation.

It was also around this time that he met Barbara Bracher, a young conservative lawyer whom he would marry in 1996 (his third marriage, her second). After serving as an assistant U.S. attorney in the Bush administration, Bracher went to work—when Bill Clinton was elected--on the staff of the House Government Reform Committee, investigating the Clinton travel scandals. She eventually moved to the Senate to work for the Republican Senator Don Nickles of
Oklahoma. In 1999 the publisher Alfred Regnery put out her virulent anti–Hillary Clinton book, Hell to Pay.

Meanwhile, her husband's connections to the far right were solidifying. Olson had become a board member of a number of conservative organizations financed by the
billionaire Richard Mellon Scaife--including the Washington Legal Foundation and The American Spectator magazine. He also has been a national leader (and founder) of the Federalist Society, the lawyers' group that recently succeeded in
lobbying the Bush administration to drop the American Bar Association as a reviewer of judicial appointments. Most
significant, as Joe Conason and Gene Lyons document
in their book The Hunting of the President: The Ten-Year
Campaign to Destroy Bill and Hillary Clinton
Olson was at the
center of "the Arkansas Project," a Scaife-funded effort to dig up dirt on President Clinton. According to a series of investigative reports by Jonathan Broder and other writers for the online magazine Salon, Olson not only helped oversee the $2.4-million effort but also was a key figure in The American
internal audit of possible illegal payments to David Hale concerning Hale's testimony before the Senate Whitewater Committee. He also represented Hale in that appearance.

During this same time, Olson's estate in Great Falls,
Virginia, became an epicenter of conservative social life. He and his wife hosted parties for a who's who of Republican Washington—from Clarence Thomas to Kenneth Starr, whom Olson had helped recruit to Gibson, Dunn, and Crutcher. (As if to dispel any doubts about the hosts' ideological predilections, roaming about the grounds of the estate during these parties were the Olsons' two Australian Shepards: Ronald
Reagan and Maggie Thatcher.)

Professionalism Versus Politics

While Barbara Olson spent much of the past several years doing the talk-show circuit and castigating the Clintons, Ted Olson continued his legal work on behalf of conservative clients and causes. Among his most prominent clients:
Virginia Military Institute, in its unsuccessful landmark Supreme Court attempt to remain male-only; Stacey Koon, the police sergeant convicted for his role in the Rodney King beating (Olson represented Koon in a Supreme Court
challenge to his sentence); and the conservative Center for Individual Rights in its successful effort to have the Fifth
Circuit Court of Appeals find unconstitutional the University of Texas's plan to use race as a tool in its admissions policy. That last case, which resulted in the Hopwood v. Texas decision (1996) [see "Diversity on Trial," TAP , May 7, 2001], was Olson's most prominent victory—until, of course, his more public triumph in Bush v. Gore.

Olson makes no effort to conceal his conservatism or even to deny that it infuses his legal reasoning. "There is the perceived P.C. side to be on in these cases, and that happens in this society to be the other side," he said in a 1996 interview. "I happen to believe the side we're on is principled and
correct." His success, say some who have worked with him, is due more to long hours of preparation and qualities of doggedness rather than to any special intellect or quickness. "He is a relatively conventional thinker who can master arguments and flip them around," notes one former colleague. Once he's chosen his position, he takes no prisoners in fighting to prove it correct. For example, in an effort to seek relief from the congressional investigations, the Department of
Justice sued the House of Representatives. "It was Ted's brainchild," Sargentich recalls, observing that the title of the case alone (U.S. of America v. The U.S. House of Representatives) demonstrated a willingness to be brazenly assertive in getting a legal opponent to back down.

No one is suggesting that Olson's advocacy by itself should be a bar to his taking on the responsibilities of Solicitor General. He would,
of course, have to recuse himself on involvement in any case in which he had a prior interest representing a client, at least in conflict
with the interests of the United States - and there would be likely a number of such cases. For instance, Olson recently dodged one such
potential conflict when the Supreme Court decided not to hear Gibbs v. Babbit, a case in which Olson had asked the Court, on behalf of a group of ranchers, to consider whether the section of the Endangered Species Act prohibiting landowners from killing red wolves on their
property was unconstitutional. The Clinton Administration Solicitor General had taken the opposite view and one might hypothesize that the
Bush administration would side with the Olson view.

An Administration is free to review or reverse position on legal actions taken by the previous administration or even its own cases
from a lower court. But the real question is whether his own underlying interests would affect how he views the interests of the
United States. Will Olson become the "pamphleteer general, as Reagan's first Solicitor General, the late Rex Lee caustically called
the office," crafting sophistic legal arguments merely to achieve expedient political outcomes for his President and Attorney General.
Or will Olson adopt the approach taken by his friend Lee, to buck his administration, as a Solicitor General sometimes must do, and rein it
in when its political desires run headlong into the rule of law?

At his confirmation hearings, Olson unsurprisingly professed fidelity to a nonradical agenda, in much the same way that his boss, John Ashcroft, had done a few months earlier. When Democratic Senator Dick Durbin of Illinois said that he couldn't "find any parallel in history of anyone who was as actively involved in
politics as you and went on to become solicitor general," Olson responded: "I believe when you serve in the Department of Justice you put your partisan
considerations aside." To another questioner, he said: "It is not my agenda to seek an opportunity to overturn Roe v. Wade." He expressed similar commitment to Miranda v. Arizona (1996), the decision establishing the right not to incriminate yourself—a holding he had challenged in an amicus brief submitted to the Supreme Court last term in Dickerson v. United States. Now that the Court has spoken, said Olson in his deep, solemn voice, "there is no reason to question." (No one asked him why, last year, he clearly felt there was "reason to question" the Court's having "spoken" in its original Miranda decision.)

