Olson’s the One
This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.
Well that was quick. Yesterday in The New York Sun, I noted that conservatives were massing against poor Harriet Miers and, kaboom, she has retired from the Supreme Court nominating field. I even adumbrated how she might go.
The Democrats were caterwauling for White House documents relating to her work for the president as White House counsel. The president made the sensible point that out of regard for lawyer-client privilege, he could not give them the documents. That constituted grounds for withdrawing the Miers nomination, and the lady did the honorable thing.
The problem we were facing with this scenario was that the conservatives massed against her might unleash anarchy. By their actions, they seemed to be endorsing the left-wing Democrats’ notion that they could veto a president’s nominee for mere partisan reasons. That would certainly be the case if Republicans on the Judiciary Committee took the same position as the Democrats, namely, that the president’s nominee should be subjected to obstructionist senators’ caviling.
Well, no Republican senator became an obstructionist. The Republican senators kept their counsel and waited for a proper round of hearings. The pressure built against Ms. Miers among conservative activists David Frum and Linda Chavez, the activists the liberal media now call the “hard right.” Yet Ms. Miers retired from the field over the White House document issue, a legitimate issue, and now we can proceed with an orderly nominating process. How might that go?
It might go very badly. Notwithstanding the fact that pressure against Ms. Miers did not come from Republican senators, the bloody-minded Democrats smell still more blood in the water. They are going to be still more obstructionist, despite the fact that it puts them in a very bad light with ordinary Americans who want the courts to be disciplined by the rule of law, not the rule of imperial jurists.
The Democrats are already claiming that the president has bowed to the “hard right.” The media resound with claims that the “hard right” has taken over the Republican Party, though a “hard right” composed of people such as Mr. Frum and Ms. Chavez is certainly perfectly civilized and well within the bounds of our democratic norms.
The president needs to nominate a candidate who can stand up to Democratic canards. Where should the president go for such a nominee? He needs a nominee with stature, proven knowledge of the law, integrity, and special authority in talking about the Constitution and the Supreme Court. Immediately after Ms. Miers’s withdrawal, Chris Matthews on MSNBC suggested a solution: The president should nominate the former Solicitor General Theodore Olson.
The New York Sun has already endorsed Mr. Olson in an editorial – months ago. We got the Miers endgame right. Now let us hope we can get the next Supreme Court appointment right. If sensible liberal commentators such as Mr. Matthews see Mr. Olson’s attributes, surely sensible Democrats can agree. Moreover, even the “hard right” led by Mr. Frum and Ms. Chavez would go along with Mr. Olson.
Mr. Olson is a solid conservative, though he is not “hard right.” His many appearances before the Court as solicitor general and as a practicing lawyer are legendary. He has already passed muster with the Senate during the hearings on his nomination as solicitor general. Finally, there is a qualification that only Mr. Olson has.
In a time of war on terror, no one has thought more carefully about the role of law and the condition of the Constitution during this sort of insidious warfare than Ted Olson. As many know, Mr. Olson lost his beloved wife, Barbara, in the September 11 terrorist attacks. He then proceeded to serve as one of the finest solicitors general in American history, balancing individual rights with the requirements of national security.
What Democrat on the Judiciary Committee would take cheap shots at a nominee such as this? Mr. Olson has devoted his life to the law. He is the “heavyweight” Mr. Matthews perceives, and only an obsessive partisan would oppose him. And one final point. If official Washington was enraptured by the intelligence of Judge Roberts during his hearings, boy will they be thrilled by the intellect and knowledge of Mr. Olson. Ask any Supreme Court justice who has heard him make his case before them.
Mr. Tyrrell is founder and editor in chief of The American Spectator, a contributing editor of The New York Sun, and an adjunct scholar at the Hudson Institute.