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Last year, Washington insiders were mentioning litigator Theodore Olson as a good bet for solicitor general in a George W. Bush administration. The talk only grew louder in December when Olson successfully represented Bush before the Supreme Court in the landmark litigation over the Florida presidential recount. And with the confirmation of Attorney General John Ashcroft last week, the talk apparently moved closer to reality. But winning the case that put Bush in the White House is perhaps the least of Olson’s credentials to be the government’s lead appellate lawyer. Olson, who co-chairs the appellate practice at Gibson, Dunn & Crutcher, is a fixture in conservative legal circles. He enjoys a solid stature as an advocate before the Court and an easy familiarity with the justices; Justice Clarence Thomas was in attendance when, in 1996, he and his wife Barbara were married. His r�sum�, paired with his unfailing service to Republican causes, has made him the clear front-runner for the position of solicitor general. It was widely believed last week that the job was Olson’s for the taking. Olson declines to comment. At press time, an announcement was expected soon. Those who know Olson, 60, say he could be the right man to help keep Ashcroft committed to the promises he made to the Senate to defend laws he does not like. Olson’s days as head of the Justice Department’s Office of Legal Counsel under former President Ronald Reagan suggest he does not always toe the Republican line. And veterans in the Justice Department are predicting that he’ll adopt the less political model of the role of the solicitor general embraced by the late Rex Lee, who served from 1981 to 1985 and with whom Olson was close. Under that view, the solicitor general is a disinterested advocate who will defend the laws of Congress — liberal or conservative — if a plausible defense can be made, and won’t necessarily advance the administration’s social agenda. Olson at the OLC “was viewed as someone who brought considerable integrity to the decision-making,” recalls Walter Dellinger, who himself headed the OLC and the SG’s office at various times in the administration of former President Bill Clinton. Sentiments like that will likely smooth Olson’s path to confirmation, which may seem remarkable given his pivotal role in the bitter struggle over the Florida recount a scant two months ago. Early signs indicate that if any opposition develops, it will come from partisan Democrats who would view his appointment as a stick in the eye, rather than from liberal interest groups that object to his views. “I don’t sense as much of a visceral reaction to Olson as there was to Ashcroft,” says Elliot Mincberg, legal director at People for the American Way. “He is certainly a conservative legal person, and there will be an examination of that, but I don’t know that he is in the same category as Ashcroft.” DOCKET ROCKETS If Olson takes office as solicitor general, some cases in the pipeline could provide an early political test. Several cases involving affirmative action programs at public universities are making their way to the Supreme Court, and affirmative action opponents — as well as universities seeking guidance — predict that one or more will be accepted for review. Under Clinton, the Justice Department supported the universities seeking to preserve affirmative action. But a Bush DOJ may reverse course, and Olson may be uniquely conflicted about what to do. In one of the cases nearing Supreme Court review, a successor to the well-known Hopwood v. Texas, Olson in private practice represented Cheryl Hopwood, a white University of Texas student challenging the affirmative action program. As solicitor general Olson might feel compelled to recuse. Just before Inauguration Day, Solicitor General Seth Waxman filed a brief in another repeat-performance affirmative action case, Adarand v. Slater, arguing against Supreme Court review of a federal highway construction affirmative action program. Mountain States Legal Foundation, which is challenging the program, slammed the brief as a “midnight” filing aimed at keeping the Supreme Court from reviewing the issue. Waxman, of course, has since left government. Another last-minute Waxman brief in an environmental case up for possible Supreme Court review is also being criticized by conservatives — and could make for one of Olson’s early decisions. In Gibbs v. Babbitt, the Clinton Justice Department defended regulations on the taking of red wolves under the Endangered Species Act from a challenge on the grounds that they exceed the commerce clause power of Congress. The government’s deadline to file its brief on whether the Court should grant review was Jan. 26. But Waxman filed a week early, in the final days of the Clinton administration. “It’s not anything outrageous, but it’s comical,” says Sam Kazman of the Competitive Enterprise Institute, which supports the challenge to the red wolf regulations and filed a reply brief decrying the SG’s “rushed, midnight brief.” Justice Department officials shrug off the “midnight brief” charges, suggesting that the same papers would have been filed a week later under the signature of Acting Solicitor General Barbara Underwood, Waxman’s deputy who is staying on for an unspecified period. “Nobody’s telling Barbara what to do,” says one source in the office, who also notes that a Bush solicitor general would likely take the same positions in defense of federal programs anyway. The big imponderable, however, is what will happen if a case comes