04/06/2001
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They contended that Theodore Olson, the president's choice for solicitor general, wrote partisan articles against the Clinton administration and argued cases against now-established federal laws.
"I can't find any parallel in history of anyone who was as actively involved in politics as you and went on to become solicitor general," Sen. Dick Durbin, D-Ill., told Olson, whose nomination is now before the Senate Judiciary Committee.
Responded Olson: "I believe when you serve in the Department of Justice you put your partisan considerations aside."
The solicitor general takes a leading role in deciding which cases the administration will pursue before the Supreme Court, and typically argues the most high-profile ones in person.
Republicans said Olson, who successfully argued George W. Bush's Florida election case before the Supreme Court, showed his legal acumen last year.
"Regardless of whatever side of that case you were on, you had to be impressed with his talent," said Sen. Don Nickles, R-Okla.
Democrats, however, have plenty of questions.
"The thing we have to evaluate is your ability to set aside your feelings and operate objectively," said Sen. Dianne Feinstein, D-Calif.
Olson is a former law partner and friend of one-time Independent Counsel Kenneth Starr. He assisted Paula Jones' legal team in her sexual harassment suit against former President Clinton and represented Whitewater figure David Hale during Senate hearings into the Clintons' role in the Arkansas land deal.
Olson also wrote several critical articles about the Clinton administration and former Attorney General Janet Reno, and also co-wrote an article listing possible crimes with which Clinton and Hillary Rodham Clinton could be charged.
Feinstein contended that Olson was not balanced in his articles and said that as solicitor general, he must represent the entire country.
"Why should I believe you will be if you don't in your writings?" she asked.
Republicans rallied to Olson. "I have a feeling you'll do a great job for everybody, not just people of one political persuasion," the committee chairman, Sen. Orrin Hatch, R-Utah, told Olson.
Olson came to Washington in 1981 to work in President Reagan's Justice Department and later represented the former president during the Iran-Contra scandal. He has a 9-4 record before the Supreme Court, and one draw from the first Florida election case. The high court sent that case back to the Florida Supreme Court on Dec. 4 without ruling on its merits.
Among the issues about which Democrats questioned Olson:
--Abortion rights as represented by the Roe v. Wade decision. "Could it be your agenda to overturn Roe v. Wade?" asked Sen. Charles Schumer, D-N.Y. Answered Olson: "It is not my agenda to seek an opportunity to overturn Roe v. Wade."
--His losing argument before the high court in 1986 against maternity leave. Feinstein asked Olson what position he would recommend that the government now take. "I'd have to argue the other side, because as you mentioned, we lost that case," Olson replied.
--Whether he would defend federal laws if they were challenged in court. Schumer and Sen. Russ Feingold, D-Wis., co-sponsor of the Senate's campaign finance bill, asked Olson about that legislation as well as the Endangered Species Act and other matters.
Olson said he would decide each case on its merits but "if we in good faith find a defense, we bend over backward to do that because the laws are passed here" in Congress, he said.
"It is not the responsibility of the executive to decide whether something is unconstitutional or not. Unless we can't make a good faith defense of the statute, we should do that and let the courts make the decision," he said.
If confirmed, Olson would replace Clinton appointee Seth Waxman.
Hatch said the Judiciary Committee could vote on Olson as early as April 26.
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