The Senate vote last week to confirm Theodore B. Olson as solicitor general by a razor-thin margin had everything to do with politics and little to do with the strength of the Democrats' case in opposing the nominee, according to key senators and congressional staff. Democrats continued to insist that Olson had indeed given misleading and untruthful testimony during his confirmation hearings but refrained from blocking Olson's nomination. The Democratic leadership's strategy was to allow Olson's nomination an easy pass and thereby gain greater credibility when opposing future conservative judicial nominations by the Bush administration for the federal judiciary and potentially the Supreme Court.
The Republicans' victory on Olson, however, now comes at a longer-term cost as power shifts to the Democrats in the Senate. As a senior aide to the Democratic leadership said, "By winning, they lose. They get Olson, but now we get to play a real role in the selection of federal judges." And as for Republican Senator Orrin Hatch of Utah, the outgoing chairman of the Senate Judiciary Committee who led the fight to confirm Olson, the same congressional aide said: "He gets Olson as solicitor general, but now Hatch is going to be hit in the gut five times harder, and he is going to be feeling the pain very soon."
Senate Republican leader Trent Lott of Mississippi rushed a vote on Olson's nomination to the Senate floor last week just as Vermont Senator Jim Jeffords's party defection was handing control of the chamber to the Democrats. While Senate Democrats easily could have attempted to stop the vote by mounting a filibuster or invoking some other procedural tactic, they chose not to. A small minority of Democratic senators, however, said their party's halfhearted, if tactical, opposition to Olson was a lost opportunity: Had Lott not successfully expedited the vote, it's virtually certain that Olson's nomination would not have survived the Democrats' assuming control of the Senate.
Indeed, Democratic Senator Joseph Biden of Delaware had all but declared victory the night before the unexpected vote, predicting that "Ted Olson will soon be practicing law, making lots of money." That statement was made, of course, before Lott rushed Olson's nomination to the Senate floor, and Biden's fellow Democrats agreed not to stand in the way of a vote.
Even so, Olson still only won confirmation as solicitor general by the slimmest of margins, 51-47. Only two Democratic senators voted for his confirmation. And Olson was confirmed by an even slimmer margin than were two of the more contentious and controversial nominees before the Senate in recent history: Attorney General John Aschroft and Supreme Court Justice Clarence Thomas. Ashcroft won confirmation with 58 votes; Thomas with 52.
In a lengthy speech on the Senate floor in opposition to Olson's nomination, Democratic Senator Patrick Leahy of Vermont, who next week takes over the chairmanship of the Senate Judiciary Committee, defiantly stated that although he was not going to oppose an immediate vote on Olson's nomination, he was more convinced than ever that Olson had misled the committee.
Specifically, Leahy charged that Olson had given misleading and untruthful testimony to the Senate Judiciary Committee regarding his involvement with the Arkansas Project -- a four-year, $2.4-million effort by The American Spectatormagazine to investigate and discredit Bill Clinton -- as well as obfuscatory statements on how he had come to serve as an attorney for David L. Hale, the Whitewater independent counsel's chief witness against Clinton.
"My doubts and questions about Mr. Olson have only grown over time," Leahy said.
Leahy also cited new evidence from an American Prospect Online article posted the night before the vote as evidence of Olson's misleading statements during the confirmation hearings. Olson had told the committee that he had virtually no recollection of how he had come to represent Hale, that his memory of the matter had grown "quite faint," and that all he could remember was that he had agreed to represent Hale after having been "contacted by a person or persons whose identities I could not recall." However, the Prospectarticle disclosed that several individuals had told federal investigators, during a 1998-1999 special counsel's criminal probe of both Hale and the Arkansas Project, that Olson had been recruited to represent Hale by David Henderson, a conservative political activist who oversaw the Arkansas Project.
"The role that David Henderson played in introducing David Hale to Mr. Olson is apparently corroborated by several witnesses who have spoken to The American Prospect," Leahy said in his floor speech. "It now strikes me as strange that a man as capable as Mr. Olson, with his vast abilities of recall, could not remember the name of David Henderson. Leahy continued, "It strikes me as doubly strange . . . that Mr. Olson was able recall who introduced him to David Hale just a couple of years ago when asked the same question." During the special counsel's investigation, Olson had told federal investigators that he was urged to represent Hale, during a 1993 meeting, at which Henderson was present.
