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THE OLSON VOTE: Have Republicans Politicized The Solicitor General's Office?


Friday, May. 25, 2001

Theodore Olson's nomination for the office of Solicitor General divided the Senate Judiciary Committee 9-9. Nevertheless, in the full Senate, Republicans jammed through Olson's confirmation, 51-47 in favor — just before their party loses Senate control. This vote says a lot about the way Senate Republicans perceive both Olson and his new job.

At the start, the Judiciary Committee haggled about whether to reopen the hearings to examine Olson's truthfulness about his involvement with the American Spectator's dirt-digging on Hillary and Bill Clinton — the so-called "Arkansas Project," which led to sundry Independent Counsel investigations. Then the Committee began to pursue a bipartisan inquiry. Now, though, that investigation has been cut short, and Olson confirmed.

Clearly, the issue of Olson's candor before the committee was purely a pretext for his opponents to attack him. That is the way the confirmation process works today: the idea is to use the process itself to create an excuse to defeat a nomination. The real issue was, of course, his conservative politics.

Olson has long allied himself with conservative causes. From his long involvement with the Federalist Society to his recent representation of George W. Bush in Bush vs. Gore, he is a consistent advocate for the Right. Thus, for good reason, his opponents were troubled at the high possibility that he will use the Solicitor General's post to further the conservative agenda.

The Office of Solicitor General

Congress created the Office of the Solicitor General at the same time that it established the Department of Justice. An 1870 law made the Solicitor General the "chief deputy" of the Attorney General, while succeeding laws have defined his role as the Government's chief advocate before the United States Supreme Court. He has one client: the United States Government.

The Solicitor General decides which cases the Government will appeal to the Supreme Court. In addition, he speaks for the entirety of the federal establishment, except for those departments or agencies that Congress has expressly empowered to undertake such appeals on their own.

In addition, the Solicitor General decides whether and when the Government will support or oppose petitions for certiorari, or file an amicus curiae (friend of the Court) brief with the high Court. He prepares all the Government's papers, submits them to the Supreme Court, and represents the Government at oral arguments.

So close is the Solicitor General's working relationship with the Supreme Court that he has an office in their building. Indeed, he has been called the "tenth justice" because he influences which matters are brought to the attention of the Court, and because of his stature with the justices.

Prior Efforts to Politicize the Solicitor General's Office

Other than an appointment to the Supreme Court, no legal work is more coveted or demanding than the work of the Solicitor General's Office. It is a post that has been held by some of our nation's great legal talents, including William Howard Taft (later President and Chief Justice), Charles Evans Hughes (later Secretary of State and Chief Justice), Robert H. Jackson (later Supreme Court Justice and Nuremberg prosecutor), Archbald Cox (later Watergate prosecutor), and Thurgood Marshall (later Supreme Court justice) — to name a few.

Historically, the office has been non-partisan. For example, no modern presidents were more partisan — or more politically opposite — than Lyndon Johnson and Richard Nixon. Yet former Harvard Law School Dean Erwin Griswold served as Solicitor General for both these presidents. In short, while appointed by the president, the Solicitor General is not the president's lawyer, but rather the Government's. There is a difference.

It was not until the Reagan presidency that this office was first truly politicized. Attorney General Edwin Meese sought to use the office to promote conservative causes. Thus, he hired a man who would advocate the conservative agenda from the post: Charles Fried. Fried, who took office in 1985, replaced Rex E. Lee, a man who refused to make his Supreme Court briefs conservative pamphlets for the president.

The Last Conservative Activist Solicitor General

As Solicitor General, Fried had no qualms about being a mouthpiece for the president when so requested. He sought to advance conservative political efforts by urging the Supreme Court to both outlaw affirmative action and overturn Roe vs. Wade — to give just a few of the more blatant examples.

Most memorable, however, was his willingness to argue a case that most all his predecessors (at least since the Civil War) and successors would have resigned before presenting to the Court.

In Bob Jones University vs. United States, Fried argued that schools that discriminate against blacks should still be accorded tax breaks. The racism of this position is patent; the fact that it departed from established practice by the IRS did not trouble Fried, nor did the fact that his argument was contrary to his certiorari papers.

