- The Washington Times - Wednesday, January 3, 2001

President-elect George W. Bush enjoys the luxury of riches in appointing the next solicitor general of the United States, the nation's pre-eminent advocate before the U.S. Supreme Court. The foremost candidates, Theodore Olson and Chuck Cooper, sparkle with credentials, accomplishments and acuity. Choosing between the two is like an enviable choice between Demosthenes and Cicero. No one has every said of Mr. Olson or Mr. Cooper, as Sam Johnson quipped about John Milton's "Paradise Lost," that they wished their brilliance had been shorter. And their constitutional philosophies disdain the doctrinaire in recognition that legal learning unanchored to prudence makes knowledge useless, genius contemptible and lawyering mischievous.

The solicitor general is frequently styled the 10th justice of the Supreme Court, a laurel thoroughly deserved. From the many cases in which the United States is a party, the office screens a select few to ask for further review by the Supreme Court. The touchstone is the importance of the constitutional or statutory issues presented to the philosophical and legal agendas of the president and the attorney general.

By custom, the solicitor general commands enormous autonomy from external partisan influence. That presumptive political neutrality largely explains why the Supreme Court is uniquely deferential to the advocacy of the United States, and regularly asks for its legal analysis when it is neither a party nor an amicus curiae volunteer. An office whose constitutional doctrines shifted like a weather vane would lose both influence before the high court and respect in political circles earned by placing statesmanship above petty ambitions. Only rarely does the White House direct the solicitor general to champion a particular constitutional plank before the Supreme Court, although its power to do so is inarguable.

Decorated and seasoned brain power in the office also unbuttons the ears of the justices. The typical assistant solicitor general's resume features graduation with special kudos from an elite law school, a clerkship with the Supreme Court or an acclaimed federal appeals judge, and proven excellence in exposition. In other words, the pool of talent managed by the solicitor general is reminiscent of the Murderer's Row batting line-up during the heyday of the New York Yankees.

Mr. Olson's qualification for the job are impeccable. During the Reagan administration, he shined as assistant attorney general for the office of legal counsel, a coveted slot also once held by Chief Justice William Rehnquist, Associate Justice Antonin Scalia, and former Solicitor General Walter Dellinger. Thorny questions of constitutional law that are presented outside of litigation, such as proposed legislation, administrative regulations, and executive orders, are the staple of OLC's work.

As former associate deputy attorney general, I can testify directly to Mr. Olson's trenchant and omnivorous legal mind and awesome industriousness. His views were uniformly measured and respectful of the opposition. He rejected the triumphal for the magnanimous in winning intramural legal arguments, the hallmark of a team player.

At the law firm of Gibson, Dunn & Crutcher, Mr. Olson has built a premier constitutional practice that brings him regularly before the high court in high profile cases. His advocacy smacks less of the ornateness of Daniel Webster and more of the meticulousness of Louis Brandeis. He performed yeoman's service under extraordinary pressure in the landmark case of Bush vs. Gore, making him the virtual Warwick of George Bush's impending presidency.

That blue ribbon gives Mr. Olson an edge over the equally distinguished Mr. Cooper, with whom I also served. He clerked for then Associate Justice William Rehnquist, and served as deputy assistant attorney general for civil rights and assistant attorney general for OLC during the Reagan years. Both were bravura performances. Mr. Cooper assisted in the internal and congressional investigation of the Iran-Contra affair, and was one of the few whose reputation for honesty and integrity climbed rather than tumbled.

He was the Atlas among a handful of other legal deities in coaching the United States Supreme Court to denounce racial privilege of any type and to resurrect federalism from an unadorned constitutional grave.

Mr. Cooper, like Mr. Olson, has forged an acclaimed constitutional practice as a founding partner at Cooper, Carvin & Rosenthal. He is no opportunistic hired gun, and routinely subordinates political affinities for higher constitutional principles. Thus, in the line-item veto case, Mr. Cooper was enlisted by Democrats in Congress to upend the aggrandizement of presidential lawmaking power.

President-elect George W. Bush and Attorney General-designate John Ashcroft will need the gifted forcefulness of Mr. Olson or Mr. Cooper to effectuate central components of their domestic agendas that at present lie in a constitutional or other legal twilight zone: school vouchers for both secular and sectarian private school enrollees, recently invalidated in Cleveland by the U.S. 6th Circuit Court of Appeals; ending skin color as opposed to financial or social disadvantage to justify a special boost for students in higher education; outlawing the invidious and polarizing practice of racial gerrymandering to achieve a quota of elected minorities likely to mushroom during the post-2000 census redistricting maneuvering in all 50 states; upholding a federal partial birth abortion prohibition; and defending regulatory somersaults from the Clinton administration ranging from family planning to national forest designations.

If it is said that my effusions for Mr. Olson and Mr. Cooper are exaggerated, I would protest that, unlike Dr. Johnson's conviction, in lapidary inscriptions a man is under oath.

Sign up for Daily Newsletters

Copyright © 2019 The Washington Times, LLC. Click here for reprint permission.

The Washington Times Comment Policy

The Washington Times welcomes your comments on Spot.im, our third-party provider. Please read our Comment Policy before commenting.


Click to Read More and View Comments

Click to Hide