Senate confirms Olson as Solicitor General

FROM THE ARCHIVE

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MAY 25, 2001

In a vote split along party lines, the Senate on Thursday narrowly confirmed Theodore B. Olson as Solicitor General at the Department of Justice.

The 51 to 47 decision came late on the same day Senator Jim Jeffords (Vt.) announced his departure from the GOP, a move which puts control of the Senate back in the hands of the Democrats. Nevertheless, the vote was a considerable victory for President Bush and conservative Republicans, as Olson's confirmation had been held up for weeks due to partisan bickering.

Olson rose to prominence when he argued Bush's election case before the Supreme Court last December. His winning arguments were rewarded with the Solicitor General nomination, a role which will put him back before the nation's highest court as the chief defender of the United States.

When the occasions arise, Olson will also argue cases involving tribes. Its a position he's been in before, having argued a number of high-profile cases cases affecting Native sovereignty.

His most prominent was in fact an elections dispute whose outcome preceded Bush's by several months. Olson represented Harold "Freddy" Rice, a white rancher who protested a vote the state of Hawaii limited to Native Hawaiians.

At the Supreme Court, Olson argued the vote was race-based and thus prohibited by the Constitution. A divided Court in February 2000 agreed with him, a decision which has resulted in widespread changes in Native Hawaiian affairs, affecting leadership roles, funds, and threatening Native control over homelands.

Olson's confirmation now places him in an odd position given his role in the Rice v. Cayetano case. The Department of Justice last year recommended the United States recognize a government-to-government relationship with Native Hawaiians, effectively putting him on the other side of the issue.

California tribes also remember Olson as the attorney who helped bring down Proposition 5, a voter-approved initiative that authorized Vegas-style gaming on tribal lands. Olson represented one of the challengers to the proposition, which the California Supreme Court declared invalid in 1999.

But unlike the aftermath of the Cayetano case -- Congress so far has failed to pass a bill to recognize Native Hawaiians -- California tribes quickly mounted a successful drive to change the state's constitution to allow for expanded gaming. Another court challenge has since been initiated.

During the Clinton administration, the Department of Justice often took an activist role on behalf of tribes. With the exception of the Cobell v. Norton trust fund lawsuit, the department has pursued land claims and trust relationship cases aggressively and as Solicitor General, Olson would now make decisions on these and similar matters.

Democrats on the Senate Judiciary Committee had all voted against sending Olson's nomination to the full Senate, resulting in a 9-9 deadlock. Bypassing the holdup, Senate Majority Leader Trent Lott (R-Miss.) yesterday brought the vote to the floor, where Democrats continued to criticize Olson over testimony he gave about his involvement in an anti-Bill and Hillary Clinton magazine project.

All Republican Senators voted to confirm Olson and were joined by Democrats Zell Miller of Georgia and Ben Nelson of Nebraska.

Olson is a partner in the law firm of Gibson, Dunn & Crutcher. The firm has spawned Bush's judicial nominee to the District of Columbia Circuit Court of Appeals, Miguel A. Estrada.

Get the Rice v. Cayetano Case:
Syllabus | Opinion | Concurrence Dissent (Stevens) | Dissent (Ginsburg)

Relevant Links:
Gibson, Dunn, & Crutcher - http://www.gdclaw.com