he Senate vote
last week to confirm Theodore B. Olson as solicitor general by a
razor-thin margin had everything to do with politics and little to
do with the strength of the Democrats' case in opposing the nominee,
according to key senators and congressional staff. Democrats
continued to insist that Olson had indeed given misleading and
untruthful testimony during his confirmation hearings but refrained
from blocking Olson's nomination. The Democratic leadership's
strategy was to allow Olson's nomination an easy pass and thereby
gain greater credibility when opposing future conservative judicial
nominations by the Bush administration for the federal judiciary and
potentially the Supreme Court.
The Republicans' victory on Olson, however, now comes at a
longer-term cost as power shifts to the Democrats in the Senate. As
a senior aide to the Democratic leadership said, "By winning, they
lose. They get Olson, but now we get to play a real role in the
selection of federal judges." And as for Republican Senator Orrin
Hatch of Utah, the outgoing chairman of the Senate Judiciary
Committee who led the fight to confirm Olson, the same congressional
aide said: "He gets Olson as solicitor general, but now Hatch is
going to be hit in the gut five times harder, and he is going to be
feeling the pain very soon."
Senate Republican leader Trent Lott of Mississippi rushed a vote
on Olson's nomination to the Senate floor last week just as Vermont
Senator Jim Jeffords's party defection was handing control of the
chamber to the Democrats. While Senate Democrats easily could have
attempted to stop the vote by mounting a filibuster or invoking some
other procedural tactic, they chose not to. A small minority of
Democratic senators, however, said their party's halfhearted, if
tactical, opposition to Olson was a lost opportunity: Had Lott not
successfully expedited the vote, it's virtually certain that Olson's
nomination would not have survived the Democrats' assuming control
of the Senate.
Indeed, Democratic Senator Joseph Biden of Delaware had all but
declared victory the night before the unexpected vote, predicting
that "Ted Olson will soon be practicing law, making lots of money."
That statement was made, of course, before Lott rushed Olson's
nomination to the Senate floor, and Biden's fellow Democrats agreed
not to stand in the way of a vote.
Even so, Olson still only won
confirmation as solicitor general by the slimmest of margins, 51-47.
Only two Democratic senators voted for his confirmation. And Olson
was confirmed by an even slimmer margin than were two of the more
contentious and controversial nominees before the Senate in recent
history: Attorney General John Aschroft and Supreme Court Justice
Clarence Thomas. Ashcroft won confirmation with 58 votes; Thomas
In a lengthy speech on the Senate floor in opposition to Olson's
nomination, Democratic Senator Patrick Leahy of Vermont, who next
week takes over the chairmanship of the Senate Judiciary Committee,
defiantly stated that although he was not going to oppose an
immediate vote on Olson's nomination, he was more convinced than
ever that Olson had misled the committee.
Specifically, Leahy charged that Olson had given misleading and
untruthful testimony to the Senate Judiciary Committee regarding his
involvement with the Arkansas Project -- a four-year, $2.4-million
effort by The American Spectator magazine to investigate and
discredit Bill Clinton -- as well as obfuscatory statements on how
he had come to serve as an attorney for David L. Hale, the
Whitewater independent counsel's chief witness against Clinton.
"My doubts and questions about Mr. Olson have only grown over
time," Leahy said.
Leahy also cited new evidence from an American Prospect
Online article posted the night before the vote as evidence of
Olson's misleading statements during the confirmation hearings.
Olson had told the committee that he had virtually no recollection
of how he had come to represent Hale, that his memory of the matter
had grown "quite faint," and that all he could remember was that he
had agreed to represent Hale after having been "contacted by a
person or persons whose identities I could not recall." However, the
Prospect article disclosed that several individuals had told
federal investigators, during a 1998-1999 special counsel's criminal
probe of both Hale and the Arkansas Project, that Olson had been
recruited to represent Hale by David Henderson, a conservative
political activist who oversaw the Arkansas Project.
"The role that David Henderson played in introducing David Hale
to Mr. Olson is apparently corroborated by several witnesses who
have spoken to The American Prospect," Leahy said in his
floor speech. "It now strikes me as strange that a man as capable as
Mr. Olson, with his vast abilities of recall, could not remember the
name of David Henderson. Leahy continued, "It strikes me as doubly
strange . . . that Mr. Olson was able recall who introduced him to
David Hale just a couple of years ago when asked the same question."
During the special counsel's investigation, Olson had told federal
investigators that he was urged to represent Hale, during a 1993
meeting, at which Henderson was present.
