Congressional Record, Volume 147 Issue 73 (Thursday, May 24, 2001)

[Congressional Record Volume 147, Number 73 (Thursday, May 24, 2001)]
[Senate]
[Pages S5578-S5599]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

NOMINATION OF THEODORE BEVRY OLSON, TO BE SOLICITOR GENERAL OF THE
UNITED STATES--MOTION TO DISCHARGE

Mr. LOTT. Mr. President, pursuant to the provisions of S. Res. 8, I
now move to discharge the Judiciary Committee of the nomination of Ted
Olson, to be Solicitor General of the United States.
The PRESIDING OFFICER. Under the provisions of S. Res. 8, the motion
is limited to 4 hours of debate, to be equally divided between the two
leaders.
Mr. LOTT. Mr. President, I note that the chairman of the Judiciary
Committee, Senator Hatch, is here and ready to proceed. Therefore, I
yield the floor.
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. Mr. President, as you know, we have been trying to make
sure that the Justice Department has its full complement of leaders
because if there is a more important Department in this Government, I
don't know which one it is. There may be some that would rate equally
but that Department does more to help the people of this country than
any other Department.
One of the most important jobs in that Department is the Solicitor
General's job. The Solicitor General is the attorney for the people. He
is the attorney for the President. He is the attorney for the
Department. He is the attorney who is to argue the constitutional
issues. He is the attorney who really makes a difference in this
country and who makes the primary arguments before the Supreme Court of
the United States of America.
In addition, he has a huge office with a lot of people working to
make sure this country legally is on its toes.
In the case of Ted Olson, I am very pleased that we are able to have
this motion up at this time. I am pleased that we have colleagues with
good faith on the other side who are willing to see that this is
brought to a vote today because we should not hold up the nomination
for the Solicitor General of the United States of America.
We have had all kinds of Solicitors General. We have had some who
have been very partisan but have been great Solicitors General, and we
have had some who have hardly been partisan at all and have been weak
Solicitors General. We have had some not very partisan at all who have
been great Solicitors General. You would have to make an analysis
yourself to determine how your own personal philosophy fits.
But in terms of some great ones, there was Archibald Cox, who was
never known for conservative politics. He was not very partisan by most
Republicans' standards, but he turned out to be an excellent Solicitor
General of the United States. We could go on and on.
But let me just say this, that it is interesting to me that Ted Olson
has the support of some of the leading attorneys and law professors in
this country who have the reputation of being active Democrats.
Let me just mention a few. And I really respect these gentlemen for
being willing to come to bat for Ted Olson. Laurence Tribe, the
attorney for former Vice President Gore, in Bush v. Gore, on March 5,
2001, said:

It surely cannot be that anyone who took that prevailing
view--

He is referring to Bush v. Gore--

and fought for it must on that account be opposed for the
position of Solicitor General. Because Ted Olson briefed and
argued his side of the case with intelligence, with insight,
and with integrity, his advocacy on the occasion of the
Florida election litigation, as profoundly as I disagree with
him on the merits, counts for me as a plus in this context,
not as a minus. If we set Bush v. Gore aside, what remains in
Ted's case is an undeniably distinguished career as an
obviously exceptional lawyer with an enormous breadth of
directly relevant experience.

I have known Laurence Tribe for a long time. I have a great deal of
respect for him. I do not always agree with him, but one time he asked
me to review one of his books. Looking back on that review, I was a
little tough on Larry Tribe to a degree. But I spent time reading his
latest hornbook just this last week, read it through from beginning to
end--I think it was something like 1,200 pages--it was very difficult
reading, and I have to say I came away after reading that hornbook with
a tremendous respect for the legal genius of Larry Tribe.
Although I disagree with a number of his interpretations of
constitutional law, there is no doubt about the genius and
effectiveness of this man, and I think it is a tribute to him that he
was willing to stand up for Ted Olson and write it in a letter.
Walter Dellinger is the former Clinton Solicitor General. He is one
of the great lawyers of this country. He is a liberal and some thought
he was extremely partisan, although I questioned that personally, just
like I question those who say Ted Olson is partisan. No question that
Walter Dellinger is a very strong and positive Democrat, a very
aggressive Democrat. But he also is a man of great intelligence and
integrity.
On February 5, 2001, Mr. Dellinger said that when Olson served in the
Justice Department as the head of the Office of Legal Counsel, he ``was
viewed as someone who brought considerable integrity to the
decisionmaking.''
Virtually everybody who worked with Ted Olson at the Office of Legal
Counsel--in fact, all that I know of--said he was a man of integrity
who called them the way he saw them, who abided by the law and did not
allow partisan politics to enter into any thinking. There are two
offices where partisan politics could work to the detriment of our
country.
One is the Office of Legal Counsel, which he handled with
distinction, with ability, with fairness, in a nonpartisan way. The
other is the Office of the Solicitor General, which I assert to this
body he will handle in the same nonpartisan way. He will certainly try
to do what is constitutionally sound and right. And he will represent
the Congress of the United States in these battles. He may not always
agree with the Congress of the United States when we are wrong, but you
can at least count on him doing what is right and trying to make the
best analysis and do what he should.
Now, Beth Nolan is a former Clinton White House counsel and Reagan
Department of Justice, Office of Legal Counsel attorney. Beth is a
considerable Democrat, and she is someone I respect. We have had our
differences, but I have to say that she deserves respect. In a
September 25, 1987, letter signed by other Department of Justice
lawyers she had this to say:

[[Page S5579]]

We all hold Mr. Olson in a very high professional and
personal regard because we believe he made his decisions with
integrity after long and hard reflection. We cannot recall a
single instance in which Mr. Olson compromised his integrity
to serve the expedience of the Reagan administration.

That is high praise coming from Beth Nolan, a strong Democrat who has
served both in the White House Counsel's office and at Justice in the
office of Legal Counsel.
One of the most esteemed first amendment lawyers in the country, a
strong Democrat, one of the men I most respect with regard to first
amendment interpretations and first amendment constitutional
challenges, is Floyd Abrams--again, I submit, a liberal Democrat.
On March 4, 2001, he had this to say about Ted Olson:

I have known Ted since we worked together on a Supreme
Court case, Metro Media v. San Diego, 20 years ago. I have
always been impressed with his talent, his personal decency,
and his honor. He would serve with distinction as a Solicitor
General.

This is one of the greatest lawyers in the country, a man of
distinction himself who has great judgment, who is a leading trial
lawyer in this country.
And that is what Floyd Abrams had to say about Ted Olson.
These are all Democrats. How about Harold Koh, former Clinton
administration Assistant Secretary of State. On February 28, 2001, he
had this to say:

Ted Olson is a lawyer of extremely high professional
integrity. In all of my dealings with him I have seen him
display high moral character and a very deep commitment to
unholding the rule of law.

That is high praise from a former Clinton administration high-level
employee. All of these are Democrats, leading Democrats, some partisan
Democrats, but who have found Ted Olson to be a man of honor and
integrity.
One of the greatest lawyers in the country is Robert Bennett,
attorney for former President Clinton. Robert Bennett is known by
virtually everybody in this body for having been an independent counsel
himself, and having done his jobs with distinction. Nobody doubts he is
one of the greatest lawyers in this country. Nobody doubts that the two
Bennett brothers are personalities about as compelling as you can find.
Well, Robert Bennett happens to be a Democrat, and a leading
Democrat, one of the great attorneys in this country. And here is what
the attorney for former President Clinton had to say on May 15, 2001:

While I do not have any personal knowledge as to what role
if any Mr. Olson played in the Arkansas Project or the full
extent of his relationship with the American Spectator, what
I do know is that Ted Olson is a truth teller and you can
rely on his representations regarding these matters. He is a
man of great personal integrity and credibility and should be
confirmed.

I am submitting to this body that people of good will, that people
who want good government, people who want the best of the best in these
positions at the Justice Department, ought to vote for Ted Olson
regardless of their political affiliation, regardless of the fact that
Ted Olson handled Bush v. Gore and won both cases before the Supreme
Court--something that some of my colleagues bitterly resent. They
should vote for him regardless of the fact that, yes, he has been a
strong Republican--some think too partisan of a Republican. But he has
a reputation of being a person who calls them as he sees them, an
honest man of integrity. This is backed up by these wonderful
Democratic leaders at the legal bar, Laurence Tribe, Walter Dellinger,
Beth Nolan, Floyd Abrams, Harold Koh, Robert Bennett, just to mention
six terrifically strong Democrats. If anybody wants to know, they ought
to listen to people in the other party who have every reason to be
partisan on nominations in some ways, but who are not allowing
partisanship to enter into hurting the career or hurting the
opportunity of Ted Olson to serve as Solicitor General.
I personally know Ted Olson. I have known him for many years. I have
seen him courageously take on client after client across the
ideological spectrum and do a great job in each case for his clients.
This is an exceptional lawyer. He is one of the exceptional people in
our country. He has the capacity and the ability to be a great, and I
repeat great, Solicitor General of the United States. He is respected
by the Supreme Court before whom he has appeared at least 15 times.
And for those who might not remember, he was the attorney for George
W. Bush in Bush v. Gore, and made two arguments before the Supreme
Court, both of which he handled with dexterity, with skill, with
decency, and with intelligence.
I have to say he deserves this job, he deserves not having people
play politics with this position. In my opinion, he will make a great
Solicitor General of the United States. Let me just dispel some of the
allegations surrounding this nomination and explain why I believe
further delay is unwarranted.
First, there have been allegations that Mr. Olson has misled the
committee concerning his involvement in something called the Arkansas
Project and his representation of David Hale. Let me say that I
listened to my colleagues on the committee when the Washington Post
article first appeared, and delayed a vote, against my better judgment
actually, until we weighed the allegations because it was fair to do
so.
My colleagues wanted that, they deserved that, and we delayed it so
we could weigh those allegations. Then I took several days and
extensively reviewed the testimony during the hearings, his answers to
written questions, and his subsequent letter. I am convinced that those
responses showed no inconsistencies or evidence that Mr. Olson misled
or was less than truthful to the committee anyway. Rather, they show
him to be forthright and honorable.
Although I have not seen any discrepancies or inconsistencies in Mr.
Olson's testimony and answers, I have tried to respect the concerns of
other members of this committee and joined the distinguished ranking
Democratic member in looking further into this matter and asking
further clarifying questions from the Office of the Independent
Counsel. We look into some insinuations against Mr. Olson concerning
his involvement with the Arkansas Project and his legal representation
of David Hale.
In order to verify Mr. Olson's statements, the committee has had
access to a great volume of materials, including all relevant portions
of the Shaheen Report that could be provided by law, letters from key
individuals involved with the Arkansas Project, and just yesterday, at
Senator Leahy's request, a copy of David Hale's testimony at another
trial, and more information from the Office of Independent Counsel.
These together simply confirm Mr. Olson's statements and show that
there is no need for additional investigations.
Now, I would like to relate some of my findings in investigating the
record and alleged inconsistencies. With regard to the Arkansas
Project, Mr. Olson repeatedly stated that he learned about the project
while he was a member of the board of directors and that he did not
know about it prior to his service on that board. He also consistently
stated that he learned of the project in 1997. In an early response he
stated that he became aware of it in ``1998, I believe.'' He later
clarified that it was in 1997 and has consistently maintained that he
learned of the project in 1997. Each of the quotations used by Senator
Leahy in his so-called ``summary of discrepancies'' confirms this fact
and does not provide, despite the title of the document, any real
discrepancies in Mr. Olson's testimony.
Key individuals intimately involved with the Arkansas Project have
written letters to the committee confirming Mr. Olson's account of
events. These individuals include James Ring Adams, Steven Boynton,
Douglas Cox, Terry Eastland, David Henderson, Michael Horowitz,
Wladyslaw Pleszczynski, and R. Emmett Tyrell.
From their different positions, each person corroborates the fact
that Mr. Olson was not involved with the origination or management of
the Arkansas Project. R. Emmett Tyrell, the editor-in-chief of the
magazine, stated unequivocally that Mr. Olson's statements with regard
to his involvement with the project are ``accurate and thus truthful.''
Terry Eastland, former publisher of the American Spectator, conducted
a review of the project and stated he ``found no evidence that Mr.
Olson was involved in the project's creation or its

[[Page S5580]]

conduct.'' Other letters make similar statements about Mr. Olson's lack
of involvement before 1997. All of them are consistent with his
testimony, and they are not rebutted by any other credible evidence.
Mr. President, let me summarize for my colleagues. We have Mr.
Olson's sworn testimony along with the statements of key players in the
project and numerous letters by Democrats and Republicans who praise
Mr. Olson's integrity and honesty, against the luke-warm allegations of
one former staffer who has recently backed away from his remarks. Even
if Mr. Brock's factual allegations were true, they do not contradict
Mr. Olson's testimony.
Now the second possible allegation against Mr. Olson is that,
contrary to his testimony, he might have received payment for his
representation of David Hale. Mr. Olson has repeatedly answered
questions about this representation. He testified that he received no
money for this representation, although he had expected to be paid.
Then in a letter of May 9, 2001, in response to further questions, he
again stated that he received no payments for his representation of
David Hale. He wrote, ``Neither I nor my firm has been compensated by
any other person or entity for those services--although I am not aware
of any legal prohibition against another person or entity making such a
payment.'' He have this report and I urge my colleagues to read it. I
have extra copies of this and other recent material with me, if any
colleague cares to further review it.
Now, I have seen no, let me repeat, no evidence suggesting this
testimony is not accurate. Mr. Olson responded to questions about these
issues at his hearing and in three sets of written questions--each time
his answers have been clear and consistent.
But you don't just have to take Mr. Olson's word for it. His answers
are clearly supported by the conclusions reached by Mr. Shaheen and
reviewed independently by two respected retired federal judges. Under a
process jointly approved by the Independent Counsel and Attorney
General Janet Reno, Mr. Shaheen was appointed to review the allegations
concerning alleged payments to David Hale.

In order to get all the facts, Mr. Shaheen was given authority to
utilize a grand jury to compel production of evidence and testimony. In
addition, another important element of this independent review process
was that the results of the investigation were to receive a final
review--not by the Independent Counsel or Attorney General Reno--but by
two former federal judges Arlin Adams and Charles Renfrew. At the
conclusion of their review, they issued a statement on July 27, 1999,
in which they concurred with the conclusions of the Shaheen Report that
``many of the allegations, suggestions and insinuations regarding the
tendering and receipt of things of value were shown to be
unsubstantiated or, in some cases, untrue.''
And if the Shaheen Report was not sufficient, Senator Leahy requested
a transcript of David Hale's testimony at the trial of Jim Guy Tucker
and Jim and Susan McDougal, apparently because of accounts of that
testimony in Joe Conason and Gene Lyons' book, ``The Hunting of the
President.'' The Office of the Independent Counsel has graciously made
David Hale's trial transcript available to the committee in response to
Senator Leahy's May 14, 2001 letter. A review of the transcript clearly
shows further that Mr. Olson's testimony was accurate.
In the transcript, David Hale testified that Ted Olson was retained
to represent him before a congressional committee. When asked, ``Who
pays Mr. Olson to represent you?'' Mr. Hale replied, ``I do.'' Mr. Hale
did not say that he or anyone on his behalf actually paid Mr. Olson.
The transcript of the trial is fully consistent with Mr. Olson's
testimony regarding the Hale representation--namely that he never
received payment for the representation, that Mr. Hale intended to pay
for these services, and that no one else was responsible for the
payments. Mr. Hale also testified that he first contacted Mr. Olson in
1993 in connection with a possible congressional subpoena, and that
Olson did represent him in 1995-1996. Mr. Olson wrote in his letter
(May 9, 2001) that he was ``ultimately engaged by Mr. Hale and
undertook that representation sometime in late 1995 or early 1996.''
Thus, with regard to David Hale, there is no evidence from any source
that Mr. Olson received payment for this representation. Mr. Olson's
testimony, David Hale's testimony, the Independent Counsel report, and
review of the matter by two former federal judges all confirm that Mr.
Olson received no payment for his brief representation of David Hale. I
should also note that we send further questions on this matter to the
Office of the Independent Counsel, whose responses have been completely
consistent with Mr. Olson's testimony.
Again, let me say that I appreciated and respected the need for
members of this committee to satisfy themselves about the integrity of
executive branch nominees. That is why I had delayed an initial
committee vote. The committee had ample opportunity to verify the
statements of Mr. Olson--no discrepancies have appeared, nor is there
any credible evidence to refute any part of his testimony.
We have the statements of individuals involved with the Arkansas
project. Staff members of the committee have been able to view the
Shaheen report and the trial testimony of David Hale. I know that
internal information has been requested from the American Spectator
magazine, but I am concerned that such demands may tread on precious
first amendment prerogatives of the press that we should all be careful
to protect, even though it frustrates all of us from time to time. And
I know that Democratic staff have interviewed Mr. Brock.
I believe that the extensive and decisive record before us shows that
Mr. Olson has been truthful and forthright on all counts.
The facts and conclusions I have just discussed--that there are no
discrepancies between Ted Olson's statements and Senator Leahy's
allegations--beg the question: What is all this fuss really about?
Perhaps it is because some may believe that Mr. Olson is too partisan
to serve as the Solicitor General. Nothing could be further from the
truth. Ted Olson's career has been as broad as it has been deep. Mr.
Olson has advocated for a wide variety of organizations and has
associated with people of many different political ideologies.
While it is true that Mr. Olson has performed legal work for the
conservative American Spectator, to focus myopically on that is to
ignore Mr. Olson's distinguished work for many other media
organizations including the New York Times, the Washington Post, Times-
Mirror, the Los Angeles Times, Dow Jones, LA magazine, NBC, ABC, CNN,
Fox, Time-Warner, Newsday, Metromedia, the Wall Street Journal, and
Newsweek. What does this list show about Ted Olson? Is this the kind of
clientele that would seek after a single-issue zealot? No way. This
list demonstrates clearly that smart people with a variety of views on
public matters turn to--and trust--Ted Olson.
Similarly, it is possible to pay too much attention to one person's
apparent dissonant opinion when there is a chorus of other harmonized
voices. Now, I have to concede that Ted Olson's supporters include a
lot of well-known partisans.
For example, President Clinton's lawyer, Bob Bennett, said that ``Ted
Olson is a truth-teller'' and he is ``confident that [Ted Olson] will
obey and enforce the law with skill, integrity and impartiality.'' A
similar sentiment was expressed by President Clinton's White House
Counsel, Beth Nolan. And Vice President Al Gore's lawyer, Laurence
Tribe, has publically announced his support for Ted Olson's
confirmation as Solicitor General. Floyd Abrams, who has known Ted
Olson for 20 years, and who is no right-wing conspirator, said he has
``always been impressed with [Ted Olson's] talent, his personal decency
and his honor.'' President Clinton's Assistant Secretary of State for
Democracy, Human Rights and Labor, Harold Koh, called Ted Olson ``a
lawyer of extremely high professional integrity.'' And William Webster
said Ted Olson is ``honest and trustworthy and he has my full trust.''
These names demonstrate that Ted Olson's experience, character and
associations have a tremendous breadth and depth. It is time for this
body to do the right thing and favorably vote to confirm Mr. Olson as
the Solicitor General.

