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CNN Burden of Proof

Theodore Olson's Controversial Solicitor General Nomination

Aired May 23, 2001 - 12:30   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
ROGER COSSACK, CO-HOST: Political controversy over the nomination of Theodore Olson to the position of solicitor general heats up as Republicans and Democrats butt heads.

(BEGIN VIDEO CLIP)

SEN. TRENT LOTT (R-MS), MAJORITY LEADER: He certainly is qualified. This is one nominee that has a lot of Democrats and certainly lawyers that have very different views of philosophy that have indicated he is well qualified and would be an excellent solicitor general.

SEN. PATRICK LEAHY (D-VT), JUDICIARY COMMITTEE RANKING MEMBER: I have become increasingly concerned that he's not shown any willingness or ability to be sufficiently candid and forthcoming with the Senate.

(END VIDEO CLIP)

COSSACK: Today on BURDEN OF PROOF: He has won several historical cases before the Supreme Court. So why don't Democrats want Ted Olson as the United States solicitor general?

ANNOUNCER: This is BURDEN OF PROOF with Greta Van Susteren and Roger Cossack.

COSSACK: Hello, and welcome to BURDEN OF PROOF.

Theodore Olson has a distinguished legal resume, including having done legal work for former president Ronald Reagan, Monica Lewinsky and, most notably, President George W. Bush. So why has his nomination to be the next solicitor general of the United States caused the Senate Judiciary Committee to deadlock along party lines?

He's popular among conservatives, but Democratic committee members are questioning how big of a role he played in the "Arkansas project," a four-year investigation into possible past wrongdoings by then president Bill Clinton. Olson told committee members he was not involved in the project and that his legal work did not involve assisting in the investigations of the Clintons. If his nomination is confirmed a solicitor general, Olson would act as the government's lawyers in front of the Supreme Court.

So discuss this, joining us today from Chicago is law professor Tom Merrill, a former deputy solicitor general who worked under Republicans Charles Fried and Kenneth Starr. From New Haven, Connecticut, law professor Lincoln Caplan, author of "The Tenth Justice: The Solicitor General and the Rule of Law." And from Capitol Hill, we're going to joined by Republican congressman Bob Barr. And joining me here in Atlanta is civil litigator Teresa Wynn Roseborough, a former Supreme Court clerk for Justice Stevens.

Let's go first right to Lincoln Caplan. Lincoln, we're talking about the solicitor general. What is the solicitor general? What does he -- what does he do or she do?

LINCOLN CAPLAN, LAW PROFESSOR: The job of solicitor general is one of the most eminent in American law. The solicitor general is part advocate, in that he is the chief advocate for the president of the United States and really the United States in the Supreme Court. And he's part judge in that he's responsible for decided which cases the United States loses in lower courts should be appealed to the Supreme Court and which cases the government should join as a friend of the court, which acts of Congress should be defended.

But what's most interesting about the solicitor general is that he is considered to have not just responsibility for representing the interests of the United States, but to have, as well, a dual responsibility to the Supreme Court. For generations, the Supreme Court and Court watchers have expected the solicitor general to help the Justices of the Supreme Court develop the law with the long-term interests of the United States in mind.

And over the last 15 or 20 years, a controversy has developed. Should the solicitor general be considered the 10th Justice, with this dual responsibility, or should the solicitor general, even though expected to have the highest standards of legal ability and integrity, be primarily a partisan advocate for the president of the United States?

And while the controversy about Mr. Olson has focused on this issue of candor, and both views depend on that candor before the Court, it's this larger issue of partisanship which makes the Olson -- the discussion about the Olson nomination so interesting to people outside White House.

COSSACK: Tom Merrill, the solicitor general -- is the solicitor general partisan? Is the solicitor general independent? And of those two words, what should the solicitor general be? Should they -- should that person be an arm of the administration? And to keep myself going, if that person is an arm of the administration, what about them therefore being the 10th Justice? What does that do to the Supreme Court?

TOM MERRILL, LAW PROFESSOR: Well, the solicitor general ought to be regarded as the president's lawyer, the president's spokesman before the Supreme Court. I don't think it's correct to regard the solicitor general as being subject to divided loyalties, to be the 10th Justice. The Justices have their own law clerks. They don't need to have a law clerk sitting in the middle of the executive branch of the government. It's true that the solicitor general behaves differently from other litigants. The solicitor general, by tradition, is much more forthcoming about adverse precedent or adverse facts in particular cases. The solicitor general occasionally confesses error in a case that the government's won.