Moreover, according to congressional sources, as the Senate vote
was approaching, Judiciary Committee investigators were attempting
to obtain the testimony of former American Spectator
publisher Ronald Burr, who was expected to shed additional light on
Burr, publisher of the Spectator for 30 years until he was
abruptly fired for questioning the ethics of some aspects of the
Arkansas Project, was expected to testify that Olson had misled the
committee regarding his involvement with Hale and the Arkansas
Project. Among other comments, Burr has previously stated that
Olson's representation of Hale was central to obtaining the funding
for the Arkansas Project in the first place.
According to Leahy, however, The American Spectator had
stymied his investigation by refusing to allow Burr to testify. When
Burr was fired from the Spectator, the magazine agreed to pay
him more than $350,000 in severance pay; in exchange, however, Burr
agreed to never publicly disclose information regarding the Arkansas
Project. Citing their contract with Burr, The American
Spectator's attorneys refused to allow Burr even to be
informally interviewed by congressional investigators.
But as Leahy noted in his comments on
the Senate floor, even without Burr's story there was more than
enough evidence indicating that Olson had not been truthful in his
hearings before the Senate. "The credibility of the person to be the
solicitor general is of paramount importance," said Leahy. "When
arguing in front of the Supreme Court . . . the solicitor general is
expected to come forward with both the strengths and weaknesses of
the case, to inform the Court of things it might not otherwise know,
and to be honest in all his dealings with the Court. . . . Based
upon what I have seen, I do not have the requisite confidence to
support Mr. Olson's nomination."
Senator Hatch, Olson's most staunch defender in the Senate, said
in response to Leahy that Olson had been "truthful and forthright"
during his confirmation hearings. Hatch also suggested, not so
subtly, that Democrats were opposing Olson's nomination as
retribution for Olson's representation of the Bush campaign during
last year's presidential election crisis.
The Senate Judiciary Committee's abandonment of the Olson
investigation and acquiescence to the GOP's push for a vote was
almost entirely a political decision, according to senators and
congressional staff involved in the process. Democrats could just as
easily have attempted to delay the vote through a filibuster or some
other procedural tactic and allowed the investigation of Olson to
continue. But Senate Democratic leader Thomas Daschle of South
Dakota as well as most of the Senate Democratic leadership decided
that they didn't want to engage in a contentious fight regarding a
"We decided to allow the vote to go forward, move on to other
things, to move on what will be our agenda," said Democratic Senator
Charles D. Schumer of New York. A key Democratic congressional staff
member more bluntly encapsulated the Democrats' thinking: "There is
only a limited amount of capital for us to expend, and we're not
going to expend it on this."
Prior to that tactical-course reversal, however, at least two
Democratic senators, Robert Torricelli of New Jersey and Hillary
Rodham Clinton of New York, argued in the Democratic caucus to
filibuster or delay a vote on the Olson nomination, according to two
senators present at the caucus. Torricelli argued "passionately and
forcefully" that his party filibuster Olson's nomination but
ultimately didn't foresee how close the vote would be. Torricelli
privately confided later that had he been aware of the vote's margin
in advance, he would have worked much harder to convince his
colleagues to pursue a filibuster.
According to several congressional sources, however, there were
doubts that this strategy would have prevailed. According to one
senator, Hillary Clinton's advocacy for a filibuster undermined many
of her colleagues' support for her cause because she was perceived
as pursuing a personal agenda. Not only had The American
Spectator spent $3.2 million to investigate Senator Clinton's
husband, but Theodore Olson's wife, Barbara, had written a highly
polemical book about the former first lady entitled Hell to
Olson herself has said that her book is filled with rumors and
hyperbole. In one passage, Olson wrote that Hillary Clinton had
"throughout her intellectual life . . . been taken by [the] idea,
which is the totalitarian temptation, that throughout history has
led to the guillotine, the gulag, and terror and reeducation camps
of the Red Guard." In another passage, she wrote that the Clinton
years would be remembered as "a long national nightmare of scandal,
sleazy and ruthless acquisition of power."
In Hell to Pay's acknowledgements, Barbara Olson called
the book a "team effort" with her husband: "All accomplishments are
the result of a team effort," Barbara Olson wrote. "But none has
been so profound and total in my life as the team of Olson and
Olson. We became engaged during the Vince Foster phase of the
investigation, got married in between depositions and hearings, and
heard about the first FBI file while on our honeymoon."