[[Page S5581]]

Mr. President, I would also like to make a few more brief comments on
Mr. Olson's nomination to set the record straight.
First, there has been repeated insinuation and accusation that Mr.
Olson has misled the committee concerning his involvement with the so-
called Arkansas Project and his representation of David Hale.
I, responding to concerns by some Democrats, listened and delayed the
vote May 10 until the committee reviewed the record and weighted the
allegations.
Since the Washington Post story broke, I and my staff have
extensively reviewed Mr. Olson's testimony during his hearing, his
answers to writen questions, and his subsequent letters. I am convinced
that these responses show no inconsistencies or evidence that Mr. Olson
misled or was less than truthful to the committee in any way. Rather
they show him to be forthright and honest.
In order to verify Mr. Olson's statements, the committee has had
access to a great volume of materials, including all relevant portions
of the Shaheen Report that could be provided by law, letters from key
individuals involved with the Arkansas Project, and at Senator Leahy's
request, a copy of David Hale's testimony at another trial.
We have had access to more material from the Office of the
Independent Counsel, a number of questions that Senator Leahy and I
jointly asked that office and have received the responses. All of these
material, and the overwhelming evidence already on the record, continue
to support Mr. Olson's veracity and complete candor before the
committee. There are none, nor has there been, any specific evidence
supporting allegations against Mr. Olson.
Key individuals intimately involved with the Arkansas Project have
written letters to the committee confirming Mr. Olson's account of
events. A host of respected and distinguished lawyers, judges, private
and public figures who have worked with Ted Olson have written in and/
or called the committee with their support for Mr. Olson's nomination
and have vouched for his integrity and candor. These include the two
respected attorney's who argued against Mr. Olson in each of the two
Supreme Court arguments in Bush v. Gore.
From their different positions, each person corroborates the fact
that Mr. Olson as not involved with the origination or management of
the Arkansas Project. R. Emmett Tyrell, the editor-in-chief of the
magazine, stated unequivocally that Mr. Olson's statements with regard
to his involvement with the project are ``accurate and thus truthful.''
Terry Eastland, former publisher of the American Spectator, conducted a
review of the project and stated he ``found no evidence that Mr. Olson
was involved in the project's creation or its conduct.''
The only evidence that appears to have any possible conflict with Mr.
Olson's sworn testimony and the written communications of the key
players in the Arkansas Project comes from David Brock, a former writer
for the American Spectator, who in last Wednesday's New York Times,
appeared to tone down his original account, saying, ``It was my
understanding that all of the pieces dating back to 1994 that dealt
with investigating scandals pertaining to the Clintons, particularly
those that related to his time in Arkansas, were all under the Arkansas
Project.'' He did not say that he was sure, or that Mr. Olson knew
about the project. Indeed, on a television program last Thursday
evening, Mr. Brock said he had no specific recollection about speaking
specifically about the Arkansas Project in the presence of Mr. Olson.
Moreover, Mr. Brock apparently suggested to one paper that James Ring
Adams would have a similar view, But Mr. Adams, one of the lead writers
for the project, wrote the committee that ``Mr. Olson had absolutely no
role in guiding my development of stories for the magazine or in
managing my work.''

So, we have Mr. Olson's sworn testimony along with the statements of
key players in the project and numerous letters by Democrats and
Republicans who praise Mr. Olson's integrity and honesty, against the
luke-warm allegations of one former staffer who has recently backed
away from his remarks. Even if Mr. Brock's factual allegations were
true, they do not contradict Mr. Olson's testimony.
The other allegation against Mr. Olson is that, contrary to his
testimony, he might have received payment for his representation of
David Hale. He testified that he received no money for this
representation, although he had expected to be paid.
There is no evidence suggesting this testimony is not accurate. Mr.
Olson responded to questions about these issues at his hearing and in
three sets of written questions--each time his answers have been clear
and consistent.
His answers are clearly supported by the conclusions reached by Mr.
Shaheen and reviewed independently by two respected retired federal
judges. Under a process jointly approved by the Independent Counsel and
Attorney General Janet Reno, Mr. Shaheen was appointed to review the
allegations concerning alleged payments to David Hale. At the
conclusion of their review, they issued a statement noting ``many of
the allegations, suggestions and insinuations regarding the tendering
and receipt of things of value were shown to be unsubstantiated or, in
some cases, untrue.'' I released the redacted portion of this Shaheen
report which relates to Mr. Olson to the public. Read the report and
its conclusions--and the Independent Counsel's responses to the
numerous questions we have sent him regarding the report--it speaks for
itself. This is not even a case revolving on the definition of what
``is'' is. There simply is no ``there'' there.
As I have noted before, we are at a period where we need to rebut the
public's beliefs that we only engage in politics and don't care about
the merits of nominee qualifications. We need to gain the public's
trust in our government back. I am deeply concerned that what has been
happening here might appear to be an effort to paint Mr. Olson's
occasional political involvement as the entirety of his career and
character, and as reported in the press, possibly as retribution for
the man who argued and won the Supreme Court case in Bush v. Gore.
Now, I don't think that that is true. I know my colleagues and
respect their views. But, I hope that we can begin debating the merits
of this nomination and take all of the support and testimony on this
man's obvious and overwhelming qualifications and his high integrity
into account as we determine our votes for his confirmation.
Mr. President, I urge my colleagues to judge the record. Judge the
man for his qualifications and integrity. And I urge my colleagues to
listen to Lawrence Tribe, to David Boies, to read the Shaheen report
and responses from the Office of the Independent Counsel, to listen to
Robert Bennett--President Clinton's lawyer, to everyone who has worked
with and known Ted Olson. I urge you to vote to confirm our next
Solicitor General.
Mr. President, let me say a few words about Mr. Olson's
qualifications.
Ted Olson is one of the most qualified people ever nominated to be
Solicitor General. He has had an impressive 35-year career as a
lawyer--including four years as the Assistant Attorney general in
charge of the Justice Department's Office of Legal Policy under Ronald
Reagan.
The job of the Solicitor General is to make litigation policy
decisions. The Solicitor General represents the United States in all
cases before the United States Supreme Court, and it is up to the
Solicitor General to approve all appeals taken by the United States
from adverse decisions in the lower federal courts. It is important to
have a skillful and competent advocate in that position.
Ted Olson has argued 15 cases in the U.S. Supreme Court. For most
lawyers, a single Supreme Court argument would be considered the zenith
of their career.
Ted Olson has a reputation for considering all viewpoints before
making decisions. Walter Dellinger, who served as acting Solicitor
General under President Clinton, told the Washington Post that, ``If
Ted runs the SG's office the way he ran OLC, he will give deference to
views other than his own in making his final decision.''
Ted Olson's Supreme Court arguments concerned issues of great
importance to our country, including limits on excessive jury verdicts,
the effect of

[[Page S5582]]

statutes of limitations, caps on punitive damages, the meaning of the
Federal False Claims Act, racial and gender classifications, and
whether telecommunications companies must provide surveillance
capabilities to law enforcement agencies.
In addition to his role representing clients, Ted Olson has also
worked to reform our civil justice system by writing and speaking on
various topics, and he helped advise the government of Ukraine on
drafting a new Constitution in the mid-1990's.
Ted Olson also has superb academic qualifications. He graduated from
the Boalt Hall School of Law at the University of California at
Berkeley, where he earned a spot in the prestigious Order of the Coif
and was a member of the law review.
I have no doubt that Ted Olson will prove to be one of the best
Solicitor Generals our country has ever had. Given the extraordinary
quality of the people who have held that post, this is no small
compliment.
With that, I yield the floor and suggest the absence of quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The senior assistant bill clerk proceeded to call the roll.
Mr. HATCH. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Fitzgerald). Without objection, it is so
ordered.
The Senator from Vermont.
Mr. LEAHY. I thank the Chair. Mr. President, I thank the Senator from
Utah, the chairman of the Judiciary Committee.
If I can have the chairman's attention just for a moment, I assume we
are not looking for specific times and speakers on this matter but will
go back and forth in the usual fashion as people arrive. Is that
agreeable?
Mr. HATCH. That is agreeable. It is my understanding we have 4 hours
equally divided. Mr. President, how much time have I used?
The PRESIDING OFFICER. The Senator has used 29 minutes.
Mr. LEAHY. Mr. President, for anybody who wants to speak, following
the normal unofficial procedure, as people are available, we can go
back and forth, side to side.
I note that I have no objection to proceeding to the motion to
discharge the nomination of Ted Olson to be Solicitor General. I
mention this because I want Senators to understand. We had a divided
vote in the committee, and with a divided vote in the committee,
because of the procedures of the Senate, I am sure we could have either
bottled it up for some time in committee or for some time here. I do
not want to do that. I think there should be a vote one way or the
other. We have had too many examples in the past few years of
nominations being bottled up that way.
On this one, I have concerns about Mr. Olson, but I am agreeable to
having a vote up or down on his nomination. In fact, I say to my
friend, the distinguished chairman of the Senate Judiciary Committee,
that we also have before us the nominations of Mr. Dinh to be head of
the Office of Policy Development of the Justice Department and Mr.
Chertoff to be head of the Justice Department's Criminal Division. I am
perfectly agreeable to rollcall votes on them, too, and will, to notify
Senators, vote for them as I did in committee. Of course, that is
something that has to be scheduled.
Mr. HATCH. Will the Senator yield?
Mr. LEAHY. Yes.
Mr. HATCH. I, for one, am grateful because they are good people. I
missed what the Senator said. He wants to have a vote?
Mr. LEAHY. I want to have a vote on all three of these. I realize
that is entirely up to the body. I am perfectly willing to have votes
on all three of them. I point out, with respect to Mr. Dinh and Mr.
Chertoff, I voted for them in committee, even though, as everybody
knows, they are very conservative Republicans and were heavily involved
in a congressional investigation of the former President and of matters
in Arkansas.
Mr. HATCH. If the Senator will yield, I do not mean to keep
interrupting, I want to express my gratitude that he is willing to go
head with this and the Senate can vote on these nominees because I want
to get that Justice Department--and I know the distinguished Senator
from Vermont does also--up and running in the fullest sense we can.
That is my only interest in this, other than I do like all three of
these nominees. I thank my colleague. Forgive me for interrupting.
Mr. LEAHY. I appreciate the compliment.
Mr. Dinh and Mr. Chertoff were heavily involved in what I thought was
a misguided investigation, not by them but by Members of Congress who
conducted it against former President Clinton and others in Arkansas.
However, I believe they followed the directions of Members of Congress,
many of whom are no longer here, for a number of reasons. I will vote
for them and urge their confirmation when the time comes.

I mention this because there seems to be some in the public, some
among what I call the more conservative editorialists, who think there
is going to be some kind of payback on the Democrats' part for the
number of nominees who were held up during the Clinton administration
by the Republican majority. I think it makes far more sense to look at
nominations one by one on the merits.
There is no question if the roles were reversed, if somebody of Mr.
Dinh's and Mr. Chertoff's background had been appointed by the last
administration following their investigations of Republican Presidents
and my understanding and what I have seen in the last few years, they
would have been held up. I do not believe in doing that.
I told Attorney General Ashcroft--in fact, I told him earlier today--
we intend to move these forward. We are moving forward most of the
nominations in the Department of Justice a lot faster than they were 4
years ago in the Clinton administration by the same Senate but under
different control.
I hope this may be an indication that things will move forward on
their merits and not on partisanship. I urge all Senators who wish to
debate to come to the floor without delay and participate.
After the motion to discharge and proceed to the nomination, I expect
the Senate will proceed to vote promptly on the Olson nomination. I
know Senator Lott and Senator Daschle have been working toward that
goal. I agree with them on it.
I will, however, express, as every Senator has a right to express his
or her feelings towards or against each of these three nomination
nominees, why I will vote against Ted Olson.
The Solicitor General fills a unique position in our Government. The
Solicitor General is not merely another legal advocate whose mission is
to advance the narrow interests of a client or merely another advocate
of the President's policies. The President has people appointed on his
staff or in his Cabinet to advance his policies. That is absolutely
right. That is the way it should be. Whoever is President should have
somebody who can advance his positions no matter whether they are
partisan or not, and there are positions provided--in fact, hundreds of
millions of dollars' worth of positions are provided to the President
to do that.
The Solicitor General is different. The Solicitor General is not
there to advance the partisan position of anybody, including somebody
who is President. The Solicitor General is there to advance the
interests of the United States of America, of all of us--Republican,
Democrat, or Independent.
The Solicitor General must use his or her legal skills and judgments
to higher purposes on behalf of the laws and the rights of all the
people of the United States.
The Solicitor General does not advance a Republican or Democratic or
Independent position. The Solicitor General advances the positions of
the United States of America. In fact, at his hearing, Mr. Olson
acknowledged--and I will use his words:

The Solicitor General holds a unique position in our
government in that he has important responsibilities to all
three branches of our government. . . . And he is considered
an officer of the Supreme Court in that he regularly and with
scrupulous honesty must present to the Court arguments that
are carefully considered and mindful of the Court's role,
duty, and limited resources. As the most consistent advocate
before the Supreme Court, the Solicitor General and the
lawyers in that office have a special obligation to inform
the Court honestly and openly. The Solicitor General must be
an advocate, but he must take special care that the

[[Page S5583]]

positions he advances before the Court are fairly presented.
As Professor Drew Days said to this committee during his
confirmation hearing 8 years ago, the Solicitor General has a
duty towards the Supreme Court of ``Absolute candor and fair
dealing.''

Those words of Ted Olson's are words that I totally agree with. He
has stated the position of the Solicitor General. He has stated it
accurately. We must look at his record to see, having talked the talk,
whether he walked the walk.
The Senate must carefully review nominations to the position of
Solicitor General to ensure the highest levels of independence and
integrity, as well as legal skills. Indeed, the Solicitor General is
the only government official who must be, according to the statute,
``learned in the law.'' We appoint a lot of people, we confirm a lot of
people, but nothing in the law says they have to be ``learned in the
law,'' but for the Solicitor General it says that. The Solicitor
General must argue with intellectual honesty before the Supreme Court
and represent the interests of the Government and the American people
for the long term, and not just with an eye to short-term political
gain.
The Senate must determine whether a nominee to the position of
Solicitor General understands and is suited to this extraordinary role.
It is with the importance of this position in mind that I approached
the nomination of Ted Olson to serve as Solicitor General of the United
States. From my initial meeting with him in advance of the April 5,
2001, hearing and thereafter, I have been assessing this nomination
against the responsibilities of that important office.
At the outset, I raised with Mr. Olson my concern that his sharp
partisanship over the last several years might not be something that he
could leave behind. After review of his testimony both orally and in
answers to written questions, I have become doubly concerned that Mr.
Olson has not shown a willingness or ability to be sufficiently candid
and forthcoming with the Senate so that I would have confidence in his
abilities to carry out the responsibilities of the Solicitor General
and be the voice of the United States before the United States Supreme
Court. In addition, I am concerned about other matters in his
background.
I will lay out in a much more lengthy statement for the Record, my
concerns, but let me talk more briefly now about my concerns about Mr.
Olson's candor before the committee about his involvement with the
American Spectator and the Arkansas Project. His initial responses to
my questions at his hearing prompted concern that the committee might
not have heard a candid and complete accounting from Mr. Olson.
Rather than respond directly and say all that he did do in connection
with those matters, Mr. Olson chose to respond by misdirection and say
what he did not do. Frankly, in this case, and under the questions he
was asked, there is a world of difference between what he did not do
and what he did do. He initially described his role as extremely
limited as a member of the board of directors of the American Spectator
Educational Foundation and implied that he was involved only after the
fact, when that board conducted a financial audit and terminated the
Arkansas Project activities in 1998.
Mr. Olson has modified his answers over time, his recollection has
changed, and he has conceded additional knowledge and involvement. His
initial minimizing of his role appears not to be consistent with the
whole story. Because his responses over time left significant questions
and because of press accounts that contradicted the minimized role to
which he initially admitted, I wanted to work with Senator Hatch before
the Judiciary Committee voted on this nomination to have the committee
perform the bipartisan factual inquiry needed to set forth the facts
and resolve all questions and concerns about Mr. Olson's answers.
I wanted to have us do the bipartisan fact finding that we always do
when such issues come up.
Indeed, Senator Hatch postponed one committee vote on Mr. Olson's
nomination on May 10 and admitted that ``some legitimate questions''
have arisen and that ``legitimate issues'' were involved. He said that
after an article in the Washington Post indicated that Mr. Olson's role
at American Spectator and the activities of the Arkansas Project were
more than just as a member of the board of directors in 1998 to which a
financial audit was provided.
My friend from Utah did not agree to that limited inquiry before the
committee voted on Mr. Olson's nomination, but with the constructive
assistance of the leaders and their staff, we were able to make
progress over the last week.
Let me describe just a few of the discrepancies in Mr. Olson's
evolving statements to this committee. These are discrepancies that
give me pause.
First, Mr. Olson has minimized his knowledge of the Arkansas Project
and its activities through--well, word games and definitional ploys. At
the hearing, I asked him the direct question: ``Were you involved in
the so-called Arkansas Project at any time?'' Mr. Olson responded by
saying what he did not do, and with reference to his membership on the
board of directors:

As a member of the board of directors of the American
Spectator, I became aware of that. It has been alleged that I
was somehow involved in that so-called project. I was not
involved in the project in its origin or its management. . .
. I was on the board of the American Spectator later on when
the allegations about the project were simply that it did
exist.

A carefully crafted answer, like somebody spoiling or somebody
maneuvering a kayak through the rocks in a whitewater rapids.
Over the past several weeks and several rounds of questions, Mr.
Olson has expanded his initial response to admit that he and his firm
provided legal services in connection with the matter, that he had
discussions in social settings with those working on Arkansas Project
matters, and that he himself authored articles for the magazine paid
for out of Scaife's special Arkansas Project fund.
Mr. Olson and his supporters then began to engage in a word game over
what the meaning of ``Arkansas Project'' is. His law partner Douglas
Cox told the Post that Olson testified that he, ``did not know there
was this special fund set up by Scaife to finance this Arkansas fact
work.''
That might have explained Mr. Olson's testimony if he had said that
at the time he was writing the articles and giving legal advice and
talking about these matters with the staff, he had been unaware that
those conversations were in connection with what came to be known as
the Arkansas Project. In other words, writing and giving legal advice
and talking about it, he didn't know what it was for. I think he is far
too good a lawyer for that. But that is not what Mr. Olson testified.
In fact, he admitted that he became aware of the Arkansas Project at
least by 1998, and then changed that testimony to sometime in 1997.
He said he was a member of the board that received an audit of the
Scaife funds. So by 2001, his knowledge of the Arkansas Project and the
funding by Scaife was undeniable.
Second, evidence uncovered during the committee's limited bipartisan
inquiry following the committee vote, raises serious question about
whether Mr. Olson accurately denied any role in the ``origin'' of the
Arkansas Project by failing to respond correctly to direct questions
about a meeting in his law office held in late December, 1993 when this
project was getting organized. Not in 2001 but 1993.
Third, Mr. Olson has apparently downplayed his involvement in the
development and direction of Arkansas Project stories, perhaps to avoid
any inconsistency with his initial representation to the committee that
he was not involved in the management of this project.
According to a published report in the Washington Post on May 20,
2001, the report to which Senator Hatch referred when he indicated that
``legitimate questions'' had been raised, David Brock told Post
reporters that ``Olson attended a number of dinner meetings at the home
of R. Emmett Tyrrell, Jr., president and chairman of the Spectator,
which were explicitly brainstorming sessions about the Arkansas
Project.
While Mr. Olson refused to respond to this allegation, his law
partner, Douglas Cox, who worked on the Spectator account, conceded
that Olson attended such dinners, but that ``did not mean that he was
aware of the scope of the Arkansas Project and the Scaife funding.''