It remains to be seen whether Olson would use his new office to enact a radically conservative agenda. Still, despite his claim that he will put partisanship aside, there is reason to believe that, as Tom Sargentich puts it, "his professionalism is going to be at war with his politics." And Olson, more than most solicitors general, will immediately be a dominant player in the arena where politics, law, and public policy intersect. First, of course, he won the case that brought the president to power, and that puts the president in his debt. Second, given Attorney General Ashcroft's rough start, it is unlikely that the A.G. will, at least publicly, be able to take the lead on certain controversial positions. Furthermore, while Alberto Gonzales, the White House counsel, has close ties to the president, he does not have significant experience in Washington. That makes Olson the administration's man on controversial legal questions. Add to this Olson's previous involvement in many of the issues the Office of the Solicitor General will likely face—affirmative action, environmental protection, civil rights, equal protection, and others (almost always, from
a liberal's perspective, on the wrong side)--and he may have a considerable opportunity to effect significant change on
his own.

Rule of Law or Rule of Politics?

How do we know which Olson we're getting, the consummate lawyer or the activist-ideologue? The two clearest indicators will be the cases that the U.S. government chooses to appeal and the positions it takes before the Supreme Court on cases in which the government is not a party. Several cases coming before the Court may help provide an early reading. These include City of Yonkers v. United States, which deals with housing discrimination, and another revisiting of Adarand Constructors v. Pena, which—when it last appeared before the Court—forced the federal government to radically change its affirmative action policies. Adarand's current incarnation, which involves a Department of Transportation contracting policy, will likely force the Bush administration to decide whether it intends to preserve some form of
affirmative action in the workplace or to dismantle the practice entirely.

One of the biggest issues likely to confront the Court--and one with a large personal stake for Olson, given that he already won a decision on the Fifth Circuit in Hopwood and got affirmative action thrown out of the University of Texas law school--involves the question of whether "diversity" is constitutional grounds for the use of affirmative action in a university's admissions policy. When asked by Senator
Arlen Specter about whether he agreed with Justice Lewis Powell's decision in Regents of the University of California v. Bakke (1978) upholding the idea that race could be a factor in college admissions, Olson hedged and suggested generically that there are a number of decisions that may have changed the Court's views on the issue since then. It is, however, highly likely that Olson would be a driving force in an effort to urge the Court to do away with the diversity rationale for affirmative action in college admissions.

On a more general level, cases pertaining to federalism--basically, the question of how much power the federal government can exercise vis-à-vis the states--may also shed light on how aggressively conservative President Bush's solicitor general will turn out to be. The most telling cases will probably be those that raise questions about the U.S. government's powers under the commerce clause (which gives the government the power to regulate issues pertaining to commercial trade across state lines, and through which much civil rights law was enacted) and the Fifth Amendment's takings clause (which states that private property shall not be taken for public use without just compensation). Conservatives have reinterpreted the takings clause as a way for private-property owners to have their rights enhanced at the expense of governmental power. Using these clauses and other tools, conservatives have sought with some success over the past five years or so to rein in the power of the federal government and are eager to expand these efforts. Pressed by Democratic Senator Dianne Feinstein of California on whether he would be able to vigorously defend laws that are based on the commerce clause of the Constitution, the nominee responded appropriately. Even though he might personally disagree with the law, he said, "unless a law is clearly unconstitutional, it is incumbent on the Department of Justice to defend those exercises of power."

Olson said all the right things during his hearings, which put the Democrats in an understandably
difficult position: How does a senator decide whether or not to take a nominee at his word? It is nonetheless disappointing to see Democrats roll over and give the Bush administration a free pass on a position of considerable magnitude. Even had the Democrats been inclined to give the solicitor general designate a rougher ride, it would have been difficult for them to do so, because the Republicans made sure to impede any effort at serious opposition. Olson's nomination was announced back in February but didn't come before the Senate Justice Committee until early April and so led to rushed and abbreviated hearings. Moreover, in a rare manner, Olson's nomination was joined with the less controversial nomination of Larry Thompson as deputy attorney general. (The closest comparison may be to Richard Nixon's dual nominations of Lewis Powell and William Rehnquist to the Supreme Court in 1971, where the focus on the more moderate Powell allowed the conservative Rehnquist to escape greater scrutiny.)

But if Olson is confirmed--which seems likely, in light of the passive approach taken by the Democrats in the Senate--the scrutiny should not end. Bush, whose questionable victory (engineered in part by Olson) elicited sincere promises of a new bipartisanship that has now been abandoned for right-wing succor, must not be allowed to run roughshod over the Constitution. The administration has already demonstrated its willingness to politicize the law.

Even as we concede that most political appointees will be partisans--for Republican and Democratic administrations alike--we must hold the solicitor general to a higher standard. To undermine that position's political independence is to
damage not only the office itself but also the concept of an unbiased interpretation of the rule of law. Allowing the distinction between politics and law to disappear would be a grave disservice to the American people.