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FindLaw Forum: It's risky to politicize the solicitor general

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(FINDLAW) -- Theodore Olson's nomination as solicitor general divided the Senate Judiciary Committee, 9-9. Nevertheless, Republicans jammed through Olson's confirmation in the full Senate, 51-47, just before they were about to relinquish majority control the Democrats. The vote says a lot about the way Senate Republicans perceive Olson and his new job.

At first, the Judiciary Committee haggled about whether to open the hearings to examine Olson's truthfulness about his involvement with the American Spectator's dirt-digging on Hillary and Bill Clinton -- the so-called "Arkansas Project," which led to sundry independent counsel investigations.

Then the committee began to pursue a bipartisan inquiry. Now, though, that investigation has been cut short, and Olson confirmed.

Clearly, the issue of Olson's candor before the committee was purely a pretext for his opponents to attack him. That is the way the confirmation process works today: The idea is to use the process itself to create an excuse to defeat a nomination. The real issue was, of course, his conservative politics.

Olson has long allied himself with conservative causes. From his long involvement with the Federalist Society to his recent representation of George W. Bush in Bush v. Gore, he is a consistent advocate for the right. Thus, for good reason, his opponents were troubled at the high possibility that he will use the solicitor general's post to further the conservative agenda.

The government's advocate

Congress created the solicitor general's post at the same time it established the Department of Justice. An 1870 law made the solicitor general the "chief deputy" of the attorney general. Succeeding laws have defined his role as the government's chief advocate before the U.S. Supreme Court. He has one client: the U.S. government.

The solicitor general decides which cases the government will appeal to the Supreme Court. In addition, he speaks for the entirety of the federal establishment, except for those departments or agencies that Congress has expressly empowered to undertake such appeals on their own.

In addition, the solicitor general decides whether and when the government will support or oppose petitions for certiorari or will file an amicus curiae (friend of the court) brief with the high court. He prepares all the government's papers, submits them to the Supreme Court and represents the government at oral arguments.

The 10th justice

So close is the solicitor general's working relationship with the Supreme Court that he has an office in the court building. Indeed, he has been called the "10th justice" because he influences which matters are brought to the attention of the court, and because of his stature with the justices.

Other than an appointment to the Supreme Court, no legal work is more coveted or demanding than the work of the solicitor general's office. It is a post that has been held by some of our nation's great legal talents, among them William Howard Taft (later president and chief justice), Charles Evans Hughes (later secretary of state and chief justice), Robert H. Jackson (later Supreme Court justice and Nuremberg prosecutor), Archibald Cox (later Watergate prosecutor) and Thurgood Marshall (later Supreme Court justice).

Historically, the office has been nonpartisan. For example, no modern presidents were more partisan -- or more politically opposite -- than Lyndon Johnson and Richard Nixon. Yet former Harvard Law School Dean Erwin Griswold served as solicitor general for both these presidents.

In short, while appointed by the president, the solicitor general is not the president's lawyer, but rather the government's. There is a difference.

It was not until the Reagan presidency that the office was first truly politicized.

Attorney General Edwin Meese sought to use the office to promote conservative causes. He hired a man who would advocate the conservative agenda from the post: Charles Fried. Fried, who took office in 1985, replaced Rex E. Lee, who had refused to make his Supreme Court briefs conservative pamphlets for the president.

The last conservative activist

Fried had no qualms about being a mouthpiece for the president when so requested. He sought to advance conservative political efforts by urging the Supreme Court to outlaw affirmative action and overturn Roe v. Wade -- to cite just a few of the more blatant examples.

Most memorable, however, was his willingness to argue a case that most all his predecessors (at least since the Civil War) and successors would have resigned before presenting to the court.

In Bob Jones University v. United States, Fried argued that schools that discriminate against blacks should still be accorded tax breaks. The racism of this position is patent. The fact that it departed from established practice by the IRS did not trouble Fried, nor did the fact that his argument was contrary to his certiorari papers.