[[Page S5584]]

David Brock has also indicated that Mr. Olson was ``directly involved
in the Arkansas Project, participating in discussions about possible
stories and advising the magazine whether to publish one of its most
controversial stories, about the death of Clinton White House deputy
counsel Vincent Foster.'' According to the account in the Post, Mr.
Olson told Mr. Brock that, ``while he didn't place any stock in the
piece, it was worth publishing because the role of the Spectator was to
write Clinton scandal stories in hopes of `shaking scandals loose.' ''
That is an interesting position for a lawyer to take: Print a story
you know not to be true, hoping that by printing untruths you will
somehow bring forward truths. That is not what I was taught in law
school, certainly not in our legal ethics courses.
In his response to Senator Hatch, Mr. Olson did not deny Mr. Brock's
account head on.
Instead, he wrote that he told Mr. Brock that the article did not
appear to be libelous or to raise any legal issues that would preclude
its publication, and that he was not going to tell the editor-in-chief
what should appear in the magazine.
The Washington Post also reported that others said that project story
ideas, legal issues involving the stories, and other directly related
matters were discussed with Mr. Olson by staff members and at dinner
parties of Spectator staff and board members. The reaction from Mr.
Olson's supporters was swift. On May 15, 2001, Chairman Hatch shared
with the committee a letter he obtained from the two men quoted denying
the specific words in the Post story but not denying that they talked
to the Post reporters.
In a blatant effort to undermine Mr. Brock's powerful, first hand
recollection of Mr. Olson's participation in and contributions to the
activities of the Arkansas Project, Mr. Tyrrell also submitted a
statement that Mr. Brock was not a part of the Arkansas Project.
Mr. Brock, in reply, submitted strong contradictory evidence to the
Tyrrell statement and supplied the committee with multiple Arkansas
Project expense reports, expense reports, I might note, which remain
unrefuted and which Mr. Brock states, ``clearly show that I was
reimbursed thousands of dollars by the Project for travel, office
supplies, postage, and the like.''
Taken as a whole, Mr. Olson was clearly involved and participating
both professionally and socially in the work of the American Spectator
and its Arkansas Project. There is absolutely nothing illegal about
this involvement and participation, which makes me wonder, why not be
forthcoming and honest about it? But it shows a larger role in these
activities than Mr. Olson initially portrayed.

Mr. Olson also minimized his role in the Arkansas Project and the
American Spectator by failing to give complete information about the
amount of remuneration he has received for his activities on their
behalf when he was first asked. He told us on April 19 that he was paid
from $500 to $1,000 for his articles that appeared in the American
Spectator magazine. Yet, we find out in the Washington Post on May 10
that his firm was paid over $8,000 for work that was used in just one
of those articles.
In addition, the Post reported that over $14,000 was paid to Mr.
Olson's law firm and attributed to the Arkansas Project.
When he was asked during his hearing about an article he had
coauthored that was published under the pseudonym--I want to make sure
I get this right--``Solitary, Poor, Nasty, Brutish and Short'' in the
magazine he did not indicate that ``the magazine hired [his] firm to
prepare'' such materials and to perform legal research on the
theoretical criminal exposure of the President and Mrs. Clinton based
on press accounts of their conduct. I, for one, thought Mr. Olson had
defended his writings as matters of personal first amendment political
expression, an absolute right that he and all of us have. Certainly, I
had no idea from his testimony at his confirmation hearing that this
article was part of his and his firm's ongoing legal representation of
American Spectator Educational Foundation, that it was a commissioned
piece of legal writing, paid for by a grant from conservative
billionaire Richard Mellon Scaife.
I am now left to wonder whether his article that was so critical of
the Attorney General and the Justice Department was as he described
them at his hearing the ``statements of a private citizen,'' or another
richly paid for political tract.
Again, he, like all of us, can write any kind of a political tract he
wants. He, like all of us, can make statements critical of anybody he
wants. He can even make outlandish charges. But let's be honest about
what we have done when testifying under oath before the Judiciary
Committee.
His supporters repeat the mantra that even if he was paid with
Arkansas Project funds, Mr. Olson would not have known that. What they
leave out is a necessary qualifier ``at the time he received the
payment.'' By the time he came to the committee and testified, in
answer to direct questions, he had become privy to the internal audit
of the Arkansas Project. In fact, he says he became privy to that 3
years ago in 1998. That audit and his knowledge as a board member of
the extent of the Arkansas Project that it revealed rendered Mr.
Olson's testimony in April, 2001, less than complete.
Having now conceded his involvement in these matters, something he
did not do initially, the question arises: How extensive was that
involvement as a lawyer? That is why I asked at least for production of
his firm's billing records for legal services rendered to the American
Spectator, but I was stonewalled on that request. Mr. Olson asserted
attorney-client privilege; but he did not offer to cooperate by
producing nonprivileged copies of those records.
Every lawyer in this place knows what is privileged and what is not,
what falls under attorney-client privilege and what does not. And he
did not even want to produce those things that clearly fall outside the
attorney-client privilege. In fact, such nonprivileged records have
been produced in connection with other Government inquiries. Certainly
in the last 6 years, documents have been produced by the bushel to the
same Judiciary Committee during other investigations.
As part of the bipartisan inquiry undertaken after the committee vote
on this nomination, we became aware of this fact. The independent
counsel review and report we were able to read--that was only a small
part of it--indicates that requests were made to Mr. Olson and his law
firm for billing records for any client that had received Scaife
foundation grants between 1992 and 1998 in order to ascertain whether
there had ``been an indirect method to compensate (the law firm) for
its unpaid representation of Hale.'' That would be David Hale.
Just as here, Mr. Olson's law firm initially invoked attorney-client
privilege but realized that ultimately they had to give what were
nonprivileged billing records for Mr. Olson. And they showed Mr.
Olson's representation of both David Hale and the American Spectator.
But the independent counsel was unable to forward those records in
response to the bipartisan, joint request for them by Senator Hatch and
myself.
So Senator Hatch and I then sent a joint request to Mr. Olson's firm
requesting information about the total amount of fees paid by the
American Spectator to the firm. Remember, the implication was there
really was not anything there. Today, we were informed that the amount
paid was not $500 to $1,000 per article the committee was first told by
Mr. Olson. Instead, it was for legal services performed $94,405.
I am not a bookkeeper. I was a middling math student. But like most
Vermonters, I can count. There is quite a bit of difference between
$500 to $1,000 and $94,405.
Mr. Olson has tried to distance himself from the most controversial
aspects of the Arkansas Project in its activities to publicize
allegations of wrongdoing about the Clintons in Arkansas. Mr. Olson
stated that he ``represented the American Spectator in the performance
of legal services from time to time beginning in 1994 * * * those legal
services were not for the purpose of conducting or assisting in the
conduct of investigations of the Clintons.''
Yet, we find out he was paid over $8,000 to prepare a chart outlining
the Clintons' criminal exposure as research for a February 1994 article
Mr. Olson

[[Page S5585]]

co-authored against the Clintons entitled, ``Criminal laws Implicated
by the Clinton Scandals: A partial list.''
Finally, Mr. Olson has testified he simply does not recall who
contacted him to represent David Hale.
This is a man who has as sharp a mind as just about anybody I have
met around here, but he does not recall who contacted him to represent
David Hale, a central part of this whole inquiry.
So when I asked Mr. Olson at his April 5 hearing how he came to
represent Mr. Hale he started by saying, ``[t]wo of [Hale's] then
lawyers contacted me and asked . . .'' A few seconds later Mr. Olson
said:

[o]ne of his lawyers contacted me--I can't recall the man's
name--and asked whether I would be available to represent Mr.
Hale in connection with that subpoena here in Washington,
D.C. They felt that they needed Washington counsel with some
experience dealing with a congressional investigation. I did
agree to do that. Mr. Hale and I met together.

Even in his May 9 letter, Mr. Olson asserts that he, ``cannot recall
when [he] was first contacted about the possibility of representing Mr.
Hale.'' He indicates that he believes, ``that [he] was contacted by a
person or persons whose identities [he] cannot presently recall
sometime before then regarding whether I might be willing to represent
Mr. Hale if he needed representation in Washington.''
The Washington Post reported that David Henderson said that he
introduced Hale to Olson. Interestingly, David Henderson apparently
signed a statement on May 14 indicating that in his view he broke no
law while implementing the Arkansas Project. But what he does not say
and what he does not deny is that he was the person who introduced
David Hale to Mr. Olson.
The role that David Henderson played in introducing David Hale to Mr.
Olson is apparently corroborated by several other witnesses who have
spoken to the American Prospect in a story released today.
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, if Mr. Henderson was, in fact, involved in setting up that
representation.
And it strikes me as doubly strange when the bipartisan inquiry
conducted after the committee vote on this nomination uncovered
evidence that Mr. Olson was able to recall who introduced him to David
Hale just a couple of years ago when he was asked the same question.
The Hale independent counsel report indicates that in 1998 Mr. Olson
could supply the name of the person who referred David Hale to him for
legal representation.
It leads one to easily wonder whether Mr. Olson's failure to recall
the name, David Henderson, in the year 2001 had something to do with
him not wanting to indicate the connection to such a central figure in
the Arkansas project.
Some would say, what importance is there to this? Does it really
matter whether Mr. Olson accurately and fully described his role in the
American Spectator and the Arkansas project? This nomination is for the
office of Solicitor General. It is important for two reasons, both of
which go to the fitness of the nominee to serve as Solicitor General.
The principal question raised by the nomination of Mr. Olson to this
particular position--remember, this is a position that is supposed to
be nonpolitical, nonpartisan, representing all Americans of whatever
political allegiance they have, or whether they have none. The question
is whether his partisanship over the last several years in connection
with so many far-reaching anti-Clinton efforts to mark Mr. Olson as a
thorough-going partisan who will not be able to check his partisan
political instincts at the door to the Office of the Solicitor General.
Now, the reason I ask that is we have another nominee before us,
Michael Chertoff, and we asked some of these same questions about
Michael Chertoff. In that case, the questions were answered, the doubts
dissipated. Instead of a 9-9 vote, Mr. Chertoff, had a rollcall vote in
committee and it was unanimous; Republicans and Democrats across the
political spectrum voted for him. There were Doubts, but the questions
about Mr. Chertoff disappeared. But the doubts and questions about Mr.
Olson have grown over time.
Had Mr. Olson been straightforward with the committee, had he
conceded the extent of his involvement in anti-Clinton activities and
given the kinds of assurances that Mr. Chertoff did about his upcoming
responsibilities, I could very easily be supporting his confirmation.
Actually, when I first met with Mr. Olson, and even at his hearing
before we had a chance to go through all of his answers and see the
areas where they didn't show consistency, I had hoped and expected to
be supporting him. In fact, I remember saying to someone in my office
at that time that I assumed I would be supporting him. I expected to be
able to give him the benefit of the doubt.
In light of the deference I normally accord a President's executive
branch nominees, I fully expected to be voting for this nomination,
just as I voted for so many by the five previous Presidents, both
Republican and Democrat.
In the wake of the hearing, the series of supplemental responses we
have received, and the unanswered questions now in the public record
about Mr. Olson's involvement in partisan activities like the Arkansas
project, I have many doubts.
We also have a question of candor and straightforwardness. I have not
had the sense from his hearing onward that Mr. Olson has been truly
forthcoming with either me or with the committee. My sense is that for
some reason he chose from the outset to try to minimize his role in
connection with the activities of the American Spectator, that he has
sought to characterize it in the most favorable possible light, that he
has sought to conclude for us rather than provide us with the facts and
let us conclude how to view his activities.
As I review the record and the initial nonresponsiveness, lack of
recall, corrections when confronted with specifics, I am left to wonder
what happened to ``absolute candor and fair dealing,'' the touchstone
that Mr. Olson himself says is necessary for a Solicitor General. In
concluding my May 4, 2001, letter to Mr. Olson, I noted:

The credibility of the person appointed to be the Solicitor
General is of paramount importance. When arguing in front of
the Supreme Court on behalf of the United States Government,
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 or her dealings with the Court. I expect that same
responsiveness and cooperation from nominees before this
Committee.

My expectation had been to support him. Please understand, this is
not the role of a lawyer advocate in our legal system. I have been an
advocate of the court, both at the trial level and at the appellate
level. I have been there both for the prosecution and for the defense.
In private practice, I was there both for the plaintiffs and
defendants. You fight like mad. You make as strong a case for your
client as you can. That is fine.
The Solicitor General is different. The Solicitor General is
sometimes referred to as the tenth justice. He is expected to tell the
Court these are the strengths of my case, but let me tell you also
where the weaknesses are of my case. If a matter is left out, or there
might be a weakness in the case, he is duty-bound to bring it forward
to the Court's knowledge because, if confirmed, Mr. Olson is not a
lawyer advocate for just one client because that client is the United
States of America--all 270 million of us. I want to be sure that our
Nation's top lawyer will see the truth and speak the truth fully to the
Supreme Court and represent all of our best interests in the matters
over which the Solicitor General exercises public authority.
I have confidence that Mr. Olson is an extremely capable lawyer. Of
course, I do. Do I have confidence that he can set aside partisanship
to thoroughly and evenhandedly represent the United States of America
before the Supreme Court? I do not have such confidence, and I cannot
vote for him.
Mr. President, how much time remains for the Senator from Vermont?
The PRESIDING OFFICER. There are 76 minutes remaining.
Mr. LEAHY. Mr. President, the Solicitor General fills a unique
position in our Government. The Solicitor General is not merely another
legal advocate whose mission is to advance the narrow interests of a
client, or merely another advocate of his President's policies. The
Solicitor General is much more

[[Page S5586]]

than that. The Solicitor General must use his or her legal skills and
judgment for higher purposes on behalf of the law and the rights of all
the people of the United States.
At his hearing, Mr. Olson acknowledged that:

The Solicitor General holds a unique position in our
Government in that he has important responsibilities to all
three branches of our Government. . . . And he is considered
an officer of the Supreme Court in that he regularly and with
scrupulous honesty must present to the Court arguments that
are carefully considered and mindful of the Court's role,
duty, and limited resources. As the most consistent advocate
before the Supreme Court, the Solicitor General and the
lawyers in that office have a special obligation to inform
the Court honestly and openly. The Solicitor General must be
an advocate, but he must take special care that the positions
he advances before the Court are fairly presented. As
Professor Drew Days said to this committee during his
confirmation hearing 8 years ago, the Solicitor General has a
duty towards the Supreme Court of ``absolute candor and fair
dealing.''

Republicans and Democrats have carefully reviewed nominations to the
position of Solicitor General to ensure the highest levels of
independence and integrity, as well as legal skills. Indeed, the
Solicitor General is the only government official who must be,
according to the statute, ``learned in the law.'' The Solicitor General
must argue with intellectual honesty before the Supreme Court and
represent the interests of the Government and the American people for
the long term, and not just with an eye to short-term political gain. I
ask unanimous consent to have printed in the Record a recent article by
Professor Lincoln Caplan on the role of the Solicitor General.
There being no objection, the material was ordered to be printed in
the Record, as follows:

[From the New York Times, May 18, 2001]

The President's Lawyer, and the Court's

(By Lincoln Caplan)

New Haven.--The job of solicitor general is one of the most
eminent in American law. Part advocate, the S. G. as he is
called, represents the United States before the Supreme
Court, where the federal government is involved in about two-
thirds of all cases decided on the merits (as opposed to
procedural grounds). Part judge, he chooses when the
government should appeal a case it has lost in a lower court,
file a friend-of-the-court brief, or defend an act of
Congress. Most S.G.'s have influenced rulings in landmark
cases; many have become judges; four have risen to the
Supreme Court. Yet for most of this tiny office's history
since it was created in 1870, the S.G. drew little public or
even scholarly attention.
Today, however, the nomination of Theodore Olson to be S.G.
is headline news, as is evident from the attention to the
Senate Judiciary Committee's 9-9 vote on it yesterday, a
split along party lines. In the past 40 years, the courts
have become forums for resolving social questions, and the
docket of the Supreme Court has become defined by the most
divisive issues. During the past 15 years, especially, as the
line between law and politics has been increasingly hard to
draw, the choice of a solicitor general has become more
important politically than that of any legal figure except
for the attorney general or a Supreme Court justice.
The choice of Mr. Olson makes this point sensationally
because his legal accomplishments are so marked by ideology.
As a young Justice Department official under Ronald Reagan,
he made his name as an adamant defender against Democrats in
Congress who were trying to probe a Republican environmental
scandal. He has litigated matters like a major anti-
affirmative-action case in Texas, brought by conservative
activists to overturn liberal precedents. He has served on
the board of the conservative American Spectator magazine,
for which he wrote biting, anonymous criticism of Bill and
Hillary Clinton. He has helped lead the Federal Society, a
conservative legal organization that is now a formidable
force in the Bush Administration. Most significantly, he was
the winning attorney in the Supreme Court case of Bush v.
Gore. During Mr. Olson's Senate confirmation hearing, Richard
Durbin, Democrat of Illinois, said to him, ``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.''
For the S.G.'s office, the Olson nomination frames a debate
that was sparked during the Reagan years and remains
undecided.
The traditional view holds that the solicitor general has a
unique role in American law and functions as ``the 10th
justice.'' Justice Lewis Powell, for example, argued that the
S.G. has a ``dual responsibility''--to represent the
president's administration but also to help the Supreme Court
develop the law in ways that serve the long-term interests of
the United States. (To some experts, the S.G.'s duty to
defend federal statutes amounts to a third responsibility, to
Congress.) Rex Lee, the first solicitor general in the Reagan
administration, was an unequivocal conservative. Yet he was
forced to quit by colleagues who thought he was too
restrained in his advocacy of the president's social agenda.
Famously, he said that it would have been wrong for him to
``press the administration's policies at every turn and
announce true conservative principles through the pages of my
briefs.'' He was, he stated, ``the solicitor general, not
the pamphleteer general.''
A more recent view is that the S. G. should act as a
partisan advocate for policies of the president, not as the
legal conscience of the government. Rather than defending a
position of independence within the administration, Mr. Lee's
successor, Charles Fried, told the Senate that ``it would be
peevish and inappropriate for the solicitor general to be
anything but cheerful'' while supporting the views and
interests of the president who appointed him.
The latter outlook is much easier to defend. The separation
of powers among the three branches of government makes it
simplest to regard the solicitor general as a spokesman for
the executive branch: the concept of a dual responsibility
(or a triple one) confounds the notion of checks and
balances.
Yet for decades the former outlook prevailed, and it is
supported in the only official statement about the S. G.'s
role, issued in 1977 by the Justice Department. The Supreme
Court has bestowed on the solicitor general a special
status--seeking the S. G.'s advice in many cases where the
government isn't even a party. And the S. G. has reciprocated
by fulfilling a special role in court. If a private lawyer
wins a case he thinks he should have lost, he accepts his
victory in judicious silence. But when the solicitor general
prevails on grounds that he considers unjust (for example,
when evidence supporting a criminal verdict is slight), he
may ``confess error'' and recommend that the Supreme Court
overturn the decision. To Archibald Cox, one of the country's
admired S. G.'s, surrendering victory in some cases helps
justify the reliance that the Supreme Court places on the
solicitor general: this practice demonstrates that the
solicitor general's approach to arguing the government
position is likely to be developed with the nation's long-
term interests in mind.
Both views of the role require candor in the S. G. That's
why last week the Senate Judiciary Committee postponed its
vote on Mr. Olson after reports surfaced that he had given
misleading testimony, during his confirmation hearing, about
his role in a project run by The American Spectator to find
damaging information about the activities of the Clintons in
Arkansas. The question of misleading testimony is reminiscent
of a rebuke to Mr. Olson by an independent counsel who
investigated whether he had lied to Congress in testimony
during his days as a Reagan defender. While ``literally
true,'' the counsel stated, that testimony was ``potentially
misleading.''
Whether he is approved as solicitor general by the full
Senate or the Bush administration must choose someone else
for the post, a deeper question endures: Is it now acceptable
to define the job as that of an outright partisan? Or should
the S. G. remain an advocate for the nation's long-term
interests whose duty to the rule of law goes beyond
allegiance to the political views of the administration?

