- The Washington Times - Monday, January 13, 2003

News Analysis:

If President Bush decides not to participate in the Supreme Court case over whether public universities should favor racial or ethnic groups in their admissions, it would run counter to his administration's record of involvement in cases before the high court.
In the 20 months that Solicitor General Theodore B. Olson has been in office, the Justice Department has joined Supreme Court cases at the highest rate of any recent administration. The government has been on the winning side extraordinarily often.
Mr. Bush must decide by Thursday whether to oppose the use of affirmative action at tax-supported universities or to follow advice that he stay out of the University of Michigan case.
In the last full Supreme Court term, Mr. Olson and his office argued in 27 cases as a "friend of the court" when the federal government was not a party to the litigation, in addition to all 38 cases in which the United States was a party. The Bush Justice Department has been involved in 65 of 78, or 83 percent, of the cases given full review in the Supreme Court's 2001-02 term.
"Virtually every case in which he could file, he did," says one of the many lawyers involved in the Michigan affirmative-action case.
Mr. Olson underscored the solicitor general's role as the "10th justice," arguing eight of those cases personally, including the Ohio school-vouchers case, and was on the winning side every time.
Overall in the 2001-02 term, the government was on the winning side in 54 of the 65 cases it joined. That percentage runs about 15 points higher than other recent administrations.
Through December of the 2002-03 term, Mr. Olson's office argued in 25 of the 32 cases heard by the justices a 78 percent share.
Justice Department figures show that earlier administrations typically took part in 60 percent to 70 percent of all cases, hitting 77 percent in the 1998-99 term, with a victory rate of 66 percent.
As The Washington Times reported Thursday, and the White House later confirmed, Mr. Olson drafted and sent to the president a legal brief backing white Michigan students who say "race-conscious measures" unconstitutionally denied them admission.
A source familiar with that brief says "opponents of racial preferences would be happy with [it]," but some affirmative-action opponents suspect that in the wake of remarks by Sen. Trent Lott of Mississippi at a birthday party for Sen. Strom Thurmond of South Carolina, the president will avoid taking part for fear of alienating black voters.
Presidential spokesman Ari Fleischer says that's not so, but declined to speculate on what the president might do. He said that Mr. Bush is reviewing the issue, with what Mr. Fleischer called a "wait and see" approach.
Mr. Olson has said the court has "high tides and low tides" in accepting government cases. In 1950, the court began permitting lawyers who do not represent a party to argue some cases. Permission since has been granted to a solicitor general 682 times to join an argument as an amicus, and denied just 54 times.
Mr. Olson's participation was declined by the court once, in June, and that case eventually was thrown out of court. The last time a solicitor general was excluded from a decided case was in 2000, when Solicitor General Seth P. Waxman was refused a chance to present the Clinton administration's opposition to Nebraska's ban on partial-birth abortion.
The court eventually declared the state law unconstitutional.
James L. Cooper, a Washington lawyer who has studied the power of solicitors general for more than a decade, says the role of the government's top courtroom lawyer before the Supreme Court has evolved from advising how to interpret a law or regulatory issue to stating policy on social or political questions.
"Obviously, the trend about what cases to get into or not into has been politicized as the administration's voice has increased over time," says Mr. Cooper, who predicts that trend will blunt the solicitor general's clout.
"As a practical matter, the court eventually may give less weight to those briefs as the office involves itself in more and more cases, and the justices may come to view the solicitor general as a political spokesperson," he says.
While the impact of friend-of-the-court intervention is debatable, another lawyer familiar with government participation in Supreme Court cases says briefs with the distinctive gray covers that identify the solicitor general's filing stand alone.
"One brief that the justices are almost certain to read and pay attention to is the gray brief the government brief. Justices have said over and over that they give considerable attention and considerable weight to the United States government position."
In a history of the office by Mr. Waxman, written in 1998, he said, "Ultimately, it is the responsibility of the Solicitor General to ensure that the United States speaks in court with a single voice a voice that speaks on behalf of the rule of law."
Mr. Olson argued successfully in the Bush v. Gore decision, which gave George W. Bush the crucial electoral votes from Florida and thus the presidency. Mr. Olson plunged even more deeply into his work after September 11, when his wife, Barbara, was killed when American Airlines Flight 77 was flown into the Pentagon by Islamist terrorists.
He reviews every appeal involving the government in all 13 U.S. circuit courts, as well as cases before the Supreme Court. He attends almost every hearing.
"One way of coping, and it has worked for me, is not to withdraw, not to go into a shell, but to commit yourself to something that means something," Mr. Olson said last year to a Legal Times reporter who noted that many previous solicitors general became engaged in political issues, including Kenneth W. Starr, Drew Days III and Walter Dellinger.
"My role in some of these matters may be more visible because of Bush versus Gore, my confirmation process, and even because of Barbara," Mr. Olson said.

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