to the fore that would be a good vehicle to challenge Roe v. Wade. During confirmation hearings, Ashcroft said Roe is settled law and he would not challenge it. But settled law — and the Court’s composition — can change. “What happens if Ashcroft says to Ted, ‘I want you to challenge Roe v. Wade‘?” says Tim O’Brien, a close friend of Olson who used to cover the Supreme Court for ABC News. “I don’t know the answer to that question. I think Ted would not like to argue that case,” says O’Brien, now a visiting professor at St. Thomas University Law School in Miami. Olson has “conservative ties,” O’Brien adds, but is a straight-shooter open to differing views. “We’ve had many disagreements over the years, but he always listened.” TWO WORLDS AS ONE His background seems to make Olson well-suited to navigate between the political and legal shoals of the office. After his 1965 graduation from Boalt Hall School of Law in Berkeley, Calif., Olson joined Los Angeles’ Gibson, Dunn & Crutcher. He started in insurance defense but gradually worked his way into higher-profile civil cases, including First Amendment work defending newspapers. In 1980, former California Gov. Ronald Reagan won the presidency and tapped Gibson Dunn labor partner William French Smith to be attorney general. Smith in turn looked to his younger partner Olson to head the Justice Department’s Office of Legal Counsel. The OLC is a critical post, the principal legal adviser to the executive branch. The office resolves disputes between warring government agencies and reviews presidential initiatives for constitutional or other legal problems. Olson led the 14-lawyer office from 1981 until 1984, earning a reputation as a disciplined and tireless worker. Mark Rotenberg, then a young lawyer in the OLC and now general counsel at the University of Minnesota, recalls one all-nighter when he entered the bathroom around 6 a.m. to splash some cold water on his face. There he found a bright-eyed Olson, straightening his tie. “He got in pretty damn early,” Rotenberg recalls. Olson authored 124 published opinions and oversaw dozens of others in his time at the OLC. Topics ranged from presidential succession in the wake of the assassination attempt on Reagan to the Central Intelligence Agency’s ability to conduct covert operations without informing Congress. Then and now a Republican loyalist, Olson nonetheless was not afraid to disappoint the Reagan revolutionaries when the law required him to do so. In 1982, Olson concluded the president could not on his own declare certain tracts of federal land ineligible for wilderness protections, even though he was being urged to do so by the Interior Department. Only the Congress had that authority, Olson wrote. That same year, Olson told the Office of Management and Budget — which led the conservative attack on burdensome regulation — that block grants designed to “defederalize” welfare and education programs were still subject to federal anti-discrimination laws. “Ted made life difficult for us,” says Michael Horowitz, then general counsel at the budget office and now a senior fellow at the Hudson Institute. Playing essentially the role of a judge ruling on positions advocated by the agencies, Olson took “a profoundly principled approach” to the law, says Horowitz. Dellinger, a loyal Democrat and now partner at O’Melveny & Myers, agrees that Olson’s opinions show no attempt to shape the law one way or the other. Some of Olson’s opinions on hot-button topics include: � A 1981 holding that the Internal Revenue Service was authorized to defend its decision to strip Bob Jones University, which was then not open to black students, of its tax-exempt status. � A 1981 decision that the Peace Corps could not fund a volunteer’s abortion but was required to pay for a participant’s travel and per diem medical expenses, whether or not an abortion was involved. � A 1983 opinion that an assistant federal prosecutor could not be fired solely because the lawyer was homosexual. � A 1984 holding that the congressional repeal of nonprofit groups’ exemption from Social Security taxes did not violate the First Amendment’s Free Exercise clause. “He wasn’t there to advocate prayer in the schools,” says Rotenberg. All that said, more than some of Olson’s interpretations backed the administration. One of the most important was a 1981 opinion supporting Executive Order No. 12,291, in which Reagan required executive agencies to submit proposed regulations to the budget office for review. That opinion and others like it, Horowitz says, reflected Olson’s fervor for preserving the power of the presidency as chief of the executive branch. His loyalty to the White House eventually landed him in Washington’s own brand of purgatory — the subject of an independent counsel investigation. The case started in 1983, when Olson cited executive privilege in refusing to provide Congress with certain documents of the Environmental Protection Agency. It ended five years later, when the special prosecutor concluded her inquiry without even indicting Olson. In between, Olson launched an unsuccessful challenge to the constitutionality of the independent counsel law, resulting in the Supreme Court’s 7-1 decision in Morrison v. Olson. Despite considerable efforts fighting off the investigation, Olson managed to start Gibson Dunn’s appellate practice upon returning to private practice. As at the OLC, he has continued his practice of early arrivals: Colleagues say his car is often the first one in the firm’s downtown D.C. parking garage.

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