Fried's palpably partisan and extreme positions failed. While he may have pleased conservatives, he did not please the Supreme Court by making such efforts. Lincoln Caplan of Yale Law School has studied Fried's tenure, along with those of others who have held the post. Caplan interviewed many of the justices sitting during Fried's arguments. They were outspoken in their criticism.

One justice found Fried's work was "hardly the mark of a reasoned approach to the law. It's ideology, pure and simple. It's an assault on settled practices." Caplan observes that while Fried's arguments attracted great attention, they had little effect on the Supreme Court. Caplan is not the only critic of such political advocacy by a Solicitor General.

Dangers of Politicizing the Solicitor General's Offices

Over the decades, a symbiotic relationship between the Supreme Court and the Solicitor General's Office has developed. While the Supreme Court generally grants certiorari (or review) in less than five percent of the petitions filed each year, the success rate of the Solicitor General's office in procuring Court review is usually near 75 percent.

This success rate is high because the Court trusts the quality of the work of the Solicitor General's Office. They are true professionals. The cases they bring to the Court are not filed for political reasons; rather, they represent an objective evaluation and decision that the appeal is important to the interests of the Government (and all Americans).

The Solicitor General strictly limits the appeals he files, and should the justices suspect that appeals are being filed for political reasons, the breach of trust will hurt both the Government and the Court.

The Clinton Administration did not seek to politicize the Solicitor General's Office and its activities. Rather, Clinton appointed consummate professionals: Drew S. Days, III; Walter Dellinger (Acting Solicitor General for the 1996-97 term); and Seth P. Waxman.

Similarly, these men recruited the best and brightest young lawyers for the permanent staff of the office. It is a professional staff that will have a low tolerance for any attempt to politicize the office. Accordingly, the arrival of a highly political Solicitor General could require replacing much of the staff of this office.

And loss of that staff would seriously damage operations. These men and woman cannot be quickly replaced by a crew from the Federalist Society (even squads of former law clerks of Justices Rehnquist, Scalia, and Thomas) because such a wholesale change in personnel would severely disrupt continuity in the office.

Olson's Testimony before the Senate Judiciary Committee

Theodore Olson's April 5 testimony before the Senate Judiciary Committee showed that he would, if confirmed, be a political — but, he asserts, not partisan — Solicitor General. Senator Leahy (D-VT) asked Olson what type of criteria he would consider when filing amicus briefs. Olson's answer — and its contrast to the answer of one of his predecessors — is very revealing.

Charles Fried had been asked a similar question in 1985. Fried responded that "it would be peevish and inappropriate for the solicitor general to be anything but cheerful" in supporting the views of the president who appointed him. Indeed, Fried was quite cheerful when representing the conservatism of Reagan and Meese, as opposed to the broad interests of all Americans.

This year, Olson's answer was distinctly different, and very adroit: "I want to make it very clear that partisan interests, Republican, Democrat, those kind of political considerations that have to do with partisanship, should not be a part of the equation," Olson made clear. "But policy positions are, and have been in every presidency that I have studied."

When later pressed by Senator Feinstein (D -CA), Olson elaborated: "I believe … that when you accept a position in the Department of Justice you put your partisan positions aside, your personal views aside, and attempt to serve the department and the people of the American — the American people as evenhandedly and as fairly and as openly as possible."

Consequences of Olson's Confirmation

Olson is a professional. He can be expected to be true to his long-held conservative convictions. Yet should he become overtly political in his position as Solicitor General, he will only make himself a monumental and notorious liar, given his Senate testimony.

What is troubling about his confirmation by the Senate is that it appears that Senate Republican forced the vote precisely because they want him to be political — spending some of their final political capital before the Senate changes hands.

We must all hope that Theodore Olson does not read his approval in the way Senators themselves may intend it: as a mandate to do the bidding of Republican partisans. Rather, we must hope that he will rise above the partisan vote, to one day be considered an equal among the great Solicitors General who have preceded him in the post.

If Olson in fact represents the Government as a whole, not the conservative political interests of Republicans alone, his considerable legal talents could place him in that league.

John Dean, a FindLaw columnist, is a former Counsel to the President of the United States.

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