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High Court Veteran Joins Elite Club
Gibson Dunn's Theodore Olson set to argue for 50th time
Legal Times
September 22, 2008
Ted Olson of Gibson, Dunn & Crutcher.
Image: Diego M. Radzinschi/Legal Times
The first lawyer to appear in the first case on the first day of the fall term of the Supreme Court on Oct. 6 will be former Solicitor General Theodore Olson -- arguing for his 50th time before the nation's highest court.
That is a milestone only a handful of lawyers have reached, and none who have reached it can include on their list a case like Bush v. Gore -- his 14th argument -- which decided a presidential election.
Olson, a partner with Gibson, Dunn & Crutcher, will be carrying a souvenir from that 2000 oral argument in his pocket when he argues next month in Altria Group v. Good. It's a laminated card depicting St. Michael the Archangel, known as the warrior saint who battles Satan.
"My late wife Barbara decided I needed a little extra help for the argument in Bush v. Gore," Olson recalled in his office last week. "I felt it in my suit pocket on my way to Court. I'm not a Catholic, but Barbara was, and she snuck it into my pocket. No harm in a little extra help." It worked out well for Olson that day -- he won it for George W. Bush -- and he has taken the card to the Court for every argument since.
With or without saintly help, Olson has racked up an impressive record in his 49 arguments so far, winning 36, losing 10, with one case a half victory. (One other case was dismissed after argument and another was reargued.)
But Bush v. Gore is the case he will most be remembered for, and the case he has to relive fairly often -- most recently at a screening of the HBO movie "Recount" at the home of former Washington Post editor Ben Bradlee. "I left early," Olson says, shaking his head. "I didn't recognize the events in the movie compared to what actually happened."
A few months later, he jokingly asked David Boies, his opponent in the case, how the movie ended. "We won," Boies said, also joking.
As often happens with Washington adversaries, Olson and Boies have become friends. Olson says he and Boies went on a biking trip to Italy this summer, along with NBC newsman Tom Brokaw, American Lawyer and Clear founder Steve Brill, Bloomberg Executive Norman Pearlstine, and their spouses. (Barbara Olson died in the crash of American Airlines flight 77 into the Pentagon on Sept. 11, 2001. In 2006, Olson married Lady Booth.)
Thinking back to Bush v. Gore and its predecessor Bush v. Palm Beach County Canvassing Board, Olson still sounds amazed at how it all happened. "The Supreme Court had never worked that fast in its history," he says. In 10 days Olson argued in two Supreme Court cases and one at the 11th U.S. Circuit Court of Appeals as well. "I was going so fast I didn't have time for any reflection."
What amazes many to this day is that Olson pushed an equal protection argument on a conservative Court that did not usually look kindly on novel equal protection claims.
"I felt we had a good case," he adds, pausing to recall another little-known fact. "John Roberts helped on one of the moots, and he felt we had a very good case too." Roberts, now the chief justice, then was a Hogan & Hartson partner helping the Bush legal team.
But Olson is as proud of his other cases as he is of Bush v. Gore. On a shelf in his glass-walled office overlooking Connecticut Avenue and L Street Northwest, a bowl holds 49 feather quill pens given to advocates by the Court -- one for each of his arguments -- and all the quills look alike. "I remember every single one of the cases I argued."
Just last year, he won Leegin Creative Leather Products v. PSKS, which slayed a hoary antitrust precedent that has been on the business community's hit list for decades. It's the kind of bread-and-butter business case he often argues, as is the Altria case, in which he'll assert that federal law pre-empts state tort actions over "light" cigarettes.
Olson does not take every kind of case with a pro-business tilt. He won't represent a libel plaintiff against the news media, in part reflecting Gibson, Dunn's long history of representing the Times Mirror Co.
And he says he is careful about not taking advantage of his strong Republican ties. With one exception he won't discuss, Olson says he won't represent applicants for pardons. "People would pay a lot of money to stick my name on a pardon application," Olson says. "I want to be hired for my legal skills, not because people think we have influence."
Olson heads Republican presidential candidate John McCain's judicial advisory committee, and he and other Gibson Dunn lawyers have done legal work for McCain -- most recently winning dismissal of a challenge to McCain's qualifications to be president, because he was born in the Panama Canal Zone.
How does Olson prepare for Supreme Court cases? When he returned to Gibson Dunn in 2004 after three years as solicitor general, Olson says he insisted on having a conference room assigned to him alone. The room is a messy place whose granite-topped table is stacked high with briefs and binders. "When a question comes to my mind, I want everything right there."
Olson does three moot court practice runs before each oral argument. One of the last things he does is look at a memorandum that his colleagues write for him detailing, based on past opinions, how each of the nine justices is likely to approach the case. "It goes from the most likely to least likely" supporters of his side, he says.
Olson, 68, plans to keep on arguing before the high court for the foreseeable future. "I love that sort of thing," he says, "and I've never gone in there not thinking I could win the case."