Mr. LEAHY. The Senate must determine whether a nominee to the
position of Solicitor General understands and is suited to this
extraordinary role. From Benjamin Bristow in 1870, to William Howard
Taft and Charles Evans Hughes, Jr., from Robert Jackson to Archibald
Cox, Thurgood Marshall and Erwin Griswold, we have had extraordinary
people serve this country as our Solicitors General. It is with the
importance of this position in mind that I approached the nomination of
Ted Olson to serve as Solicitor General of the United States. From my
initial meeting with him in advance of the April 5, 2001, hearing and
thereafter, I have been assessing this nomination against the
responsibilities of that important office.
Initial Concerns. At the outset, I raised with Mr. Olson my concern
that his sharp partisanship over the last several years might not be
something that he could leave behind. After review of his testimony
both orally and in answers to written questions, I have become doubly
concerned that Mr. Olson has not shown a willingness or ability to be
sufficiently candid and forthcoming with the Senate so that I would
have confidence in his abilities to carry out the responsibilities of
the Solicitor General and be the voice of the United States before the
United States Supreme Court. In addition, I am concerned about other
matters in his background.
I will detail below the source of my concerns about Mr. Olson's
candor before the Committee about his involvement with the American
Spectator and the ``Arkansas Project.'' His initial responses to my
questions at his hearing prompted concern that the Committee might not
have heard a candid and complete accounting from Mr. Olson. Rather than
respond directly and say all that he did do in connection with

[[Page S5587]]

those matters, Mr. Olson chose to respond by misdirection and say what
he did not do. He initially described his role as extremely limited as
a member of the Board of Directors of the American Spectator
Educational Foundation and implied that he was involved only after the
fact, when that Board conducted a financial audit and terminated the
``Arkansas Project'' activities in 1998.
Need for Committee Inquiry. Mr. Olson has modified his answers over
time, his recollection has changed, and he has conceded additional
knowledge and involvement. His initial minimizing of his role appears
not be consistent with the whole story. Because his responses over time
left significant questions and because of press accounts that
contradicted the minimized role to which he initially admitted, I
wanted to work with Senator Hatch before the Judiciary Committee voted
on this nomination to have the Committee perform the bipartisan factual
inquiry needed to set forth the facts and resolve all questions and
concerns about Mr. Olson's answers.
Indeed, Senator Hatch postponed one Committee vote on Mr. Olson's
nomination on May 10 and admitted that ``some legitimate questions''
have arisen and that ``legitimate issues'' were involved. He said that
after a May 10 article in the Washington Post indicated that Mr.
Olson's role at American Spectator and the activities of the ``Arkansas
Project'' were more than just as a member of the Board of Directors in
1998 to which a financial audit was provided.
When I did not hear from Senator Hatch about how he wished to proceed
to resolve those legitimate questions, I sent him a letter on May 12
proposing a course of action to avoid any undue delay. After I spend my
proposal, Senator Hatch and I talked about it. He said he would be
getting back to me and I held out hope that we would be able to proceed
in a fair and bipartisan way to get to the facts and let all Members of
the Committee make their own assessment before they voted upon the
nomination.
Instead, Senator Hatch was apparently just waiting for a letter from
Mr. Olson, which arrived accompanied by short, solicited statements
from a few selected supporters so that he could unilaterally declare
the matter closed. None of these statements could serve as a substitute
for the Committee doing its job, and, instead of playing catch-up to
the press, exercising the due diligence that the American people expect
from the Judiciary Committee in our review of a nominee for a position
sometimes called the ``Tenth Supreme Court Justice.'' In essence, the
question I wished to examine was whether Mr. Olson fully informed the
Committee in response to direct questions about his role in the
American Spectator and the ``Arkansas Project.'' This was never a
question of whether there was illegal conduct.
Committee Vote. Rather than proceed in a bipartisan way to establish
the factual record needed to evaluate Mr. Olson's characterization of
his activities, Senator Hatch rejected even an inquiry of limited
duration that would have involved jointly interviewing seven
individuals, who had already been quoted or referred to by the press,
with contemporaneous knowledge from the time in question, and gathering
relevant background documents, which had also been referred to in the
press. He pressed forward with a vote in Committee on this nomination
that resulted in a 9-9 tie vote.
While usually a nomination on such a vote would not be reported to
the Senate, circumstances have changed that prompt me to give my
consent for Mr. Olson's nomination to be considered. With the
constructive assistance of both Leaders and their staffs, we were able
over the past week to conduct a limited, bipartisan inquiry on the
matters of concern raised by Mr. Olson's responses to the Committee.
Limited Bipartisan Inquiry: Following the 9-9 vote on this nomination
in the Judiciary Committee on May 17, 2001, Senator Hatch and I
released a joint statement the next day indicating that we were
discussing how to move forward on the nomination and to address
specific concerns that Members might have prior to the confirmation
vote. As part of this inquiry, Committee staff reviewed, on a
bipartisan basis, a heavily-redacted version of the report of the
Office of Special Review (OSR), prepared by Michael Shaheen and May 21,
2001 responses by Independent Counsel Robert W. Ray, including to
questions posed jointly by Senators Hatch and me. One of these letters
is in response to a query from Senator Hatch sent unilaterally and
without notice to me. On May 22, Senator Hatch and I jointly released
for review by all the members of the Senate the two May 21 letters
received from Mr. Ray and the redacted OSR report--with additional
redactions to remove the names of specific individuals other than the
nominee.
In addition, Senator Hatch released a May 22 letter to colleagues
that included 71-pages of American Spectator-related records, which
were anonymously delivered to my Judiciary Committee and which shed
light on how the ``Arkansas Project'' came about. I should note that
within minutes of discovery of these documents, copies were made and
delivered to Senator Hatch's Judiciary Committee office.
Finally, the Committee staff made efforts to conduct an interview of
Ronald Burr, the former publisher of the American Spectator and a key
witness to the events in question. In fact, Mr. Burr was the person at
the magazine instrumental in obtaining the grant funds from
conservative billionaire Richard Mellon Scaife. Among the anonymous-
source documents released by Senator Hatch is a December 2, 1993 letter
from Richard M. Scaife to R. Emmett Tyrrell, as President and Chairman
of the American Spectator Educational Foundation, stating the ``[t]his
grant is in response to Ron Burr's October 13, 1993 letter and various
conversations with us.'' In addition, Mr. Burr was the person to whom
Mr. Olson sent his February 18, 1994 letter confirming the terms of his
representation of the American Spectator and his January 30, 1996
letter confirming his acceptance of a membership on the board of the
American Spectator Educational Foundation. Unfortunately, Committee
staff were unable to speak to Mr. Burr, despite his willingness to do
so because the American Spectator refused to release him from the
confidentiality provision in his severance agreement for purposes of
Mr. Burr's cooperation with the Committee's inquiry.

Contradictions and Discrepancies. Let me describe just a few of the
discrepancies in Mr. Olson's evolving statements to this Committee.
These are discrepancies that give me pause.
First, Mr. Olson has minimized his knowledge of the ``Arkansas
Project'' and its activities through word games and definitional ploys.
At the hearing, I asked him the direct question: ``Were you involved in
the so-called Arkansas Project at any time?'' Mr. Olson responded by
saying what he did not do, and with reference to his membership on the
Board of Directors: ``As a member of the board of directors of the
American Spectator, I became aware of that. It has been alleged that I
was somehow involved in that so-called project. I was not involved in
the project in its origin or its management. . . . I was on the board
of the American Spectator later on when the allegations about the
project were simply that it did exist.'' (Tr. at pp. 200-01).
Why is there reason to suspect that Mr. Olson's role was not limited
to that of a Member of the Board to which a financial audit was
provided in 1998? A good deal of the basis is provided by subsequent
answers provided by Mr. Olson himself. In April, 2001, his testimony
was initially that he was not involved, except as a Member of the
Board. Over the past several weeks and several rounds of questions, Mr.
Olson has expanded his initial response to admit that he and his firm
provided legal services in connection with the matter, that he had
discussions in ``social'' settings with those working on ``Arkansas
Project'' matters, and that he himself authored articles for the
magazine paid for out of Scaife's special ``Arkansas Project'' fund.
Compare, for example, Mr. Olson's initial response with his
subsequent responses in which he modified his original answer. In his
May 9, 2001 letter to me, he stated: ``First, I will address again your
questions concerning my involvement in the `Arkansas Project.' My only
involvement in what has been characterized as the `Arkansas Project'
was in connection with my service to

[[Page S5588]]

the Foundation as a lawyer and member of its Board of Directors.''
[Underlining added for emphasis.] Mr. Olson initially left out any
reference to his role a lawyer.
Mr. Olson and his supporters then began to engage in a word game over
what the meaning of ``Arkansas Project'' is. His law partner Douglas
Cox told the Post that Olson testified that he, ``did not know there
was this special fund set up by Scaife to finance this Arkansas fact
work.'' That might have explained Mr. Olson's testimony if he had said
that at the time he was writing the articles and giving legal advice
and talking about these matters with the staff, he had been unaware
that those conversations were in connection with what came to be known
as the ``Arkansas Project.'' But that is not what Mr. Olson testified.
In fact, he admitted that he became aware of the ``Arkansas Project''
at least by 1998, and then changed that testimony to sometime in 1997.
He said he was a Member of the Board that received an audit of the
Scaife funds. So by 2001, his knowledge of the ``Arkansas Project'' and
the funding by Scaife was undeniable.
On this particular definitional point, Mr. Olson has minimized his
role in and his knowledge of how the Scaife money was spent by the
Foundation, even though he was on the board. It strains credulity that
he did not know given the size of the Scaife grants--especially when
another board member has described briefings to the board on the
Arkansas Project and its financing as ``routine.'' [Peter Hannaford,
Washington Post, May 15, 2001]. Moreover, board minutes for a meeting
on May 19, 1997, which were included in the anonymous-source documents
released by Senator Hatch on May 22, indicate that the board--at least
at that meeting--discussed a number of financial matters, such as the
foundation's equity holdings, operating reserves, employment contracts,
and commitments from the Scaife Foundation. (Doc. pp. 44-46).
This is certainly not the first occasion that Mr. Olson has played
this word game. Independent Counsel Robert W. Ray notes in response to
a request from Senator Hatch, that in a memoranda of interview, Mr.
Olson acknowledged that ``he may have been asked questions by [names
redacted] about things that they were doing in Arkansas, but Olson did
not know anything about the ``Arkansas Project'' and ``he was not
involved in the direction of funding of that project.'' Mr. Olson was
precise in his denial of knowledge and involvement to refer to the term
``Arkansas Project.'' One unnamed person interviewed by the OSR
investigation stated, however, that ``the `Arkansas Project' was not a
term used by [name redacted] or anyone else at the American Spectator
to his knowledge.'' (May 21 Ray Letter, n. 2).
But even accepting Mr. Olson's strict definition of the ``Arkansas
Project,'' which apparently requires knowledge of the Scaife funding
source, rather than the broader use of the term to describe the general
activities of Clinton scandal mongering underway at the American
Spectator from 1993 through 1998, his involvement was more than he
described. On Friday, May 11, 2001, the New York Times reported that
Mr. Olson said that when he joined the Board of Directors of the
American Spectator the ``Arkansas Project'' was underway and that when
he found out about it, he helped shut it down. In fact, Mr. Olson's
testimony to the Committee was that he was on the Board, ``when the
allegations about the project were simply that it did exist. The
publisher at the time, under the supervision of the board of directors,
hired a major independent accounting firm to conduct an audit to report
to the publisher and therefore to the board of directors with respect
to how that money was funded. . . . As a result of that investigation,
the magazine, while it felt it had the right to conduct those kind of
investigations, decided that it was not in the best interest of the
magazine to do so. It ended the project. It established rules to
restrict that kind of activity in the future. . . .''
In a subsequent written response, Mr. Olson wrote: ``Neither the
report by Mr. [Terry] Eastland nor the Board found anything unlawful
about the manner in which funds had been spent, which as I recall, had
all been for the purpose of investigating and reporting information of
legitimate public interest regarding a high level public official.
However, because of the controversy surrounding the matter, and issues
regarding whether the journalistic products that resulted had been
worth the amount spent, the project was ended and the Board adopted new
guidelines to govern investigative journalistic efforts in the
future.''

The letter is interesting on these points, but only adds to the
questions rather than resolving what in fact happened. Mr. Eastland
adds another perspective and indicates a much more active role for Mr.
Olson than had previously been acknowledged in representations to the
Committee. Mr. Eastland writes that in June, 1997, disagreements arose
between the magazine's ``then publisher'' and Richard Larry, the
executive director of the Scaife foundations.
Mr. Eastland continues: ``At that time, Mr. Tyrrell, who was also
chairman of the board, asked Mr. Olson, a board member since 1996, for
his assistance in resolving the dispute.'' This role has never
previously been acknowledged by Mr. Olson or Mr. Tyrrell. Mr. Eastland
then asserts that ``Mr. Olson agreed that a review of the project was
necessary.'' He continues: ``Throughout my review, which included an
accounting of the monies spent on the project as well as an examination
of its management, methods, and results, I had Mr. Olson's strong
support.'' So, according to Mr. Eastland, Mr. Olson had a much more
extensive role in deciding how the American Spectator would ``resolve''
the dispute, contributed to the decision to conduct a review and played
a strong supportive role in the review.
If Mr. Olson is now taking credit for finding out about the
``Arkansas Project'' and for shutting it down, as reported by the New
York Times on May 11, 2001, that would be a modification of those
responses and his initial response that he was not involved in the
project, ``in its origin or its management,'' to his later formulation
that he did, ``not recall giving any advice concerning the conduct of
the `Project' or its origins or management,'' to his later formulation
that he was not involved in its, ``inception, organization or ongoing
supervision,'' or alternatively, that his, ``only involvement in what
has been characterized as the `Arkansas Project' was in connection with
my service to the Foundation as a lawyer and member of its Board of
Directors.''
Of course, there is much left unsaid by Mr. Eastland on this and
other topics. For example, he does not indicate how he came to be the
publisher of the American Spectator and replaced Ronald Burr in
November 1997 or whether Mr. Olson had a role in his recruitment or in
that action of replacing the publisher. In this regard, Mr. Olson did
not indicate to the Committee in his submitted responses to our
questionnaire that he had been an officer at the American Spectator
Educational Foundation. In written follow up questions, I drew his
attention to passages in The Hunting of the President (Id.) in which
the authors of that published work indicate that Mr. Olson was named an
officer of the organization on October 1997. Mr. Olson's response is
uncertain and equivocal indicating that he had a, ``vague recollection
that [he] served as a temporary secretary for the purpose of that
meeting, and perhaps a subsequent one, something that I did not recall
at the time I answered the initial written questions.''
Second, evidence uncovered during the Committee's limited bipartisan
inquiry following the Committee vote, raises serious question about
whether Mr. Olson accurately denied any role in the ``origin'' of the
``Arkansas Project'' by failing to respond correctly to direct
questions about a meeting in his law office held in late December, 1993
when this project was getting organized.
The anonymous-source documents released by Senator Hatch reveal that
following requests by the American Spectator as early as October 13,
1993, Richard M. Scaife on December 2, 1993 ``approved a new grant to
The American Spectator Educational Foundation, Inc.'' and forwarded the
first installment of the grant. (Doc. p. 19). Thus, by late December
1993, the Scaife funding was in place at the American Spectator to
support the activities

[[Page S5589]]

that would come to be called the ``Arkansas Project.''
With the Scaife funding secured, the OSR Report confirms that Mr.
Olson met in his office in late December 1993 with people associated
with the American Spectator--Ronald Burr, maybe David Henderson,
Stephen Boynton and David Hale. (OSR Report, pp. 78, 82, 90; May 21,
Joint Q. 5). ``[A]t least seven individuals were identified as having
possibly been in attendance.'' (Id.) Mr. Olson recalled this meeting in
1998 during the OSR investigation, stating that ``in approximately
December 1993'' he hosted a meeting in his office, that the meeting was
``about the possibility that he provide counsel to the magazine,'' that
David Hale attended this meeting, and that ``the participants may have
discussed Hale's need for a `Washington lawyer' to represent him if he
was called to testify before any congressional committees.'' (OSR
Report, pp. 28, 78).
While the description of what discussions may have taken place at
this meeting is ``incomplete and inconsistent'' with ``inconsistencies
not resolved by the Shaheen investigation'' (May 21 Ray Response to
Joint Q. 5), the OSR report contains the following descriptions from
other participants in the meeting: ``while Hale may have been a topic
of conversation during this meeting, no one requested Olson to
represent Hale'' (p. 82); ``[Redacted] recalled meeting with attorneys
Theodore Olson and [redacted] to discuss the representation of David
Hale, . . .'' (P. 90). Mr. Ray has identified these references likely
to be to the same December 1993 meeting. (May 21 Ray Response to Joint
Qs. 5, 7, 9).
In addition to these limited descriptions in the OSR Report,
Independent Counsel Ray reviewed the underlying memoranda of interviews
of three participants in the December 1993 meeting in Mr. Olson's
office and summarized their statements in a May 21 letter responding to
a question sent unilaterally by Senator Hatch. According to Mr. Ray,
whose cooperation during this bipartisan inquiry has been exemplary and
helpful, Mr. Olson admitted that at this meeting David Hale's need for
counsel was discussed and that this meeting was ``the commencement of
[my] relationship with the American Spectator magazine'' but he
declined to describe the substance of that discussion, claiming the
attorney/client privilege.'' (Id., p. 2). It is difficult to see,
however, how the meeting could be covered by attorney/client privilege
when David Hale, who had no formal affiliation with the Spectator, was
present.
One unnamed participant confirms part of Mr. Olson's recollection,
stating, ``the purpose of the meeting was to get Olson to represent
Hale.'' Another unnamed participant appears to confirm the other part
of Mr. Olson's recollection regarding the second purpose of the meeting
about American Spectator activities, stating: ``The subject of this
meeting was Bill and Hillary Clinton and the need for the Spectator to
investigate and report on numerous alleged Clinton scandals.''
(Emphasis supplied).