Fried's palpably partisan and extreme positions failed. Although he may have pleased conservatives, he did not please the Supreme Court. Lincoln Caplan of Yale Law School has studied Fried's tenure and those of others who have held the post. Caplan interviewed many of the justices sitting during Fried's arguments. They were outspoken in their criticism.

One justice found Fried's work was "hardly the mark of a reasoned approach to the law. It's ideology, pure and simple. It's an assault on settled practices."

Caplan observes that although Fried's arguments attracted great attention, they had little effect on the Supreme Court. Caplan is not the only critic of such political advocacy by a solicitor general.

True professionals

Over the decades, a symbiotic relationship between the Supreme Court and the solicitor general's office has developed. Although the Supreme Court generally grants certiorari (or review) in less than 5 percent of the petitions filed each year, the success rate of the solicitor general's office in procuring court review is usually near 75 percent.

This success rate is high because the court trusts the quality of the work of the lawyers of the solicitor general's office. They are true professionals. The cases they bring to the court are not filed for political reasons. They represent an objective evaluation and decision that the appeal is important to the interests of the government (and all Americans).

The solicitor general strictly limits the appeals he files, and should the justices suspect that appeals are being filed for political reasons, the breach of trust will hurt both the government and the court.

The Clinton administration did not seek to politicize the solicitor general's office and its activities. Clinton appointed consummate professionals: Drew S. Days III; Walter Dellinger (acting solicitor general for the 1996-97 term); and Seth P. Waxman.

These men recruited the best and brightest young lawyers to the office. It is a professional staff that will have a low tolerance for any attempt to politicize the office. The arrival of a highly political solicitor general could require replacing much of the staff of this office.

And loss of that staff would seriously damage operations. These men and woman cannot be quickly replaced by a crew from the Federalist Society (even squads of former law clerks of Justices Rehnquist, Scalia and Thomas) because such a wholesale change in personnel would severely disrupt continuity in the office.

Olson's testimony

Theodore Olson's April 5 testimony before the Senate Judiciary Committee showed that he would be a political -- but, he asserted, not partisan -- solicitor general.

Sen. Patrick Leahy, D-Vermont, asked Olson what criteria he would consider when filing amicus briefs. Olson's answer -- and its contrast to the answer of one of his predecessors -- is very revealing.

Charles Fried had been asked a similar question in 1985. Fried responded that "it would be peevish and inappropriate for the solicitor general to be anything but cheerful" in supporting the views of the president who appointed him. Fried was, in fact, quite cheerful when representing the conservatism of Reagan and Meese, as opposed to the broad interests of all Americans.

This year, Olson's answer was distinctly different, and very adroit: "I want to make it very clear that partisan interests, Republican, Democrat, those kind of political considerations that have to do with partisanship, should not be a part of the equation. But policy positions are, and have been in every presidency that I have studied."

When later pressed by Sen. Dianne Feinstein, D-California, Olson elaborated: "I believe ... that when you accept a position in the Department of Justice, you put your partisan positions aside, your personal views aside, and attempt to serve the department and ... the American people as evenhandedly and as fairly and as openly as possible."

Consequences of Olson's confirmation

Olson is a professional. He can be expected to be true to his long-held conservative convictions. Yet should he become overtly political in his position as solicitor general, he will only make himself a monumental and notorious liar, given his Senate testimony.

What is troubling about his confirmation by the Senate is that it appears that Senate Republican forced the vote precisely because they want him to be political -- spending some of their final political capital before majority control of the Senate changes hands.

We must all hope that Theodore Olson does not read his approval in the way senators themselves may intend it: as a mandate to do the bidding of Republican partisans.

We must hope that he will rise above the partisan vote, to one day be considered an equal among the great solicitors general who have preceded him in the post.

If Olson in fact represents the government as a whole, not the conservative political interests of Republicans alone, his considerable legal talents could place him in that league.


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