WASHINGTON -- Ted Olson is an old Washington hand, not known for naivete. Yet, he never expected that his nomination for solicitor general of the United States would be opposed by all nine Democrats on the Senate Judiciary Committee. Even more surprising was their flimsy basis for opposition: a Salon.com accusation that "he was a central figure" in the American Spectator magazine's Arkansas Project "digging up anti-Clinton dirt."
The Salon articles ignited combustible tension inside the Judiciary Committee between its Republican chairman, Orrin Hatch, and its senior Democrat, Patrick Leahy. The committee's eager Democratic staffers pressed Leahy with fulsome memos. They regard Olson and his wife, Barbara, author of an unfavorable biography of Hillary Clinton, as warriors of the right. Since Olson argued George W. Bush's Florida recount case against Al Gore, this is regarded on Capitol Hill as payback.
The root source of the anti-Olson campaign, however, is ideological. Republican nominees dating back to 1981 have been opposed by Democratic senators because of their beliefs. Even if that was not the original motive, the assault on Olson is intended -- as was the confirmation ordeal of Attorney General John Ashcroft -- to intimidate President Bush in making future nominations.
The Arkansas Project is a classic red herring, defined by William Safire's "New Political Dictionary" as "a side issue that draws attention away from the main issue." The main issue is ideological warfare.
I can personally attest to how thin the case is against Olson. My service (now terminated) as an unpaid board member of the American Spectator Educational Foundation overlapped with Olson's. The Arkansas Project was being wrapped up, and board members -- Olson included -- were isolated from its management, just as he informed the senators.
Hiring private investigators and paying informants to dig into Bill Clinton's past was viewed in retrospect by the board (including Olson and me) as a bad idea, and was terminated. But an independent investigation ordered by Independent Counsel Kenneth Starr and monitored by two federal judges found no laws broken. Contrary to his public statements, Leahy had access to a redacted version of the sealed investigative report.
Further investigation of Olson demanded by Leahy would re-open this obscure case and probably foment a First Amendment confrontation between Congress and the American Spectator. Republican Sen. Arlen Specter was correct in predicting at last Thursday's session that pursuing this course would be bad for the committee. Chairman Hatch wisely insisted on taking the confirmation roll call (9 to 9, on party lines) and ending proceedings on Ted Olson.
The Senate floor vote probably will yield a substantial tally against Olson, similar to confirmation battles against other well-qualified conservatives nominated by President Bush: Ashcroft, Interior Secretary Gale Norton and Assistant Secretary of State John Bolton. Ideology was the sin of each nominee, though red herrings were used in attacking Ashcroft. Sen. Barbara Boxer found no need for subterfuge in blocking her widely admired California colleague, Republican Rep. Christopher Cox, from a seat on the federal appellate bench strictly because of his views.
Sen. Joseph Biden, the Foreign Relations Committee's senior Democrat, at first indicated support for Bolton but ended up opposing him (as he has switched in other instances) -- strictly, he admitted, for considerations of ideology. Biden long ago indicated he would oppose a judicial nominee only on the basis of competency, but as early as 1986 told appellate court nominee Daniel Manion: "I do not think I can vote for you because of your political views." He voted (by proxy) against Olson last week, following earlier votes this year against Ashcroft, Norton and Bolton.
It is nothing new for Biden. He voted against at least 25 nominees of Ronald Reagan and the first George Bush, including: James Watt, interior secretary; William Clark, deputy secretary of state and interior secretary; C. Everett Koop, surgeon general; Kenneth Adelman, arms control director; Edwin Meese, attorney general; Robert Bork and Clarence Thomas, Supreme Court justices; William Rehnquist, chief justice; John Tower, secretary of defense; Robert Gates, CIA director.
That august list suggests that a nominee's value is unimportant to Senate ideologues. The warning that Pat Leahy now sends in the Olson case is understood at the White House. The determination there -- so far -- is not to be intimidated.