Having seen the OSR Report and a statement submitted by Michael
Horowitz, I am led to wonder whether the account of a late 1993 or
early 1994 meeting in the Washington law office of Gibson, Dunn &
Crutcher attended by David Henderson, Steve Boynton, John Mintz, Ronald
Burr, Ted Olson and Michael Horowitz in The Hunting of the President
(J. Conason & G. Lyons, 2000) is more accurate than we have been led to
believe by Mr. Olson. At his hearing, I had asked Mr. Olson whether
there had been any meetings of the ``Arkansas project'' in his office
and he responded without reservation: ``No, there were none.''
I followed up with a written question asking in particular about the
time frame of 1993 and 1994, and Mr. Olson answered that he was, ``not
aware of any meeting organizing, planning or implementing the `Arkansas
Project' in my law firm in 1993 or 1994.'' I then followed up by
drawing his attention to a passage out of The Hunting of the President
(Id.) in which the authors of that book wrote that a meeting did take
place at which the topic was using Scaife funds and the American
Spectator to, ``mount a series of probes into the Clintons and their
alleged crimes in Arkansas.'' in response to that written question, Mr.
Olson was less assertive and categorical. He did not deny that a
meeting took place but disputed the characterization of the topic of
the meeting. Hedging his testimony, he noted that he did, ``not recall
the meeting described.''
With respect to Mr. Olson's initial categorical denial of meeting at
Gibson Dunn's offices, in response to another written follow up
question derived from a passage in The Hunting of the President (Id.),
I asked whether there had, in fact been meetings not only in 1993 and
1994 but also in July 1997 at the offices of Mr. Olson's law firm to
discuss allegations that money for the ``Arkansas Project'' had been
misallocated. Confronted with the specific reference to the public
record, Mr. Olson modified his earlier categorical denial by conceding:
``I do recall meetings, which I now realize must have been in the
summer of 1997 in my office regarding allegations regarding what became
known as the `Arkansas Project' and questions concerning whether
expenditures involved in that project had been properly documented.''
Third, Mr. Olson has apparently down-played his involvement in the
development and direction of ``Arkansas Project'' stories, perhaps to
avoid any inconsistency with his initial representation to the
Committee that he was not involved in the management of this project.
Yet, according to a published report in the Washington Post on May
10, 2001, the report to which Senator Hatch referred when he indicated
that ``legitimate questions'' had been raised, David Brock told Post
reporters that ``Olson attended a number of dinner meetings at the home
of R. Emmett Tyrrell, Jr., president and chairman of the Spectator,
which were explicitly `brainstorming' sessions about the Arkansas
Project.'' While Mr. Olson refused to respond to this allegation, his
law partner, Douglas Cox, who worked on the Spectator account, conceded
that Olson attended such dinners, but that ``did not mean that he was
aware of the scope of the `Arkansas Project' and the Scaife funding.''
David Brock has also indicated that Mr. Olson was ``directly involved
in the Arkansas Project, participating in discussions about possible
stories and advising the magazine whether to publish one of its most
controversial stories, about the death of Clinton White House deputy
counsel Vincent Foster.'' Washington Post, May 11, 2001. According to
the account in the Post, Mr. Olson told Mr. Brock that, ``while he
didn't place any stock in the piece, it was worth publishing because
the role of the Spectator was to write Clinton scandal stories in hopes
of `shaking scandals loose.' '' In his response to Senator Hatch, Mr.
Olson did not deny Mr. Brock's account head on. Instead, he wrote that
he told Mr. Brock that the article did not appear to be libelous or to
raise any legal issues that would preclude its publication, and that he
was not going to tell the editor-in-chief what should appear in the
magazine.
The Washington Post also reported that both R. Emmett Tyrrell and
Wladyslaw Pleszczynski said that project story ideas, legal issues
involving the stories, and other directly related matters were
discussed with Mr. Olson by staff members and at dinner parties of
Spectator staff and board members. The reaction from Mr. Olson's
supporters was swift. On May 15, 2001, Senator Hatch shared with us a
letter he obtained from Messrs. Tyrrell and Pleszczynski denying the
specific words in the Post story but not denying that they talked to
the Post reporters. Indeed, the Post story quotes Mr. Tyrrell, a quote
he does not disavow, as saying he did not recall, but it was a
possibility that he talked to Ted Olson about the stories about the
Clintons. ``I would say it was a possibility, just as it was a
possibility that Roosevelt would have discussed Pearl Harbor on
December 8 with his secretary of state.'' Tyrrell and Pleszczynski also
say that Mr. Olson's carefully worded disclaimer was technically
accurate as far as it went.
In a blatant effort to undermine Mr. Brock's powerful, first-hand
recollection of Mr. Olson's participation in and contributions to the
activities of the ``Arkansas Project,'' Mr. Tyrrell also submitted a
statement that Mr. Brock was not a part of the ``Arkansas Project.''
Mr. Brock, in reply, submitted strong contradictory evidence

[[Page S5590]]

to the Tyrrell statement and supplied the committee with multiple
Arkansas Project expense reports which remain unrefuted and which Mr.
Brock states, ``clearly show that I was reimbursed thousands of dollars
by the Project for travel, office supplies, postage, and the like.''
Over the course of the past few weeks, Mr. Olson has downplayed any
significance of discussions in social settings about the stories that
were the product of the ``Arkansas Project.'' In his May 9, 2001,
letter, Mr. Olson acknowledged: ``Your previous questions asked about
contacts that I may have had with people involved in the project. My
answer was and is that I had dealings with the editors of the magazine
and some of its reporters and staff, some social, some in connection
with legal work. This was during a time when those persons were
involved in one form or another with the investigative journalistic
efforts which the magazine was contemporaneously pursuing. I was, of
course, aware, along with the public generally, that the magazine was
writing articles about the Clintons, but I did not know that there was
a special source of funding for these efforts.''

In his May 14, 2001, letter to Senator Hatch, he writes: ``It was
also true that in social settings, the magazine's editorial staff and
writers spoke of the articles that they were involved in writing and
publishing. I was among scores of people from time to time included in
such social events, but nothing about these social discussions involved
organizing, supervising or managing the project--they were simply
discussions of subjects of contemporaneous interest to the magazine's
editors and writers.''
Yet, taken as a whole, Mr. Olson was clearly involved and
participated both professionally and socially in the work of the
American Spectator and its ``Arkansas Project.'' There is absolutely
nothing illegal about this involvement and participation, but it shows
a larger role in these activities than Mr. Olson initially portrayed.
Fourth, Mr. Olson minimized his role in the ``Arkansas Project'' and
the American Spectator by failing to give complete information about
the amount of remuneration he has received for his activities on their
behalf when he was first asked. He told us on April 19 that he was paid
from $500 to $1,000 for his articles that appeared in the American
Spectator magazine. Yet, we find out in the Washington Post on May 10
that his firm was paid over $8,000 for work that was used in just one
of those articles. In addition, the Post reported that over $14,000 was
paid to Mr. Olson's law firm and attributed by American Spectator to
the ``Arkansas Project.''
When he was asked during his hearing about an article he had
coauthored that was published under the pseudonym ``Solitary, Poor,
Nasty, Brutish and Short'' in the American Spectator magazine he did
not indicate that ``the magazine hired [his] firm to prepare'' such
materials and to perform legal research on the theoretical criminal
exposure of the President and Mrs. Clinton based on press accounts of
their conduct. I, for one, thought Mr. Olson had defended his writings
as matters of personal First Amendment political expression. I had no
idea from his testimony at his confirmation hearing that this article
was part of his and his firm's ongoing legal representation of American
Spectator Educational Foundation, that it was a commissioned piece of
legal writing, paid for by a grant from conservative billionaire
Richard Mellon Scaife. I am now left to wonder whether his article that
was so critical of the Attorney General and the Justice Department was
as he described them at his hearing the ``statements of a private
citizen,'' or another richly paid for political tract.
Mr. Tyrrell and Mr. Pleszcynski do not deny that Mr. Olson was paid
for the chart speculating on the Clintons' potential criminal exposure.
Instead, they merely repeat the mantra that even if he was paid with
``Arkansas Project'' funds, Mr. Olson would not have known that. What
they leave out is a necessary qualifier, ``at the time he received the
payment.'' They and Mr. Olson became privy to the internal audit of the
``Arkansas Project'' by 1998. That audit and his knowledge as a Board
Member of the extent of the ``Arkansas Project'' it revealed render Mr.
Olson's testimony in April, 2001, less than complete.
I have inquired of Mr. Olson what his and his firm's legal
representation of the American Spectator entailed. In response he has
been extremely general, vague and unspecific and, at times, has cloaked
his nonresponsiveness in allusions to the attorney-client privilege. In
fact, his law partner, Douglas Cox, has acknowledged that he and Mr.
Olson worked on legal matters for the American Spectator, including
legal research that was incorporated into the article that was
published in 1994 in the American Spectator, under a fictitious name,
that argues that the President was facing up to 178 years in prison and
Mrs. Clinton had a criminal exposure of 47 years in prison. He then
proceeds to undercut any claim of attorney-client privilege for these
activities by indicating that they did not rely on any communications
with anyone at American Spectator.
Having now conceded his involvement in these matters, something he
did not do initially, the question arises: how extensive was that
involvement as a lawyer? That is why I asked at least for production of
his firm's billing records for legal services rendered to the American
Spectator, but was stonewalled on that request. Mr. Olson asserted
attorney-client privilege; he did not offer to cooperate by producing
non-privileged copies of those records. (April 25 Response, Q.4; May 9
Response, p. 3). Such records have been produced in connection with
other government inquiries.
As part of the bipartisan inquiry undertaken after the Committee vote
on this nomination, we became aware of this fact. The May 28, 1999
transmittal letter for the December 9, 1998 OSR Report indicates that
request were made to Mr. Olson and his law firm, Bigson Dunn & Crutcher
(GD&C) for billing records for any client that had received Scaife
foundation grants between 1992-1998 in order to ascertain whether there
had ``been an indirect method to compensate GD&C for its unpaid
representation of Hale.'' Just as here, GD&C initially invoked
attorney-client privilege but ultimately non-privileged billing records
for Mr. Olson's and GD&C's representation of both David Hale and the
American Spectator were produced. (May 21 Ray Response to Joint A. 1).
However, the independent counsel was unable to forward those records in
response to the bipartisan, joint request for them from Senator Hatch
and myself.
Accordingly, Senator Hatch and I then sent a joint request to Mr.
Olson's firm requesting information about the total amount of fees paid
by the American Spectator to the firm. On May 24, Mr. Cox informed us
by letter that the amount paid over the course of five and one-half
years for legal services performed is $94,405. That is a far different
number than the $500 to $1,000 per article the Committee was first told
by Mr. Olson.
Fifth, Mr. Olson has tried to distance himself from the most
controversial aspects of the ``Arkansas Project'' in its activities to
publicize allegations of wrongdoing about the Clintons in Arkansas. Mr.
Olson stated that he ``represented the American Spectator in the
performance of legal services from time to time beginning in 1994 . . .
those legal services were not for the purpose of conducting or
assisting in the conduct of investigations of the Clintons.'' (April
25th Responses, Q. 4). Yet, we find out he was paid over $8,000 to
prepare a chart outlining the Clintons' criminal exposure as research
for a February 1994 article Mr. Olson co-authored against the Clintons
entitled, `Criminal laws Implicated by the Clinton Scandals: A partial
list.'

Finally, Mr. Olson has testified he simply does not recall who
contacted him to represent David Hale. When I asked Mr. Olson at his
April 5 hearing how he came to represent Mr. Hale he started by saying,
``[t]wo of [Hale's] then lawyers contacted me and asked . . . .'' A few
seconds later Mr. Olson said, ``[o]ne of his lawyers contacted me--I
can't recall the man's name--and asked whether I would be available to
represent Mr. Hale in connection with that subpoena here in Washington,
D.C. They felt that they needed Washington counsel with some experience
dealing with a congressional investigation. I did agree to do that. Mr.
Hale and I met together.''
Even in his May 9 letter, Mr. Olson asserts that he, ``cannot recall
when

[[Page S5591]]

[he] was first contacted about the possibility of representing Mr.
Hale.'' He indicates that he believes, ``that [he] was contacted by a
person or persons whose identities [he] cannot presently recall
sometime before then regarding whether I might be willing to represent
Mr. Hale if he needed representation in Washington. As I recall, I
indicated at the time that I might be able to do so, but only in
connection with a potential congressional subpoena, not with respect to
legal matters pending in Arkansas. . . . I believe that this meeting
was inconclusive because Mr. Hale did not at that time need
representation in Washington.''
The Washington Post reported that David Henderson said that he
introduced Hale to Olson when Hale came to Washington to find a lawyer
who could help him deal with a subpoena from the Senate Whitewater
committee, and sat in on a meeting between the two men. Interestingly,
David Henderson apparently signed a statement on May 14 indicating that
in his view he broke no law while implementing the ``Arkansas
Project.'' What he does not say and what he does not deny is that he
was the person who introduced David Hale to Mr. Olson. The role that
David Henderson played in introducing David Hale to Mr. Olson is
apparently corroborated by several other witnesses who have spoken to
the American Prospect in a story released on May 24.
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, if Mr. Henderson was, in fact, involved in setting up that
representation. It strikes me as doubly strange when the bipartisan
inquiry conducted after the Committee vote on this nomination uncovered
evidence that Mr. Olson was able to recall who introduced him to David
Hale just a couple of years ago when asked the same question.
The OSR Report indicates that in 1998 Mr. Olson recalled who referred
David Hale to him for legal representation, stating: ``Hale became a
client of Olson's firm around November 1995. Olson believes that Hale
may have been referred to him by [redacted].'' (OSR Report, p. 79).
It leads one to wonder whether Mr. Olson's failure to recall the name
David Henderson had something to do with his not wanting to indicate
the connection to such a central figure in the ``Arkansas Project.''
Indeed, it has been reported that when Mr. Olson became a Member of the
Board of Directors of the American Spectator his January 1996 letter
accepting the position was addressed to the publisher Ronald Burr with
copies sent to Messrs. Tyrrell and Henderson. Mr. Henderson says in his
recent statement that he served for a while on the Spectator Board. But
why was he, in particular, sent a copy? One explanation is that Mr.
Olson has a selective memory and that he did not recall Mr. Henderson
as the person who contacted him to represent David Hale because that
would simply be another tie to the ``Arkansas Project.'' But we may
never know for sure.
On this point regarding how Mr. Olson came to represent Mr. Hale, and
Mr. Olson's testimony to the Committee about it, Michael J. Horowitz
submitted a statement that says that he, Mr. Horowitz, ``attended one
meeting in Mr. Olson's presence at which the matter discussed was legal
representation for David Hale, who was facing Congressional testimony
and was in need of distinguished Washington counsel. At that meeting--
at which no mention I know of was made of the `Arkansas Project' or any
term like it--the subject under discussion was whether Mr. Olson's firm
would serve as counsel to Mr. Hale.''
It is entirely unclear in what capacity Mr. Horowitz was attending
such a meeting, but it may not have been quite as simple as one or two
lawyers then representing Mr. Hale approaching a high profile
Washington lawyer and his instantaneous agreement to accept the
representation for a client without a retainer and without much
prospect of being paid after. According to Mr. Olson, he and Mr. Hale
``met together'' and Mr. Hale agreed to pay [Gibson, Dunn & Crutcher's]
fees.'' In the end, Mr. Hale could not pay the $140,000 in legal fees
he owned Mr. Olson.
Fitness to be Solicitor General. Some have said, why is this
important? Does this matter whether he accurately and fully described
his role in the American Spectator and the ``Arkansas Project''? It is
important for two reasons, both of which go to the core of the fitness
of the nominee to serve as Solicitor General. The principle question
raised by the nomination of Mr. Olson to this particular position is
whether his partisanship over the last several years in connection with
so many far reaching anti-Clinton efforts mark Mr. Olson as a
thoroughgoing partisan who will not be able to check his partisan
political instincts at the door to the Office of the Solicitor General.
Similar questions were raised by the nomination of Michael Chertoff. In
that case the questions were answered and the doubts dissipated. In
connection with the Olson nomination, those doubts have grown over
time.
Had Mr. Olson conceded the extent of his involvement in anti-Clinton
activities and given the kinds of assurances that Mr. Chertoff did
about his upcoming responsibilities, I would be supporting his
confirmation. Indeed, when I met with Mr. Olson and at his hearing, I
hoped and expected that to be my position. I expected to be able to
give him the benefit of the doubt and, in light of the deference I
would normally accord a President's Executive Branch nominees, I fully
expected to be voting for this nomination.
In the wake of the hearing, the series of supplemental responses we
have received and the unanswered questions now in the public record
about Mr. Olson's involvement in partisan activities like the
``Arkansas Project,'' I still have my doubts.
Second is the question of candor and straightforwardness. I have not
had the sense from his hearing onward that Mr. Olson has been truly
forthcoming with me or with the Committee. My sense is that for some
reason he chose from the outset to try to minimize his role in
connection with the activities of the American Spectator, that he has
sought to characterize it in the most favorable possible light, that he
has sought to conclude for us rather than provide us with the facts and
let us conclude how to view his activities.
I will cite another example of nonresponsiveness from the record. I
asked Mr. Olson in light of his testimony at the hearing that he was
not involved in the origins or management of the `Arkansas Project':
``Were you involved in advising anyone who was involved in the origins
or management of the project? If so, what advice did you provide? Were
you at meetings or social events with anyone involved in the project as
an originator, manager, reporter, or source for the project? If so,
what role did you play at these meetings or social events?''
Mr. Olson's response was, as follows:

``I did not realize that a Project of any sort was underway
except to the extent that I have indicated. I was in contact
at social events with reporters for the magazine and members
of the editorial staff, individuals whom I regard as personal
friends. I have been at countless social events at which one
or more of such persons may have been present. I have not
kept records of such meetings, or the nature of the
conversations that may have occurred at such meetings that
might have involved President Clinton or his contemporaneous
or past conduct. I was not playing any particular role at
those social events, except that I was probably a host of
events at which persons who wrote for or performed editorial
services for the American Spectator may have been present. To
the extent that it is relevant to your inquiry, I was the
best man at the wedding of the editor-in-chief of the
American Spectator. I recall that he was also present at my
wedding. He is a personal friend and we have had numerous
social meetings. He has written at least two books about
former President Clinton. I do not interpret your inquiry as
asking for the substance of conversations at social events.
And I do not recall giving any advice concerning the conduct
of the `Project' or its origins or management.

