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When Theodore Olson returned to Gibson, Dunn & Crutcher in 2004 after three years as solicitor general, he added crisis management to his list of specialties at the firm. In an interview with Legal Times last year, he defined that practice as helping clients when disaster strikes, whether the disaster is “an oil spill, the [Securities and Exchange Commission], or [then-New York Attorney General] Eliot Spitzer.” If President George W. Bush nominates Olson to be attorney general in the wake of Alberto Gonzales’ resignation, the 67-year-old lawyer may need his own crisis management team to help manage another kind of disaster: the Senate Judiciary Committee. Olson’s long history as a partisan advocate for Republican causes makes him a tough sell, even though he has strong legal credentials and a loyal following inside the Justice Department, where he has served in several top jobs. As Olson’s name bubbled to the top of the potential AG list last week, Senate Democrats sent a clear signal to the White House that they would vastly prefer another nominee. Liberal interest groups began dusting off old dossiers on Olson, a conservative veteran of all recent and current Republican administrations. Reached late last week, Olson declined to comment and said he was trying to avoid all the speculation about his potential nomination. “I don’t read it at all. You don’t want to do that to yourself, you know? I’m just trying to do some work here.” Early last week, Democrats stopped short of promising Olson’s defeat, with Sen. Chuck Schumer (D-N.Y.) cautioning, “Clearly if you made a list of consensus nominees, Olson wouldn’t appear on that list.” But when rumors of an Olson nomination persisted, the objections became even more blunt. “Ted Olson will not be confirmed,” Sen. Harry Reid (D-Nev.), the majority leader, said in a statement Sept. 12. “I intend to do everything I can to prevent him from being confirmed as the next attorney general.” Even some Senate Republicans reportedly were advising against picking Olson, to avoid what could be another draining confirmation battle. Still, if Bush persists and submits the nomination to the Senate — rather than making it a recess appointment later on, which is an option — then the battle will be joined. Conservative groups are ready to take up arms on Olson’s behalf. “Morale at the Justice Department is horrible,” says Curt Levey, executive director of the Committee for Justice, which usually focuses on supporting Bush’s judicial nominations. “But if anyone can bring good morale back, it’s Ted. He is revered.” �A CONSERVATIVE ICON’ But Levey, who describes Olson as a “respected partisan,” acknowledges that Olson will have trouble getting confirmed. With the Senate in Democratic control, “anyone will have a tough confirmation,” he says. “The fact that Ted is a conservative icon will make him even more of a target.” The list of issues that make Olson an especially controversial candidate to Democrats is long: • When Olson headed the Justice Department Office of Legal Counsel in the early 1980s, he ran into trouble for testimony he and other officials gave to House committees about Environmental Protection Agency enforcement of the Superfund law. Democrats later accused Olson of giving misleading testimony, prompting the appointment of an independent counsel to investigate. In 1989, the independent counsel’s office cleared Olson of wrongdoing, concluding that his testimony “while not always forthcoming, was in our view literally true.” • Olson may be asked again to explain his role in the “Arkansas Project,” an effort funded by conservative billionaire Richard Mellon Scaife and run by The American Spectator in the 1990s to dig up dirt on President Bill Clinton and then-first lady Hillary Rodham Clinton. Olson denied involvement but said he was aware of the project because of his role as lawyer for the magazine. His ambiguous testimony led the Senate Judiciary Committee to delay a vote on his confirmation for solicitor general in May 2001. Sen. Patrick Leahy (D-Vt.), who is now chairman of the committee, criticized Olson’s “sharp partisanship” at the time and said his answers were full of contradictions and discrepancies. Olson ultimately won confirmation by a narrow 51-47 vote. • In the 2000 Florida election debacle, Olson represented then-Republican nominee George W. Bush before the Supreme Court. With a forceful manner but novel arguments, Olson pulled off a Bush v. Gore victory that put Bush in the White House. Olson’s victory earned him almost reflexive dislike from some Democrats, who may view the attorney general appointment as the ultimate quid pro quo. Senate Republicans are expected to argue that these and other lesser controversies were investigated during Olson’s nomination as solicitor general, and the fact that he was still confirmed should neutralize their impact — even though the vote came when Republicans controlled the Senate (though Vermont Sen. Jim Jeffords had just announced he was leaving the Republican Party). The vote was sharply partisan; only two Democrats voted for Olson, and no Republicans voted against him. Anticipating that Olson supporters would argue that the 2001 confirmation inoculates him, liberal advocacy groups may focus instead on what has happened since then: his tenure as solicitor general before he returned to private practice. PUSHING LIMITS As solicitor general, Olson was a consistently effective advocate before the high court, and in the tradition of solicitors general did not always take positions that the Bush administration supported. In some accounts of the intense debate over the legal authority for the administration’s new surveillance program, Olson has been portrayed as a moderating force. But in some high-profile Supreme Court cases, he eagerly advanced — and sometimes got ahead of — the administration’s conservative positions. In a closely watched gun control case in 2002, Olson followed the lead of then-Attorney General John Ashcroft and argued that the Second Amendment protects an individual’s right to bear arms, as opposed to a collective right of militias — a sharp reversal of the government’s long-standing position. In a pair of affirmative action cases in 2003, Olson would have gone further than President Bush wanted him to in opposing university affirmative action plans. Instead, Olson filed a brief disapproving of the programs at issue, but not urging a reversal of precedents that allowed affirmative action in higher education. Olson also took an aggressive stance in post-9/11 cases on enemy combatants and Guant�namo detainees, though some credit him with moderating the position others in the administration wanted to take. The Supreme Court rebuked the administration in several of the cases.
Tony Mauro can be contacted at [email protected].

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