But all these behaviors I think can easily be explained by recognizing that the solicitor general is the sort of consummate repeat litigator that appears in the Supreme Court on a daily basis, and so very much has an interest in developing a reputation for honesty, fairness and integrity in the representation before the Court. I think that's very important to the solicitor general being effective in the job that he or she performs, but we don't have to posit divided loyalties or some special status as 10th Justice in order to explain that behavior.

The place where the rubber meets the road here, I think, is that if we conceive of the solicitor general as having divided loyalties, then in certain very critical, high-profile cases that have political overtones, the implication would be that the solicitor general somehow has his or her hands tied in terms of fairly representing the views of the president, and I don't think that's the case. I think the solicitor general has to be able to represent the president's constitutional views in these sensitive cases without in any way being handicapped in doing so. And I think that's the way the office has traditionally been conceived.

COSSACK: All right, Teresa, now, you were a clerk for Supreme Court Justice Stevens. If you can give us a little something without giving away too many secrets, does the Supreme Court view the solicitor general as the 10th Justice? My knowledge of the Supreme Court is they probably guard their nine quite -- quite jealously.

TERESA WYNN ROSEBOROUGH, CIVIL LITIGATOR: Well, I think they appreciate that the role of the solicitor general is different from the role of a Justice, but they certainly appreciate and add a measure of their regard to the solicitor general and to the briefs that he submits because of his role within the government. It's not just respect for him as an advocate or a skilled presenter of argument to the Court. They respect that his role within the government requires him to bring -- come to the Court with a certain candor, with a perceived interest in the supremacy of law and the rule of law and as a representative of the interests of the United States.

They go beyond just his advocacy in the particular case before the Court, but his role as a representative over time of the interests of the United States in general, which is an interest in justice and not just an interest in prevailing in that one matter.

COSSACK: But in fact, what -- I think what you've just described is the way we would like to think all lawyers appear before the Supreme Court in an equal status, that the Supreme Court looks at the -- whoever the other side is and says, "You know, we know that you're going to bring to use with candor and honesty and represent your client well" -- if you give a special status to a government spokesman, like the solicitor general, aren't you in some ways giving them something that perhaps -- more than others -- more than other lawyers?

ROSEBOROUGH: I think in the case of the solicitor general, his role as an advocate is enhanced because of the Court's expectations of him, rather than diminished, that because the Court attributes to the solicitor general that extra measure of candor in the presentation of cases and the description of facts, as the professor just noted, that the solicitor general can be relied on to make sure that adverse facts as well as favorable facts are presented in his briefs, his description of the cases and what they support and the propositions they do not support is a little more even-handed than an advocate might attempt in their presentation. And I think that because of that, many of the Justices have said in public that when they turn to the briefs in the case, they often start with the solicitor general's brief because they think that's going to be the most balanced presentation of the facts and the issue to be decided and the competing cases that...

COSSACK: So the solicitor general should be like Caesar's wife, above reproach and beyond reproach.

ROSEBOROUGH: The solicitor general in his dealings with the Supreme Court absolutely should be beyond reproach.

COSSACK: All right, let's take a break. Up next: Why an independent counsel probe in the 1980s did not result in charges against Ted Olson. Stay with us. Let's find out about that.

(BEGIN LEGAL BRIEF)

On this day in 1934, Bonnie Parker and Clyde Barrow were killed by police in Louisiana. The famed fugitives, known as "Bonnie and Clyde," teamed up in 1932 and carried out small-time robberies throughout Texas and Oklahoma.

(END LEGAL BRIEF)

(COMMERCIAL BREAK)

COSSACK: During the 1980s, Ted Olson was investigated by an independent counsel about testimony he had given to Congress involving the Environmental Protection Agency. Now, though some people considered his testimony, well, quote, "less than forthcoming," closed quote, it was deemed to be, quote, "literally true." And therefore the independent counsel who was investigating at that time did not prosecute.

Joining me now from Capitol Hill is Congressman Bob Barr.

Congressman Barr, candor seems to be an issue in terms of who the solicitor general should be. There have been questions about Ted Olson. How big a role should these investigations or should these questions play? And is this a partisan job?

REP. BOB BARR (R), GEORGIA: Candor really has nothing to do with it. That's just a red herring. What's really involved here is pure, raw partisan vengeance politics. The Democrats are mad at Mr. Olson because of his role in the Bush versus Gore case last year. They resent his involvement and his -- you know, the case that he argued so forcefully to the Supreme Court. They are mad at him for having been associated in some way with the "American Spectator," which they don't like at all. That usually means they're doing a good job.