Literally true? Probably. Responsive? Hardly. At the time of his
hearing and his answer, Mr. Olson was well aware of the activities of
the ``Arkansas Project,'' which was operated by the organization for
which he acted as lawyer, author and contributor, Board Member and
officer. He had been presented with an audit and played a pivotal role
in reviewing the examination of its management, methods and results,
according to Mr. Eastland. His answer, however, steers clear of perjury
without responding to the concerns being raised. It relies on a lack of
recollection and is an attempt at distraction.

[[Page S5592]]

Conclusion. As I review this record and the initial
nonresponsiveness, lack of recall, corrections when confronted with
specifics, I am left to wonder what happened to ``absolute candor and
fair dealing.'' In concluding my May 4, 2001, letter to Mr. Olson I
noted: ``The credibility of the person appointed to be the Solicitor
General is of paramount importance. When arguing in front of the
Supreme Court on behalf of the United States Government, 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 or her dealings with the
Court. I expect that same responsiveness and cooperation from nominees
before this Committee.'' My expectations have been disappointed.
I understand the role of a lawyer-advocate in our legal system, and I
did not intend to oppose this nomination merely because of Mr. Olson's
clients and his clients' activities. If confirmed, however, Mr. Olson's
next client will be the United States of America--and all of us. I want
to be sure that our nation's top lawyer will see the truth and speak
the truth fully to the Supreme Court and represent all of our best
interests in the weighty matters over which the Solicitor General
exercises public authority. Based upon what I have seen I do not have
the requisite confidence in Mr. Olson to be able to support his
nomination. I will vote no.
I reserve the remainder of my time.
Mr. HATCH. Mr. President, I agree with my colleague from Vermont that
the Solicitor General must be a person of the highest integrity. This
is very important if the Solicitor General is to represent the
interests of all Americans and to be a valuable assistant to the
Supreme Court. Mr. Olson himself acknowledged this high standard in his
testimony to the committee.
I believe that Mr. Olson has exemplified this high level of candor
and integrity in all of his dealings with the committee.
Some of my colleagues have alleged that Mr. Olson misdirected the
committee in his answers. But this is simply untrue. Mr. Olson told us
what he did with the American Spectator and the Arkansas Project. He
wrote several articles for that magazine--copies of these articles were
all provided to the committee with Mr. Olson's questionnaire. Mr. Olson
also told us that he was on the board of the magazine and became aware
of the Arkansas Project in 1997. He has not attempted to hide any of
these activities from the committee. Rather he has cooperated fully,
submitting numerous responses to questions from members of the
Judiciary Committee.
Mr. Olson enjoys the support of many prominent liberal scholars and
lawyers, as I have detailed already. Many of his colleagues at the
Office of Legal Counsel have attested to his fairness and his
consummate ability to serve as a government lawyer in a nonpartisan
manner.
Indeed, many of the allegations against Mr. Olson have arisen from
reports in The Washington Post. But the Post has advocated the
confirmation of Mr. Olson.
Mr. Olson is one of the most qualified nominees ever for the position
of Solicitor General. I hope that this body will confirm him today so
that he can begin his important work litigating on behalf of the United
States.
Mr. President, I ask unanimous consent to have printed in the Record
the following letters we have received in support of Mr. Olson. These
include letters from Robert Bennett, Larry Simms, Michael Horowitz,
James Ring Adams, Terry Eastland, Floyd Abrams, Laurence Tribe, William
Webster, R. Emmett Tyrell, Wladyslaw Pleszczynski, Douglas Cox, David
Henderson, and Stephen Boynton. These letters demonstrate the depth and
breadth of the support for Mr. Olson's nomination.
There being no objection, the letters were ordered to be printed in
the Record, as follows:

Skadden, Arps, Slate, Meagher

& Flom LLP,

Washington, DC, May 15, 2001.
Hon. Orrin G. Hatch,
Chairman, Senate Judiciary Committee, U.S. Senate,
Washington, DC.
Dear Senator Hatch: I write this letter in support of the
appointment of Ted Olson as Solicitor General of the United
States.
Our country is blessed with many wonderful lawyers of all
political persuasions. In making judgments about their
selection for high office, we must look beyond their
political labels and pick the best qualified. The Ted Olson
that I know and respect would be a great Solicitor General. I
am confident that he will obey and enforce the law with
skill, integrity and impartiality. The American people would
be most fortunate to have such a skillful and honest advocate
representing the United States before the Supreme Court.
Several years ago when I was the State Chair of the
American College of Trial Lawyers for the District of
Columbia, it was my responsibility to help select for
admission to the College the very best advocates--those who
were the most skilled, dedicated and honest. At the top of my
list was Ted Olson. Ted, because of his stellar
qualifications and reputation for integrity, sailed through
the selection process. Those who supported him were liberals,
moderates and conservatives of all stripes.
While I do not have any personal knowledge as to what role,
if any, Mr. Olson played in the ``Arkansas Project'' or the
full extent of his relationship with the American Spectator,
what I do know is that Ted Olson is a truth-teller and you
can rely on his representations regarding these matters.
Moreover, I agree with Senator Leahy that the credibility of
the individual appointed to be Solicitor General is of
paramount importance. In my view, based on the many years I
have known him, Ted Olson is such an individual. He is a man
of great personal integrity and credibility and should be
confirmed.
Sincerely,
Robert S. Bennett.
____

Gibson, Dunn & Crutcher, LLP,

Washington, DC, May 15, 2001.
Re the nomination of Theodore B. Olson to be the Solicitor
General of the United states

Hon. Orrin Hatch,
Chairman, Committee on the Judiciary, U.S. Senate,
Washington, DC.
Hon. Patrick J. Leahy,
Ranking Minority Member, Senate Judiciary Committee,
Washington, DC.
Dear Senators Hatch and Leahy: This letter is being sent to
the Committee in connection with the nomination of Theodore
B. Olson to become the Solicitor General of the United
States. It is written in the context of an apparent
controversy regarding the truthfulness of particular
testimony given by Mr. Olson at his confirmation hearing
before the Committee. I have had no involvement whatsoever in
Mr. Olson's preparation for that hearing, I have not reviewed
a transcript of that hearing, and I have not discussed the
substance of this controversy with Mr. Olson or anyone who
may be assisting Mr. Olson in this matter. Indeed, my
universe of asserted facts regrading this controversy is
limited to my review of two or possibly three articles
printed recently in The Washington Post that were brought to
my attention by a former associate of Gibson, Dunn in a
purely social communication. This letter has not been, nor
will it be, reviewed or seen by anyone other than word
processing personnel before it is delivered to the
Committee, although I am providing a copy of it to Mr.
Olson as a matter of courtesy.
I understand the central concern of the Committee to be the
truthfulness and integrity that Mr. Olson would bring to the
presentation of the position of the United States in cases
brought before the Supreme Court or other cases within the
ambit of the authority of the Solicitor General. I share the
view that there should be no doubt about the ability and
integrity of any nominee to this position to present the
Government's position with honesty and integrity. When this
sort of issue arises in this town, it is customary for the
record to be filled, often to overflowing, with letters
extolling the integrity of the nominee whose ability to serve
with the requisite integrity has been challenged. I doubt
that such testimonials are particularly helpful to the
Committee, I would, instead, like to bring to the attention
of the Committee three instances in which I worked with Mr.
Olson on matters that demanded precisely the kind of
intellectual integrity that should be displayed by any
Solicitor General and in which Mr. Olson displayed that
integrity under what can only be characterized as battlefield
conditions. First, I should provide the Committee with some
relevant information about myself.
I graduated from the Boston University School of Law in
1973, having spent four years as an officer in the U.S. Navy
after my graduation from Dartmouth College in 1966. I grew up
in Tennessee, campaigned for the late Senator Albert Gore,
Sr. in his last campaign in 1970, and I am a Democrat. In
1973-74, I served as a law clerk to Circuit Judge James L.
Oakes of the Second Circuit. In 1974-75, I served as law
clerk to Associate Justice Byron R. White of the Supreme
Court. In 1975-76, I served as Counsel to the Reporters
Committee for Freedom of the Press and began teaching a First
Amendment seminar as a adjunct professor of the Georgetown
Law Center, a course I taught until 1985. In June 1976, I was
hired by Antonin Scalia, then the Assistant Attorney General
in charge of the Office of Legal Counsel of the Department of
Justice (``OLC''), as an attorney-adviser. In 1979, I was
appointed Deputy Assistant Attorney

[[Page S5593]]

General in OLC by Attorney General Bell. I was the only
remaining Deputy Assistant in OLC when the first Reagan
Administration took office in January, 1981, and I continued
to serve in that capacity until February 1985. Mr. Olson was
the Assistant Attorney General in charge of OLC from his
confirmation in 1981 through the fall of 1984. We worked
closely together on many issues, and I came to know him well
both at the professional and personal level. I joined Gibson,
Dunn as an associate in February 1985, became a partner in
1988 and have practiced appellate law with the firm for
sixteen years.
Mr. Olson's handling of three major issues during his
tenure as the head of OLC stands out as exemplary of his
intellectual integrity. First, and as this Committee is well
aware, the courts had not at that time determined the
constitutionality of the legislative veto device. In
addition, the Republican plank endorsed by President Reagan
openly supported the legislative veto device. When he became
head of OLC, Mr. Olson studied the question of the
constitutionality of the legislative veto device, discussed
that question at great length with me and other OLC lawyers,
and concluded that legislative veto devices were, root and
branch, unconstitutional. He so advised Attorney General
Smith, who in turn advised President Reagan and members of
the President's staff--many of whom were strongly
supportive of legislative veto devices. Mr. Olson
convinced the Attorney General that the issue involved was
a legal issue, not a political issue, and that the law,
not the plank of the Republican Party, had to be followed
by everyone involved, including the President himself.
This story is chronicled in Chadha: The Story of an Epic
Constitutional Struggle by Professor Barbara Hankinson
Craig of Wesleyan University, and I strongly commend that
book to the Committee as it considers Mr. Olson's
nomination.
Second, and as this Committee is also aware, there was much
discussion in the early years of the first Reagan
Administration about the enactment of legislation to curb the
jurisdiction of the Supreme Court of the United States. Much
of that discussion was initiated by the new Republican
majority on this Committee. Once again, Mr. Olson was put
under substantial pressure to ``play ball'' with the
Administration and clear the Administration to endorse such
legislation. Once again, he studied the issue, discussed it
extensively with me and other OLC lawyers, and concluded that
such legislation would probably be held unconstitutional.
That opinion was reduced to writing and served as the
Administration's response. No such legislation, so far as I
can recall, was ever seriously considered after the
Administration's position was communicated to Congress.
Third, in late 1981, I was preparing to travel to The Hague
on business when I was asked by Mr. Olson for my views on the
substantive issues raised in what ultimately became the
famous Bob Jones case. Although I did not have much time to
study those substantive issues, I advised Mr. Olson orally
that I feel that the Government's position taken in that case
was correct and would be vindicated by the Supreme Court. I
also advised Mr. Olson that I felt strongly that the Office
of the Solicitor General had an obligation to defend the
statute involved in that case in the Supreme Court. By the
time I returned from The Hague, the Bob Jones fiasco was
playing itself out, with a decision having been made--over
Mr. Olson's strong objections--that the statute would not be
defended by the Solicitor General. The Supreme Court
ultimately appointed William Coleman to defend the statute in
that court, and Mr. Olson's position was vindicated by, as I
recall, an almost unanimous decision.
This letter is written off the top of my head, so the
Committee will have to forgive me for any error in any of the
facts stated above that I may have made, but there is no
error in my conclusion that these three examples paint the
portrait of a lawyer scrupulously devoted to the law and
having the personal and intellectual integrity to place the
law above the politics of Washington at considerable personal
risk. It is that quality, after all, that it seems to me one
should look for in considering the nomination of any person
to be the Solicitor General of the United States. Mr. Olson
is a fierce advocate, but he is an honest advocate and a
person whose integrity and devotion to the law and the rule
of law have survived challenges to which very few public
servants are ever subjected.
Very truly yours,
Larry L. Simms.
____

Statement of Michael J. Horowitz to the Senate Judiciary Committee

I am a Senior Fellow and Director of the Project for Civil
Justice at the Hudson Institute. I served as General Counsel
of OMB under President Reagan. I have known Ted Olson for 20
years and have the highest regard for him and for his
professionalism, intelligence and integrity.
In fact, I have always found Mr. Olson's word to be
absolutely reliable. I have disagreed with Mr. Olson from
time to time on issues of policy, but I have never met a
person more meticulously scrupulous on matters of principle
or honesty.
Never.
I have read Mr. Olson's testimony in response to Senator
Leahy's question regarding the ``Arkansas Project,''
delivered during Mr. Olson's confirmation hearing. His
testimony to Senator Leahy was, in all respects that I am
aware, wholly accurate. Specifically, I know of no respect in
which Mr. Olson was involved in the Project's ``origin or its
management.''
I attended one meeting in Mr. Olson's presence at which the
matter discussed was legal representation for David Hale, who
was facing Congressional testimony and was in need of
distinguished Washington counsel. At that meeting--at which
no mention I know of was made of the ``Arkansas Project'' or
any term like it--the subject under discussion was whether
Mr. Olson's firm would serve as counsel to Mr. Hale. Put
otherwise, I have never heard Mr. Olson discuss or imply that
he was involved in managing or directing either anything
called the Arkansas Project or any of the investigative
journalistic inquiries of his client, the American Spectator
Magazine.
In making the above statement, I note that I am aware of
nothing to suggest that the American Spectator violated the
law. Likewise, I believe it clear that the American
Spectator's journalistic and investigative activities were
and are fully protected by the First Amendment.
____

I was hired in late 1993 by the American Spectator to be
the lead writer for what has come to be known as the
``Arkansas Project.'' I originally started as a free-lance
writer, but was hired onto the staff of the magazine in 1994,
where I remained until January 1, 1999. My numerous articles
in the Spectator, based largely on my personal reporting in
Arkansas, analyzed many different aspects of Whitewater and
related controversies. Over the four years or so that I
worked for the Spectator, I traveled to Arkansas on roughly a
monthly basis.
I understand that David Brock, who for a period was another
writer for the magazine, has alleged that Mr. Theodore Olson
directed or supervised the ``Arkansas Project.'' As stated
above, I was the lead writer on the Project, and Mr. Olson
had absolutely no role in guiding my development of stories
for the magazine or in managing my work. Indeed, I believe I
only spoke to Mr. Olson once during the years in question, at
the end of a widely attended dinner at a Washington, D.C.
hotel, sometime in 1998, I believe. I sought him out to ask a
general question about recent, publicly reported developments
in the Webster Hubbell legal case. It was my impression at
the time that he did not recognize me, and I had to explain
who I was; we spoke only for about five minutes. Given that
we had no other meetings, conversations or other
communications about my work, it is false and wrong to assert
that Mr. Olson had any role whatsoever in managing or
directing what is referred to as the ``Arkansas Project.''
May 14, 2001.
James Ring Adams.
____

McLean, VA, May 14, 2001.
Hon. Orrin Hatch,
U.S. Senate,
Washington, DC.
Dear Senator Hatch: I am writing to comment on matters of
possible relevance to President Bush's nomination of Theodore
B. Olson to be Solicitor General.
I became publisher of The American Spectator in November
1997. I was authorized by the board of directors to conduct a
review of what has been called the ``Arkansas Project.'' I
completed the review in 1998 and reported my findings to the
board. I also assisted investigators working under the
Whitewater independent counsel, who were charged with looking
into certain issues involving the project.
As I discovered soon after I began my review, the project
was conceived in the fall of 1993 by Editor-in-Chief R.
Emmett Tyrrell, Jr., and Richard Larry, then the executive
director of the Scaife foundations. The point of the project
was to place in Arkansas individuals who would look into
allegations involving then Governor Bill Clinton and relate
their findings to the magazine's editors and writers for
their review. The project contemplated the publication of
investigative pieces. Two Scaife foundations were prepared to
underwrite the project, which in grant correspondence was
called ``the editorial improvement project.''
The project was commenced in November 1993. Individuals
were duly retained to conduct the ``on-the-ground''
researches in Arkansas, and the first editorial result of the
project was an article on an aspect of Whitewater, which was
published in February 1994. The project continued through the
early fall of 1997, and it produced a total (by my count) of
eight articles. The Scaife foundations contributed a total of
approximately $2.3 million, more than $1.8 million of which
underwrote the work of the individuals in Arkansas.
In my review, I found no evidence that Mr. Olson was
involved in the project's creation or its conduct. My own
sense is that Mr. Olson did not become aware of the project
until June 1997, when disagreements arose between the
magazine's then publisher and Mr. Larry over project
expenditures. At that time, Mr. Tyrrell, who was also
chairman of the board, asked Mr. Olson, a board member since
1996, for his assistance in resolving the dispute. When I
came aboard as publisher, Mr. Olson agreed that a review of
the project was necessary. Throughout my review, which
included an accounting of the monies spent on the project as
well as an examination of its management, methods, and
results, I had Mr. Olson's strong support.
Finally, I should add that, based upon my knowledge of the
magazine's financial

[[Page S5594]]

records in general and those of the Scaife-funded project in
particular, Mr. Olson never received any payments from The
American Spectator for his representation of David Hale.
I hope these observations are of assistance.
Sincerely yours,
Terry Eastland.
____

Gahill Gordon & Reindel,

New York, NY, March 4, 2001.
Re Ted Olson

Hon. Patrick J. Leahy,
Russell Senate Office Building,
Wahsington, DC.
Dear Pat: I'm not sure if Ted Olson needs a boost from the
other side or not for Solicitor General, but I did want to
offer one. Ted is just as conservative as his writings and
clientele suggest. But on the assumption that Larry Tribe is
not high on the appointment list for this Administration, I
did want to say that I've known Ted since we worked together
on a Supreme Court case--Metromedia v. San Diego--20 years
ago and that I've always been impressed with his talent, his
personal decency and his honor. He would serve with
distinction as Solicitor General.
Sincerely,
Floyd Abrams.
____

