by Matt Barr

Starting with that again

You thought you'd heard the last about Ted Olson for Supreme Court here, didn't you? Let's briefly recap, then move on to some subsurface reasons he makes an attractive nominee for the President politically.

Opposition research on him is four years old, because he hasn't been on any very short short lists. This gives him an advantage over the Luttigs and Clements. (It's an advantage that disappears eventually, but for a day or two you might catch someone saying something equivocal or that makes a particular assault less likely later.)

His confirmation as Solicitor General in 2001 was by a whisker-thin 51-47, immediately before the Democrats briefly took control of the Senate, but: "Barely confirmed" is "confirmed," which is a point in his favor (how anyone can suggest it would be a good idea to nominate a judge who's already been filibustered is beyond me), and, to be frank, a lot has happened since then.

Hopefully this wouldn't be exploited, but the reality is that Olson's wife was killed on September 11, which would end up being the dominant theme in press coverage of his nomination.

A commenter at Volokh suggests that if the focus were on Barbara Olson, it would inevitably be on her politics and writings, which are, you may recall, less than complimentary about the previous administration and the junior Senator from New York. Barbara Olson was no shrill hag, she was an attractive woman with a smiling, ebullient personality. Suggesting to the American public that they should be glad she's dead simply wouldn't work. There would be a lot of tongue biting on the left side of the aisle, and the first hint that someone was bringing up her politics would backfire. (Not that it wouldn't happen, just that it would backfire. It would fall, I think, to a prominent Senator in a safe seat to do the deed.)

Again, we proceed here from the premise that the President would be interested in nominating the rightmost person he could get confirmed. He may go another way. But Olson's Federalist Society, political pedigree would delight Bush's base, and, as I've argued, he would be difficult to oppose without the attacker risking severe injury him or herself. Here are some additional reasons Olson would weather his confirmation process:

If you've seen him talk about September 11, you realize how measured and even he is. A few Senators and interest groups wouldn't faze him.

He's 65 years old, possibly mitigating opposition in contrast to a 45 year old.

He was Time, Inc.'s lawyer in the Matt Cooper case, making it a little more difficult to argue he's a tool of the right.

Any opposition would be seen as partisan itself, considering Olson's alleged connection to The American Spectator's "Arkansas Project" (love the graphic at that link) and Barbara's writing about Hillary Clinton. In a fight between people accused of nominating someone for partisan purposes and people accused of opposing him for partisan purposes, the advantage goes to the side with the best chess player.

This is a bit of a reach, but you can see the dynamics playing out this way: Bush may yet have a third opportunity to nominate someone for the Court. If the first two are white males, and he delivers a Janice Rogers Brown the third time, whom Democrats then vehemently oppose (as Democrats would be wont to do), the opposition looks flaky and insincere.

There are all sorts of reasons Olson would have, by small measures that accumulate into a significant advantage, a leg up on the confirmation process if nominated. President Bush should seriously consider it.

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