But Mr. Olson went before the panel. He said he had nothing to do with these particular matters that they're looking into involving the so-called "Arkansas project." There's been no evidence that he did. The independent counsel has said as much. Former solicitors general who have looked into this have said as much. There's nothing here involving candor and everything to do with partisan politics.

COSSACK: Congressman Barr, is this a partisan job, the solicitor general? Is the solicitor general an extension, if you will, of the -- of the administration? And therefore is it something that -- or is it like most lawyers are, neutrally just representing a client?

BARR: It's -- it's -- it's a little bit of both. The solicitor general, as our U.S. attorneys, which I was, as is the attorney general himself or herself -- they're sworn to uphold the Constitution. Their client is the United States of America. But they also serve at the pleasure of the president. They represent the president, and they need to support his agenda in determining which cases to argue before the Supreme Court. Certainly, there is a policy judgment there, and it needs to be consistent with the administration's policies and programs.

But ultimately, of course, as an officer of the court, that solicitor general has to argue and bring to the Court in his job the absolute, utmost integrity. And without that, they might as well not appear before any court.

COSSACK: Teresa, what is the argument, at least the allegations about the -- about the "American Spectator" and the -- these allegations that seem to be hounding Ted Olson?

ROSEBOROUGH: Well, David Brock, who was an investigative reporter for the "American Spectator," has raised the possibility that Mr. Olson's involvement in the Arkansas project may have been more extensive than was revealed by his testimony before Congress. And the concern is whether or not he simply limited his explanation of the extent of his involvement or whether he actually misrepresented his involvement.

COSSACK: Tom, what effect does that have in terms of -- or should it have in terms of selecting whether or not he should be the solicitor general? Obviously, the issue here is candor. As a lawyer, we all know -- as lawyers, we all know that sometimes we say things or people say things that are sort of substantially true and -- look, the bottom line here is, is that the independent investigator investigated, and nothing came of it.

MERRILL: Right. Well, I think it's extremely important that the solicitor general have a reputation for the highest degree of candor and honesty. From what I've been able to gather, Ted Olson has exactly that reputation. He has had a very extensive Supreme Court practice. He's argued I think 15 major cases before the Supreme Court. He has an admirable record of success before the Court. And I think President Bush and his advisers obviously were looking at that in deciding whether or not he was an appropriate appointee for this job. He clearly has done this, has been able to win the Court's trust, even as a private advocate, and presumably would also win their trust as a solicitor general.

Now, it's appropriate for Congress to inquire into these things, honesty and candor, because obviously, you wouldn't want somebody to be solicitor general who didn't have those attributes. But it seems to me that what we have here is an exercise in Borking probably, rather than a truly legitimate concerns about Mr. Olson's ability to act as an effective litigant.

COSSACK: Lincoln, the allegations -- they stand unproven at this particular time. But it's clear that Ted Olson has taken positions in the past that were -- could be easily identified as strong conservative positions. And of course, there's these allegations that are out there. Are these the kinds of things that should stop him from being named solicitor general? Should we hold someone's political views against them?

CAPLAN: If we put aside the issues of candor that you were just speaking about and focus on the question of partisanship, then we have a choice between two conceptions of the role of the solicitor general. And if you take Professor Merrill's conception, then the quite strikingly ideological record of achievement of Mr. Olson as a private attorney and as an official in the Reagan Justice Department makes him a very good candidate for a solicitor general who is expected to be, above all, a partisan for the president and the president's policies.

But if you take the broader view of the solicitor general, which was articulated by a Republican-appointed Supreme Court Justice, Louis Powell, who articulated the idea of the dual responsibility, then the record that Mr. Olson has made over the last 20 years is a fit subject for discussion, it seems to me, because it raises a question whether someone who has been so markedly partisan in his major achievements as a lawyer is someone who the country can have confidence in as a solicitor general who will have all American interests in mind and not just those of the president in a narrow partisan sense.

A point that Mr. -- Professor Merrill made earlier is -- is worth returning to. It's precisely in the highly controversial cases dealing with social policy issues where the special status of the solicitor general is a virtue and not a constraint, where the solicitor general is in a position to say to those with political pressures on them in an administration, like the attorney general or some in the White House, "No, you're misunderstanding the legal interests of this administration, as well as of the country. Your political judgment is clouding your legal judgment."

COSSACK: All right, Lincoln, I'm afraid at that moment, I have to stop just for a second because we got to sell some time here.

Will the nomination of Ted Olson end up on the floor of the United States Senate? Let's find out about that. Stay with us.