Harvard University Law School,

Cambridge, MA, March 5, 2001.
Hon. Patrick J. Leahy,
U.S. Senate,
Washington, DC.
Dear Pat: As one who knows Ted Olson and disagrees with him
on many important issues, I nonetheless write in support of
his confirmation as Solicitor General.
An explanation may be called for. After all, Ted was the
oral advocate who opposed me in the United States Supreme
Court in the first of the two arguments between Vice
President Gore and now President (then-Governor) Bush, and
Ted's were the briefs that I sought to defeat in the briefs I
wrote and filed for Vice President Gore in both of the two
Bush v. Gore cases. Ted's views of equal protection, of
Article II, and of 3 U.S.C. Sec. 5, were views I believed,
and continue to believe, are wrong. Although his views of
Article II and of 3 U.S.C. Sec. 5 ultimately convinced only
three Justices, his overall approach to the case won the
presidency for his client. It surely cannot be that anyone
who took that prevailing view and fought for it must on that
account be opposed for the position of Solicitor General.
Because Ted Olson briefed and argued his side of the case
with intelligence, with insight, and with integrity, his
advocacy on the occasion of the Florida election litigation--
profoundly as I disagree with him on the merits--counts for
me as a ``plus'' in this context, not as a minus. That his
views coincide with those of a current Court majority on a
number of vital issues as to which my views differ deeply
should not rule him out.
I am willing to believe that the five Justices who in
essence decided the recent presidential election thought they
were genuinely acting to preserve the rule of law and to
protect the constitutional processes of democracy from being
undermined by a post-election recount procedure that they
viewed as chaotic, lawless and essentially rigged. I believe
that view was profoundly misguided and that the Court's
majority deserves severe criticism not only for its
misconception of reality but also for its breathtaking
failure to explain its legal conclusions in terms that could
at least make sense to an informed but detached observer. But
I do not lay that failing at Ted Olson's feet; he acted as a
responsible (if also misguided) advocate. The blunder was the
Court's own doing.
If we set Bush v. Gore aside, what remains in Ted's case is
an undeniably distinguished career of an obviously
exceptional lawyer with an enormous breadth of directly
relevant experience. Although part of that career has been
devoted to causes with which I disagree, his briefs and
arguments have treated the applicable law and the underlying
facts honestly and forthrightly, not disingenuously or
deceptively. Ted seems to me capable of drawing the clear
distinction that any Solicitor General who has been on the
ramparts on various contentious issues must draw between his
or her own aspirations for the directions in which the law
should be pushed, and his or her best understanding of where
the law presently is and where the Supreme Court ought to be
nudging it, applying criteria less personal and more
inclusive than those driving any individual advocate. Put
simply, I write this letter in Ted Olson's support in the
expectation, and on the understanding, that his testimony
during his confirmation hearing, and the other evidence
that the Senate Judiciary Committee will gather, will show
him to be both able and willing not simply to articulate
the Administration's or his own legal philosophy but to
represent well the United States of America as his
ultimate client before the Supreme Court, keeping a firm
grip on what is best for that client and for the
Constitution, not simply for the President's philosophical
agenda.
Of course, any Solicitor General must speak for the
Administration he or she represents and must, within limits,
espouse its views. And any advocate must, to some degree,
draw on his or her own views in deciding what to argue and
how. But the special responsibility of the Solicitor General,
both to the Court and to the country, requires an advocate
with the capacity and the character, on crucial occasions, to
rise above his or her Administration's pet theories and to
advise the Court in ways that may not always advance the
political priories of the government. Sometimes the Solicitor
General must defend the actions of Congress even when those
actions were opposed by the Executive Branch. Sometimes the
Solicitor General must decline to defend the actions of
Congress, even when supported by the Executive, when they
plainly conflict with the Constitution. Myriad examples could
be given, but the general point is simple: Some advocates are
too bound up in their own views, and in their duty to their
immediate clients narrowly conceived, to act as counsel in
this broader and higher sense. Some are too blinded by their
own perspectives to see beyond them. Having observed Ted
Olson in a number of situations, and having watched his
career from afar, I would not expect him to be in that
troublesome category. I would expect him, rather, to have the
open-mindedness and breadth of perspective to meet the higher
standard I am articulating here. My letter of support, at any
rate, is premised on that expectation, and on the belief that
the confirmation hearings will bear out that optimistic
prediction.
In the end, only Ted Olson's performance in the role of
Solicitor General will prove whether I am right or wrong in
this hopeful evaluation. My strong sense, however, based on
what I now know, is that, as Solicitor General, Ted Olson
will perform his role with honor, and with distinction.
Best wishes always,
Laurence H. Tribe.
____

Washington, DC, May 14, 2001.
Hon. Orrin G. Hatch,
Chairman, Judiciary Committee, U.S. Senate, Washington, DC.
Hon. Patrick J. Leahy,
Ranking Minority Member, Judiciary Committee, U.S. Senate,
Washington, DC.
Dear Chairman Hatch and Ranking Minority Member Leahy: I
write in support of the nomination of Theodore B. Olson by
President Bush to be Solicitor General of the United States.
I do so having the utmost confidence in his ability, his
loyalty to country, his fidelity to the Constitution and his
personal integrity.
My professional and personal association with Ted Olson
began 20 years ago when he joined the Reagan administration
and served as Assistant Attorney General, Office of Legal
Counsel under Attorney General William French Smith. I was,
at that time, Director of the Federal Bureau of
Investigation. Few positions in our government are more
sensitive or important to our government and the
administration of justice than is the O.L.C. Ted carried out
his responsibilities with a calm and steady hand, reflecting
legal acumen and common sense, both important attributes for
the ``Attorney General's lawyer''. In staff meetings his
input and advice seemed consistently sound.
In private practice I have had occasion to work with Ted on
some matters of common interest and have found the same high
level of competence and judgment. He is one of our nation's
foremost appellate advocates and has earned widespread
admiration for his analytical and advocacy skills. If he is
confirmed, he will serve his country and the cause of equal
justice under law with great dedication.
Ted has been a member of the Legal Advisory Committee of
the National Legal Center for the Public Interest, which I
chair. His periodic review of the work of the Supreme Court
has been insightful and helpful.
On a more personal note, I have known Ted as a thoughtful
and caring friend for many years. I believe him to be honest
and trustworthy and he has my full trust. He is the kind of
person I would want to turn to for help, professional or
otherwise, in time of need.
Having survived five Senate confirmations of my own, I have
a full awareness of the Senate's solemn responsibility to
advise and consent in these matters. I do hope you will give
some weight to the opinions of those who know and respect Ted
Olson. The President's choice is a very good one. I would not
have written this letter if I did not firmly believe this to
be true.
Respectfully,
William H. Webster.
____

The American Spectator,

Arlington, VA, May 14, 2001.
Hon. Orrin G. Hatch,
U.S. Senate, Washington, DC.
Dear Senator Hatch: Contrary to the Washington Post's May
11 story by Thomas B. Edsall and Robert G. Kaiser, we never
``said that [Arkansas] project story ideas, legal issues
involving the stories produced by the project and other
directly related matters were discussed with Olson by staff
members, and at dinner parties of Spectator staffers and
board members.'' Apparently they got the idea from David
Brock. Edsall's main source on the Olson matter, and an
individual who has repeatedly acknowledged his deep bias
against Olson and his former employer The American Spectator.
In quoting him, the reporters might have mentioned his
compromised credentials.
Although Mr. Brock has lately claimed to have been part of
the so-called Arkansas Project, he was not. The record on
that is indisputable. During his time at the magazine

[[Page S5595]]

it was clear to everyone concerned--he was very public about
this--that he was not part of the project. His well-known
``Troopergate'' story originated and was completed before any
such project existed. If he spoke to Mr. Olson during those
years it was as a reporter pursuing his own stories and not
as a representative of a ``project'' he distanced himself
from. Pleszczynski made that clear to Edsall. Brock's present
claim that he was calling Olson as part of the ``project'' is
a deceit.
What is more, if Mr. Olson's firm, Gibson, Dunn and
Crutcher, was paid from project funds (like all recipients of
checks from The American Spectator), the firm would not have
known which internal account the magazine used for its
payments. For all Gibson, Dunn and Crutcher knew, the
magazine was paying it from funds derived from general
income.
Mr. Olson's statements that he was ``not involved in the
project in its origin or its management'' and that he was
``not involved in organizing, supervising or managing the
conduct of [the magazine's investigative] efforts'' are
accurate and thus truthful.
One final point, the precedent set by politicians seeking
to probe the methods of payment and of reportage practiced by
journalists has a chilling effect on the First Amendment. We
would hope other journalists would recognize this danger to
journalistic endeavors.
Sincerely,
R. Emmett Tyrrell, Jr.,
Editor-in-Chief.
Wladyslaw Pleszczynski,
Editor, The American Spectator Online.
____

I am a partner in the law firm of Gibson, Dunn & Crutcher
LLP. I became affiliated with the firm, originally as an ``of
counsel'' employee, in 1993. Starting in 1994, I worked with
Theodore Olson on certain legal matters for the firm's
client, the American Spectator. That legal work included
legal research regarding criminal laws potentially implicated
by allegations of certain conduct by public officials,
including President and Mrs. Clinton, as reported in the
major media. That research was incorporated into an article
that the American Spectator published in 1994. The magazine
published the article under the by-line of ``Solitary, Poor,
Nasty, Brutish and Short,'' an obviously fictional law firm
drawn from the famous quote from Hobbes, that the magazine
had listed for many years on its masthead as its legal
counsel. It was, however, widely known that Mr. Olson and I
had prepared the material in the article.
In addition to periodic legal work for the client, Mr.
Olson and I over the years co-wrote similar satiric pieces
involving legal aspects of various matters involving the
Clinton Administration. Some, but not all, of those pieces
appeared under the ``Solitary, Poor'' by-line.
During my work with Mr. Olson for the American Spectator, I
never heard the phrase ``Arkansas Project'' until it had
become the subject of media reporting. I am not aware of any
fact that would support or in any way credibly suggest that
Mr. Olson was involved in the origin, management or
supervision of the investigative journalism projects funded
by one of the Scaife foundations that became know as the
``Arkansas Project.'' In drafting our articles, I never spoke
with anyone at the American Spectator to obtain any facts,
relying instead on already-published media reports, and legal
resources such as statutes, congressional reports, and the
like.
I met David Brock years ago, and in the early 1990s on
occasion I would see and speak to him at parties in the
Washington, DC area. I have not spoken to Mr. Brock for
years. Starting some time ago, Mr. Brock developed a marked,
publicly-expressed animus toward Mr. Olson and his wife.
I chose to become affiliated with Gibson, Dunn primarily
because of Mr. Olson. Although I did not know Mr. Olson
personally before I interviewed with the firm, he has a
reputation as one of the best lawyers in Washington, a
rigorous and demanding lawyer with a record of unflinching
devotion to principle. In the years since I became affiliated
with the firm, I have worked closely with Mr. Olson,
including participation on numerous cases for the firm's
clients. I can personally vouch for his extremely high
professional standards; for his refusal to accept second-best
efforts from himself or anyone around him; and for his
fairness. I can also vouch, without reservation, for his
great integrity.
In my view, he will make an excellent Solicitor General,
and the Members of the Judiciary Committee should vote to
confirm him with confidence.
Douglas R. Cox.
____

We were the two individuals charged by the American
Spectator with implementing what has come to be called the
``Arkansas Project,'' an effort to support investigative
journalism in Arkansas that was specially funded by Richard
Mellon Scaife. (Dave Henderson also served for a while on the
Spectator Board.)
In connection with our investigative research for this
journalistic project, we made numerous trips to Arkansas and
elsewhere to speak first-hand to witnesses. Nothing that we
did in connection with the ``Arkansas Project'' broke the
law. Mr. Shaheen, a special counsel, reached the same
conclusion after an extended investigation. Rather, we were
conducting the same kind of investigative journalism, talking
to witnesses, reviewing documents, that many journalists do
every day. Such activities were not only lawful, but
encouraged in an open and free democracy, and fully protected
by the First Amendment. There was nothing at all improper
about the investigative fact work that we performed for the
American Spectator.
In performing our investigative work for the American
Spectator, we were not directed or managed in any way by
Theodore Olson. He did not participate, nor was he asked to
participate, in either the planning or conduct of the
``Arkansas Project.'' Contrary assertions, made by those
lacking personal knowledge and with a political or personal
agenda, are simply false.
May 15, 2001.
David W. Henderson.

The PRESIDING OFFICER. The Senator from Alabama is recognized.
Mr. SESSIONS. Mr. President, on behalf of Senator Hatch, I yield time
to the distinguished Senator from Pennsylvania.
The PRESIDING OFFICER. The Senator from Pennsylvania is recognized.
Mr. SPECTER. Mr. President, I thank my colleague from Alabama for
yielding time to me. I have sought recognition to support the
nomination of Theodore Olson to be Solicitor General of the United
States.
Mr. Olson comes to this position with an excellent academic and
professional background. He received his law degree from the University
of California at Berkeley in 1965 after having received a bachelor's
degree from the University of the Pacific in 1962. He practiced law
with the distinguished firm of Gibson, Dunn, and Crutcher from 1965 to
1971 as an associate, and then as a partner for almost a decade, until
1981. And then from 1984 to the present time--he was Assistant Attorney
General, legal counsel, for the Department of Justice from 1981 to
1984. He came in with the administration of President Reagan.
I was elected in the same year, and I knew of his work, having served
on the Judiciary Committee beginning immediately after taking my oath
of office after the 1980 election.
He is a real professional. He has argued some of the most important
cases before the Supreme Court of the United States.
On December 11, 2000, he argued the landmark case of Gov. George W.
Bush v. Vice President Albert Gore where the decision of the Supreme
Court of the United States essentially decided the conflict on the
Florida election. I was present that day to hear that historic argument
and can attest personally to his competency and his professionalism.
There have been some concerns about his partisanship. I am confident
Mr. Olson can separate partisanship from his professional
responsibilities as Solicitor General of the United States. It is not
surprising that President Bush would appoint a Republican to be
Solicitor General, nor is it surprising that President Bush would
appoint Ted Olson to this important position in light of Mr. Olson's
accomplishments, his demonstration of competency, and his assistance to
President Bush on that major case.
Some questions have been raised as to some answers Mr. Olson gave at
the confirmation hearing. A request was made to have an investigation
of some of what Mr. Olson did. I took the position publicly in
interviews and then later in the Judiciary Committee executive session
when we considered Mr. Olson's nomination, saying I was prepared to see
and support an investigation if there was something to investigate but
that there had not been any allegation of any impropriety on Mr.
Olson's part in terms of any specification as to what he was supposed
to have said that was inconsistent or what he was supposed to have said
that was not true.
I am not totally without experience in investigative matters. But a
starting point of any investigation has to be an allegation, something
to investigate. That was not provided. I called at that hearing for
some specification. If you make a charge, even in a civil case, there
has to be particularity alleged, there has to be some specification as
to what the impropriety was, let alone wrongdoing in order to warrant
an investigation.
I said at the hearing, although there was a certain amount of
interest in moving the nomination ahead last

[[Page S5596]]

Thursday, that I would support an investigation and would not rush to
judgment if there was something to investigate. But nothing was
forthcoming to warrant an investigation. One of the Judiciary Committee
members said, well, Mr. Olson was not forthcoming at the Judiciary
Committee hearing. I attended that hearing in part, and there were very
few Senators there. But if there was some concern that Ted Olson wasn't
forthcoming, the time to go into it was at the hearing or, if not at
the hearing, Mr. Olson was available thereafter.
I asked the Senator who raised the question about his not being
forthcoming if he had talked to Mr. Olson, and the answer was that he
had not. So based on the record, it is my conclusion that any of the
generalized charges as to Mr. Olson haven't been substantiated at all,
haven't been raised to the level of specification to warrant any
proceeding or any investigation.
I dare say that if those on the other side of the aisle had sought to
block this nomination from coming up today, there were ample procedural
opportunities for them to do just that.
So on this state of the record, on the state of Ted Olson's excellent
academic and professional record, and his established expertise as an
advocate before the Supreme Court of the United States, and
understanding the difference between partisanship when he is in a
partisan context as opposed to professionalism when he is representing
the United States of America before the Supreme Court, I intend to
support this nomination and vote aye.
I thank the Chair. I thank my friend from Alabama, the distinguished
Senator from Alabama. I yield the floor.
The PRESIDING OFFICER. The Senator from Alabama.
Mr. SESSIONS. I thank the Senator from Pennsylvania for his
outstanding remarks. He does, indeed, have a passion for truth and he
pursues those he believes are not telling the truth aggressively in his
examination and defends those he thinks are being unfairly accused. I
have seen his skill in committee hearings many times. Senator Specter
raised a number of questions about the allegations that were made about
Mr. Olson. But his questions concerning the merit of the allegations
against Mr. Olson were never answered. In fact, he simply asked:
``Precisely what is it you say he was testifying falsely about?'' And I
don't believe a satisfactory answer to this day has been given to that
question.
Mr. President, I support Ted Olson's nomination to be the next
Solicitor General. I commend Senators Leahy, Daschle, Hatch, and Lott
for reaching an agreement to have the Olson nomination voted on today.
Certain charges were made, but they have been investigated and, in my
view, have been found wholly without merit. The charges were raised in
a newspaper article in the Washington Post the day that the vote was
scheduled on Mr. Olson's nomination. Some of the Senators questioned
the article.
Subsequently, after the facts were examined, the Washington Post
endorsed Ted Olson for this position. Nonetheless, Senator Hatch agreed
to delay further and allow the matter to be examined even more
thoroughly. That is why we are here today. Now that most of the
partisan rhetoric has receded, I am glad the Senate will follow the
moderate and wise voices of Professor Laurence Tribe, Robert Bennett,
Beth Nolan, Floyd Abrams, and Senator Zell Miller in moving this
nomination to confirmation.
The Solicitor General is the most important legal advocate in the
country. The job has been called the greatest lawyer job in the world.
As U.S. attorney for almost 15 years, I had the honor of standing up in
court on a daily basis to say: ``The United States is ready, Your
Honor.'' I spoke for the United States in its Federal district court
normally in the Southern District of Alabama. But what greater thrill
could there be, what greater honor than to stand before the great U.S.
Supreme Court and represent the greatest country in the history of the
world and be the lawyer for that country in that great Court? Ted Olson
is worthy of that job. He and his subordinates will shape the arguments
in cases that come before the Federal appellate courts and, most
importantly, before the Supreme Court of the United States. In this
fashion, law is shaped slowly and carefully one case at a time over a
period of years.