Moreover, according to congressional sources, as the Senate vote was approaching, Judiciary Committee investigators were attempting to obtain the testimony of former American Spectator publisher Ronald Burr, who was expected to shed additional light on the controversy.
Burr, publisher of the Spectator for 30 years until he was abruptly fired for questioning the ethics of some aspects of the Arkansas Project, was expected to testify that Olson had misled the committee regarding his involvement with Hale and the Arkansas Project. Among other comments, Burr has previously stated that Olson's representation of Hale was central to obtaining the funding for the Arkansas Project in the first place.
According to Leahy, however, The American Spectator had stymied his investigation by refusing to allow Burr to testify. When Burr was fired from the Spectator, the magazine agreed to pay him more than $350,000 in severance pay; in exchange, however, Burr agreed to never publicly disclose information regarding the Arkansas Project. Citing their contract with Burr, The American Spectator's attorneys refused to allow Burr even to be informally interviewed by congressional investigators.
But as Leahy noted in his comments on the Senate floor, even without Burr's story there was more than enough evidence indicating that Olson had not been truthful in his hearings before the Senate. "The credibility of the person to be the solicitor general is of paramount importance," said Leahy. "When arguing in front of the Supreme Court . . . the solicitor general is expected to come forward with both the strengths and weaknesses of the case, to inform the Court of things it might not otherwise know, and to be honest in all his dealings with the Court. . . . Based upon what I have seen, I do not have the requisite confidence to support Mr. Olson's nomination."
Senator Hatch, Olson's most staunch defender in the Senate, said in response to Leahy that Olson had been "truthful and forthright" during his confirmation hearings. Hatch also suggested, not so subtly, that Democrats were opposing Olson's nomination as retribution for Olson's representation of the Bush campaign during last year's presidential election crisis.
The Senate Judiciary Committee's abandonment of the Olson investigation and acquiescence to the GOP's push for a vote was almost entirely a political decision, according to senators and congressional staff involved in the process. Democrats could just as easily have attempted to delay the vote through a filibuster or some other procedural tactic and allowed the investigation of Olson to continue. But Senate Democratic leader Thomas Daschle of South Dakota as well as most of the Senate Democratic leadership decided that they didn't want to engage in a contentious fight regarding a subcabinet position.
"We decided to allow the vote to go forward, move on to other things, to move on what will be our agenda," said Democratic Senator Charles D. Schumer of New York. A key Democratic congressional staff member more bluntly encapsulated the Democrats' thinking: "There is only a limited amount of capital for us to expend, and we're not going to expend it on this."
Prior to that tactical-course reversal, however, at least two Democratic senators, Robert Torricelli of New Jersey and Hillary Rodham Clinton of New York, argued in the Democratic caucus to filibuster or delay a vote on the Olson nomination, according to two senators present at the caucus. Torricelli argued "passionately and forcefully" that his party filibuster Olson's nomination but ultimately didn't foresee how close the vote would be. Torricelli privately confided later that had he been aware of the vote's margin in advance, he would have worked much harder to convince his colleagues to pursue a filibuster.
According to several congressional sources, however, there were doubts that this strategy would have prevailed. According to one senator, Hillary Clinton's advocacy for a filibuster undermined many of her colleagues' support for her cause because she was perceived as pursuing a personal agenda. Not only had The American Spectator spent $3.2 million to investigate Senator Clinton's husband, but Theodore Olson's wife, Barbara, had written a highly polemical book about the former first lady entitled Hell to Pay.
Olson herself has said that her book is filled with rumors and hyperbole. In one passage, Olson wrote that Hillary Clinton had "throughout her intellectual life . . . been taken by [the] idea, which is the totalitarian temptation, that throughout history has led to the guillotine, the gulag, and terror and reeducation camps of the Red Guard." In another passage, she wrote that the Clinton years would be remembered as "a long national nightmare of scandal, sleazy and ruthless acquisition of power."
In Hell to Pay's acknowledgements, Barbara Olson called the book a "team effort" with her husband: "All accomplishments are the result of a team effort," Barbara Olson wrote. "But none has been so profound and total in my life as the team of Olson and Olson. We became engaged during the Vince Foster phase of the investigation, got married in between depositions and hearings, and heard about the first FBI file while on our honeymoon."