Despite the fact that the scholarship and research for the book
had been seriously questioned and Hell to Paywas not widely
read outside conservative circles, Hillary Clinton, according to
confidantes, remained deeply resentful of the Olsons after the
publication of the book.
At least one of Hillary Clinton's Democratic Senate colleagues
privately says that given past antagonisms between the Clintons and
the Olsons it was unwise for Senator Clinton to be such a forceful
advocate for mounting a filibuster to delay the vote. "She's still
new to this institution," said the senator. "She should not have
been so outspoken in the caucus because of her own personal ax to
grind. If she had been up here for a few more years, she might have
known that the best thing to do would have been to remain silent
herself and ask another senator to argue her case for her."
But other colleagues of Senator Clinton now privately say that
she did the right thing while they sat on the sidelines of the
debate. Had they known in advance that the final vote on Olson's
confirmation was going to be so close, they later said, they might
have joined her in seeking a filibuster.
The same day that Hillary Clinton urged her colleagues to mount a
filibuster to stop Olson's nomination, the former first lady
displayed her lingering and deep resentment over the Whitewater
probes of her and her husband by casting the sole vote opposing the
Justice Department nominations of two lawyers who had connections to
the Whitewater investigation.
The first, Michael Chertoff, a former U.S. attorney in New
Jersey, who served as the Republican counsel to the Senate
Whitewater committee, had been nominated by President Bush to head
the Justice Department's criminal division. The Senate voted 95-1 to
confirm Chertoff's nomination.
A second nominee was Viet Dinh, a Georgetown University law
school professor, who had served as both an associate counsel to the
Senate Whitewater committee and as an attorney for Whitewater
Independent Counsel Kenneth W. Starr. Dinh had been nominated by
President Bush to head the Justice Department's Office of Legal
Policy. His nomination was approved by the Senate 96-1.
The same senator who was critical of Senator Clinton's outspoken
role in advocating a filibuster of Olsen's nomination also
criticized her sole dissenting votes in opposition to the Chertoff
and Dinh nominations. While saying that they understood her
resentment of prosecutors who "relentlessly pursued her, her
husband, and her longtime friends," this senator said, "When it
comes to appearances, there is a thin line between being cranky and
appearing like a crank."
Even long before the contentious fight
over Olson's nomination as solicitor general, many Democratic
senators were exercised over what they considered to be a
heavy-handed attempt by Senate Judiciary Committee chairman Orrin
Hatch to further restrict their role in the selection of federal
judicial nominees. Early last April, Hatch first suggested that he
was considering changing his own policy dating from the mid-1990s,
whereby judicial candidates could, in effect, be vetoed by a single
senator from the candidate's home state. During President Clinton's
second term, Republican senators frequently exercised that privilege
to block Clinton nominees they considered to be too ideologically
liberal. But once George W. Bush took office, Hatch -- justifiably
worried that Bush's nominees would suffer the same fate as Clinton's
-- informed the Democrats that, henceforth, it would require the
opposition of both home-state senators to block judicial candidates.
[See Nicholas Confessore, "This
Time, It's Personal," TAP, June 4, 2001.]
Senator Leahy was said to be so angered by Hatch's proposal that
he warned Hatch that the entire confirmation process for federal
judges "may grind to a screeching halt" if Hatch were to implement
But all of that was before the Democrats' recent extraordinary
reversal of fortune. With the Olson nomination now out of the way,
sources close to the Senate Democratic leadership say they will have
more credibility in mounting challenges to conservative nominees to
the federal judiciary by the Bush administration. Said one
Democratic staffer: "Orrin Hatch is going to be feeling the pain
Indeed, the impact of a Senate Judiciary Committee with a liberal
Democratic chairman has already been felt by the Bush White House.
The day after the vote to confirm Olson, California Republican
Representative Christopher Cox withdrew his name from consideration
as a nominee for the 9th Circuit Court of Appeals in California.
The state's two Democratic senators, Barbara Boxer and Dianne
Feinstein, had already said they would likely attempt to block the
nomination. And with the Senate Judiciary Committee and full Senate
coming under Democratic control, Cox apparently saw the handwriting
on the wall.
In addition, Democrats have vowed that they will more closely
scrutinize at least four other recent nominees to the federal bench
by the Bush administration.
Senator Hatch already has felt the sting of the Democrats'
reversal of fortune. Hatch complained to the Associated Press: "It's
a shame [Cox has] been basically trashed without even giving him any
consideration. He met every qualification . . . and I feel that he