I note, however, that I have a slight disagreement with my
distinguished colleague from Vermont on the question of this being an
extraordinarily more sensitive a position than others. While it is a
position that requires great skill and legal acumen, the truth is that
the Solicitor General does not do a lot of things independently.
Basically, the Solicitor General asks the Supreme Court, or perhaps
some other lesser court if he chooses, to rule one way or the other. He
is not making decisions independently about policies or procedures such
as an FBI Director would make or the Deputy Attorney General or the
Attorney General. He is basically in court constrained by the justices
before whom he appears. And it is, as everyone knows, critical that a
Solicitor General maintain over a period of years credibility with the
Supreme Court. Ted Olson, as a regular practitioner before the Supreme
Court of the United States, understands that and will carefully husband
his credibility with that Court as he has always done.
The Solicitor General must be a constitutional scholar of the first
order, a lawyer and legal advocate with broad and distinguished legal
experience, and must possess unquestioned integrity. Ted Olson excels
in each of these categories.
First, Mr. Olson is a constitutional scholar of the highest order. He
has studied and written about the Federalist Papers, the Framers, and
the Constitution. He earnestly believes in the Constitution's design of
limited and separated powers. He sincerely and deeply believes that the
States cannot deny any person equal protection of the laws. He
understands that history and theory of our fundamental law. There is no
doubt about that, in my opinion. And he has been involved with it all
of his professional career--in Government and out of Government,
including many successful years as a partner in one of the great law
firms in the country: Gibson, Dunn & Crutcher.
Second, Mr. Olson's distinguished experience as a lawyer demonstrates
his understanding that the Constitution has real and meaningful impact
on the lives of ordinary Americans. He has applied constitutional
theory as an Assistant Attorney General for the Office of Legal
Counsel. That is a critical position in the Department of Justice that
provides legal counsel in the Department of Justice and to all
governmental agencies, usually including the President of the United
States. He held that office in previous years. He has done this in his
own practice when advocating before the courts, including the Supreme
Court of the United States.
In Aetna Life Insurance Company v. Lavoie, he advocated the due
process rights of litigants who faced a judge who had a conflict of
interest in the case but would not recuse himself. He represented those
litigants to ensure that they would get a fair judge. In Rice v.
Cayetano, he advocated the voting rights of those excluded because of
their race. And in Morrison v. Olson, he advocated the position that
the separation of powers principle required prosecutors to be appointed
by the executive branch, a position that this entire Congress has now
come to embrace many years later. That was a courageous position he
took. Ultimately, Mr. Olson won because his position was validated by
subsequent events.
Mr. Olson had a legal career which has, to a remarkable degree,
placed him as a key player in many of the important legal battles of
our time. It is remarkable, really. These cases, many intense, have
enriched him. They have enhanced his judgment and wisdom. I can think
of no one better prepared to help the President of the United States
and the Attorney General deal with complex, contentious, and important
cases that are surely to come as the years go by.
When he was before the Judiciary Committee, I asked him: ``Mr. Olson,
are you prepared to tell the President of the United States no?''
Presidents get treated grandly, like corporate executives and
Governors, and they want to do things, and they do not want a lawyer
telling them they cannot do it. But sometimes there has to be a lawyer
capable of telling the President ``no.'' ``No, sir, you cannot do that.
The law will not allow that. I am

[[Page S5597]]

sorry, Mr. President, we will try to figure out some other way for you
to do what you want to do; you cannot do that.''
I believe, based on Ted Olson's experience, his closeness to the
President, the confidence the President has in him, he will be able to
do that better than any person in America.
Finally, Mr. Olson is a man of unquestioned integrity. For example,
when asked on numerous occasions to criticize the justices of the
Florida Supreme Court in Bush v. Gore litigation, he always declined.
He always respected the justices and their court, and even if he
disagreed with their legal opinion--and his position was later
validated by the U.S. Supreme Court. Mr. Olson's conduct in the most
famous case of this generation, as well as his reputation, won him the
endorsement of his adversary, Professor Laurence Tribe the famed and
brilliant advocate for Al Gore.
Indeed, a President assembles an administration, and he is entitled
to have around him people in whom he has great confidence, people whom,
in the most critical points of his administration, he trusts to give
him advice on which he can rely and make decisions.
What greater validation is there than perhaps the greatest lawsuit of
this century for the Presidency of the United States, to be decided by
the Court, and whom did President Bush, out of all the lawyers in
America, choose? Did he want someone who was purely a political hack,
someone who was a political guru, or did he want the best lawyer he
could get to help him win the most important case facing the country
maybe of the century? Whom did he choose? Isn't that a good reflection
on Ted Olson's reputation that the President chose him, and it is not
surprising that Al Gore chose someone of the quality of Laurence Tribe,
two great, brilliant litigators in the Supreme Court that day.
Mr. Olson has written and he has thought deeply about constitutional
law. He is not professor, however, as many of our Solicitors General
have been. He has been a lawyer involved in Government in all kinds of
issues. During that time, he has gained extraordinary insight, skill,
and knowledge about how Government works. He has incredibly unique and
valuable qualities to bring to this office.
There is simply no better lawyer and no better person to fulfill the
awesome responsibilities of the Solicitor General of the United States
than Ted Olson. It is my privilege to support him and advocate his
nomination.
I know there are a number of questions people will raise and have
raised, but I believe, as Senator Specter pointed out in our hearings,
we have to see where the beef is, what is the substance of the
complaints against him.

One of the issues that came up was that he minimized his involvement
in the ``Arkansas Project'' and that he did not tell the truth before
the committee. I have the transcript of the testimony he gave.
This is what happened at the committee. He was sitting right there in
the room testifying before us. Senator Leahy went right to the heart of
the matter, as he had every right to do. This was his question: ``Were
you involved in the so-called Arkansas Project at any time?''
The answer:

Mr. Olson: As a member of the board of directors of the
American Spectator, I became aware of that. It has been
alleged that I was somehow involved in that so-called
project. I was not involved in the project in its origin or
its management.

No one found fault with that. That statement has not been disputed to
this day. There is certainly no evidence to say otherwise.
He stated:

I was not involved in the project in its origin or its
management. As I understand it, what that was was a
contribution by a foundation to the Spectator to conduct
investigative journalism. I was on the board of the American
Spectator later on when the allegation about the project was
simply that it did exist. The publisher at that time, under
the supervision of the board of directors, hired a major
independent accounting firm to conduct an audit to report to
the publisher and, therefore, to the board of directors with
respect to how that money was funded. I was on the board at
that time.

Mr. Olson was on the board when they conducted an investigation that
the board decided to do.
Mr. Olson continued his answer in Committee:

As a result of that investigation, the magazine, while it
felt it had the right to conduct these kinds of
investigations, decided that it was not in the best interest
of the magazine to do so. It ended the project. It
established rules to restrict that kind of activity in the
future.

Senator Leahy interrupted him there. If he did not say enough,
Senator Leahy had every opportunity to ask him more questions. He was
still talking about it when Senator Leahy interrupted him and stopped
him. The transcript shows:

. . . to restrict activities of the kind in the future and
put it--
Senator Leahy:
And Senator Leahy asked some other questions about the same
matter which Mr. Olson answered and that I do not think have
been credibly disputed either. I submit that the man told the
truth absolutely, indisputably.

I really believe, as Senator Specter said in Committee, we ought to
be responsible around here. We ought to be careful about alleging that
a nominee for a position such as Solicitor General of the United States
is not being honest or is somehow being dishonest about what he says. I
do not believe there are any facts to show that. That is why I care
about how we proceed, and I am glad an agreement was reached that the
matter could come forward.
On the question of Mr. Olson's integrity, we have a number of people
who vouch for him. Let's look at these Democrats.
Laurence Tribe, the professor who litigated against him in Bush v.
Gore, said:

It surely cannot be that anyone who took the prevailing
view [in Bush v. Gore] and fought for it must on that
account be opposed for the position of Solicitor General.
Because Ted Olson briefed and argued his side of the case
with intelligence, with insight, and with integrity, his
advocacy on the occasion of the Florida election
litigation--profoundly as I disagree with him on the
merits--counts for me as a ``plus'' in this context, not a
minus. If we set Bush v. Gore aside, what remains in Ted's
case is an undeniably distinguished career of an obviously
exceptional lawyer with an enormous breadth of directly
relevant experience.

I certainly agree with that. That is from Al Gore's lawyer.
Walter Dellinger, former Solicitor General under President Clinton,
said when Ted Olson was at the Office of Legal Counsel he ``was viewed
as someone who brought considerable integrity to the decision-making.''
Beth Nolan, former Clinton White House counsel and Reagan Department
of Justice Office of Legal Counsel attorney in a letter said:

[W]e all hold Mr. Olson in a very high professional and
personal regard, because we believe that he made his
decisions with integrity, after long and hard reflection. We
cannot recall a single instance in which Mr. Olson
compromised his integrity to serve the expedients of the
[Reagan] administration.

Floyd Abrams, esteemed first amendment lawyer, stated in March 2001:

I've known Ted since we worked together on a Supreme Court
case--Metromedia v. San Diego--20 years ago and . . . I've
always been impressed with his talent, his personal decency
and his honor. He would serve with distinction as Solicitor
General.

Harold Koh, former Clinton Administration Assistant Secretary of
State in February of this year:

Ted Olson is a lawyer of extremely high professional
integrity. In all of my dealings with him, I have seen him
display high moral character and a very deep commitment to
upholding the rule of law.
Robert Bennett, attorney for former President Bill Clinton during a
lot of this litigation and impeachment matters also supports Mr.
Olson's nomination. He is a well-known defense lawyer and certainly
very close to President Clinton. He came to the markup when we voted on
this in committee and sat throughout the markup. This is what he wrote
to the Committee:

While I do not have any personal knowledge as to what role,
if any, Mr. Olson played in the ``Arkansas Project'' or the
full extent of his relationship with the American Spectator,
what I do know is that Ted Olson is a truth-teller and you
can rely on his representations regarding these matters. . .
. He is a man of great personal integrity and credibility and
should be confirmed.

So, then-Governor Bush chose a man to represent him in the biggest
case in his life. He chose a man who had a reputation of this kind
among opposing lawyers, lawyers who do not agree with him politically.
That is what they say about him.
He is uniquely qualified for the job, and he has the unique
confidence of the

[[Page S5598]]

President of the United States. This is what we ought to do: We ought
to give the President whomever he wants in his administration if we can
justify doing so. If there is some serious problem, we have a right to
inquire into that. That has been inquired into and no legitimate basis
has been developed on which to oppose the nomination.
Then the question is: ``Should a nominee be confirmed?'' And the
presumption is that he should unless there is a problem.
There were a number of ``charges'' suggested. I will mention briefly
that Mr. Olson wrote articles for the American Spectator and received
some pay for some of them. He admitted that before the hearings. When
he was asked to produce what he published, he submitted those articles
to the Committee. Everybody knew that. After the hearing, Senator
Kennedy said he was going to vote for him. He was satisfied. There was
no dispute about his involvement with the magazine.
His opponents said Mr. Olson played word games. Mr. Olson clearly
responded that he wasn't involved in the management or the origin of
this so-called Arkansas Project, but that when he was at dinners and he
talked about the public Clinton scandals over dinner. Anybody knows if
you are at a luncheon and you are talking, or at a dinner with an
editor and he is writing political articles of this kind, you are going
to talk about it. But it doesn't mean he originated the project or
managed the project in any way, and that is what he said, ``I did not
do.''
With respect to Mr. Olson's representation of David Hale, he plainly
said that he was not compensated for that work. He said he had helped
Hale from the beginning, but that he was never paid for it--he never
got paid for representing him. He never denied representing David Hale,
being asked by another lawyer, I believe he said, to help him. This was
supported by the Independent Counsel Ray who has stated that the
Shaheen Report on whether Mr. Hale was paid to testify found no
evidence of any improprieties here.
With respect to an American Spectator article on Vince Foster's
death, Mr. Olson did not write it. He told the magazine employees that
he didn't put much stock in it, but it was all right for the magazine
to publish it. The First Amendment generally protects the press when it
publishes articles on public figures. It is a free country. I do not
believe that the magazine was sued over it. Mr. Olson didn't put much
stock in it, but if the magazine wanted to publish it, fine. That is
what I understood his statement to be. That is very different from the
nominee writing the article or submitting it in a brief to a court.

There were questions raised about a chart that he prepared that
showed the federal and state criminal offenses that the Clintons could
have violated if public allegations were proven in a court of law. He
gave the chart to the Committee before we even had the hearing. That
was something he had written and produced. We all knew about that.
I would just say this. A man's professional skill, his integrity, is
determined and built up over a period of years. We in this body, as
Senators, know we can make a speech here and we can misspeak, and we
have one of our staff, if they have a little time, go back and read it
and correct the record.
A nominee cannot do that. What Ted Olson said, he said under oath. I
don't see he made a mistake at all. We never apologize around here. We
make mistakes. We misstate facts. I have done it. I try not to. As a
former prosecutor, I always try not to misstate the facts. I work at it
very hard. I still find when I leave the floor sometimes I have
misspoken. But are you going to call a press conference and try to
apologize? We just do it and get away with it. This man told the truth.
I don't see where he told anything that was a lie.
I know there are some activists who do not want to see the man who
handled the Bush v. Gore case confirmed. They don't want to see
confirmed a man who gave legal advice to the American Spectator, who
thought there was something rotten in Arkansas and went out and
investigated it. How many of them went to jail over it? Some of them
are still in the bastille, perhaps for crimes they committed that this
magazine investigated. What is wrong with that? Isn't this America? I
don't see anything wrong with Mr. Scaife giving money, legally, to
investigate a stinking mess. That is what we had in Arkansas.
The Independent Counsel investigations and the impeachment were tough
times for this country. Those matters are behind us. We are at a point
now where we have a new administration that is building its team. It is
time that the President be able to have his top constitutional adviser
on board, be able to do his duty.
I am glad we can have this debate. Some see this nomination
differently. I respect their views. Ultimately, however, there is no
dispute based on facts in the record. I am glad this nomination is
being moved forward and that we can have an up-or-down vote on it.
I believe Mr. Olson will be confirmed. I think he should be. I am
honored to cast my vote for him. I urge others to do so likewise.
Mr. President, I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. SESSIONS. Mr. President, I ask unanimous consent that the order
for the quorum call be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SESSIONS. Mr. President, I ask unanimous consent that any time
used in the quorum call subsequent to this be charged against both
sides equally.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SESSIONS. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. NICKLES. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. NICKLES. Mr. President, I congratulate Senator Hatch and Senator
Leahy for bringing the nomination of Ted Olson to be Solicitor General
to the floor of the Senate. I am delighted we are going to have a vote
on Mr. Olson. I know him well. I think he will be an outstanding
Solicitor General not only for this President and this administration
but for our country as well.
Mr. Olson's qualifications are beyond reproach. He was an
undergraduate at the University of the Pacific and received his law
degree from the University of California at Berkeley. He has been a
partner at Gibson, Dunn & Crutcher, one of the nation's leading law
firms, from 1965 to 1981, and also from 1984 until the present time. He
served as Assistant Attorney General from 1981 to 1984, providing legal
advice to President Reagan and Attorney General William French Smith
and other executive branch officials.
He has handled a lot of very important cases. Probably the best known
case was Bush v. Gore. No matter which side of that case you supported,
you had to admire the skill with which he argued a very complicated
and, needless to say, very important case. In addition, he has argued
numerous other very significant cases before the Supreme Court and
other federal and state courts. I will include for the Record a
highlight of seven of these important cases.
Ted Olson has been on both sides of the courtroom battles. He has
defended the Government and counseled the President. As Assistant
Attorney General, he dealt with limiting government power as well. In
private practice, he has defended private interests against the
Government. In his arguments on both sides of the courtroom, he has
presented factual cases and positions in both Federal and state courts,
arguing for the government and against the Government. That type of
experience is almost unequaled in a nominee for Solicitor General.
He will be an outstanding credit to the administration and to the
country. His nomination is supported by liberals and conservatives, by
individuals such as Robert Bork, Robert Bennett and Laurence Tribe.
Different people with different viewpoints have reached the same
conclusion I have reached: Ted Olson will be an outstanding Solicitor
General, and he should receive our very strong support. I am delighted
we will be confirming him as the next Solicitor General of the United
States.

[[Page S5599]]

I ask unanimous consent to print the list of cases to which I
referred in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

Leading Cases Ted Olson Argued

Ted Olson has argued or been the counsel of record in some
of the leading cases before the Supreme Court:
Rice v. Cayetano (2000)--Counsel of record for the
prevailing party in this case in which the Court struck down
as a violation of the Fifteenth Amendment. Hawaiian
legislation restricting voting in certain elections to
citizens based on racial classifications.
U.S. v. Commonwealth of Virginia (1996)--Whether Virginia
Military Institute male-only admissions policy violates the
Equal Protection Clause of the Fourteenth Amendment to the
Constitution of the United States. Mr. Olson was counsel of
record for the Commonwealth of Virginia and Virginia Military
Institute.
Garcia v. San Antonio Metropolitan Transit Authority
(1985)--Whether the Tenth Amendment's reservation of powers
to the states precluded application of the minimum wage and
other employment standards of the Federal Fair Labor
Standards Act to wages paid by the City of San Antonio to
municipal transit workers. Mr. Olson was counsel of record
for the United States.
Immigration and Naturalization Service v. Chadha (1983)--
Striking down as unconstitutional legislative veto devices by
which Congress reserved to itself or some component of
Congress the power to reverse or alter Executive Branch
actions without enacting substantive legislation. Mr. Olson
was counsel on the briefs for the United States.

Other leading cases

Hopwood v. Texas (5th Circuit)--Holding that University of
Texas School of Law admissions policies violate Fourteenth
Amendment to the Constitution of the United States. Mr. Olson
is counsel of record for students denied admission under law
school admission policy which discriminated on the basis of
race and ethnicity.
In Re Oliver L. North (D.C. Circuit)--Attorneys fee awarded
to former President Ronald Reagan in connection with Iran-
Contra investigation. Mr. Olson represented former President
Ronald Reagan in connection with all aspects of Iran-Contra
investigation including fee application.
Wilson v. Eu (California Supreme Court)--Upholding
California's 1990 decennial reapportionment and redistricting
of its congressional and legislative districts. Mr. Olson was
counsel to California Governor Pete Wilson.

Mr. NICKLES. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The senior assistant bill clerk proceeded to call the roll.
Mr. STEVENS. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. STEVENS. Mr. President, is it in order for me to speak now on a
matter not connected with this nomination?
The PRESIDING OFFICER. It would take unanimous consent.
Mr. STEVENS. I ask unanimous consent to speak for 5 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
(The remarks of Mr. Stevens are located in today's Record under
``Morning Business.'')
Mr. STEVENS. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. HATCH. Mr. President, I ask unanimous consent the order for the
quorum call be rescinded.
The PRESIDING OFFICER (Mr. Allard). Without objection, it is so
ordered.

Unanimous Consent Agreement

Mr. HATCH. Mr. President, I ask unanimous consent that all time be
yielded back on the motion and the motion be agreed to. I further ask
consent that the Senate now proceed to the consideration of the
nomination and that the vote occur on the confirmation of the
nomination with no intervening action or debate. I also ask unanimous
consent that following the vote on the confirmation of the Olson
nomination, the Senate then proceed to two additional votes, the first
vote on the confirmation of Calendar No. 83, Viet Dinh, to be followed
by a vote on the confirmation of Calendar No. 84, Michael Chertoff.
Finally, I ask consent that following those votes, the President be
immediately notified of the Senate's action, and the Senate then resume
legislative session.
The PRESIDING OFFICER. Is there objection?
Mr. LEAHY. Reserving the right to object.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. LEAHY. So I understand, the first vote would be on the Olson
nomination immediately?
Mr. HATCH. That is correct.
Mr. LEAHY. No objection.
The PRESIDING OFFICER. Without objection, it is so ordered.
The motion was agreed to.
Mr. HATCH. For the information of all Senators, under this agreement,
there will be three consecutive rollcall votes on these nominations.
I ask for the yeas and nays on the Olson nomination.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The yeas and nays were ordered.
Mr. HATCH. I ask unanimous consent it be in order for me to ask for
the yeas and nays on the other two votes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. HATCH. I ask for the yeas and nays on those votes.
Is there a sufficient second?
There appears to be a sufficient second.
The yeas and nays were ordered.

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