Despite the fact that the scholarship and research for the book had been seriously questioned and Hell to Paywas not widely read outside conservative circles, Hillary Clinton, according to confidantes, remained deeply resentful of the Olsons after the publication of the book.
At least one of Hillary Clinton's Democratic Senate colleagues privately says that given past antagonisms between the Clintons and the Olsons it was unwise for Senator Clinton to be such a forceful advocate for mounting a filibuster to delay the vote. "She's still new to this institution," said the senator. "She should not have been so outspoken in the caucus because of her own personal ax to grind. If she had been up here for a few more years, she might have known that the best thing to do would have been to remain silent herself and ask another senator to argue her case for her."
But other colleagues of Senator Clinton now privately say that she did the right thing while they sat on the sidelines of the debate. Had they known in advance that the final vote on Olson's confirmation was going to be so close, they later said, they might have joined her in seeking a filibuster.
The same day that Hillary Clinton urged her colleagues to mount a filibuster to stop Olson's nomination, the former first lady displayed her lingering and deep resentment over the Whitewater probes of her and her husband by casting the sole vote opposing the Justice Department nominations of two lawyers who had connections to the Whitewater investigation.
The first, Michael Chertoff, a former U.S. attorney in New Jersey, who served as the Republican counsel to the Senate Whitewater committee, had been nominated by President Bush to head the Justice Department's criminal division. The Senate voted 95-1 to confirm Chertoff's nomination.
A second nominee was Viet Dinh, a Georgetown University law school professor, who had served as both an associate counsel to the Senate Whitewater committee and as an attorney for Whitewater Independent Counsel Kenneth W. Starr. Dinh had been nominated by President Bush to head the Justice Department's Office of Legal Policy. His nomination was approved by the Senate 96-1.
The same senator who was critical of Senator Clinton's outspoken role in advocating a filibuster of Olsen's nomination also criticized her sole dissenting votes in opposition to the Chertoff and Dinh nominations. While saying that they understood her resentment of prosecutors who "relentlessly pursued her, her husband, and her longtime friends," this senator said, "When it comes to appearances, there is a thin line between being cranky and appearing like a crank."
Even long before the contentious fight over Olson's nomination as solicitor general, many Democratic senators were exercised over what they considered to be a heavy-handed attempt by Senate Judiciary Committee chairman Orrin Hatch to further restrict their role in the selection of federal judicial nominees. Early last April, Hatch first suggested that he was considering changing his own policy dating from the mid-1990s, whereby judicial candidates could, in effect, be vetoed by a single senator from the candidate's home state. During President Clinton's second term, Republican senators frequently exercised that privilege to block Clinton nominees they considered to be too ideologically liberal. But once George W. Bush took office, Hatch -- justifiably worried that Bush's nominees would suffer the same fate as Clinton's -- informed the Democrats that, henceforth, it would require the opposition of both home-state senators to block judicial candidates. [See Nicholas Confessore, "This Time, It's Personal," TAP, June 4, 2001.]
Senator Leahy was said to be so angered by Hatch's proposal that he warned Hatch that the entire confirmation process for federal judges "may grind to a screeching halt" if Hatch were to implement it.
But all of that was before the Democrats' recent extraordinary reversal of fortune. With the Olson nomination now out of the way, sources close to the Senate Democratic leadership say they will have more credibility in mounting challenges to conservative nominees to the federal judiciary by the Bush administration. Said one Democratic staffer: "Orrin Hatch is going to be feeling the pain very soon."
Indeed, the impact of a Senate Judiciary Committee with a liberal Democratic chairman has already been felt by the Bush White House. The day after the vote to confirm Olson, California Republican Representative Christopher Cox withdrew his name from consideration as a nominee for the 9th Circuit Court of Appeals in California.
The state's two Democratic senators, Barbara Boxer and Dianne Feinstein, had already said they would likely attempt to block the nomination. And with the Senate Judiciary Committee and full Senate coming under Democratic control, Cox apparently saw the handwriting on the wall.
In addition, Democrats have vowed that they will more closely scrutinize at least four other recent nominees to the federal bench by the Bush administration.
Senator Hatch already has felt the sting of the Democrats' reversal of fortune. Hatch complained to the Associated Press: "It's a shame [Cox has] been basically trashed without even giving him any consideration. He met every qualification . . . and I feel that he was trashed."
