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As they explained their votes against Theodore Olson’s nomination as solicitor general last week, Senate Democrats repeatedly described the job he seeks as “unique,” akin to that of a “10th justice” of the U.S. Supreme Court. Ranking Judiciary Committee Democrat Sen. Patrick Leahy, D-Vt., who orchestrated the confrontational 9-9 tie on May 17, worried aloud that Olson is a “thoroughgoing partisan who will not be able to check his partisan instincts at the door to the office of the solicitor general.” Barring Republican defections or a Democratic filibuster, Olson will probably pass through that door fairly soon and don the traditional morning coat the solicitor general wears to argue before the Supreme Court. But the admonitions of the Democrats will echo forward, raising important questions that can only be answered over time. Has the position of solicitor general been permanently tarnished by the charge of politics? Does Olson himself arrive at his job as damaged goods — as a solicitor general who will have to work extra hard to gain the trust of the Supreme Court? And if they were able to bruise and oppose the “tenth justice” as they did last week, what will happen when the senators evaluate a nominee to replace one of the other nine — the real justices of the Supreme Court? Republican partisans see in the Olson vote a sign of things to come when President George W. Bush sends a Supreme Court nominee to the Senate. The latest betting is that that no vacancy will materialize this summer, but when it does, warfare will commence almost immediately. “We’re in for a bumpy ride,” says Thomas Jipping of the Free Congress Foundation’s Judicial Selection Project. “The Olson vote tells me that the Democrats are not keeping their powder dry. They’re shooting everything that moves. They’re like a blindfolded child, whacking at a pinata.” The White House can insulate a high court nominee from some of the whacks by naming someone who combines a first — the first Hispanic, for example — with less of a partisan past than Olson. But the Olson episode may have poisoned the well for Democrats to the point that any Supreme Court nominee, as well as some lower court nominees, will have to run an Olson-like gauntlet to get confirmed. Elliot Mincberg of People for the American Way, echoing comments by Leahy, says the Olson vote represented a breakdown of the process the Judiciary Committee had established after Clarence Thomas’ controversial confirmation nearly 10 years ago. By custom, committee staff from both parties would investigate together when sensitive allegations are made about nominees, Mincberg notes. “The Democrats are likely to continue to stand up for their procedural rights, so we will see more fireworks,” says Mincberg. Judiciary Committee Chairman Orrin Hatch, R-Utah, says Democrats are responsible for any breakdown of bipartisanship. Under special procedures developed to handle committee tie votes in the current 50-50 Senate, Majority Leader Trent Lott, R-Miss., will pull the Olson nomination out of committee and onto the floor of the Senate, possibly as soon as this week. On May 18, Sen. Zell Miller, D-Ga., announced he would vote for Olson, possibly making it unnecessary for Vice President Dick Cheney to break a tie vote of the full Senate. OFFICE POLITICS Olson brought to his nomination not only solid conservative legal credentials, but also a r�sum� loaded with partisan high points. It was his political background — namely, his involvement with the magazine American Spectator and its anti-Clinton Arkansas Project — and questions about his candor regarding that involvement that gave Democrats the ammunition to oppose Olson. Olson may be more political than most if not all of his predecessors, but the rosy image of the solicitor general as above politics is not entirely accurate. The solicitor general has a duty, often hard to define, to be an honest broker with a broader duty to the development of the law than merely winning his cases. But he is also a point man for his president’s legal policies. Archibald Cox worked in the presidential campaign of John Kennedy before becoming solicitor general in 1961, and Thurgood Marshall arrived at the post in 1965 with a long record of civil rights activism. Robert Bork was closely questioned in 1973 about his past writings on civil rights and antitrust, and Charles Fried drew opposition in 1985 from civil rights groups concerned about his views on race. Drew Days III and Walter Dellinger in the Clinton administration also weathered some political sniping early on. “It’s really a pre-Reagan era notion that the solicitor should be nonpolitical,” says Rebecca Salokar, author of a 1992 book, “The Solicitor General: The Politics of Law.” The attention on the position triggered by the flap over Olson, she suggests, could bury that image once and for all. “Somehow the idea has arisen that the solicitor general is a judge and has to have been born a judge,” agrees Fried, now a Harvard Law School professor. “That really is not necessary.” Fried recalls that after his own confirmation, “I wasn’t very popular with Justices Marshall and Blackmun, and Justice Brennan roughed me up a bit” with tough questions from the bench. But soon, Fried says, any animosities or testing faded, and by the time he was seeking a judgeship in Massachusetts in 1995, “Justice Brennan was writing recommendations for me.” The tribal tradition in elite Washington of salving the wounds of confirmation will work especially well for Olson in part because some of the justices — notably his good friend Justice Clarence Thomas and Chief Justice William Rehnquist — have gone through their own nomination tribulations. “They’ve all been around so long, they know what is going on,” says Fried, who believes the criticism of Olson’s candor was a phony mask for more base political motives. “He is a professional, and life will go on.” Adds Charles Cooper of Cooper & Kirk and an Olson supporter: “The Court has seen this routine before. He’ll come out of it fine.” WHAT LEGACY? Some are not so optimistic. Mincberg of People for the American Way says Olson would arrive at the Court with “a bit of a cloud over his head.” The criticism of Olson has focused on his credibility and candor — two qualities that are essential for a solicitor general, Mincberg notes. “It can’t help but be on the justices’ minds as he makes his arguments,” he adds. Of course, candor was an issue in Olson’s first run-in with Congress and the independent counsel in the early 1980s, and the episode did not keep him from building a highly successful Supreme Court practice at Gibson, Dunn & Crutcher. Harvard Law School professor Laurence Tribe, Olson’s adversary in Bush v. Gore last December, says that “a testing period of sorts is inevitable for any SG.” Yet Tribe, who endorsed Olson’s nomination in a letter that preceded the flap of the last few weeks, says Olson’s performance on the job will matter more than anything that went before. Adds Tribe: “That process of establishing credibility as solicitor general probably depends, in any contested or clouded case, on how the new SG actually performs in the early period of his or her tenure.”

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