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Until last week, Solicitor General Theodore Olson had spent his first two months in office quietly placing a more conservative stamp on the Justice Department’s briefs before the Supreme Court. But with Olson set on Aug. 10 to file a high-profile brief in support of a federal affirmative action program, his less-visible conservative advocacy may have been eclipsed. The move could win the administration praise for taking a middle path, or open Olson and his boss, Attorney General John Ashcroft, to charges that they have betrayed their conservative roots. “Given the players here, John Ashcroft and Ted Olson, I’m not sure why this has happened, except as a political calculation,” said Linda Chavez, president of the Center for Equal Opportunity and, briefly, President George W. Bush’s nominee for secretary of labor. “It’s very disappointing. When I discussed these issues with President Bush at the time of my nomination, I thought we were in sync.” The filing came in Adarand Constructors Inc. v. Mineta, No. 00-730, the latest round in long-running litigation over a Federal Highway Administration minority set-aside program for highway contractors, first enacted by Congress in 1990. After the Supreme Court first blocked the program in 1995, Congress re-enacted it, but the program was later modified to ensure that only economically disadvantaged firms benefited. The 10th U.S. Circuit Court of Appeals upheld the revised program, prompting the white-owned Adarand firm to challenge it again. One day before President Bush took office in January, Clinton administration Solicitor General Seth Waxman urged the Court not to disturb the 10th Circuit ruling. But in March, the Court said it would take up the issue again, prompting intense discussions within the Bush Justice Department about possibly changing its position and dropping its defense of the program. On Aug. 10, the deadline for filing the brief, the administration made it clear it planned to defend the program. As of press time, the text of the brief was not available, but government sources confirmed that it would not change sides in the case. Powerful factors weighed on the side of maintaining a defense of the highway program, says Washington University School of Law Professor Clark Cunningham, who has filed a brief in the case supporting neither side. “One of the department’s clients here, in a sense, is Congress, which has reauthorized this program, so you would expect the solicitor general to abide by the wishes of his clients,” says Cunningham. In addition, says Cunningham, the strong identification of both Olson and Ashcroft as opponents of affirmative action may, ironically, have pushed them to decide they had to continue defending the set-aside. “Their integrity as lawyers was under scrutiny, to be sure that they would not impose their personal beliefs on the case, so they might have bent over backward to defend it.” William Perry Pendley of Mountain States Legal Foundation, longtime lawyer for Adarand, also said last week that the administration’s position can be explained as “a defense of Congress, which Ashcroft said he would do during his confirmation hearings.” Pendley said the brief was not a surprise. “We’ve been through three presidents and six secretaries of transportation on this, and nothing has changed.” Chavez said politics was at work, noting that many of the blacks and Hispanics who have become active in the Republican Party “got their start” with set-aside and affirmative action programs like the one at issue in Adarand. But Chavez and others say there will be opportunities before long for the administration to redeem itself as other affirmative action cases make their way to the high court. Affirmative action programs in higher education — which Olson fought vigorously as a private attorney — are at issue in a series of cases that could get to the Court in the next year or so. Since taking office in June after a contentious confirmation process, Olson had taken positions that were generally pleasing to conservatives, positions that critics say the Clinton Justice Department would not likely have advanced. In Toyota Manufacturing, Kentucky, Inc. v. Williams, No. 00-1089, Olson sided with the car manufacturer against assembly line worker Ella Williams, who successfully claimed that the carpal tunnel syndrome she developed on the job entitled her to accommodations under the Americans With Disabilities Act. Disabilities groups were angered by the brief, which says the case should be returned to lower courts. Earlier, Olson filed a brief favoring an Ohio school voucher program that allows government monies to be used for religious school tuition. The brief was submitted in Zelman v. Doris Simmons-Harris, No. 00-1751, even before the Court announced whether it would take up the case — an unusually early stage for the government to become involved. “They didn’t even wait for the Court to act,” says Robert Boston of Americans United for the Separation of Church and State, which opposes vouchers. “Things really have changed at the Justice Department.”

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