(COMMERCIAL BREAK)

(BEGIN Q&A)

Actress Daryl Hannah won a libel suit Tuesday against a tabloid newspaper for what published story?

That she skipped play rehearsals because it was her dog's birthday. Hannah, who was really attending the Toronto Film Festival, received an undisclosed amount in damages.

(END Q&A)

COSSACK: Last week the Senate Judiciary Committee voted 9 to 9 on the nomination of Ted Olson to solicitor general. Now, the rules of the Senate state that when there is a tie in committee, the Senate majority leader can bring the nomination to the floor through what is called the "discharge" motion. But the future of Olson's nomination may lie in the hands of Senator James Jeffords. The Vermont Republican is expected to make an announcement tomorrow about his expected -- and we don't know for sure, but expected, perhaps, defection from the GOP.

Congressman Barr, what's going to happen to Ted Olson now if, in fact, as reported -- and again, I want to make it very, very clear that we don't know yet because we haven't heard from Senator Jeffords -- but if, in fact, as the allegations are that he's either going to become an independent or I suppose even worse yet, Congressman Barr, one of those hated Democrats, what's going to happen to Ted Olson's nomination?

BARR: I think that it won't have a great deal of effect on the nomination of Ted Olson to be solicitor general. We already have Democrat senator Zell Miller from Georgia saying he intends to vote for Mr. Olson. I believe that there will be other Democrats who will do likewise. So I think that nomination will move forward, regardless of what Mr. Jeffords decides to do.

COSSACK: Teresa, what about the -- what effect, though, would it have, though, Senator Jeffords's movement, if, in fact, he does decide to leave the Republican Party either to become an independent -- Congressman Barr indicates that probably there's enough to confirm him anyway. Will there be a cause to go back to committee, or what will happen? What will be the way it'll work?

ROSEBOROUGH: Well, I think, with respect to Ted Olson and to all Republican nominees, if Senator Jeffords switches parties, we'll see an increasing strength in the moderate strength of both parties, both the on the Republican and Democratic sides of the aisle. And that will cause there to be a reconsideration from that central position of the qualifications of all of the nominees, Ted Olson as well as the judicial nominees.

I think for Ted Olson, he does enjoy a lot of moderate support, a lot of Democratic support that a lot of people are impressed with his skills and credentials in the courtroom, and despite his advocacy for President Bush in the Bush v. Gore case, his conduct in that case was above reproach in terms of his presentation of the issues to the Court. He didn't take any strident over-the-top ideological positions in that litigation that might be considered to raise concern about his role as a solicitor general.

So I think Ted Olson will survive the scrutiny of this investigation, that he will be attractive -- continue to be attractive to moderates in both parties, and that it's unlikely that this particular defection will change the outcome of his nomination.

COSSACK: And I just want to add...

ROSEBOROUGH: But for other...

COSSACK: ... a postscript to what you said. This morning I had the opportunity to speak on the telephone with David Boies, his opponent in the United States Supreme Court and the attorney for Vice President Gore, who gave a ringing endorsement to Ted Olson as an individual and as a lawyer and as a person that he thought would do a marvelous job. So he did earn the respect, at least of the legal community, in terms of his abilities.

Congressman Barr, Teresa brings up an interesting question, which is the issue of whether or not the expected defection -- again, it's expected. It hasn't happened yet. But if, in fact, something happens, do you expect that there now would be a shift to more moderate types of candidates either for the Supreme Court or solicitor general or are those the kinds of appointed positions that we see because of that defection?

BARR: It all depends on President Bush. I don't think, ultimately, that it will -- that it will matter a great deal. The numbers are so close right now, one vote one way or the other is not going to change qualitatively the make-up or views of the Senate. And if, as I anticipate, President Bush will, as he has done already, continue to send forward a diverse group of nominees -- for example, the group of judges that he submitted two weeks ago is very diverse, there are conservatives and there are moderates within that group -- then I think that the Senate will continue to do what it historically has done, when all of the rhetoric subsides a little bit, and that is to recognize that the president is entitled to have people on the bench and in his administration...

COSSACK: All right...

BARR: ... that support his policy.

COSSACK: Congressman Barr, it's not often I get the last word of a congressman, but this is one of those times.

That's all the time we have today. Thanks to our guests, and thank you for watching.

Today on "TALKBACK LIVE": Will Senator Jim Jeffords defect from the GOP? E-mail or call Bobbie Battista with your questions and comments today at 3:00 PM Eastern.

And I'm going to be back tomorrow with another edition of BURDEN OF PROOF. We'll see you then.

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